Appeal 3272275

The appeal is allowed and attached to this decision is a certificate of lawful use or development describing the proposed operation which is considered to be lawful.

In this type of appeal, the onus of proof is firmly upon the appellant. For the avoidance of doubt, the planning merits of the proposal are not relevant, and they are not an issue for me to consider in the context of an appeal under section 195 of the 1990 Act as amended. As such, I am not able to take account of the comments of an interested person since matters concerning loss of privacy and appearance would relate to planning merits.

I consider that this appeal can be determined without the need for a site visit. This is because I have been able to reach a decision based on the information already available.

The main issue is whether the Council’s decision to refuse to grant a lawful development certificate (LDC) was well-founded.

The appeal property is a semi-detached house, which has been extended previously to the side and rear. The appellant is now seeking a loft conversion with a rear dormer extension and alterations to the hipped roof to form a gable. The appellant’s case is that the proposed roof extensions would have a total volume of 46.56 cubic metres and so the development would fall within that ‘permitted’ under Article 3 and Schedule 2, Part 1, Class B to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO).

Class B grants deemed planning permission for development involving the enlargement of a dwellinghouse consisting of an addition or alteration to its roof, subject to conditions and limitations. [name].1(d) development is not permitted by Class B if the cubic content of the resulting roof space would exceed the cubic content of the original roof space by more than - (i) 40 cubic metres in the case of a terrace house, or (ii) 50 cubic metres in any other case.

In addition under B.1(e), development is not permitted if it would consist of or include - (i) the construction or provision of a verandah, balcony or raised platform, or (ii) the installation, alteration or replacement of a chimney, flue or soil and vent pipe.

The Council is of the opinion that the extension would not comply with B.1(d), because the property has previous extensions which are estimated to measure 78.7 cubic metres. It is argued that the addition of the proposed roof extensions would exceed the 50 cubic metres allowed.

The Technical Guidance1 states that – “To be permitted development any additional roof space created must not increase the volume of the original roof space of the house by more than 40 cubic metres for terraced houses and 50 cubic metres for semi-detached and detached houses. Any previous enlargement to the original roof space in any part of the house must be included in this volume allowance. ‘Original roof space’ will be that roof space in the ‘original building’, which means a building as it existed on 1 July 1948 where it was built before that date, and as it was built if built after that date”.

Therefore, development is not permitted under paragraph B.1(d) if the cubic content of the resulting [from the enlargement to the] roof space would exceed the cubic content of the original roof space by more than 50 cubic metres. Previous extensions that did not result in an enlargement to the original roof space do not form part of that calculation.

On the basis of the appellant’s calculations for the roof space, which are not queried by the Council, the cubic content of the resulting roof space would not exceed the cubic content of the original roof space by more than 50 cubic metres and so the development proposed would be permitted under Class B.

The Council further considers that the development would not comply with B.1(e)(i) because the plans show a Juliette balcony on the rear of the dormer window.

The Technical Guidance states that – “Alterations to the roof of a house for loft conversions involving the creation of balconies are not permitted development and will require planning permission. A balcony is understood to be a platform with a rail, balustrade or parapet projecting outside an upper storey of a building. A ‘Juliet’ balcony, where there is no platform and therefore no external access, would normally be permitted development”.

In this case, the plans show there would be no platform. As such, the Juliet balcony would also be considered permitted development. 1 MHCLG – Permitted Development Rights for Householders: Technical Guidance, September 2019.

I find, therefore, that the development proposed would fall within that ‘permitted’ under Article 3 and Schedule 2, Part 1, Class B to the GPDO, and so it would be permitted development.

For the reasons given above I conclude, on the evidence now available, that the Council’s refusal to grant a certificate of lawful use or development in respect of loft conversion with rear dormer and alterations to the roof from hip to gable was not well-founded and that the appeal should succeed. I will exercise the powers transferred to me under section 195(2) of the 1990 Act as amended.