Decking on a sloping garden - urgent help pls!

[big-all]

you need to convince them its from the highest point it covers perhaps a planning expert??
why not try the garden law forum i am sure they will have more suggestions
and please let us know how you get on if you do

 

[planningjungle]

Hi mummypickle,

As said, in my opinion you would have to take the measurement with respect to "natural" ground level, rather than with respect to any level that's been artificially raised or lowered, regardless of whether such change in levels were done (say) 5, 20, or 50 years ago.

However, with the issue about taking the highest adjacent natural ground level, in my opinion there's a lot you could use to back up your argument. For example:

1) Article 1(3) of the legislation itself (i.e. Article 1(3) of "The Town and Country Planning (General Permitted Development) Order 1995") provides the following definition of height, the last part of which is relevant:

"Unless the context otherwise requires, any reference in this Order to the height of a building or of plant or machinery shall be construed as a reference to its height when measured from ground level; and for the purposes of this paragraph “ground level” 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 on which it is situated or is to be situated is not uniform, the level of the highest part of the surface of the ground adjacent to it."

2) Page 6 of the DCLG "Permitted development for householders - Technical Guidance" document (2010) states the following:

"‘Height’ - references to height (for example, the heights of the eaves on a house extension) is the height measured from ground level. Ground level is the surface of the ground immediately adjacent to the building in question. Where ground level is not uniform (e.g. if the ground is sloping), then the ground level is the highest part of the surface of the ground next to the building."

3) There have also been at least 8 appeal decisions by government Inspectors since October 2008 that have confirmed that the height of a structure should be measured from the level of the highest part of the surface of the ground adjacent to the structure. Perhaps the most relevant appeal decision to your particular situation is reference APP/L5810/X/12/2171871, which dealt with an area of decking, and which stated the following:

"The plan submitted with the LDC application shows that the timber deck is some 1200mm above the level of the garden below. However, the ground level on the site is not uniform. The ground level from which to measure the height is taken at the highest part of the surface of the ground adjacent to the deck."

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2171871&coid=2097560

Thanks,
Steve

 

[rjm2k]

He made it clear that his stance (and apparently that of his colleagues) is that in instances like these measurements should be taken from varying points.

You could ask him which legislation or guidelines state that.

There probably isn't an easy way out of this, if you keep caving in, they will find more issues. If you stand your ground, they will most probably do nothing, maybe issue an enforcement notice but afaik it is highly unlikely they will enforce it should you ignore (I'm no expert). But if you stand your ground it may be difficult to sell with it hanging over you.

When did you build the decking?

 

[SimonH2]

Depending on time available, would one option be to apply for a CLD ?

That would force their hand - they either have to accept it's legal, or state in writing why they think it isn't. Once they've stated in writing why they think it's illegal, you've got something you can challenge properly - and if they're wrong then they'll lose and you'll have a ruling specifically that it's legal.

it will cost a fee to apply, but if it gives certainty then that may be worth while.

One for the legal bods ...
If it turns out he was legal all along, and it's cost him money through not being able to sell, does that then give grounds for a claim for compensation ?