Appeal Decision 62 - Certificate of Lawful Development.

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

9 December 2009 – 8 Brookland Drive, Perivale, Greenford, Middlesex, UB6 7AU  

Planning Inspectorate Reference: APP/A5270/X/09/2103391 

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

London Borough of Ealing Reference: P/2009/0412-G 

Summary of Case (appeal dismissed): 

The property is a two-storey end-of-terrace house, with a “conventional” layout such that the rear and side elevations of the property are flat (i.e. not stepped).  The application was for a proposed extension that would have projected 3m from the rear elevation, and then wrapped-around the corner to project 2.45m (less than half the width of the house) from the side elevation. The rear extension would have included a two-storey element, which would have been set back not less than 2.45 m from the nearest curtilage boundary. 

The first key issue was whether Class A, part A.1(e), and Class A, part A.1(h) would allow such an extension (ignoring, for the minute, the first floor part of the proposed extension).  For reference, the relevant parts of these two limitations are as follows: 

Class A, part A.1(e): 

“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 by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse”. 

Class A, part A.1(h): 

“Development is not permitted by Class A if … the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would …have a width greater than half the width of the original dwellinghouse” 

In response to this, the Inspector stated the following: 

“Class A permits the enlargement, improvement or other alteration of a dwelling house. In this context the Council says: “The GPDO refers to separate elements of extensions to dwelling houses, such as rear extensions and side extensions, which have to be considered separately in terms of the relevant part of paragraph A.1” (*), but I cannot agree. The Class is permissive in the much more general terms set out above and is not restricted to the use of such narrow terminology. Class A simply does not use the terms side or rear extensions. 

Development is not permitted by Class A if it fails any of the criteria in A.1. The Council says the proposal would fail to meet (e) and (h), but in my view neither would be breached. Dealing firstly with (e) the single storey element of the rear extension would not extend the part of the rear wall of the original dwelling house that is being extended from by more than 3 m. Similarly that part of the proposed extension that would extend beyond the wall forming the side elevation would not have a width greater than half of the original dwelling. The Council acknowledge that the side extension would measure 2.45 m, which is less than half the width of the dwelling house that measures around 5.8 m. 

In my view the limitations contained in A.1 (e) and (h) do not apply to the corner element of the “wrap around” as it is not ‘beyond’ the side or rear wall. The term ‘beyond’ is defined in the Concise Oxford English Dictionary (Tenth Edition Revised) as “at or to the further side of”. Since the corner enlargement, i.e. that part of the proposed extension that does not extend from either the side or rear wall of the original dwelling, is not explicitly excluded by the terms of A.1 this element of the proposed scheme must be a permitted enlargement. 

Even if I am wrongand ‘beyond’ the rear wall or a wall forming a side elevation, as the case may be, should be interpreted to be any point outside a horizontal line drawn along the line of the side or rear wall, the proposal would not exceed the limitations contained in A.1 (e) and (h). For this reason I can be sure that this element of the proposed development would be permitted by Class A.” 

[Note: For my notes on the above conclusion, please refer to the notes that I wrote for the earlier appeal decision “29 October 2009 – 2 Croydon Lane”.  With regards to the sentence above that I have marked with a “(*)” (i.e. the Council’s statement), it should be noted that this is a direct quotation of the opinion of the Inspector in the appeal decision “11 May 2009 – 21 Holmewood Road”]. 

However, even though it was not part of the Council’s reason for refusal, the second key issue that the Inspector raised was whether the proposals would be contrary to Class A, part A.1(g), which states that “Development is not permitted by Class A if … the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres”. 

It appears that both the appellant and the Council had assumed that the 3m height limit only applies to those parts of the proposed extension within 2m of the boundary, and therefore did not apply to the first floor part of the proposed extension, which would have been set back not less than 2.45 m from the nearest curtilage boundary. 

In relation to this, the Inspector stated the following: 

“The enlarged part of the dwellinghouse would be within 2 m of both side boundaries and I have no doubt that the extension would be undertaken as one building operation. On this basis I consider that A.1 (g) is breached because the height of the eaves of the 2-storey element would exceed 3 m which, in turn, forms an integral part of the single operation of enlargement. A.1 (g) does not say “…the height of the eaves of the enlarged part…” that is within 2 metres of the boundary “…would exceed 3 metres”. 

Main Conclusions: 

·       Where the rear and side elevations of a property are flat (i.e. not stepped), Class A, part A.1(e), and Class A, part A.1(h) would allow* an extension to project 3m/4m from the rear elevation and then wrap-around the corner to project half the width of the house from the side elevation.
(*subject to compliance with all other limitations and conditions, of course)
[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)”]
[Relevant to: A.1(e), A.1(h)]. 

·       Where parts of a proposed extension are within 2m of a boundary, the 3m eaves height limit applies not just to those parts within 2m of the boundary, but to all parts of the proposed extension.
[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(g)”]
[Relevant to: A.1(g), E.1(d)]. 

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/A5270/X/09/2103391&caseaddress=COO.2036.300.8.1681727 

Link to LPA website: 

http://www.ealing.gov.uk 

Download documents and diagrams of useful

Permitted Development information