Appeal Decision 41 - Certificate of Lawful Development.

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

11 November 2009 – 98 North Hyde Road, Hayes, London, UB3 4NG  

Planning Inspectorate Reference: APP/R5510/X/09/2102306 

Inspector: George Mapson DipTP DipLD MRTPI 

London Borough of Hillingdon Reference: 59074/APP/2008/2543 

Summary of Case (appeal dismissed): 

The property is a detached house, and the application was for an existing outbuilding (garage, gymnasium, snooker play area) at the end of the rear garden.  The submitted application form stated that the building works were substantially completed on “10/11/2007”, and that a certificate was sought “under permitted development”. 

The application was validated by the Council on 19/08/2008, and was refused on 13/10/2008 with the following reason for refusal: 

“The proposed development does not constitute Permitted Development by virtue of the provisions of Schedule 2 Part 1 Class E of the Town and Country Planning (General Permitted Development) Order 1995 as the building, due to its size is not considered to be for a purpose incidental to the enjoyment of the dwellinghouse.” 

In the Appeal Decision Notice, the Inspector did not make any mention of the fact that, according to the application form, the construction of the outbuilding had begun (and indeed been completed) prior to 01/10/2008.  Neither did the Inspector make any mention of the Council’s reason for refusal on the basis that the outbuilding is not “incidental”.  Instead, the Inspector wrote the following: 

“Schedule 2, Part 1, Class E of the Town and Country Planning (General Permitted Development) (Amendment) (No.2) England) Order 2008 permits the provision within the curtilage of a dwellinghouse of “(a) any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure”. 

All permitted development rights are subject to conditions and limitations, and under paragraph E.1(d) (ii), development is not permitted “if the height of the building, enclosure or container would exceed 2.5 metres in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the  dwellinghouse”. The building is within two metres of the curtilage boundary and infringes this height limitation. Consequently, it is not permitted by Class E.” 

[Note: In my opinion, this is one of the most questionable appeal decisions that I have come across.  As far as I am aware, even where works are begun prior to 01/10/2008, yet substantially completed on or after 01/10/2008, they must still be assessed against the previous Part 1 of the GPDO, rather than against the amended Part 1 of the GPDO.  Yet in the case where works are begun prior to 01/10/2008 and substantially completed prior to 01/10/2008, the idea that they should be assessed against the amended Part 1 seems perverse.  Unless it is the case that the application form was incorrect, and that in actual fact the outbuilding was begun on or after 01/10/2008, in my opinion, the appellant would have had strong grounds for judicial review against this appeal decision]. 

Main Conclusions: 

·       No conclusions (because appeal decision highly questionable). 

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/R5510/X/09/2102306&caseaddress=COO.2036.300.8.1570757