Appeal Decision 46 - Certificate of Lawful Development.

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

23 November 2009 – 62 Warwick Road, Bishop’s Stortford, CM23 5NW  

Planning Inspectorate Reference: APP/J1915/X/09/2103814 

Inspector: D H Brier BA MA MRTPI 

East Hertfordshire District Council Reference: 3/09/0085/CL         

Summary of Case (appeal allowed): 

The property is a detached house, and the application was for two proposed outbuildings, one of which would be a garage and the other a garden studio.  The latter would have been positioned 2.0m from the boundary, and would have had a flat roof at height 2.75m. 

The key issue was whether the height of the proposed garden studio would be contrary to Class E, part E.1(e), which states that “Development is not permitted by Class E if … the height of the eaves of the building would exceed 2.5 metres”. 

The Inspector focused on whether a “lip” around the outer edge of the flat roof, consisting of an aluminium strip with projection approx 1cm, would fall within the definition of “eaves” for the purposes of Class E, part E.1(e).  The Inspector noted that his attention had been drawn to a number of definitions of the word “eaves”, some of which refer to the lower edge of a sloping roof, and all of which refer to “overhanging”.  He concluded that the “lip” would not fall within the definition of eaves, and that therefore the proposed outbuilding, with a flat roof at height 2.75m, would be permitted development. 

Although not specifically stated by the Inspector, perhaps the more significant implication of this appeal decision is that the edge of the flat roof itself (i.e. without the “lip”) does not constitute “eaves” for the purposes of Class E, part E.1(e). 

[Note: The above conclusion for Class E, part E.1(e), in conjunction with the wording of Class E, part E.1(d), implies that, for an outbuilding not within 2m of a boundary, the following maximum heights apply: 

- Dual-pitch roof: Eaves restricted to height 2.5m (E.1(e)) and ridge-line restricted to height 4m (E.1(d)(i)). 

- Mono-pitch roof: Eaves restricted to height 2.5m (E.1(e)) and ridge-line restricted to height 3m (E.1(d)(iii)). 

- Flat roof: Level restricted to height 3m (E.1(d)(iii)), whilst E.1(e) does not apply. 

In my opinion, the irony resulting from the above conclusion is that such an outbuilding could have a flat roof at height 3m, but could not have a mono-pitch roof at height 2.6m-3.0m, even though the latter has less impact, both visually and upon neighbour amenity.  Indeed, were enforcement action to be taken against an outbuilding with height 2.6m-3.0m, this conclusion would imply that a fall-back position would be to increase the height of the outbuilding, by raising its eaves by 0.4m to convert the pitched roof into a flat roof 

Furthermore, in my opinion, the above conclusion (i.e. that the edge of a flat roof does not constitute “eaves”) could potentially cause significant problems if also applied to the term “eaves” in Class A, part A.1(g).  This is because Class A, part A.1(g) is typically the only limitation that would prevent a two-storey rear extension close to (i.e. within 2m), or indeed next to, a boundary with a neighbouring property.  For example, on a mid-terrace property, typically the only reason a full-width two-storey rear extension would not be permitted development is because Class A, part A.1(g) would not allow the "eaves” to be higher than 3m. 

However , if it is accepted – in my opinion, wrongly – that the edge of a flat roof does not constitute “eaves”, then on a two-storey mid-terrace property with a flat roof, a full-width two-storey rear extension would be permitted development, even though this would result in a two-storey wall next to the boundary with a neighbouring property, which would have an extremely significant impact upon the amenity of the latter.  Indeed, as an even more extreme example, on a four-storey mid-terrace property with a flat roof, a full-width four-storey rear extension would be permitted development, even thought this would result in a four-storey wall next to the boundary with a neighbouring property … ! 

In my opinion, it is possible to avoid the above problems if it is accepted that the edge of a flat roof does constitute “eaves”.  In my opinion, this can be done by reference to the definition of “eaves” within the Compact Oxford English Dictionary, which is as follows: 

“Eaves: (plural noun) the part of a roof that meets or overhangs the walls of a building” 

As such, in my opinion, it could be argued that the edge of a flat roof (or indeed the top of a parapet wall), is “the part of a roof that meets the walls [of the extension]”, and therefore constitutes “eaves”.  This would mean that a flat roof (or indeed a parapet wall) would be subject to the height restrictions within Class A, part A.1(c), Class A, part A.1(g) and Class E, part E.1(e)]. 

Main Conclusions: 

·       Where an outbuilding has a flat roof, the edge of this flat roof would not constitute “eaves”.
[Relevant to: A.1(c), A.1(g), E.1(e)]. 

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/J1915/X/09/2103814&caseaddress=COO.2036.300.8.1698768 

Link to LPA website: 

http://www.eastherts.gov.uk 

Download documents and diagrams of useful

Permitted Development information