Appeal Decision 67 - Certificate of Lawful Development.

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

22 December 2009 – 2a Willoughby Road, Harpenden, AL5 4PF  

Planning Inspectorate Reference: APP/B1930/X/09/2103654 and APP/B1930/X/09/2103843 

Inspector: Stephen Brown MA(Cantab) DipArch RIBA 

St Albans City & District Council Reference: 5/2008/2704 and 5/2009/0190 

Summary of Case (appeal allowed): 

The property is a two-storey mid-terrace house.  The application was for a proposed rear dormer, which would have involved the alteration of an existing soil and vent pipe. 

The first key issue was whether the alteration of the soil and vent pipe would be contrary to Class B, part B.1(d), which states that “Development is not permitted by Class B if … it would consist of or include … (ii) the installation, alteration or replacement of a chimney, flue or soil and vent pipe”. 

The Inspector stated the following: 

“Classes B and G of the Schedule to the GPDO cannot be mutually exclusive, and it appears to me that a proposal could only be excluded from permitted development under B.1(d)(ii) if it were also excluded under G.1(a). In the light of this, since the development would otherwise be permissible under Class B, and the SVP proposal would be permissible under Class G, I consider that [the appeal] should succeed.” 

The second key issue was whether the use of felt for the flat roof of the proposed rear dormer 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 felt roof would be visible from ground level and would not be of similar appearance to the predominant element of the tiled roof. 

The Inspector stated the following: 

“I take the condition to mean that the materials used should be of similar appearance to those used in the external construction of the building generally. It does not restrict the similarity to predominant materials, or to those in a particular part of the building. In this case the house has a flat roof over the front bay. It is lead-covered, and to the small extent that the edge of the roof is visible from normal viewpoints its appearance is reasonably similar to the edge of a felted roof. This is readily apparent on looking at the felted flat roof over the similar bay on the neighbouring house in the terrace, no. 2 Willoughby Road. There is no reason why a felt of similar appearance could not be used on the new dormer. Furthermore, given that the dormer roof would be one storey higher than the front bay, and the edge of the roof would be finished with a timber fascia and PVC gutter, the felted roof would be virtually unseen. In my view condition B.2(a) would be satisfied.” 

The third key issue was that the applicant had stated that the face and cheeks of the proposed rear dormer would be “vertical tile hanging” without demonstrating that these tiles would be “of a similar appearance” to the materials on the existing house. 

The Inspector stated the following: 

“… it appears to me that it is for the appellant to be aware of, and comply with the relevant conditions of the GPDO. Should the development proceed without complying with a condition, it would then be open to the Council to take enforcement action against it. In this case it is clear that the tile-hanging could readily be similar in appearance to the roof tiling and other tile-hanging on the house. Again, the condition would be satisfied.” 

Main Conclusions: 

·       Class G can be used concurrently with other Classes.
[Relevant to: A.1(i), B.1(d), C.1(c), Class G]. 

·       For example, the erection of a proposed dormer under Class B can involve the installation or alteration of a soil and vent pipe under Class G – the latter would not be prevented on the basis that it would be contrary to Class B, part B.1(d).
[Relevant to: A.1(i), B.1(d), C.1(c), Class G]. 

·       The use of felt for the flat roof of a dormer (assuming that the visibility of the roof would be limited) would not be contrary to Class B, part B.2(a).  The Inspector indicates (or implies) that the felt would need to have a similar colour to the materials on the existing house.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Contents” section on “B.2(a)”]
[Relevant to: B.2(a)]. 

·       Class B, part B.2(a) means that the proposed materials must be “of a similar appearance” to the materials used in the external construction of the house generally.  It does not mean that the proposed materials must be of a similar appearance to the predominant materials of the house, nor does it mean that the proposed materials must be of a similar appearance to those used on a particular part of the house (for example, the part which is being extended).
[Relevant to: A.3(a), B.2(a)]. 

·       A certificate of lawful development should be issued even if the applicant has not demonstrated full compliance with all of the conditions of the Class, so long as it would be possible for the conditions to be met.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Contents” section on “Conditions”].
[Relevant to: “Conditions”, A.3(a), A.3(b), A.3(c), B.2(a), B.2(b), B.2(c), C.2, F.1, H.2(a), H.2(b)]. 

·       For example, if an applicant simply states that “tiles” would be used for a proposed dormer, without demonstrating that these tiles would be “of a similar appearance” to the materials on the existing house, then a certificate should be issued because this condition could still be met.  Should the development proceed without complying with a condition, it would then be open to the Council to take enforcement action against it.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Contents” section on “Conditions”].
[Relevant to: “Conditions”, A.3(a), B.2(a)]. 

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/B1930/X/09/2103654&caseaddress=COO.2036.300.8.1689371 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/B1930/X/09/2103843&caseaddress=COO.2036.300.8.1701515 

Link to LPA website: 

http://www.stalbans.gov.uk 

Download documents and diagrams of useful

Permitted Development information