Appeal 3266241

The appeal is dismissed.

The main issue is whether the Council’s refusal to issue a certificate of lawfulness (‘LDC’) was well-founded. The development would be lawful if the proposed operations described in the application would fall within the provisions of the Schedule 2, Part 1 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (‘the GPDO’) if instituted on the date of the application.

The Council’s reason for refusal is not related to the roof extension in any way and only to the ground floor rear extension. The Council, in its delegated decision, set out the requirements and limitations from [name] and C and , based on the plans submitted with the application ([name]: 2131.1 [name], 2131.2. [name] and 2131.3.[name]) and was satisfied that the proposals in relation to the roof extension and roof lights met them. I have no reason to doubt the parties on the point and I am therefore satisfied that the proposals relating to the rear roof extension and three roof lights to the front roof slope would be permitted development pursuant to Schedule 2, Part 1, [name] and C of the GPDO.

The Council’s reason for refusal was that the proposed development falls outside of the provision of Schedule 2, Part 1 of the GPDO and is therefore unlawful. In particular, the Council stated that the rear ground floor extension required prior approval as it would exceed the permitted depth of 3 metres (contrary to Class A.1 f)(i)) and also that the eaves height would be over the permitted height of 3 metres (contrary to Class A.1 i)). The Council’s case is that the plans submitted with the LDC application show that the eaves would be at the height of 3.25 metres when measured from the natural ground level at the base of the outside wall of the proposed extension to the point where that wall would meet the upper surface of the roof which is in line with the Technical Guidance.

Article 2(2) of the GDPO explains that ‘any reference in this Order to the height of a building or of plant or machinery is to be construed as a reference to its height when measured from ground level’ – and that ‘ground level’ in this context means ‘the level of the surface of the ground immediately adjacent to the building or plant or machinery in question or, where the level of the surface of the ground...is not uniform, the level of the highest part of the surface of the ground adjacent to it’. The appellant’s case is that prior approval was sought and granted under Reference 202754PALHE and this was predicated on the correctly calculated eaves height measurement taken from the level of the surface of the ground immediately adjacent to the rear elevation of the host property.

The difference in opinion in this case arises from whether the height is measured from the outside wall of the host property or the outside wall of the proposed extension.

The Technical Guidance, which is an aid to interpretation and application of the Schedule 2, Part 1 of GPDO, explains that for the purposes of measuring ‘height’ from ‘ground level’, ‘the eaves of a house are the point where the lowest point of a roof slope, or a flat roof meets the outside wall.’ The roof proposed in this case is flat. The diagram accompanying the explanation of how to measure the height of eaves in the Technical Guidance1 clearly shows the eaves height measured on the outside wall of the extension rather than the host property. When measured in this way the height of the proposed eaves exceeds what is permitted under Class A.1 i) and would therefore not be lawful.

Prior notification was granted under Reference 202754PALHE but this was on a mistaken understanding of the provisions of Class A.1 i). The development subsequently undertaken is only lawful if it is in fact permitted development under the provisions of the GDPO and meets all of the conditions and limitations, irrespective of whether there has been a prior notification. In this case, the proposed operations would not be permitted development under Schedule 2, Part 1 Class A, because it would not comply with Class A.1 i) in terms of the proposed eaves height.

For the reasons given above I conclude that the Council’s refusal to grant a certificate of lawful use or development in respect of a single story rear extension was well-founded and that the appeal should fail. However, I find that the Council’s refusal to grant an LDC in respect of rear roof extension and 1 Page 12 of MHCLG’s “Permitted development rights for householders - Technical Guidance (2019)” installation of three roof lights to front roof slope was not well-founded and the appeal should succeed in part. I will exercise accordingly the powers transferred to me in section 195(2) and (3) of the 1990 Act as amended.