Appeal Decision 191 - Certificate of Lawful Development.

January 2011 - Code a00191

Summary of Case (appeal dismissed): 

The property is a three-storey end-of-terrace house. The application was for a proposed three-storey rear extension, which would have been 1.3m (i.e. less than 2m) from the boundary with number 42. The roof of the proposed extension would have been dual-pitched in the centre, with a parapet wall to the rear and a small area of flat roof on either side. 

The key issue was whether the proposals would be contrary to Class A, part A.1(g), which states that “Development is not permitted by Class A if … the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres”. 

The Inspector stated the following: 

“The Appellant has contended that the proposed extension does not have eaves and that, accordingly, it would comply with Class A.1 (g) of Part 1 to Schedule 2 of the GPDO. There is no definition of “eaves” or “eaves height” within the GPDO. However, Technical Guidance entitled ‘Permitted development for householders’ (the Guidance) which was published by the Department for Communities and Local Government in August 2010 does refer to “eaves” and “eaves height”. While ultimately a matter for the court, the Guidance represents the Department’s current view and is thus a material consideration to which I attribute substantial weight. 

The Guidance states that for the purposes of measuring height, the eaves of a house are the point where the lowest point of a roof slope, or a flat roof, meets the outside wall. It goes on to say that the height of the eaves will be measured from the natural ground level at the base of the external wall of the extension to the point where the external walls would meet (if projected upwards) the upper surfaces of the roof slope, and that parapet walls and overhanging parts of eaves should not be included in any calculation of eaves height. 

In the case of the proposal, the Guidance clearly indicates that eaves height should be measured from the ground level at the base of the outside wall to the point where that wall would meet the upper surface of the flat roof. Given that the height of the flat roof of the proposal would be about 8 metres above ground level, I therefore find that its eaves height would exceed that of 3 metres, as referred to in Class A.1 (g). 

The Appellant has argued that the Guidance is in conflict with the legislation as “eaves” are clearly defined and would not normally, through any dictionary or other definition, be considered to refer to the edge of all roof forms. I do not, however, accept that this is the case. As I have indicated, there is no definition of “eaves” or “eaves height” within the GPDO and there is no longer any need to refer to a dictionary definition of “eaves”, now that clarity has been provided by the Guidance. The Appellant has drawn my attention to a previous appeal decision [January 2010 - Code a00073] where the Inspector relied on a dictionary definition of “eaves” for the purposes of his determination. However, I can only give limited weight to the previous appeal decision because it pre-dates the publication of the Guidance. 

I therefore find that the proposal would not be permitted development as referred to in Article 3 and Class A of Part 1 to Schedule 2 of the GPDO because the extension would not comply with Class A.1 (g). Consequently, the express grant of planning permission is needed”. 

Main Conclusions: 

·       The term “eaves” does apply to the edge of a flat roof (note: in this particular case, the flat roof would not have an overhang that would project beyond the line of the walls).
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Eaves”].
[Relevant to: “Eaves”, A.1(c), A.1(g), E.1(e)].

·       The height of the eaves should be measured from the ground level at the base of the outside wall to the point where this wall would meet (if projected upwards) the upper surface of the roof.
[Relevant to: “Eaves”, A.1(g), E.1(e)].

Links to the “Appeal Decision Notice” and other associated documents (e.g. drawings, etc): 

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00191-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Drawings:
http://planningjungle.com/?s2member_file_download=a00191-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information