Appeal Decision 150 - Certificate of Lawful
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November 2010 - Code a00150
Summary of Case (appeal
The property is a
semi-detached house. The property has an existing outbuilding at the end of its rear garden, close to the rear
and side boundaries, with height 2.5m along one side and height 2.56m along the other side. The application was
for a proposed conservatory, with height not exceeding 2.4m, which would have been attached to the front of the
existing outbuilding (still maintaining a distance from the rear elevation of the main house).
The key issue was whether the
proposals would be contrary to Class E, part E.1(d), which states that “Development is not permitted by Class E
if … the height of the building, enclosure or container would exceed … (ii) 2.5 metres in the case of a
building, enclosure or container within 2 metres of the boundary of the curtilage of the
The Inspector stated the
“The proposal is to
construct a shallow mono-pitched roofed extension, not exceeding 2.4 metres in height. The extension would be
attached to part of an existing outbuilding. At my site visit, measurements were taken (and agreed by the
parties) of the western and eastern walls of the outbuilding. These were respectively 2.5m and
Class E.1 (d) of Part 1 of
Schedule 2 to the GPDO comprises provisos relating to the size and location of permitted development. The
proviso relevant in this case is that which states that for the development to be permitted by the GPDO, amongst
other things, the height of the building must not exceed 2.5 metres in the case of a building within 2 metres of
the boundary of the curtilage of the dwellinghouse.
It is not disputed that
the proposed extension would lie within 2m of a boundary of the curtilage. The issue between the parties is
whether the limit of 2.5m applies to the proposed extension alone or to the building comprising the extension
and the existing outbuilding. The Council take the view that the height limit should be applied to the latter,
which they describe as “the enlarged building”.
The parties have not
referred me to any case law or ministerial advice on this issue. However, the terms of E.(a) of Part 1 of
Schedule 2 to the GPDO seem clear enough to me to dispose of this point. It states under the heading
“Permitted development” “The provision within
the curtilage of the dwellinghouse of (a) any building…”. To my mind, there is no doubt that the action of
the appellant in adding the extension to the outbuilding would have the effect of providing a building. It then
follows that the limiting height of 2.5m referred to in Class E.1(d) of Part 1 of Schedule 2 to the GPDO is
applied to the two elements forming “the building”.
As the height of the
eastern wall of the existing outbuilding exceeds 2.5m, the proposal to construct the extension would not be
permitted development under the GPDO”.
Where an existing outbuilding is
within 2m of a boundary and has a height greater than 2.5m, then any extension to this outbuilding will
automatically fail Class E, part E.1(d). This is on the basis that it is the combined structure (rather than
just the new extension) that must be assessed against the height limitation.
[Relevant to: E.1(d)].
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