Appeal Decision 41 - Certificate of Lawful Development.
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November 2009 - Code a00041
Summary of Case (appeal
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
“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].
No conclusions (because appeal
decision highly questionable).
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Decision Notice” and other associated documents (e.g. drawings, etc):
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