Appeal Decision 56 - Certificate of Lawful Development.

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

4 December 2009 – 43 Fawnbrake Avenue, London, SE24 0BE  

Planning Inspectorate Reference: APP/N5660/X/09/2109929 

Inspector: Sean Slack BA LLB DipTP MRTPI 

London Borough of Lambeth Reference: 09/00925/LDCP 

Summary of Case (appeal allowed): 

The property is a three-storey end-of-terrace house, with an original two-storey rear projection, followed by an original single storey rear projection.  The application was for a proposed single storey extension.  The side infill part of the proposed extension would have left a courtyard and then projected to the end of the original single storey rear extension.  The rear part of the proposed extension would have projected 3m to the rear of the original single storey rear extension, whilst also replacing the latter.  The side elevation of the side infill part of the proposed extension would have been clad in timber panels and an aluminium panel. 

The first key issue was whether the proposed extension would be contrary to Class A, part A.1(e), which states that “development is not permitted by Class A if … the enlarged part of the dwellinghouse would … extend beyond the rear wall of the original dwellinghouse by more than … 3 metres”.

 

The relevant part of the Council’s Statement of Case was as follows: 

“5.17.            With regards to the rear part of the proposed extension, the “rear wall of the original dwellinghouse” is the rearmost wall of the original single storey rear projection, noting that the site visit (12/12/2008) and OS map indicate this projection to be an original feature common to this row of terraces.  As such, although the rear part of the proposed extension would have length 4.9m, it would not extend beyond this rear wall by more than 3m.  

5.18.             With regards to the side infill part of the proposed extension, the “Informal Views from CLG” document, which was published in December 2008, confirms that where a property has a stepped rear elevation, the limitation on the projection of the extension will be similarly stepped.  Hence, for a property with an original rear projection, an extension within the infill area would not be permitted to extend more than 3m from the rear wall of the main property. 

5.19.             In this case, the situation is less clear, as the side infill part of the proposed extension is not directly attached to the rear wall of the main property, and instead leaves a courtyard with length 1.8m.  The key question is therefore whether it can be said that for the proposals, “the enlarged part of the dwellinghouse would … extend beyond the rear wall of the original dwellinghouse by more than … 3 metres …”. 

5.20.             It should be noted that the new legislation came into force without any accompanying list of definitions, and without any accompanying guidance document, and that this particular question of interpretation was not answered by the “Informal Views from CLG” document that was published in December 2008.  For guidance on this matter of interpretation, the Council must therefore refer to the most relevant previous document, which is the “Householder Development Consents Review”, prepared by White Young Green Planning, and published in March 2007. 

5.21.             The above document explains that the primary reason behind the proposed change in Class A from a system of volume limits to a system of dimension limits was to protect the amenity of adjoining neighbours (referred to in the report as “Level 2 Impacts”).  For example, paragraph 4.16 of this document states the following: 

“The concept of the ‘original rear wall’ can be used to set the maximum depth of extension which is appropriate, dependent on the type of dwelling and the type of extensions proposed, in order to control potentially adverse Level 2 impacts.  Such a limitation is significantly more user friendly than the current system as it does not require users to calculate the volume of either the pre-existing house/extensions or the volume of any proposed extensions. All limits to development would then be defined in terms of depth, height and proximity to boundaries. Such an approach is analogous to that found in many householder design guides around the country, where the appropriate depth of extensions is specified in order to avoid adverse impacts on neighbours”. 

5.22.             With respect to the above, it would seem reasonable to interpret the legislation in a way such that Class A, part A.1 (e) would restrict the projection of a Class A extension beyond the rear wall, regardless of whether or not that Class A extension is directly attached to that rear wall.  This would ensure that the side wall of a Class A extension along the boundary with the neighbouring property (noting that this side wall could be constructed up to 3m in height under Class A, part A.1 (g)) would be limited to a 3m projection from the rear wall, to protect the amenity of adjoining neighbours, regardless of whether or not that Class A extension is directly attached to the rear wall. 

5.23.             Indeed, were this not the case, then so long as a Class A extension within the infill area was detached from the rear wall by even a slight amount (e.g. 10cm), then its side wall along the boundary with the neighbouring property (which could be up to 3m in height) could be constructed with no real limit to its projection from the rear wall.  For example, such an extension could have a side wall at height 3m, with a projection from the rear wall of 8m, which would have a significant detrimental impact upon the amenity of adjoining neighbours.  This would directly contradict the reason behind the change in Class A from a system of volume limits to a system of dimension limits. 

5.24.             In summary, the Council’s view is that it is reasonable to interpret the wording of Class A, part A.1 (e) as to restrict the projection of a Class A extension beyond the rear wall, regardless of whether or not that Class A extension is directly attached to that rear wall.  As such, the side infill part of the proposed extension would not comply with Schedule 2, Part 1, Class A, part A.1 (e) of the Town and Country Planning (General Permitted Development) Order 1995 (as amended)” . 

 “The first reason for refusal is based on an assessment that the kitchen extension described as, “side infill part” would extend beyond “the rear wall of the original dwellinghouse”. This would infer that the dwellinghouse has more than one rear wall for purposes of the GPDO. My own view is that the term “the rear wall” in the Order refers to a single entity, not any brickwork return or other wall facing the rear. For example, the brickwork of a projecting chimney breast may well constitute a wall facing the rear of a dwellinghouse but would not be “the rear wall” for purposes of the Order. In this case the Council have considered a short rear facing flank wall (1.5 metres wide) where the main dwelling connects with the projecting wing as an additional rear wall. I consider the infill development to be an extension from a side elevation which meets the requirements in A1(h) for permitted development under Class A.” 

[Note: I was the Council case officer for this application.  In my opinion, the above conclusion is questionable, because it is based upon an interpretation of Class A, part A.1(e) that is directly contrary to government guidance (i.e. the “Informal Views from CLG” document (Dec 2008, updated Jan 2009)) and all other appeal decisions on the subject.  I find it disappointing that an Inspector can take such an interpretation without even acknowledging the existence of these contrary sources.  I pointed out the government guidance in my statement of case, and the Inspector should have been aware that he was taking the opposite interpretation from that taken by his colleagues in a number of previous appeal decisions]. 

The second key issue was whether the proposed extension would be contrary to Class B, part B.2(a), which requires that “the materials used in any exterior work shall be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse”. 

The Council argued that the proposed use of timber and aluminium panels would not be “of a similar appearance” to the traditional materials (e.g. stock bricks) used on the existing traditional house. 

The Inspector stated the following: 

“The design and materials of the proposed building works clearly represent a departure from the main dwellinghouse. However, on the question of whether the materials meet the “similar appearance” test, a commonsense approach should be adopted. Unacceptable facing materials are listed in the Order in A2(a) as, stone or artificial stone cladding, pebbledash, render, timber and plastic, where a dwellinghouse is on article 1(5) land such as a Conservation Area. I consider that outside such protected land, these materials may be acceptable. An example would be a small rear extension in the backyard to a Victorian dwelling which may incorporate such features as part render, glass patio doors or a flat felt roof. It would clearly be against the spirit of the amended order that such minor development would not be permitted through failure to meet the precise requirements of the materials condition.” 

[Note: In my opinion, the above conclusion is questionable.  If the use of timber and aluminium panels (on a wall visible from normal vantage points) is considered to be “of a similar appearance” to traditional materials (e.g. stock bricks), then how could there be any type of material that would not meet this condition … ?]. 

Main Conclusions: 

·       The phrase “the rear wall of the original dwellinghouse” refers to a single entity, and therefore only one wall can constitute “the rear wall of the original dwellinghouse” for the purposes of Class A, part A.1(e).
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Contents” section on “A.1(e)”].
[Note: In my opinion, the above conclusion is questionable, because it is based upon an interpretation of Class A, part A.1(e) that is directly contrary to government guidance (i.e. the “Informal Views from CLG” document (Dec 2008, updated Jan 2009)) and all other appeal decisions on the subject].
[Relevant to: A.1(e), A.1(f), A.2(c)]. 

·       The use of timber and aluminium panels on the external walls of a single storey extension to a traditional house would be “of a similar appearance” to the traditional materials (e.g. stock bricks) of the house.
[Note: In my opinion, the above conclusion is questionable.  If the use of timber and aluminium panels (on a wall visible from normal vantage points) is considered to be “of a similar appearance” to traditional materials (e.g. stock bricks), then how can there be any type of material that would not meet this condition … ?].
[Relevant to: A.3(a), B.2(a)]. 

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/N5660/X/09/2109929&caseaddress=COO.2036.300.8.2196121 

Link to LPA website: 

http://www.lambeth.gov.uk 

Download documents and diagrams of useful

Permitted Development information