Appeal Decision 113 - Certificate of Lawful Development.

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

13 April 2010 – 15 Aldenham Avenue, Radlett, WD7 8HZ  

Planning Inspectorate Reference: APP/N1920/X/09/2115918 

Inspector: G P Bailey MRICS 

Hertsmere Borough Council Reference: TP/09/0345 

Summary of Case (appeal dismissed): 

The property is a two-storey detached house, with a main roof that has a front and rear pitch with gable sides. The application was for a proposed two-storey rear extension, the roof of which would have joined onto the roof of the main house (with eaves and ridge-line at matching heights), and two separate rear dormers. Although the description of the application refers to the proposed rear extension as “two-storey” (i.e. at ground and first floor levels), the part of this extension that would have joined onto the roof of the main house would also have contained a room (i.e. at second floor level), meaning that the proposed rear extension could also have been described as “three-storey”. Those parts of the proposed rear extension that would have been within 2m of the side boundaries would have been reduced to single storey. 

Even though it was not part of the Council’s reason for refusal, the first 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”. 

The Inspector stated the following: 

“The Council and the appellant are agreed that the appeal scheme would fulfil all of the limitations set out in paragraph A.1(a), (b), (c), (d), (e), (f), (g), (h) and (i) except that in A.1(i) sub-paragraph (iv). However, whilst for the most part, I see no reason to disagree, I have considerable reservations about the position arising in respect of the limitation imposed by paragraph A.1(g). This states: 

“A.1 Development is not permitted by Class A if – …(g) 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 3m;…”. 

Parts of the rear extension would be located within 2m of the boundary of the curtilage of the dwellinghouse and the height of the eaves of the “enlarged part” would exceed 3m. But the scheme has been designed with single-storey elements on either side of the two-storey element such that no part of the proposed structure within 2m of the boundary would have its eaves exceeding 3m in height. Hence, it is the appellant’s case, not disputed by the Council, that the scheme would fulfil the terms of the limitation. 

However, the proposed part single- and part two-storey extension, taken together, would comprise an “enlargement”. It would be a single entity, parts, but not all of which, would be situated within 2m of the boundary of the curtilage. Whilst the building would straddle the lines of the critical 2m-wide criterion, looked at in-the-round, an observer would readily identify the siting of such a structure as one that would be situated within 2m of the curtilage boundary. In respect of an enlargement situated within 2m of the curtilage boundary, paragraph A.1 and A.1(g), taken together, indicate development would not be permitted if the height of the eaves of the enlarged part would exceed 3m. 

As the eaves of part of the enlargement would exceed 3m in height, it would not fulfil the limitation of paragraphs A.1 and A.1(g), taken together. Nothing in the wording in those paragraphs indicates that the enlargement would comply with the limitation by virtue of the fact that those parts of the enlargement sited on land within the critical 2m-wide criterion would not, in themselves, exceed 3m in height. It would be the siting of the enlargement, as being one that would encroach within 2m of the curtilage boundary, which would govern the permitted height of its eaves.” 

The second key issue was whether the proposed rear extension would be contrary to Class A, part A.1(i), which states that “Development is not permitted by Class A if … it would consist of or include … an alteration to any part of the roof of the dwellinghouse”. 

The Inspector stated the following: 

“Furthermore the part single-and part two-storey extension and the proposed dormer windows would also fall to be considered against the limitation in Class A.1 and A.1(i)(iv), taken together, which state:- 

“Development is not permitted by Class A if – (i) it would consist of or include – (i)..., (ii)..., (iii)..., (iv) an alteration to any part of the roof of the dwellinghouse.” 

Here, the proposed dormer windows and the part single-and part two-storey extension are all part of a single scheme of operational development that would necessitate alteration to parts of the roof of the dwellinghouse. The scheme would therefore, in addition, fail to accord with the limitation in Class A.1 and A.1(i)(iv).” 

[Note: In my opinion, the above conclusion is that Class A does not permit an extension with a roof that would join onto the roof of the main house in the case where the inside of the roof of the extension would form part of a loft conversion. However, in my opinion, it is not clear whether the appeal would still have been dismissed in the alternative case where the inside of the roof of the extension would not have formed part of a loft conversion.]

Main Conclusions: 

·       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)].

·       Class A does not permit an extension with a roof that would join onto the roof of the main house in the case where the inside of the roof of the extension would form part of a loft conversion.
[Relevant to: A.1(i)].

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/N1920/X/09/2115918&caseaddress=COO.2036.300.8.2661783 

Link to LPA website: 

www.hertsmere.gov.uk 

Download documents and diagrams of useful

Permitted Development information