Appeal 3259734

The appeal is dismissed.

I have dealt with 2 other appeals on this site, relating to applications for lawful development certificates. These are the subject of separate decisions1.

At my site visit I was able to see the rear of the appeal property from the public highways to either side. From these public vantage points it was clear that the rear outrigger had been almost entirely demolished.

Since the Council issued its decision a new version of the London Plan has been published. So the London Plan policies published in 2016, referred to in the decision notice, have been superseded by those in the London Plan 2021. Both main parties have been given an opportunity to comment on any relevant implications for the appeal and any comments received have been taken into account in my reasoning.

The main issue is the effect of the appeal development on the character and appearance of the area.

The area includes a mix of housing types but is predominantly characterised by rows of 2 storey terraced houses, many of which have a butterfly roof and a rear outrigger set below the rear parapet level. The appeal property is one of a short terrace of 6 such properties, the rears of which are clearly seen from the 1 APP/G5750/X/20/3259734 and APP/G5750/X/20/3263555 roads perpendicular to either end of the terrace, as well as from neighbouring properties to the rear.

The appeal proposal includes a mansard roof extension over the main house and a dormer roof extension over the rear outrigger. The Council’s decision raises no issues with the mansard roof extension and, based on the evidence provided, I see no reason to either. However, the proposed dormer roof extension would be large and bulky and would be an unsympathetic addition to the appeal property’s rear outrigger. No other rear outriggers in this group have been extended in this way and so the dormer extension would be incongruous in this context.

My attention has been drawn to roof extensions on Nos 90 and [address]. But from the information available to me, neither of these developments included a dormer roof extension over the rear outrigger, so they make no difference to my conclusion in this case.

From the 2 other appeals I have dealt with on this site, I am aware of 2 other proposals for an extension over the rear outrigger and I have given consideration to these as part of this appeal. But given the extent of demolition which has occurred, which I saw on my site visit, I am not satisfied there is a real prospect of either of the other proposals being pursued. This is because the demolition which has occurred constitutes a material change in circumstances for those 2 other proposals, since they were made, and so I have given them limited weight in this decision.

I conclude the proposed rear dormer roof extension over the rear outrigger would harm the character and appearance of the area. So it would not comply with Policies SP1 and SP3 of the London Borough of Newham Local Plan 2018 (the Local Plan), the Altering and Extending Your Home Supplementary Planning Document, February 2018 or the design policies of the National Planning Policy Framework in this regard.

The Council has also referred to Policies D1, D4 and D8 of the London Plan 2021 and Policies SP2, SP8 and H1 of the Local Plan. But it has not been explained how these are directly relevant to the appeal development or the main issue in this appeal. So in my view these policies weigh neither in favour of nor against the appeal development and in my view the appeal development conflicts with the development plan overall.

For the reasons given above I conclude that the appeal should be dismissed.

Appeal A and Appeal B are allowed and attached to these decisions are certificates of lawful development describing the proposed operations which are found to be lawful.

I have dealt with another appeal on this site, relating to an application for planning permission. This is the subject of a separate decision1.

The descriptions of development in the headings above have been taken from the application forms. However, the Council’s decision notices contain a different description of development. Neither of the main parties have provided 1 APP/G5750/D/20/3259739 Appeal Decisions APP/G5750/X/20/3259734, APP/G5750/X/20/3263555 written confirmation that a revised description of development has been agreed for either appeal. Accordingly, I have used those given on the original application forms.

At my site visit I was able to see the rear of the appeal property from the public highways to either side. From these public vantage points it was clear that the rear outrigger of the appeal property had been almost entirely demolished. However, to comply with section 192(2) of the 1990 Act, my decisions must be based on circumstances at the time of the application, rather than on any subsequent events that may constitute a material change in circumstances since the time of the applications.

The main issue in each appeal is whether the Council’s decision to refuse the certificate was well-founded or not.

Under section 192(1) of the 1990 Act, if any person wishes to ascertain whether any operations proposed to be carried out in, on, over or under land, would be lawful, they may make an application for the purpose to the local planning authority specifying the land and describing the operations in question.

Under section 192(2), if, on an application under this section, the local planning authority are provided with information satisfying them that the operations described in the application would be lawful if begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

As set out in the Planning Practice Guidance2, the applicant is responsible for providing sufficient information to support an application.

The Town and Country Planning (General Permitted Development) (England) Order 2015 (the Order) grants planning permission for specified forms of development. Schedule 2, Part 1, Class B of the Order concerns the enlargement of a dwellinghouse consisting of an addition or alteration to its roof, subject to conditions and limitations.

As reflected in the descriptions of development provided by the appellant, each appeal has been made on the basis that it is permitted development under Class B, noted above.

For each appeal, the Council considers that the appeal development is not lawful because of what it describes as the vertical extension of the parapet walls. It is the Council’s view this cannot be considered an alteration or addition to the roof.

But it has been established in case law that parapet walls and other barriers will generally be regarded as additions or alterations to the roof and there is no evidence that this should not be so in this case. So for each appeal, the Council’s concern in this regard does not mean that the proposed development is not lawful. 2 Lawful development certificates - Paragraph: 006 [name]: 17c-006-20140306 Appeal Decisions APP/G5750/X/20/3259734, APP/G5750/X/20/3263555

In respect of Appeal B, the Council has referred to discrepancies in the depiction of the dwellinghouse on the submitted drawings. In particular, the Council states the existing A-A section depicts an unclear line above the first floor of the rear outrigger and the chimney situated on the rear outrigger fails to be portrayed, and thus its removal as a result of the potential extension is not reflected.

But as no chimney is shown on the outrigger on either the existing or the proposed drawings, the removal of any chimney on the outrigger is not proposed in either application. Also, I am satisfied the ‘unclear line’ on section A-A merely indicates the height of the ridgeline of the rear outrigger.

Also in respect of Appeal B, the Council states that a dormer extension effectively needs to be set in from the party/parapet walls instead of encompassing the upper projection/building upon them, so that it is wholly an extension to the roof not also an extension of exterior walls. [name] have not been referred to any authority for this view and it is not what is reflected in the wording of the Order. So based on the information provided, I do not accept either appeal development to be unlawful for this reason.

No other dispute between the parties has been put to me in respect of Class B for either appeal. So in the absence of any other reason for either appeal development not being lawful, based on the drawings provided, I am satisfied each appeal development complied with all the conditions and limitations of Class B of the Order, at the time each application was made.

For the reasons given above I conclude, on the evidence now available, that the Council’s refusal to grant certificates of lawful use or development in respect of: ‘Addition to the roof – Class B’ in either appeal, was not well-founded and that the appeals should succeed. I will exercise the powers transferred to me under section 195(2) of the 1990 Act as amended.