Appeal Decision 37 - Certificate of Lawful Development.

The following appeal summary has been written by Steve Speed, and is available on his website www.planningjungle.com

5 November 2009 – 29 Albany Road, Ealing, London, W13 8PQ  

Planning Inspectorate Reference: APP/A5270/X/09/2103672 

Inspector: Pete Drew BSc (Hons) DipTP (Dist) MRTPI 

London Borough of Ealing Reference: P/2009/0571 

Summary of Case (appeal dismissed): 

The property is a two-storey semi-detached house, with an original two-storey rear projection.  The application was for a proposed side dormer on the side roof of the original two-storey rear projection.  The submitted plans showed that the proposed side dormer would be built straight up on top of the main side wall of the original two-storey rear projection, without a 20cm set-back from the original eaves. 

The key issue was whether the proposed side dormer would be contrary to Class B, part B.2(b), which states that “Development is permitted by Class B subject to the following conditions … (b) other than in the case of a hip-to-gable enlargement, the edge of the enlargement closest to the eaves of the original roof shall, so far as practicable, be not less than 20 centimetres from the eaves of the original roof”. 

The appellant argued that it was not practicable, in this instance, to set the side dormer back from the eaves by at least 20 centimetres.  Their reasons included structural considerations, that matching materials [brick] could not be utilised if it were set back, economic considerations, and floor space generation.  The appellant also questioned whether the LPA has to show that a set-back is practicable, or the applicant has to show that it is 

Impracticable. 

The Inspector quoted paragraph 8.26 of Annex 8 of Circular 10/97, which states that “the burden of proof is firmly on the applicant”.  With regards to the structural considerations, the Inspector stated that it is not for the Council to seek an opinion from its Building Control Division on this point, but for the applicant to show that a 20cm set-back is impracticable.  As the applicant had not provided such structural calculations, the Inspector stated that he cannot accept the unsubstantiated submission that only the present proposals provide the necessary buttressing or strengthening.  With regards to the use of brick, the Inspector acknowledged that this might give rise to loading issues, but questioned why one or more structural beams could not be introduced, and again pointed to the fact that the applicant had not provided structural calculations. 

With regards to the economic considerations, the Inspector accepted that structural alterations would inevitably involve additional cost, but stated that no evidence had been provided to demonstrate that, in this case, such works would have been unacceptably expensive.  The Inspector added that, in any event, an assessment of whether something is practicable must in his view focus on structural and practical considerations rather than economic factors.  With regards to the floor space generation, the Inspector stated that the desire to have greater floor space in a proposed roof extension is not in his view a sound basis to show that a set-back is not practicable. 

In addition, the Inspector noted that the Explanatory Memorandum to the 2008 Amendment Order stated that the 20cm set-back was introduced “so as to avoid an entire rear roof being replaced”.  He therefore concluded that the proposed side dormer “is contrary to both the precise wording and the objective behind the condition, which was to reduce the visual impact of such roof extensions on others”, and dismissed the appeal. 

Main Conclusions: 

·       Where an applicant claims that a 20cm set-back is not practicable, the burden of proof is firmly on the applicant to demonstrate that such a set-back is not practicable, for example by providing structural calculations, rather than for the Council to seek an opinion from its Building Control section.
[Relevant to: B.2(b)]. 

·       The assessment of whether a 20cm set-back is practicable should focus on structural and practical considerations, rather than economic factors.
[Relevant to: B.2(b)]. 

·       The desire to have greater floor space in a proposed roof extension is not a sound basis to show that a 20cm set-back is not practicable.
[Relevant to: B.2(b)]. 

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/A5270/X/09/2103672&caseaddress=COO.2036.300.8.1689449