Appeal Decision 72 - Certificate of Lawful Development.

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

8 January 2010 – 11 Kennard Street, London. E16 2HR  

Planning Inspectorate Reference: APP/G5750/X/09/2109343 

Inspector: John Whalley CEng MICE 

London Borough of Newham Reference: 09/00179/CLP 

Summary of Case (appeal allowed): 

The property is an end-of-terrace house.  The application, which was made after 01/10/2008 (on 18/03/2009), was for an existing single storey rear conservatory, which was built before 01/10/2008. 

The Council said that because the application was received after 01/10/2008 it was assessed in accordance with the Order as amended on 01/10/2008. On that basis, if the amended limitations were applied, the appeal conservatory would not have been permitted development because it projects more than 3m from the rear wall of the original house. 

The Inspector stated the following: 

“The Council were wrong to have applied the 2008 Order. It is an established principle in considering permitted development rights that the relevant date for the determination of whether work is in breach of planning control is the date of commencement of the work. Thus the permitted development rights against which the development must be considered are derived from the GPDO in force at the date of commencement, R J Williams Le Roi v SSE & Salisbury DC [1993] JPL 1033. Changes in the GPDO do not apply retrospectively. 

The position in respect of LDC applications made under s.191 is the same, regardless of the date when the application was made. The question of lawfulness is to be considered at the date of the application but whether, at that date, the development was lawful is still to be assessed against the relevant GPDO at the date the development commenced. 

As it was agreed that the conservatory was built by 1 October 2008, it was clearly started before the coming into effect of the amended Order. The plans and the conservatory as completed show it to comply with the 1995 Order limitations. 

As originally built, a small inset corner of the extension was covered by the roof. The walls did not extend under the outer edge of this roof overhang. So the corner of the roof did not have the effect of enclosing any space. In this circumstance, such an unenclosed area should not be taken into account in calculating the cubic capacity of the original dwellinghouse, (note 3B-2065, Encyclopaedia of Planning). In any case, the roof overhang was removed before 1 October 2008 and well before the LDC application was made. The appeal conservatory was therefore lawful development at the date of application for the LDC.” 

Main Conclusions: 

·       Where an application is received (on or after 01/10/2008) for existing works that were begun prior to 01/10/2008, then these existing works should be assessed against the previous Part 1 of the GPDO.
[Relevant to: “Applications received on or after 01/10/2008 for works that were begun prior to 01/10/2008”]. 

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/G5750/X/09/2109343&caseaddress=COO.2036.300.8.2141303 

Link to LPA website: 

www.newham.gov.uk 

Download documents and diagrams of useful

Permitted Development information