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Planning Appeal Decisions

Lawful Development Certificate Appeal Decisions

In this section we post links to Planning Inspectorate appeal decision letters, usually daily, so you have immediate access to the very latest decisions by Inspectors..... completely free. The decision letters are listed in the Permitted Development Class to which they are relevant---latest appeals at the top.

Class A Appeals

Class A Appeal. Decision Date 9th March 2010. Outcome: appeal allowed
Issue: eaves height......existing eaves.....Limitation A.1(c.......different eaves height on existing dwelling...higher part relevant

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1777196&NAME=/Decision.pdf

Editor's comments: the inspector observed that the existing house in common with its neighbours had eaves at higher and lower levels with about 30% being at the lower level. The council had taken the view that the lower level should be the height which must not be exceeded under Limitation A.1(c). The inspector disagreed, reasoning that "The aim of the Order is to relax the planning regime for proposals of this type, and the use of the lower figure would effectively exclude any two-storey extensions at premises where this situation applies.

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Class A Appeal. Decision Date 4th March 2010. Outcome: appeal allowed
Issue: rear conservatory.........beyond side elevation......side wall of original single storey rear wing not a 'side elevation'

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1763759&NAME=/Decision%202110874%20.pdf

Editor's Note. At last! This matter has needed clearing up for a long time. As we have argued from the outset, the side wall of an original rear wing is NOT to be taken as a 'side elevation' for the purposes of the new GPDO UNLESS it is the 'outer' side wall AND is co-planer with the main side wall, as in this case. Millions of houses have similar original plans to this one. In this case there is an original single storey 'scullery' projecting from the rear wall of the house whereby the outer side wall of the scullery is in alignment with (co-planer with) the main side wall/elevation of this semi-detached house. Clearly, under Limitation A.2(b)----applicable on article 1(5) land----development extending beyond this side wall (side elevation) is not permitted. However, the other side wall of the scullery, the 'inner' side wall, is NOT a "side elevation". As the inspector points out, interpreting that side wall as being a "side elevation" introduces a conflict with extensions from a main rear wall which the GPDO clearly intends to permit, even in conservation areas.

Its also worth noting that CLG's various background and consultation papers do make an attempt at defining a "side or flank wall" as being a wall which connects the principal elevation with the rear wall. As we have argued in previous Editor's Notes, 'inner' side walls of rear wings, single storey or more, are not "side elevations" because, amongst other reasons, they do not connect front and back walls.

This is an important finding by this inspector and should clear up the matter once and for all----though no doubt there are other appeals in the pipeline. Lets now hope that the decisions on any further emerging appeals on this point are consistent.

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Class A Appeal. Decision Date 3rd March 2010. Outcome: appeal allowed
Issue: side extensions......limitation A.1(h)(iii).......'width of the original dwellinghouse'

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1759511&NAME=/Decision.pdf

Editor's Note. the council had contended that limitation A.1(h)(iii) would restrict an overall resultant width but the inspector reasoned that each side extension's own width is to be tested against the 'width of the original dwellinghouse'. Both side extensions met with this requirement as each was less than half the width of the original house.

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Class A (and B) Appeal. Decision Date 15th February 2010. Outcome: appeal dismissed
Issue: rear dormer.......accepted as PD.......Class A extension 'wraps around' side wall of rear wing.....A.1(h)(iii)....side wall is side elevation (again)......width of extension more than half width of rear wing.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1704012&NAME=/Decision.pdf

Editor's comments: what a mess. Another inconsistent appeal decision. But where to start?

The old chestnut of what constitutes a side elevation arose in this case with the inspector agreeing with the council that the side wall of the rear wing is a side elevation. As we've noted before, this interpretation is inconsistent with common sense. The consultation documents forming the backdrop to the new Order provisionally, at least, defined a 'side elevation' (or side wall or flank wall as the terms they used) as being the wall(s) which connect the principal elevation and the rear wall(s). In a terrace house like this there are none because both would be party walls. The side wall of a rear wing does not connect the front and back walls.

Secondly, CLG's informal views document makes it clear that "where there is an original addition/outrigger there will be more than one rear wall". CLG clearly had in mind limiting rear extensions by reference to a depth of projection off a rear wall, whether that be one or more. As they note " the relevant consideration here is the part of the wall that is being extended from".

The council's original consideration of this application notes, correctly, that the extension would not extend more than 3.0m beyond the rear wall. Indeed, the applicant has not even used up the full 3.0m depth available from the rear wing. However, neither the council nor the inspector appear to realise that on the basis of their interpretation that the side wall of a rear wing is (for the purposes of the Order) not a side elevation. If it was, then nothing more than a little lean-to at the back of a house would be needed to prevent the 3.0m depth limit limitation (A.1(e)(i) having any effect. As bad as the drafting of the new Order is alleged to be, it isn't that bad.

Furthermore, the proposed extension is alleged to fall foul of A.1(h)(iii) having a width greater than half the width of the original dwellinghouse. CLG's informal views document, however, advises in relation to A.1(h) that if the original dwellinghouse has a varying width that it is the widest dimension which should be used. As a matter of fact, the submitted drawings show the width (if it was relevant, which its not because the proposal is a projection from the rear walls) of the alleged projection from the side elevation as clearly less than half the width of the 'original dwellinghouse'. The inspector disregards this.

What a mess. A very modest single storey rear extension which would have been permitted by the old rules is now not permitted by the new rules. So much for liberalising the regime to free up LPA resources. In fact, the fault is with the interpretation rather than the rules themselves, but its the poor drafting and lack of a guidance Circular which facilitates the interpretation problems.

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Class A Appeal. Decision Date 12th February 2010. Outcome: appeal allowed
Issue: rear extensions......eaves overhang.....more than 3.0 metres including overhang....overhang to be disregarded......Condition A.3(a)

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1700360&NAME=/Decision..pdf

Editor's Note. the council had refused the LDC application on the grounds that the new eaves---which would overhang the new wall by some 350mm----took the extension beyond the 3.0m permitted. The inspector, in line with other decisions by his colleagues, rejected this point and held the overhang to be de minimis ans so should be disregarded. The council had also objected to the materials not being specified to meet Condition A.3(a) but the inspector decided that a note on the LDC could drwa attention to this requirement. It worth noting too---although the inspector did not raise this point---that a Condition is not a Limitation: if a Condition is not met it would be open to a council to take enforcement action to remedy the breach. There is no strict requirement for an LDC application to specify materials because an LDC does not grant permission, it confirms lawfulness.

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Class A Appeal. Decision Date 5th February 2010. Outcome: appeal allowed
Issue: single storey rear extension............beyond a 'side elevation'........side wall of 'small rear offshoot'....rear offshoot to be demolished.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1680132&NAME=/Decision.pdf

Editor's comments: the council had contended that the side wall of the rear offshoot---sounds like it was an old lean-to---precluded construction of a single storey extension across the full width of the house and projecting 3.0m out from the rear wall because it fell foul of limitation A.1(h)(iii). The inspector decided however, that "the Council should have taken due account of the intention to demolish the existing rear extension as part of the proposed extension works. Removal of the rear extension as part of permitted development would not amount to demolition requiring planning permission. Its removal would remove its side elevation.".

This must be true, of course. However, as we have argued before, the side walls of such rear offshoots or rear wings should NOT be classed as 'side elevations' in the first place for a variety of reasons, not least of which is that doing so makes the new regulations significantly less liberal and permissive than before. It would also introduce the absurdity of householders having to demolish perfectly good existing elements of their houses just to get a simple rear extension built. Secondly, such side walls of rear offshoots/wings can only be construed as 'side elevations' by cutting a section through the whole main block of the house. In our view, 'side elevations' should be, as a matter of fact, at the 'side' of the house: there would be two in a detached house, one in a semi'/end-terrace and none at all in a mid-terrace.

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Class A Appeal. Decision Date 3rd February 2010. Outcome: appeal allowed
Issue: single storey side extension............beyond the principal elevation........beyond a side elevation........decision favourable to appelant but wrong.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1669695&NAME=/Decision%202114371%20.pdf

Editor's comments: this scheme was for a modest side extension of 3m x 2m. According to the inspector, part of the "proposed extension would align with the front of the bay window and stand forward of the adjacent section of the façade containing the front door the Council alleges that, having regard to the content of sub-paragraph A.1(d) of the Order, the development, the subject of the appeal, is not permitted development.". If that's the case the council were right.
However, the inspector went on to "consider this to be an irrational description of the front wall of the house at the appeal site. The bay window forms by far the greater element of the front wall of the house being some 3.4 m in length as opposed to the 1.9 m length of the section that contains the front door. As such it is my opinion that this greater element should be recognised as the constituting the front wall for the purpose of interpreting the relevant part of the Order. Insofar as the proposed extension would not project beyond the line of the bay window I consider that for the purpose of sub-section A.1(d) of the Order it comprises permitted development.".
The inspector, therefore, is taking the 'forwardmost' part of the "principal elevation" to be the alignment beyond which A.1(d) prohibits development under Class A, whereas it has been accepted for some time that a "principal elevation" can be formed by more than one wall: two, three or more walls which are not co-planer can overall form the "principal elevation".

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Class A Appeal. Decision Date 1st February 2010. Outcome: appeal allowed.
Issue: conversion of integral garage.......original condition not relevant....referred to parking area surfacing

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1661891&NAME=/Decision%202115846%20.pdf

Editor's Note: the council had asserted that a condition attached to the original planning permission precluded conversion of the integral garage into living accommodation. The inspector found, however, in examining that condition, that it related to a parking area in front of the bungalow. There was no reference to a garage or its retention as such. The council must have known this all along. Were they just trying it on? Surely not.

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Class A Appeal. Decision Date 27th January 2010. Outcome:appeal allowed

Issue: Wrap around rear/side extension

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1646853&NAME=/Decision..pdf

Editor's Note. Another appeal decsion wherein the inspector holds that limitations A.1(e) & (h) do not preclude so called 'wrap around' side/rear extensions

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Class A Appeal. Decision Date 25th January 2010. Outcome:appeal dismissed

Issue: side wall of rear wing......... side elevation........not permitted in Conservation areas

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1633498&NAME=/Decision%202115123.pdf

Editor's Note. This is another case, in our opinion, of misinterpretation of the meaning of 'side elevation' in the 2008 Order by the inspector. We have flagged up the issue in previous Editor's Notes and the problem is always the same: if the side wall of such rear wings is a 'side elevation', what is the point of A.2(c) ----which applies to 'more than one storey' extensions----when the limitation A.2(b) immediately before it has already excluded (on the inspector's reasoning) all extensions anyway?

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Class A Appeal. Decision Date 25th January 2010. Outcome:appeal allowed

Issue: side elevation........house on an inside bend.........does not front a highway

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1634190&NAME=/Decision.pdf

Editor's Note. This was a fact and degree case, the inspector holding that the side elevation of the bungalow could not be said to 'front' a highway

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Class A Appeal. Decision Date 13th January 2010. Outcome: appeal allowed

Issue: Single storey rear extension....extends from original rear wall....limitations A.1(e) & A.1(h)

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1596278&NAME=/Decision%202111591%20.pdf

Editor's Note. The council had contended that because the proposed rear extension from the original rear wall also encompassed a previous extension and would therefore extend beyond the rear and side walls of that previous extension, it would not be PD. The inspector rejected this argument as irrelevant. The new works would fully comply with A.1(e) & A.1(h) and are therefore permitted.
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Class A Appeal. Decision Date 12th January 2010. Outcome: appeal allowed
Issue: Height of eaves.....limitation A.1(c) & A.1(e).......proposed extension does not have eaves....parapet wall NOT eaves

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1592658&NAME=/Decision..pdf

Editor's Note. The proposed rear extension fell within the overal height limits of 4.0 metres for single storey extensions set out in A.1(e)(ii) and also met the depth limit of 4.0 metres in A.1(e)(i). It was to have parapet walls all round which exceeded the height of the existing eaves contrary to limitation A.1(c) claimed the council. However, the inspector noted that the top of a parapet wall is NOT 'eaves' which are the lowest, usually overhanging, edge of a roof.

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Class A Appeal. Decision Date 8th January 2010. Outcome: appeal allowed
Issue: Conservatory to the rear of end of terrace house.....completed before 1st October 2008....LDC appeal dated 18th March 2009..... council wrongly applied 2008 regulations....inspector held that works were completed before new regulations came into effect....'old' regulations in force at the time to be applied nothwithstanding the date of the LDC application.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1581809&NAME=/Decision..pdf

Editor's Note. The inspector cited R J Williams Le Roi v SSE & Salisbury DC [1993] JPL 1033, and noted that "Changes in the GPDO do not apply retrospectively." The council really ought to have known that changes in the regulations can't be allied backwards, which would potentially make hundreds of thousands of old extensions unlawful.

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Class A Appeal. Decision Date 10th December 2009. Outcome: appeal allowed
Issue: Single storey rear extension........Limitation A.1(g).......meaning of eaves

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1516188&NAME=/Decision%202106872%20.pdf

Editor's Note: The council had claimed that they "“interpreted the eaves to mean the edge of a roof which also extends to the highest part of the proposed pitched roof” contrary to limitation A.1(g). However, they also say "that they have reviewed their interpretation of that paragraph, they agree that the proposed development would be lawful, and they now raise no objection to a certificate being granted." Their original interpretation, of course, is a description of a "verge", not eaves.

Changing their minds---at appeal, note---is all very well, but the original incompetence would be risible if it were not so damaging. Indeed, its hard to believe that it was actually just incompetence as opposed to willfull misinterpretation. The consequences are 9 months of delay for the householder, the costs to the local taxpayers of the wasted officer time, the wasted costs of the appeal to the general taxpayer, the loss of economic output generally and delay in the commencement of much needed work for somebody in the construction industry---somebody's job.

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Class A Appeal. Decision Date 9th December 2009. Outcome: appeal dismissed
Issue: Limitation A.1(g).........one building operation......single storey part and 2-storey part..... not PD

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1511385&NAME=/Decision..pdf

Editor's Note: The council had contended that the wrap around element of the proposal which was to be located on the rear corner of the house is not PD because "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 ofparagraph A.1”. The inspector did not agree, noting that "Class A simply does not use the terms side or rear extensions." His views on this (which we share) are in accordance with the decisions of two of his colleagues here and here.

However, having reached that "positive finding", he went on to refer to "post-event correspondence" concerning limitation A.1(g)---one of the least contentious of Class A's limitations. The council, notably, had raised no objections to the proposal in respect of A.1(g), but the inspector brought it up. He held that because the works "would be undertaken as one building operation.", "The enlarged part of the dwellinghouse would be within 2 m of both side boundaries", even though the enlarged part consisting of the 2-storey element was NOT within 2 m of either boundary. In our view this is a fundamental error of construction. At para.10 the inspector argues: "10.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”."

Well, indeed A.1(g) does not say "that is within 2 metres of the boundary" but it does say "would be within 2 metres of the boundary". The only difference here is the tense. The purpose of A.1(g) is simply to limit eaves height within 2 metres of a boundary. So if an enlarged part which is over 3 metres does not occur within 2 metres of a boundary then its not excluded by A.1(g). The notion of "one building operation" is a wholly artificial construct. The GPDO, as the inspector, ironically, himself observes in para.5 "...is permissive in the much more general terms set out above and is not restricted to the use of such narrow terminology." As we have argued below in the commentary on another case, the objective of the GPDO is to control the end result of a development, not how it gets there. Why would it matter if the householder carried out his proposal as "one building operation" or two...or more for that matter? The net result is the same.

Furthermore, although the inspector had "no doubt that the extension would be undertaken as one building operation." he cannot know if this would actually be the case at all. Indeed, notwithstanding the likelyhood that it would be, not even the householder himself could know this: it hasn't happened yet; any number of externalities could occur which might radically alter the sequences of a building operation. If there's one thing that GDO's---latterly GPDO's have assiduously striven to avoid over the years its subjectivity. And yet, now, PINS themselves are introducing subjectivity in the form of the artificial and irrelevant construct of "one building operation".

It isn't at all clear why the inspector went down this route. What prompted the somewhat unusual "post-event correspondence" in this case? This decision follows hot on the heels of another (reported on below) from only one day earlier. Are they linked? In any event, in our view its plain wrong to focus on HOW a completed development is achieved as opposed to WHAT is achieved: such an approach serves no useful purpose.

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Class A Appeal. Decision Date 8th December 2009. Outcome: appeal allowed
Issue: large detached house.......extensive grounds.......side extension........irregular highway.......fronts a highway

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1507128&NAME=/Decision..pdf

Editor's Note. This large detached house is described by the inspector as having a relatively complex plan but with a main body which is rectangular. The council refused an LDC for a single storey side extension on the grounds that it would "front" a highway contrary to limitation A.1(d)(i) & (ii). The inspector notes, however, that although the side elevation in question "faces" towards a highway, it does so obliquely at an angle of 45 degrees. Furthermore, there is an intervening neighbour's garden between the highway and the appelants garden and side elevation. As such he held that the side elevation cannot be said to "front" the highway in "any commonly understood meaning of that expression."

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Class A Appeal. Decision Date 8th December 2009. Outcome: appeal allowed
Issue: commencement of works.......excavation, though small, sufficient for 'commencement

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1504724&NAME=/Decision..pdf

Editor's note: this appeal was under the 'old rules'. It turned, therefore, on whether or not the work had actually been "commenced" before the change of regs' on the 1st October 2008 and under which it would NOT be PD. Inspector refers to courst cases noting that "The correct approach was to consider whether the work related to the permission, rather than the extent or amount of the works; that could only be considered on a de minimis basis." He found that the work did indeed relate to the permission. Note also that the old regs' were more permissive than the new ones. Are you listening, CLG?

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Class A Appeal. Decision Date 8th December 2009. Outcome: appeal dismissed.
Issue: A.1(f)(i)........A.1(e)(i)........held that limitation A.1(f)(i) applies to A.1(e)(i) development....perverse interpretation....failure to understand structure of GPDO

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1503955&NAME=/Decision%202108116.pdf

Editors Note: Development proposed was a single storey side extension that was not in contention and separately a part 2-storey and part single storey rear extension. Council contended that the whole of the rear extension was not PD by virtue of A.1(f)(i) which deals with "more than one storey" enlargements. The 2-storey "part" of the enlargement was to project from the rear wall by no more than 3 metres and would thus comply with A.1(f)(i). However, there was to be a further "part" to the enlargement: a single storey "part" which was to project a further 1 metre from the 3 metres "part" of the enlargement---4 metres overall---as allowed by A.1(e)(i).

The inspector, however, decided that, in effect, the single storey "part" is actually "part" of the 2-storey "part"! The inspector notes at para. 4. that "In this case the ‘enlarged part’ includes the ground floor section which would project for 4m beyond the rear wall." It could be said that the "enlargement" overall envisaged by para A. includes some development which is single storey and some development which is 2-storey. The latter is controlled by A.1(f)(i) and the former is controlled by A.1(e)(i). The single storey "enlargement" envisaged by para A. is not extinguished by A.1(f)(i) if it is not "more than one storey" which it clearly isn't, its dealt with by A.1(e)(i). It is not the purpose of limitation A.1(f)(i) to deal with single storey enlargements.

There's a clue to the error at para. 5. where the inspector notes "Although the additional metre would be single storey, the GPDO does not give permission for this situation, if constructed as one development." Yes it does: there's no such thing as "...one development.". The GPDO is permissive; it seeks to control how far you can go overall; to limit what you end up with, not how you get there. A planning permission is not an instruction. Its entirely up to the householder what stages he chooses to do when and in what sequence provided what he ends up with complies with all the relevant limitations and Conditions.

Also at para 5. the inspector notes that the "enlargement........would include a section that is two storeys". Well, yes. But so what. The proposed development might also include an addition or alteration to the roof of the dwellinghouse or to a soil and vent pipe. That doesn't mean the enlargement dealt with under Class A is not PD, simply that such elements are dealt with, respectively, by Class B and Class G as CLG and various inspectors have noted. Similarly, single storey enlargements are not excluded by A.1(f)(i) just because there is another "part" of the "enlargement" overall which falls to be considered under A.1(f)(i) and which, in this case, complies with it.

Lastly, both the appelant and the inspector refer to 'fall back' positions, suggesting that there could be 'two stage construction' where one part is finished and then the other part is commenced. Its perfectly true that that could happen, but its nonsense to suggest that it must happen that way. Again, its what you end up with that the GPDO seeks to control, not how you get there. An enlargement carried out as a "single operation" (para 8.) has exactly the same overall impact (Level 2 & 3) as an enlargement leading to the same outcome carried out as two or more operations.

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Class A Appeal. Decision Date 8th December 2009. Outcome: appeal dismissed.
Issue: side wall of rear wing........"Side elevation" (again!).......Limitation A.2(b).......article 1(5) land.....perverse decision....conflict with A.2(c).......A.2(c) deprived of meaning.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1503542&NAME=/Decision%202111257.pdf

Editor's Note. Yet again an appeal decision which is correct in outcome but for the wrong reason. The side "infill" element of the proposed extension extends "beyond the rear wall..." by more than 3 metres thus falling foul of A.1(e). The house is a 'stepped rear wall house': it has more than one rear wall, as specifically referred to by CLG and the pre-change consultation documents. There have been numerous appeal decisions upholding this, so why are inspectors resorting to finding that side walls of rear wings are side elevations when there is no need to: limitation A.1(e) will address the issue WITHOUT causing the conflict with A.2(c). Yet again an appeal ruling which outlaws any kind of extension from the main rear wall of the house on article 1(5) land.Of course the phrase ‘a wall forming a side elevation of the original dwellinghouse’ in A.2(b) uses the indefinite article ("a") because CLG were alert to the fact that detached houses will have two "side elevations", and that precludes use of the definite article ("the").

Its worth noting that "appeals" to the Planning Inspectorate (PINS) are actually to the Secretary of State (SoS)---the person in government in charge of the law and its application. It would be entirely possible (though highly unusual) for the SoS to 'call-in' a householder Lawful Development Certificate appeal and reach a decision on it herself. The point is that appeals through PINS are customarily the conduit or channel through which a SoS ensures that the law is being interpreted as intended. The SoS has the power to do this subject only to scrutiny by the courts. If the courts decide that the exact way in which the law is written means that the legal interpretation is other than intended, then the SoS has the power to amend it. Immediately. That's how it all works. Or used to.

A great deal of time and money went into revising and amending PD for householders in order to liberalise and clarify the rules and now that they are in force, CLG and the SoS are simply washing their hands of it. Between them, CLG and PINS are sending the signal that they don't know whether its Tuesday or Piccadilly Circus, to use an old phrase. Planning application numbers for some minor householder developments are thus not reducing as intended but increasing. Worse still, heaven knows how much planning officer time, householder time and agents time is being wasted by the failure of the SoS and CLG to simply deal with it. And that's before you get to the Planning Inspectorate's time---average cost of an appeal is said to be about £650.

Much needed projects are being held up, the construction industry is deprived of work, unemployment is promoted (by a Labour Government) and domestic economic output is being delayed at a time when its never been needed more. And all because CLG and the SoS are avoiding their responsibilities and failing to ensure consistent interpretation by PINS of the law THEY DEVISED.

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Class A Appeal. Decision Date 4th December 2009. Outcome: appeal allowed
Issue: Rear wall....only ONE rear wall......small return of "short rear facing flank wall" NOT a rear wall.....“side infill part” extends beyond side elevation....'side extension'.....materials not sufficiently different....comply with A.3(a)

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1496025&NAME=/Decision..pdf

Editor's note. Although the decision in this case is favourable for the appelant, the inspector's reasoning is at odds with the (now) generally accepted interpretation that a house can have more than one rear wall, in line with CLG's informal advice and the background consultation documents to the 2008 Order. We would agree with the council's interpretation in this case.
The house itself is a fairly large, classic 2-storey rear wing semi' with exactly the configuration of a 'stepped' rear wall envisaged in CLG's informal advice, albeit that the extent (width) of the main rear wall is small in relation to the width of the rear wing. The inspector appears to have held that, in effect, the extent of this is too small to be considered a rear wall. However, the inspector also stated that, in his view, the term "the rear wall" refers to "a single entity" which is not quite the same argument.

Yet again, Condition A.3(a) has caused problems too, as many predicted it would. Again, we can see why the council objected on the grounds of non-compliance with A.3(a), but the inspector found that the deviation was not material.

The real problem with this decision, though, is the finding that the 'side extension' is an extension from a "side elevation", meaning the side wall of the rear 2-storey wing. We've commented before that such an interpretation is problematic because on article 1(5) land extensions beyond a "side elevation" are not permitted (A.2(b)) and that would exclude any form of extension to the MAIN REAR WALL (because it is bound to also extend beyond a "side elevation"). Furthermore, A.2(c) would be deprived of meaning because there's no need to exclude "more than one storey" extensions from a rear wall when ALL extensions (from a MAIN REAR WALL on article 1(5) land) have already been excluded.

The kind of inconsistency evident in this appeal decision is difficult enough for professional practitioners to deal with. Quite what householders are meant to make of it is anyone's guess. The 'new regulations' were trumpeted by the government as being more liberal and easier to understand. So much for that.

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Class A Appeal. Decision Date 2nd December 2009. Outcome: appeal dismissed.

Issue: Limitation A.2(b)......side wall of single-storey rear wing is "side elevation".....proposed extension would "extend beyond" said elevation.....not permitted development.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1488676&NAME=/Decision%202110126%20.pdf

Editor's Note: with respect to the inspector in this case we believe he has misdirected himself in finding that the side wall of the single storey rear wing is a "side elevation".

The description of the existing/original house and of the proposed works could have been clearer. It is a semi-detached house with the ubiquitous original two-storey and further single storey rear wing. The single storey element is described as being "stepped back" from the two-storey element which we take to mean it is narrower. The proposal is said to have been to widen the single storey element out as far as the width of the two storey element. The decision letter is ambiguous regarding any further descriptive detail of the proposal.

At paragraph 7. the inspector notes that if the proposal is considered to be a "rear extension it would extend beyond the rear of the original dwellinghouse by more than 3m." We presume this means that the appelant's proposal was to BOTH extend rearwards from the rear wall of the single storey element of the original rear wing AND increase the width of that element. In other words it would be a 'wrap around' extension of that element, in which case the widened part would indeed extend beyond the original rear wall of the original single storey element of the rear wing.

Its been well established at appeal that such an arrangement is not permitted by virtue of limitation A.1(e)(i). The situation is no different to a 'wrap around' single storey extension to a two storey original rear wing that does not additionally have an original single storey element: anything wider than the width of the rear wing and which is more than 3 metres beyond the main rear wall is not PD. There was no need, therefore, to reach the finding that the side wall of the single storey element (or for that matter the two storey element) is a "side elevation". There are problems with such a finding. One is that the interpretation is severely more restrictive than the old regime. More significantly it deprives limitation A.2(c) of meaning: there would be no point in including A.2(c) dealing with 2 storey rear extensions when single storey rear extensions to the main rear wall are already excluded because inevitably they will "extend beyond a wall forming a side elevation of the original dwellinghouse" even if such a rear extension was not in contact with that deemed "side elevation".

The problem can better be illustrated with an example of two pairs of semi-detached houses: the first pair have plain rear walls (i.e. there is no rear wing of any description, just a single rear wall in one plane; the second pair are very similar save that each of these has an original single storey lean-to coal shed (or outhouse) built against the rear wall on the outside corner of each house. The 'outside' side walls of the lean-to coal sheds are co-planer with the side elevations (side walls) of the main house and could reasonably be described as being a part of the "side elevation". The 'inside' side walls of the coal sheds are just outside the kitchen door. In our view that 'inside' side wall is not a "side elevation".

Taking the case of the first pair of houses with plain rear walls (and on article 1(5) land), clearly single storey rear extensions of up to 3 metres deep and up to the full width of the house would be PD (subject to meeting all Class A limitations and Conditions) because there is no rear wing to have a "side elevation" to, in turn, fall foul of A.2(b).

The second pair, however, would not be allowed ANY rear extension at all save for projecting rearwards from the rear wall of the lean-to! So, is the error in the drafting or the interpretation? We argue that the error in this instance is the interpretation of finding that the side wall of the single storey element of the rear wing is a "side elevation" for the purposes of the ORDER, or, for that matter, a finding that the side wall of the two storey element is a "side elevation" for the same reason.

Under this 'ruling' just about every Victorian/Edwardian Terrace/Semi/Detached house plus many inter-war houses in the country situated on article 1(5) land would not be able to build even the most modest of extensions from the main rear wall of the house without applying for permission from a council. So much for 'liberalising' the system and freeing up local planning department resources! Comment on this Note here

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http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1480492&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1421379&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1381104&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1312264&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1292139&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1279411&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1206341&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1205363&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1140264&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1130788&NAME=/Decision%20Letter.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1120546&NAME=/Decision%20Letter.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1117441&NAME=/Decision%20Letter.pdf

Class B Appeals

Class B Appeal. Decision Date 10th March 2010. Outcome: appeal dismissed
Issue: Condition B.2(a).......materials not specified......similar appearnce not type

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1781066&NAME=/Decision.pdf

Editor's Notes: although the inspector has dismissed this appeal due to the appelant's failure to specify the materials to be used for the proposed dormer face, cheeks and flat roof, it should be noted that a 'Condition' is not a 'Limitation' and does not operate in the same way. In this respect, the inspector's decision is inconsistent with some of his colleagues' decisions on similar issues whereby it has been held that a lack of specifying of materials is not necessarily fatal to the issuance of a LDC. This has been on the grounds that it is open to a council to issue enforcement proceedings where an otherwise lawful development does not meet a Condition of deemed lawfulness.

Nevertheless, its asking to trouble to fail to take the opportunity to provide sufficient information for the determination of the LDC application. The applicant left the door open and the LPA walked right in. Also, its too risky in the face of Condition B.2(a) (as with Condition A.3(a)) to proceed with building a scheme of permitted development without having what amounts to an agreed specification for materials. This illustrates the considerable value of LDC's to householders, particularly as there is no right of appeal against a Breach of Condition Notice.

Ironically, in dismissing his appeal, the inspector may well have saved the appelant from his own folly. By ensuring that a LDC application is approved with all the information required, and the project then built accordingly, a householder is not at risk of potentially difficut, damaging and costly action from a council alleging non-compliance with a Condition.

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Class B Appeal. Decision Date 25th February 2010. Outcome: appeal dismissed
Issue: roof alterations.....volume calculations....original dwellinghouse.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1743647&NAME=/Decision..pdf

Editor's comments: this appeal was dismissed because the appellant failed to provide enough information on what constituted the original dwellinghouse, or more particularly its roof. The inspector simply did not have enough facts and information before him to reach a decision. The case is a lesson for appellants upon whom the burden of proof lies, on the balance of probability. It looks as if the council were a bit sloppy too. But that would not have mattered if the appellant had got the submissions right

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Class B Appeal. Decision Date 23rd February 2010. Outcome: appeal dismissed
Issue: rear dormer in main rear roof........Limitaion B.1(a).......means the whole roof.......highest part thereof......Hammersmith and Fulham court case......council wrong.......but appeal decision correct on outcome......proposal did not comply with Condition B.2(b)

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1731989&NAME=/Decision.pdf

Editor's comments: the council had incorrectly rejected the LDC application on the basis that the roof of an orginal two-storey rear wing would be raised above its highest point. The inspector however, cited the well known Hammersmith & Fulham case in which the judge held that the highest part of the roof of the dwellinghouse for the purposes of Limitation B.1(b) was of the roof overall, not some part of it.

However, the inspector also noted that the appellant had not demonstrated how and why it would not have been practicable to set the roof extension up the roof slope from the eaves by the required 200mm. The proposal would have made the extension's face integral with the wall below leaving nothing of the original rear roof. This is in clear breach of B.2(b) and so the appeal was rightly dismissed.

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Class B Appeal. Decision Date 15th February 2010. Outcome: appeal allowed
Issue: rear dormer.......not on principal elevation........flat roof materials.........similar appearance............tile hanging on dormer.......similar appearance......B.2(a) a condition, not a limitation.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1705548&NAME=/Decision%202116554%20.pdf

Editor's comments: the council had contended that the rear roof slope formed part of the principal elevation because it was visible from a major road. The inspector rejected this position as it was very clearly and obviously the back of the house. The front, he observed, was equally obviously the true principal elevation and was both on the other side and also clearly fronted a highway, albeit that that highway was in itself minor in relation to the other road.

Additionally the inspector rejected the council's argument that the proposed materials for the flat roof and tile hanging would not have a similar appearance. He noted also that B.2(a) is a condition not a limitation.

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Class B Appeal. Decision Date 8th February 2010. Outcome: appeal dismissed
Issue: 2-storey extension over existing single storey rear wing.......flat roof.......Class B incorrect.......no effect on existing roof.....Class A appropriate

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1682332&NAME=/Decision..pdf

Editor's comments: we do not share the LPA's, the appelant's or the inspector's view that this proposed 2-storey extension over an existing single storey rear wing fell to be considered under Class B: it should be considered under Class A.

The phrase at A.1(i) "consist of or include---(iv) an alteration to any part of the roof of the dwellinghouse", is, in our opinion, intended to mean the main roof of the house. Its worth noting that the Order envisages at Condition A.3(c) that a Class A development can have its own roof independent of Class B: A.3(c) is a Condition of development PERMITTED BY CLASS A. That is what it says. In the instant case the development has no contact with the main roof---it does not "consist of or include" an alteration to any part of the (main) roof. It leaves that roof the same after the development as it was before the development. The proposal, therefore, is clearly Class A development. As such it is subject to Class A limitations and Conditions. It cannot be affected by limitations and conditions from another Class.

Subject, therefore, to whatever "so far as practicable" means, the proposal would fail to meet the requirements of A.3(c) as it was to have a flat roof which would not be the same pitch as the main roof. If the development scheme had proposed a pitched roof (other than a pitched pyramid roof in place of the flat roof and which had no contact with the main roof) it would be development spanning more than one Class: up to existing roof eaves level under Class A; beyond eaves level to "include....an alteration to any part of the roof..." under Class B. Interestingly, if the proposal did include such a Class B element, then the pitch requirement of A.3(c) could not bite. That's an inherent inconsistency in the GPDO.

Even if the proposal in this instance was correctly considered under Class B, the decision is still wrong on the basis on failing to meet Limitation B.1(b). In the judgement given in Hammersmith and Fulham LBC v Secretary of State for the Environment and Mrs D Davison [1994] JPL 957, it was determined, amongst other things, that the words given in paragraph B.1(a) of Class B refer to the highest part of the roof of the dwellinghouse as a whole and not to some more limited part thereof. At the time, the relevant Order was SI 1988 No 1813. Since then SI 1995 No 418 was been and gone. The words considered in that judgement in 1994 have not changed. They are the same now in SI 2009 No 2362. The inspector appears to have ignored the case law on this subject.

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Class B Appeal. Decision Date 2nd February 2010. Outcome: appeal dismissed.
Issue: hip-to-gable + rear dormer conversion.........meaning of eaves........meaning of verge........Condition B.(b).........confused description.....inspector ignores the words "other than in the case of a hip-to-gable enlargement..."

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1666429&NAME=/Decision%202109142%20.pdf

Editor's comments: the council had asserted that Condition B.2(b) would not be met because the edge (cheek) of the rear dormer would not be set in the required 20cm from the "eaves" of the gable end. Gable ends do not have "eaves": they were referring to the "verge" which means the sloping edge of the tiles (or slates) of a roof. The inspector made this point but went on to find that the cheek of the dormer would be co-planer with the plane of the new gable end. The inspector then went on to test the position of the cheek of the dormer against the position of the eaves on the side elevation (the eaves of the old, removed hip) which are no longer there!

As with the appeal immediately below, the inspector appears to have concocted a new definition of eaves, noting that the "Since the eaves include the whole of the projecting edge of the roof, I consider that the measurement should be taken from the closest edge of the enlargement to the closest point of the projecting eaves and not just from the outer edge of the overhanging roof slope at the point furthest from the side elevation...". There are two points of note here: firstly, the contrived definition of "eaves"; secondly , the "eaves" referred to----"the eaves of the original hipped roof."----are no longer there! The removal of the "eaves" is precisely what is referred to in Condition B.2(b)'s words "other than in the case of a hip-to-gable enlargement..." which anticipate the removal of the eaves in such circumstances.

In respect of the contrived re-definition of the meaning of eaves, the inspectors in both this case and the case immediately below are asking us to believe that the parliamentary draftsman intended the word to be interpreted as something other than the simple, obvious 'lowest edge of a roof' from which a simple measurement can be made, both from scale drawings and on site. Instead we are expected, apparently, to suppose that what the draftsman had in mind was (a) a measurement from an element of the structure which they anticipated would be removed anyway---and no longer there to measure from---and (b) that a sectional drawing should first be made to calculate the uppermost horizontal alignment of the "eaves" up the roofslope from the lowest horizontal alignment---the actual edge of the eaves.

This notional uppermost horizontal alignment of the "eaves" is apparently to be determined by theoretically extending the nominal plane of the outer face of the wall over which the (now removed eaves) originally overhung to determine the position from which the 20cm specified in B.2(b) is to be measured. That totuous contrivance is, apparently, what the draftsman had in mind. You couldn't make it up. And is it a co-incidence that these two appeal decisions appeared within a day of each other? This appeal's site visit was made way back on the 4th November last year, eight weeks before the decision. Why did it languish in the inspector's pending tray for so long?

The Planning Inspectorate appear to be disregarding other uses of the word "eaves" in the new GPDO. Perhaps they should contemplate the implications of their new definitions of "eaves" for those other uses.

Meanwhile, the moral of the story for would-be hip-to-gable + rear dormer schemes is to ensure that the cheek of the dormer is set in from the plane of a gable replacing a hip. This, of course, will have negative impacts on new stair positioning over existing stairs. Exactly what CLG sought to avoid in drafting the new reg's! And as the constructional thickness of dormer cheeks (and other elements) become thicker to accommodate more insulation and, in turn, reduce energy consumption, the problem becomes worse. Nothing like a bit of 'joined up thinking' in government, eh?

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Class B Appeal. Decision Date 1st February 2010. Outcome: appeal dismissed.
Issue: side dormer....subject of extant enforcement notice......structure originally unlawful......now illegal......therefore cannot be PD......arguments about meaning of eaves......perverse interpretation by council AND inspector.......held that 'eaves' is NOT the lowest edge of the roof.......pedantic nonsense.....damaging to intention of revised GPDO.......inspector inappropriately swayed by planning judgement

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1659558&NAME=/Decision..pdf

Editor's comments: the inspector in this case need not have gone any further than finding that a LDC cannot be issued because the development proposed was changes to development which itself was illegal as it was originally unlawful and became subject to an enforcement notice which has not been complied with.

There was no need for the sophistry about the meaning of eaves which is strained to say the least. Notwithstanding that, the inspector, despite stating that he has considered the appeal purely on the grounds of lawfulness, clearly has been influenced by judgements on its planning merits. The extensive arguments made in favour of interpreting the 'eaves' as not meaning the lowest edge of the roof for the intended puposes of the GPDO are simply pedantry. Worth reading, though, for an example of twisting intended meaning! CLG will love this one after all the work done to arrive at the amended GPDO.

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Class B Appeal. Decision Date 1st February 2010. Outcome: appeal allowed.
Issue: dormer on roof of rear 2-storey wing....not higher than highest part of the roof....conditions B.2(b) & (c)....

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1659989&NAME=/Decision%202113882%20.pdf

Editor's comments. 'L' shaped rear dormer in main and rear wing existing roofs. The council had contended in refusing the LDC application that the ridge height referred to on Limitation B.1(a) should be the height of the roof of the rear wing. The inspector rejected this argument citing Hammersmith and Fulham LBC v Secretary of State for the Environment and Mrs D Davison [1994] JPL 957. where the judge held that the words in B.1(a) refer to the roof of the dwellinghouse as a whole and not to some more limited part thereof.

Secondly, the council had given two further reasons for rejecting the application, claiming that Conditions B.2(b) & (c) would not be met. However, the inspector noted that the plans submitted clearly showed both the dormer face at least 200mm from the eaves and that all windows overlooking neighbours would be obscure glazed. There was no note that they would additionally be non-opening but the inspector held that if a breach occured then the council had powers to act to remedy the breach. The important point to note here is that a Condition is not like a Limitation because a breach of condition is capable of being remedied. e.g. a window which is supposed to be non-opening but which has been installed as opening could be fixed shut at a later date to comply with the condition.

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Class B Appeal. Decision Date 15th January 2010. Outcome: appeal dismissed
Issue: Class B limitations and conditions.........Class C limitation C.1(a).........Class G

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1606138&NAME=/Decision.pdf

Editor's Note. This, in our opinion is a dreadful decision. A prime example of pettiness and time wasting all round. And as an interpretation of permitted development regulations it is, in part at least, plain wrong.

The inspector firstly concluded, correctly, that the proposed rear dormer fully complied with Class B limitations and conditions, notwithstanding the councils contention that the proposed alterations to a soil & vent pipe failed to comply with limitation B.1(d)(ii). (Note: such alterations to a soil & vent pipe are permitted by Class G: the purpose of limitation B.1(d)(ii) is to steer consideration of such alterations to the appropriate development Class where they can be considered properly. The purpose of limitation B.1(d)(ii) is NOT to prevent the Class B development taking place simply because the Class B works incidentally might involve some piddling little changes to a stink pipe. Class B permitted development exists to PERMIT roof extensions, not to PREVENT them. Otherwise what's the point of it?)

Next, the inspector correctly considers the proposed rooflights under Class C, but notes that the application documents failed to specifically note that the rooflights would not protrude more than the 150mm set out in limitation C.1(a). This may be true and stricktly correct but its pettiness gone mad: straining to find a reason to refuse the certificate. This last point is then further reinforced by the inspectors conclusions. Having noted in para. 7 that "...the flat roofed dormer would be permitted development under Class B.", the inspector observes in para. 11 of the decision letter that a so called 'split decision' is lawfully possible: "Where an application under section 192 specifies two or more operations a certificate may be issued for all of them or some one or more of them (s.193).". Its arguable that the instant case is not what the draftsman had in mind in respect of "two or more operations", but that's another matter. Nevertheless its incorrect to conclude that a split decision Certificate could not be issued because "as a matter of fact and degree the insertion of the rooflights and the alteration to the soil and vent pipe are an integral part of the proposed loft conversion.". The rooflights and stink pipe work may well, in practice, be carried out at the same time as the Class B works, but they are still separate Classes of development each of which is permitted (or not) by each separate Class. The Class B development is not rendered unlawful by unlawful Class C or Class G development. The conclusion, therefore, at para. 11 that "it would be inappropriate to issue a certificate for the proposed dormer in isolation." is unsound.

Its also worth noting that the householder began this tortuous journey in November 2008. It took the council nearly 14 weeks to process---at a time when application numbers are much reduced. And now he'll have to start all over again with another application detailing the palty changes to a stink pipe and specifying the protrusion of the rooflights. On past performance that will be another 14 weeks languishing at the council. So perhaps a total of up 16 months before he can start the work. Sixteen months of impediment to creating jobs for people in the construction industry. Sixteen months of lost output to the economy generally. Sixteen months of lost output for the materials manufacturing sector. So much for liberalising the PD regime and simplifying the system. Pathetic. Truly pathetic.

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Class B Appeal. Decision Date 13th January 2010. Outcome: appeal allowed
Issue: raising party wall.........within 'curtilage'

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1598697&NAME=/Decision%202108111%20.pdf

Editor's Note. This appeal concerns the raising of a party wall to facilitate the construction of a rear dormer in the roof of a rear wing of a terrace house. The inspector, in rejecting the council's contention that part of the party wall (the neighbour's half) fell outside the curtilage of the appelants house, cited an appeal decision from 2001 which, in turn, cited a number of court cases in which it was held that in circumstances such as this a 'curtilage' of one house could overlap with the curtilage of its neighbour.

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Class B Appeal. Decision Date 13th January 2010. Outcome: appeal dismissed
Issue: obscure glazed side window not specified......condition B.2(c)(i)........distance to eaves.....condition B.2(b)

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1596064&NAME=/Decision%202109105%20.pdf

Editor's Note. This appeal failed because the appelant had not specifically annotated the drawings to indicate that the proposed new side window would be obscure glazed. The inspector also noted the council's contention that the “the rear dormer extension has not been set in a minimum of 20cm from the gable end eaves....". Whilst the inspector also observed that Condition B.2(b) specifically excludes the 20cm requirement for hip-to-gable enlargements, it seems that what the council were actually referring to was the distance between the proposed dormer cheek and the VERGE of the new gable. A gable end does not have eaves. A lack of clarity all round on this one.

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Class B Appeal. Decision Date 13th January 2010. Outcome: appeal dismissed
Issue: conditions B.2(a) & B.2(c)

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1597264&NAME=/Decision.pdf

Editor's Note. This appeal was dismissed, it seems----the inspector could have been more explicit----on the basis of non-compliance with B.2(c) as the application for the LDC failed to specify obscure glazing for the side window. The inspector notes at para. 6 of his letter that "Although the plans state that the roof tiles will match the colour and type of the main roof tiles no more specific details are provided.". It hard to see what "more specific details" could have been provided (make of the tiles??) to comply with the now well established requirement under B.2(a) that "materials......shall be of similar appearance..." does not require (according to numerous appeal decisions) the materials to match exactly or be of the same type. Nevertheless, the failure to specify obscure glazing would have been fatal to the appeal on its own.

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Class B Appeal. Decision Date 5th January 2010. Outcome: appeal dismissed
Issue: rear mansard........20cm from eaves........not practicable according to appellant.....argument rejected

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1572668&NAME=/Decision.pdf

Editor's Note. The appellant wanted to maximise the space in the proposed loft conversion but unsuccessfully argued that maintaining 20cm from the eaves would be impracticable.

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Class B Appeal. Decision Date 16th December 2009. Outcome: appeal allowed
Issue: Condition B.2(a)....GPDO requires "similar appearance" of materials, not matching type.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1535156&NAME=/Decision.pdf

Editor's Note: See other appeals below on the same subject.

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Class B Appeal. Decision Date 9th December 2009. Outcome: appeal allowed
Issue: rear flat roof dormer........materials for flat roof......requirement of condition B.2(a).......similar appearance not type

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1509939&NAME=/Decision.pdf

Editor's Note. See also decisions below. Inspector held that the flat felt roof "would not be visible from any public viewpoint, and most probably in any private view, because of its height and its proximity to the ridge of the house."

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http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1509635&NAME=/Decision.pdf

Editor's Note. See also decisions below. Inspector held that the flat felt roof "would have no impact whatsoever on the appearance of the existing dwellinghouse, as it could not be seen."

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Class B Appeal. Decision Date 9th December 2009. Outcome: appeal allowed
Issue: hip to gable roof enlargement plus rear flat roof dormer........materials for flat roof.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1509027&NAME=/Decision.pdf

Editor's Note. There was no dispute that limitations B.1 (a) to (e) would be met and that Conditions B.2 (b) & (c) would be complied with. The council, however, asserted that the felt proposed for the flat roof would be a dissimilar material. The inspector noted that the requirement under B.2 (a) was for materials of a similar appearance, not type. This decision is in line with many other planning inspectorate decisions on this subject and accords with CLG advice on the matter. See also decisions below.

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Class B Appeal. Decision Date 1st December 2009. Outcome: appeal allowed.
Issue: condition B.2(a).....flat roof dormer......materials allegedly could not match existing house........incorrect interpretation........surface of roof so elevated as to not have "appearance" from normal vantage points. (Editors Note: very similar to appeal below)

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1483394&NAME=/Decision.pdf

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Class B Appeal. Decision Date 1st December 2009. Outcome: appeal allowed.
Issue: condition B.2(a).....materials similar appearance......lead flat roof covering......lead could be similar to lead flashing.......surface of roof so elevated as to not have "appearance" from normal vantage points.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1485653&NAME=/Decision.pdf

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Class B Appeal. Decision Date 1st December 2009. Outcome: appeal allowed.
Issue: limitation B.1(d)(ii)........consist of or include.......soil and vent pipe.........1995 Order permissive......S&V pipe not "development"......does not materially affect external appearance.......even if it did permitted by Class G, PART 1, Schedule 2 of amended Order......B.1(d)(ii) does not operate to exclude Class B development.....not its purpose.......reference to CLG's "Q & A's" and Planning Portal advice.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1483512&NAME=/Decision.pdf

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http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1472447&NAME=/Decision%202104901%20.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1471499&NAME=/Decision%202100832%20.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1423320&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1413837&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1383306&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1299431&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1266585&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1193109&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1175324&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1147192&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1121422&NAME=/Decision%20Letter.pdf

Class D Appeals

Class D Appeal. Decision Date 14th January 2010. Outcome: appeal allowed
Issue: whether or not works amount to development.......if so, are the works permitted development

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1599881&NAME=/Decision%202109068%20.pdf

Editor's Note. This appeal involved works to an existing porch on a house in a conservation area. Council argued that the removal of some of the original porch was 'demolition'. The inspector noted, however, that the leading case on this matter (it went to the House of Lords), known as the Shimizu case held that 'demolition' means the complete demolition of the whole building. In this case, therefore, part removal of part of the house cannot amount to demolition. Furthermore, the inspector went on to note that the changes were so negligible that they do not amount to a material change in external appearance and therefore do not amount to 'development' in the first place. As such it does not fall to be considered whether or not they are permitted development. Stricktly speaking, then, this is not a case of Class D development at all.

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http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1328973&NAME=/Decision..pdf

Class E Appeals

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Class E Appeal. Decision Date 26th January 2010. Outcome:appeal dismissed

Issue: height of building overall.........within 2.0 metres of boundary

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1637866&NAME=/Decision%202116065%20.pdf

Editor's Note. This case re-affirms that if any part of the building is within 2.0 metres of the boundary and any part of it is over 2.5 metres in height then its not PD even if that part which is over 2.5 metres high is not itself within 2.0 metres of the boundary

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Class E Appeal. Decision Date 26th January 2010. Outcome:appeal dismissed

Issue: Playroom.....too large....not incidental to the enjoyment of the dwellinghouse

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1637796&NAME=/Decision%202110511%20.pdf

Editor's Note. As with many other cases, the inspector re-affirms the principle that size matters: the 'playroom' would be too big in the circumstances.

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Class E Appeal. Decision Date 25th January 2010. Outcome:appeal dismissed

Issue: Playroom.....too large....not incidental to the enjoyment of the dwellinghouse

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1635064&NAME=/Decision%202111737%20.pdf

Editor's Note. As with many other cases, the inspector re-affirms the principle that size matters: the 'playroom' would be too big in the circumstances.

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Class E Appeal. Decision Date 15th January 2010. Outcome: appeal allowed

Issue: Purpose incidental to the enjoyment of the dwellinghouse as such.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1603793&NAME=/Decision.pdf

Editor's Note. The council had accepted that the proposed 'log cabin/summerhouse' met with all Class E Limitations but argued that the building could be used as a separate house. The inspector found no evidence to support this view. The cabin had no cooking facilities and had been fitted out for incidental recreational use, albeit that the building was quite large and work had been carried out to high standards. The inspector also noted that the host house was a very large and substantial building with which the cabin was proportionate. In addition to allowing the appeal the inspector also allowed the appelant's application for costs, finding that the council had acted unreasonably in failing to issue the LDC. See costs letter below.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1603795&NAME=/Costs%20Decision.pdf

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Class E Appeal. Decision Date 14th December 2009. Outcome: appeal allowed
Issue: new garage....E.1(b).....principal elevation.......indefinite/definite article....only one principal elevation

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1523391&NAME=/Decision%202106253%20.pdf

Editor's Notes. The council had contended that both the northern AND the southern elevations were 'principal elevations'. Inspector disagreed. Use of the definite article "the" meant that in this case there was just the one. He assessed each elevation for relevant characteristics and decided the matter on the basis of which was the "first in importance". Held that the proposed garage would not be forward of the principal elevation.

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Class E Appeal. Decision Date 4th December 2009. Outcome: Appeal Allowed
Issue: Extent of curtilage....10 year rule.....new proposed buildings within curtilage....evidence of previous owner sound.....current and previous use as curtilage demonstrated.
http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1495672&NAME=/Decision..pdf

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Class E Appeal. Decision Date 2nd December 2009. Outcome: appeal allowed.
Issue: size of outbuilding....all Class E limitations complied with....size not excessive for use “incidental to the enjoyment of the dwellinghouse”.....area of building nearly as big as bungalow......but "would not appear overlarge in the context of the extensive grounds of the bungalow.".....areas of building for each incidental use not excessive.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1486764&NAME=/Decision%202107624%20.pdf

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Class E Appeal. Decision Date 2nd December 2009. Outcome: appeal allowed.
Issue: “forward of a wall” in E1(b).... “between a wall” in E3...."forward of a wall" means the plane of the wall...."between a wall" to be taken literally and does not mean 'the plane of the wall'... useful clarification.

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1487292&NAME=/Decision%202109263.pdf

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http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1457852&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1430023&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1421624&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1420413&NAME=/Decision%202103482%20.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1413088&NAME=/2099772%20&%202107153%20DECISION.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1369848&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1261800&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1261388&NAME=/Decision.pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1174873&NAME=/Decision..pdf

http://www.pcs.planningportal.gov.uk/pcsportal/fscdav/READONLY?OBJ=COO.2036.300.12.1173689&NAME=/Decision..pdf