Appeal Decision 177 - Certificate of Lawful
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December 2010 -
Summary of Case (appeal
The property is a two-storey
detached house. The application was for a very long outbuilding that would be detached from the rear wall of the
original house by just 2.5cm.
The key issue was whether a
structure in such close proximity to the main house would fall under Class A, which relates to “The enlargement,
improvement or other alteration of a dwellinghouse”, or under Class E, which relates to “The provision within
the curtilage of the dwellinghouse of … any building …”.
The Inspector stated the
“The application drawings
show a single storey flat roofed building with a maximum height of 2.5 m. It would be sited very close to the
rear wall of the existing dwelling, but the submitted drawing is annotated "wall will not be attached to rear
elevation". The plan does not appear to show the wall of the proposed development being attached to the existing
dwelling, and the appeal statement says that the position of the building is set away from the rear elevation by
approximately 25 mm.
The description of the
proposed development in the heading is as set out in the application form. The Council in its decision notice
describes the proposed development as "erection of single storey side/rear extension". If the building were to
be properly regarded as an "extension" falling under Class A of Schedule 2 Part 1 of the GPDO1 ("the
enlargement, improvement or other alteration of a dwelling house") rather than a curtilage building falling
under Class E, then it would not be permitted development because its rearward projection would exceed the
limitations in Class A.1. The appellant, however, argues that it should properly be regarded as a curtilage
building under Class E, in which case the proposed development would not infringe any of the limitations in
The relevant part of Class
E permits the provision within the curtilage of the dwelling house of "any building or enclosure... required for
a purpose incidental to the enjoyment of the dwelling house as such...". Class E.1(h) excludes from permitted
development rights under Class E any development which "relates to a dwelling", for example extensions to a
house which are covered by other classes of the rules on permitted development.
Before October 2008, any
curtilage building of more than 10 cubic metres constructed within 5 metres of an existing dwelling would have
been treated as an enlargement of the dwellinghouse and so considered under Class A. That limitation was
explicitly removed from the GPDO amendments which came into force in October 2008.
The submitted drawing of
the proposed building clearly and unambiguously shows that no part of the new building would contact the
existing building and it would be completely detached from the main dwelling. The Council argues that the
proposal requires steps down within the kitchen of the dwelling to provide access to the new structure, and that
this demonstrates the integral and functional link between the proposed structure and the dwelling. However,
although the drawings show alterations to the existing ground floor of the dwelling to provide these steps, and
a new door which would lead directly into a door into the proposed structure, those alterations are not
essential for the proposed structure because it would have its own separate entrance leading onto, together with
windows looking out over, the rear garden.
There is no justification
for the Council's argument that a key characteristic of an outbuilding is the need for someone moving from the
dwelling to an outbuilding to go outside and be exposed to the elements. In my view, the key characteristic of a
curtilage building under Class E is that it should not be attached to the main dwelling. This building would not
be attached to the dwelling, and the fact that a door from the dwelling would lead directly into a door into the
building does not turn a detached building into an enlargement of the dwelling. The Council also argues that
eaves could be constructed eliminating the 25 mm gap. But even if that happened (and the proposal before me does
not show any such eaves) the result would be that the two buildings might be touching, but would not be attached
to each other.
It is also argued that the
proposal would be contrary to the intentions of the amended GPDO. However, that is belied by the explicit
removal in October 2008 of the limitation relating to curtilage buildings of more than 10 cubic metres. Had it
been intended that some curtilage buildings should not be permitted because of their proximity to the dwelling,
then it would be reasonable to expect that to be stated explicitly in the GPDO amendments. To adopt the approach
argued by the Council would be to leave open the question, exactly how far from the dwelling the curtilage
building should be in order to be permitted development, and would remove a significant element of certainty and
clarity from Class E.
Under these circumstances,
I consider that despite its proximity to the dwellinghouse the building would be a separate structure within the
curtilage and not an enlargement of the dwelling. It therefore falls to be considered under Class E because it
involves “the provision within the curtilage of the dwellinghouse of... any building...”.”
[Note: For my
comments on the above appeal decision, please refer to my comments for June 2010 - Code a00121 (this
previous appeal decision included the same conclusion that a detached structure separated from the main house by
only a token amount would still fall under Class E).
It should be
noted that both of these appeal decisions were by the same Inspector. In my opinion, the weight that should be
given to a particular interpretation increases not only if it is supported by more individual appeal decisions,
but also if it is supported by more individual Inspectors.
illustration of how one or two appeal decisions are not necessarily conclusive, in March 2010 I undertook a
(quick) analysis of all of the appeal decisions in this document until that date (106 different appeal
decisions), and calculated that at least 15% of appeal decisions contain at least one incorrect legal
interpretation. I calculated this figure with the most cautious method possible by looking at each group of
cases where conflicting interpretations had been applied by different appeal decisions, and by then assuming
that the interpretation supported by the majority of appeal decisions was correct (which minimised the number of
appeal decisions that were considered to be incorrect).
opinion, taking all of the above into consideration, LPAs would be entitled to continue to form their own
interpretations of this particular issue until further guidance or appeal decisions become
Even if a detached structure
would be separated from the main house by only a very small (i.e. token) amount, this would still be
sufficient for the structure to fall under Class E (“the provision within the curtilage of the dwellinghouse
of … any building …”) rather than Class A (“the enlargement, improvement or other alteration of a
“Interaction between Class A and Class E”, Class A, Class E].
Links to the “Appeal Decision
Notice” and other associated documents (e.g. drawings, etc):
· Appeal Decision
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