Appeal Decision 149 - Certificate of Lawful
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November 2010 - Code
Summary of Case (appeal
The property is a very large
two-storey detached house, which has an existing two-storey side extension. Both the main house and the existing
extension each has a roof with pitched sides and a flat top, and the flat top of the extension is at a lower
level than the flat top of the main house. The application was for the proposed enlargement of the roof of the
existing extension, which would have resulted in the flat top of its roof being raised to the same level as the
flat top of the main house.
The key issue was whether the
proposed enlargement of the roof would be contrary to Class B, part B.1(c), which states that “Development is
not permitted by Class B if … the cubic content of the resulting roof space would exceed the cubic content of
the original roof space by more than— (i) 40 cubic metres in the case of a terrace house, or (ii) 50 cubic
metres in any other case”.
In relation to whether the
volume of the existing roof of the two-storey side extension should count towards the 50m3 limit, the Inspector
stated the following:
“The two-storey side
extension to the house was built following the grant of planning permission in 1998. This included the
flat-topped hipped roof, which must itself be seen as an addition to the original roof. It follows that the
entire volume of the extension roof must be taken into account in assessing whether the proposed addition falls
within the 50 cubic metre volume limit.”
In relation to a dispute
between the Council and the appellant as to the proposed increase in the height of the flat top, the Inspector
stated the following:
“In relation to an
application made under Section 192 of the Act, sub-section (2) states that if the Local Planning Authority are
provided with information satisfying them that the use or operations described in the application would be
lawful if begun at the time of the application, they shall issue a certificate; and in any other case they shall
refuse the application. Furthermore, paragraph 8.26 to Annex 8 of Circular 10/974 makes clear that in making a
Section 192 application the burden of proof is firmly on the applicant. He will have to describe the proposal
with sufficient clarity and precision to enable the Local Planning Authority to understand (from a written
description and plans) exactly what is involved in the proposal; and to submit whatever supporting information
or legal submission he wishes to make to satisfy the Authority that a LDC should be
In this case, the
appellant submitted drawings at a scale of 1:100 that show no relevant dimensions. The Council had apparently
been informed that the intention was to raise the height of the roof by 1.14 metres. However, their calculations
had taken account of the discrepancy in scale discussed above. It is not realistic to expect accurate dimensions
to be taken from drawings of the scale provided, and in any case it would have been possible to provide accurate
site dimensions. In my view it was not possible for the increase in volume to be accurately assessed on the
basis of the information provided with the application, which lacked the degree of precision that might
reasonably be expected”.
Where there is an existing
extension with a roof that joins onto the roof of the main house, then this will reduce the volume allowance
that remains for roof extensions under Class B, part B.1(c).
[Relevant to: “Interaction between Class A, Class B, and
Class C”, Class A, A.1(i), Class B, B.1(c)].
Furthermore, even if the roof of
the existing extension doesn’t contain any dormers / rooflights / habitable rooms / etc, this will still
reduce the volume allowance that remains for roof extensions under Class B, part
[Relevant to: “Interaction
between Class A, Class B, and Class C”, Class A, A.1(i), Class B, B.1(c)].
In an application for a
certificate of lawfulness, the burden of proof is firmly on the applicant.
[Relevant to: "General”].
Links to the “Appeal Decision
Notice” and other associated documents (e.g. drawings, etc):
· Appeal Decision
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