Permitted Development and 200mm setting back from eaves

[DevilDamo]

Do the planning authority want to pay the additional costs that the clients have to fork out for additional structural support then if this 20cm rule is infact from the face of the outside wall and not the eaves... hmmm. With the measurement being taken from the eaves, the majority of houses will have eaves that will project approx. 20cm so having a wall above sit 20cm in, would normally sit on the wall below, thus not requiring any additional support.

I have just obtained a Certificate of Lawfulness for a loft conversion. I designed it so it fell within the PD guidelines and I made sure it was max. 20cm from the eaves, thus maintaining additional usable floor space.

The PD guidelines state the distance is from the eaves and measured along the roof plane and that is what I will be using when carrying out works of this nature.

Just for mine and other peoples benefits... which LA is this?

 

[lpasengland]

Hi all,

I do think the issue of where to measure eaves from is very ambiguous, as the legislation contains no definition of "eaves", and because this point hasn't been addressed by any guidance from CLG. Because of this, in my view, Councils have a fair degree of leeway to choose an interpretation that they feel is appropriate and to maintain such an interpretation until further guidance becomes available.

Whilst it's very unfortunate for PaulandFrodo that their particular Council has chosen a more restrictive interpretation, I imagine that the Council would be able to justify their position by pointing to the following appeal decision (please see the diagrams on page 4):

http://www.planningjungle.com/appeal_decisions/136 Wood Lane - Appeal Decision Notice.pdf

Obviously I'm biased, because I work for a Council ("boooo"), but in this type of situation, I think most of the blame lies with the government and CLG, for producing such poor quality ambiguous legislation and then failing to produce any decent guidance, rather than the Council. Councils have been put in an impossible position by CLG of having to interpret government legislation that is ambiguous and which was released without any definitions or proper guidance, whilst trying to take into consideration a series of appeal decisions that have often completely contradicted one-another. And whilst there have certainly been a number of criticisable decisions by Councils (such as those Councils that still refuse dormers because of the materials of the flat roof), in this case the Council is simply adopting the interpretation of government legislation that was taken by a government Inspector. Having said that, if they had taken a more permissive view on this particular issue (which I believe many other Councils are taking) then in my view they could have justified not taking the same view as the Inspector on the basis that one single appeal decision by itself isn't necessarily conclusive (particular in light of the significant minority of appeal decisions that have contained mistakes).

If it was just this single issue with the dormer, then it would probably be worth appealing (in the hope that the Inspector takes a different view to the earlier Inspector), or waiting for more comprehensive government guidance to be released (a couple of months ago this was likely to be released in the near future, however with the change in government it's hard to say when or if this will now be released). However, if the volume of the dormer is also over, then I'm afraid it's probably worth just going ahead and moving the rear wall back.

Thanks,
Steve

 

[Frank2010]

Just for mine and other peoples benefits... which LA is this?

Richmond Upon Thames

Steve,
To some extent you have summed up my thoughts. It is indeed madness to state eaves in the guidance when back wall is reality. This seems far too flexible for interpretation to go wrong. Both ways.

I note that the appeal was rejected on the 19th January 2010 in the neighbouring council of Hounslow. This could well be the case the officer is referring to. Our application was made back in November 2009 but it has taken the Planning department 7 months so far with the case still ongoing.

Given that the application was made and structure completed before the appeal decision was made it seems a little unfair to suggest this as an infringement. We couldn't have know at the time this appeal decision existed if indeed the council is basing their decision on this case.

Does anyone know what my rights are given this scenario? Should I ask the officer to reference the appeal decision they are referring to? Or is it likely that they will simply try to find another appeal with similar outcome that was made earlier.

 

[lpasengland]

Hi Frank,

I'm afraid you probably haven't got a lot of options in a situation like this.

According to the Council's interpretation of the term "eaves", your dormer wouldn't accord with the requirement for a 20cm set-back. Because this this requirement is ambiguous (e.g. the government hasn't provided any definition or guidance for the term "eaves"), the Council was fully entitled to take such an interpretation, even if there are (or were) examples of other Councils that take (or took) the opposite interpretation, and even before there were any appeal decisions on the issue.

The fact that there is now an appeal decision that supports the Council's interpretation 1) strongly indicates that the Council didn't act unreasonably in taking such an interpretation and 2) weakly indicates that the particular interpretation that the Council took was the right one. I say "weakly" only because one single appeal decision on an issue is not particularly conclusive. Indeed, if (say) 5 appeal decisions are issued next month that support the opposite interpretation, or if (say) the government releases guidance next month that supports the opposite interpretation, then you could show these to the Council, and ask them to reconsider their decision. However, even if this happened and the Council changed their interpretation, it wouldn't mean that they were unreasonable to have taken the interpretation that they did at the time when they did so.

Where a Council hasn't acted unreasonably, but you disagree with their interpretation, your only real option is to submit an appeal to the Planning Inspectorate (other options such as the Ombudsman, judicial review, or even a costs application during an appeal only really apply where the Council has acted unreasonably). There is always a possibility that the Inspector who determines your appeal decides that the interpretation of "eaves" taken by the Council in your case, and by the Inspector in 136 Wood Lane, is incorrect. However, as previously said, if there are also other more clear-cut reasons why your dormer is not permitted development, such as because it exceeds the volume limit, then there would be little point in such an appeal.

The other thing you might want to do is to have a look at the "Appeal Decision Summaries" document on my website (www.planningjungle.com), to identify all of the cases where a dormer was allowed, and to look through all of the associated documents for these cases (which are also available on the above website). I'm not aware of any other appeal decisions (other than 136 Wood Lane) where the Inspector commented on whether, for the purposes of the 20cm set-back, the eaves should be taken as the outer edge of the overhanging roof tiles, or the point where the roof tiles meet the main wall. However, I certainly don't spot everything in these appeal decisions, and I may well have missed such a conclusion, particular if there was a case where the drawings showed a 20cm set-back from the outer edge of the roof tiles and the Inspector allowed the scheme without directly mentioning this issue in his report (which would still imply support for such an interpretation). I'm afraid that looking through the appeal decisions and associated documents to see if there is any such further information would be quite time-consuming, which is why I'm afraid I wouldn't be able to do it myself.

Anyway, I hope the above helps,
Steve

 

[Frank2010]

Hi there,
I just wanted to provide an update and hopefully get some further helpful advice?
As it turned out Steve was right and the appeal the Council was making their decision on as regards to 20cm setback was indeed based on the appeal in the neighbouring council of Hounslow. Thank you Steve for that helpful insight!
As it turns out I believe in the meantime some further guidance has been provided by DCLG that states that the min 20cm setback should be measured from the edge of the roof along the slope, which in our case falls within guidelines.
After further minor corrections (4 versions of drawings so far!) our plans were accepted for the application to be handed to senior level for final sign off.

To re-iterate, we were originally told that we had infringed PD guidelines by exceeding the 40 cu m volume. Our loft extension was built (unbeknown to us) before a certificate of lawfulness had been obtained by our builder. The build was done under a fully managed service.
As such we are awaiting a decision whether exceeding the volume means that our application will be turned down with a possible view of enforcement or that the infringement is minor and possibly still pass under PD.

As changes to the drawings had been made numerous times I enquired what the final calculations to the volume had been established at for my records.
I was told today that new calculations had established that the volume is now 39 cu m, as such falling within guidelines. However it has been decided at senior level that the Council is not satisfied that latest drawings are accurate. I have yet to clarify what this actually means and where possible errors have been made. Note, this wasn't flagged before.

Our build has already been re-meassured a second time and drawings changed accordingly. As such I'm stumped how the Council can question the drawings again when in our view the build now accurately reflects what has been drawn on plan. It is futile for me to ask our Engineer to re-measure the build again. He has done this already!
As such as it stands it seems it's our word against the Council's whether what has been put on plan accurately reflects what has been built on site. I have no concerns for them measure the build themselves if they wanted to.

I have no idea what further direction this will take and what options are open to us to bring this to an end. We have now been waiting 7 months for an answer and it seems a decision is being delayed for the sake of prolonging the case further. For what reason I have no idea.

Does anyone have any advice what options are open to us to bring the application to a close? Or what potentially the Council can ask us further to do to prove to them that the build falls within PD?

Any suggestions welcome, thanks!
[/i]

 

[spongobongo]

Has the council actually served you with an enforcement notice? After seven months (and presumably a visit from a planning enforcement officer) the absence of an enforcement notice would speak volumes. Basically, the council wouldn't fancy its chances at appeal.

As for for the Council dragging out this case just the sake of it, I'd be amazed if that was the case. These matters tend to get escalated when either the chief executive or ward councillors get involved. I'd suggest a letter to the chief executive, inviting him to either come and measure the dormer personally or instruct his planning department to approve the plans. Of course, there's not a chance in a million years that he (or she) will pay you a visit, but planning officers hate the involvement of chief executives and councillors in applications. From personal experience, it gives you a kick up the backside and makes you re-prioritise your caseload of applications.

I'm surprised that no one here has mentioned the obvious: lawful development certificates are granted on the balance of probability, not the higher criminal burden of being beyond reasonable doubt. And the onus is on the applicant, not the Council, to provide the necessary documentary evidence to prove the case. The Council can only refuse your application if they are certain that your drawings are wrong. A suspicion that they're inaccurate is not sufficient to refuse the certificate. The Council must point out exactly what is wrong with your plans.

I've had enforcement cases where measurements have been disputed and, despite the applicants swearing blind that their plans are accurate, the use of a tape measure on site has immediately proved that the plans were wrong. So double check all your measurements on site and on the plans before escalating your complaint.

 

[Frank2010]

Has the council actually served you with an enforcement notice?

No, we haven't reached this stage yet. I've only been told that enforcement could be a possible outcome with a view of having the whole extension removed if it is established that we have exceeded the volume.
We involved our ward councillor early on in the case but in his response he cannot influence the case but only represent us. Not to aggravate the situation further we haven't involved him since then.

The Council must point out exactly what is wrong with your plans

They have been doing this on a continuous basis. But rather than pointing out all errors they have been highlighting one inconsistency, waited for plans to be submitted only to point out the next. As such there is a time span of several weeks in between every time new plans get submitted and reviewed. To some extent of course blame has to be put on our engineer for not spotting all mistakes himself and rectifying them.

I've had enforcement cases where measurements have been disputed and, despite the applicants swearing blind that their plans are accurate, the use of a tape measure on site has immediately proved that the plans were wrong

That's the crux! I don't have the facility to re-meassure my whole house accurately and can only rely on our engineer telling me he has done so and put correct dimensions on plan. Then there is the matter of tolerance. Where does a 5-10cm diversion from plan make the drawings incorrect? I'm not saying this has happened but would be grateful if anyone has any details whether some tolerance is allowed?

We could potentially go through another few revisions of the plan and personally I'm losing sight where this still serves a purpose. Especially since the last plans were accepted by the Planning Officer but now suddenly queried again by a Senior?
I have asked to be shown where the plans are incorrect and currently waiting for a reply.
However your comment of having to prove the case to the Council concerns me as it seems a case of guilty until proven innocent with the onus being on us!

 

[jeds]

My advice is to bring things to a close yourself. Write and tell them the drawings and information you have provided are correct and complies with PD allowances and that the building has been completed in accordance with those drawings. State that as far as you are concerned there is no further useful information that you can provide and if they disagree you suggest they issue a formal notice so that the matter can be referred to the inspectorate by way of appeal.

That, of course, assumes you are confident that everything is correct.

 

[spongobongo]

However your comment of having to prove the case to the Council concerns me as it seems a case of guilty until proven innocent with the onus being on us!

Quite the contrary! The assumption is that your plans are accurate until the council can prove that they are not. You are therefore innocent until proven guilty.

This all sounds a little odd. I wouldn't normally negotiate on an application for a lawful development certificate. It would either be approved or refused, with a subsequent decision by a more senior person than whether it is expedient to take enforcement action. It seems the council isn't sure of its position and is calling your bluff. I guess they want to refuse your application but don't see it as being expedient to enforce against what you've built. But they won't ever admit this to you.

For what it's worth Jeds is absolutely spot on.

 

[Frank2010]

I guess they want to refuse your application but don't see it as being expedient to enforce against what you've built. But they won't ever admit this to you

Spot on! My thoughts exactly and the only reason I can think of why this case has taken so long as it has. They are either hoping that we put an end to this by asking our builder to reduce the back to fall well within allowance, although we have passed this stage and won't happen voluntarily (and no reason to) or gather enough evidence that enforcement is warranted. Hence the reason why the 20cm set-back came into play at a later stage, which is no longer relevant.
Even if we were 3 or 4 cu m over the allowance this would equate to a reduction to the back wall by 20 odd cm. I'm not sure it is in the public interest to enforce against this minor infringement given that the overall shape/size/look of the structure would not drastically change. Of course I may be wrong but it seems rather pointless.
I will try to take my own measurements this weekend as far as my limited toolset and access will allow. I can't see that it will reveal anything new but worth double checking. I will also await a response from the Council to see what possible inaccuracies they have unearthed now. If it points to nothing I will take up Jeds' suggestion to push this along. I honestly don't know what else to do bar inviting my Ward Councillor as a witness and the Planning Officer onsite for them to take their own measurements.
I've practically begged the Planning Officer on numerous occasions to either approve or turn down the application and pass the matter to Enforcement so we would finally get any decision to move on. To date they have declined to do so, choosing to pick piecemeal at the drawings instead.
Thanks guys, that has somewhat re-affirmed my thinking and possible route of action.

 

[Frank2010]

It seems some members of the Richmond planning department are avid readers of this forum or by coincidence our application was decided on today.

Our application for PD has been turned down on grounds of:-

1. Insufficient set back from the eaves on the back of the house
2. A non obscured opening window to the side of the house

We have been asked to set back the rear dormer to be 20cm from the junction of the eaves and the outside rear wall of the original main house and have a non-openable, obscure glazed side window fitted.
The alternative is a removal of the complete structure. We have 6 months.

I'm awaiting the official paperwork to come through but already have several questions:

1. Does this constitute an enforcement notice or will this only be put into force after the 6 months are up? We need to decide whether to appeal the decision or enforcement notice, if the Council find it expedient to take enforcement action. And can we hurry along an enforcement notice if we wanted to should this be the more sensible option to appeal?

2. Does anyone have further clarification what the latest directions are on the 20cm setback? It seems the Council are still basing their decision on the appeal in Isleworth but there may have been further clarification in the meantime I believe. Unfortunately whilst the council have the appeal as reference it seems very unfair to apply this to our build. The application and structure was completed 3 months prior the appeal being made, whilst 20cm setback from front of the eaves was sufficient and passed by the Council. I have neighbour's plans confirming this (applied for and built around same time). Even funnier they actually built up straight from the back wall afterwards with no eaves being left in place. Of course they had their PD signed off already.
But as Steve pointed out it seems the Council have the right to make this decision as our application wasn't signed off yet.

3. Can anyone confirm what guidelines are on side windows? It states on the Planning Portal 'Side-facing windows to be obscure-glazed; any opening to be 1.7m above the floor'. Where does it state non opening? Or do they mean any opening windows to be above 1.7m? We offered from day one to obscure the window. It seems daft to change the window as our neighbour has no objections and has actually asked us to keep it this way.

4. Can we appeal just part of the decision? For instance if we change the window but would decide to appeal on the back wall?

I'll be seeking independent advice but there are quite a few people on this forum who seem to have thorough knowledge of the process and regulations. I need your input please!
Perhaps I'm not asking the right questions either so it would be very helpful to get everyone's views on this please. Ideally constructive of course, no profanities required.
I'm actually relieved that the Council have finally made a decision, whether I agree or not is almost irrelevant.

Looking forward to the responses!

 

[spongobongo]

. Does this constitute an enforcement notice or will this only be put into force after the 6 months are up? We need to decide whether to appeal the decision or enforcement notice, if the Council find it expedient to take enforcement action. And can we hurry along an enforcement notice if we wanted to should this be the more sensible option to appeal?

You have six months from the date of the decision to lodge an appeal with the Planning Inspectorate. But without seeing the letter from Richmond, it's impossible to know whether its an enforcement letter. I suspect the enforcement letter will follow later, if at all. Unlike the letter stating the reasons for refusal of your certificate, an enforcement notice has to clearly state the breach, the possible remedy and a period of compliance for remedying the breach. The latter is often six months.

. Does anyone have further clarification what the latest directions are on the 20cm setback? It seems the Council are still basing their decision on the appeal in Isleworth but there may have been further clarification in the meantime I believe.

I happen to agree with Richmond's interpretation of the 20cm rule. I would interpret the eaves of a house as being where the underside of the soffit intersects with the outer face of the wall. The Isleworth appeal decision is, however, not a decision to be trifled with and you now have to take a reasoned view as to whether you want to make a similar case to the Planning Inspectorate. It's a risk, but you've probably got nothing to lose at this stage by giving it a go.

. Can anyone confirm what guidelines are on side windows? It states on the Planning Portal 'Side-facing windows to be obscure-glazed; any opening to be 1.7m above the floor'. Where does it state non opening? Or do they mean any opening windows to be above 1.7m? We offered from day one to obscure the window. It seems daft to change the window as our neighbour has no objections and has actually asked us to keep it this way.

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082362_en.pdf

page 4, condition A.3

. Can we appeal just part of the decision? For instance if we change the window but would decide to appeal on the back wall?

If you appeal against the lawful development certificate decision, no. If you appeal against an enforcement notice then you could argue on two grounds: a) that if you'd applied for planning permission, the non-obscured window should have been granted permission; b) that the Council has wrongly interpreted the 20cm rule.

 

[jeds]

The set back is measured along the slope of the roof from the base of the dormer to the outer edge of the eaves. In other words you should have approximately one tile showing. There's no question about this. It is government guidance issued in March 2010.

The window must be obscured. My advice is fit an obscure film to the inside. We do that quite a lot. Only problem is that some naughty people peel it off after 6 months or so when the dust has settled.

 

[spongobongo]

The set back is measured along the slope of the roof from the base of the dormer to the outer edge of the eaves. In other words you should have approximately one tile showing. There's no question about this. It is government guidance issued in March 2010.

Jeds, can you post the link? Clearly I and Richmond don't agree with this interpretation. And there are good reasons not to, not least the fact that you can increase the depth of the eaves at the rear of a house under PD (Schedule 2, Part 1, Class C). Under your interpretation, you could build massive eaves to justify a PD roof dormer.

The other thing is that government guidance is exactly that: guidance. It's not law. Guidance is a material consideration, but not the last word on the matter.

 

[Frank2010]

I believe the 20cm setback from the end of the eaves along the slope forms part of the revision of PD guidelines that were proposed to be released March 2010. As far as I read last night the document was a draft document but put on hold because of the elections. As such it may not be considered valid or taken into consideration although it clarifies a lot of ambiguities quite clearly. It's freely available on the net, search 'dclg draft guidance on permitted development'.
One of the amendments shows that Richmond's interpretation is wrong on the 20cm set back and that measurement should be taken 20cm along the slope. But until the guidelines are published Richmond have no other clarification bar the Appeal of course. Unless someone knows differently and can confirm whether the document should be referenced.

Given the document exists in the wider domain, the Planning Portal stating 20 cm set back from 'eaves' (not back wall) and our application made and build completed before the Appeal was in place underpins my general belief in fairness that we complied with the guidelines as they stood at the time in 2009.

Setting aside the decision on the application for a moment, which I can follow.
If we were enforced upon, should enforcement not take into account when the build was completed? I thought under PD we wouldn't even have to apply for a certificate. As such why would our rights be different to someone who hadn't applied and been found out? Wouldn't an officer need to check what regulations were in place at the time the structure was built? It seems a bit unfair if I construct under PD and followed all guidelines to the letter of the law, only to find that a year later new information has been given leading to enforcement. Does my thinking make any sense?

We can't just fit film as the window is tilt and swivel. We weren't made aware of the 1.7m rule and hence our builder offered to install this type of window, which made sense to us because it opens inwards for cleaning (2nd floor, under Heathrow flight path, lots of dirt) and can be left tilted without the house flooding when it rains. Our neighbour has explicitly asked for us to keep the window and it looks out on a blank wall anyway. But under PD I suspect our neighbour's wishes (affected by the window) are irrelevant. It's daft to replace a superior window with something less functional, when the person who it could affect next door is prepared to put into writing that the window should remain as is.

I'm not being pig headed about this and feeling hard done by if anyone thinks this to be the case. I'm trying to make rational sense why our build should cause any harm to surroundings given the facts presented?

I will have to await the paperwork I guess. Any further helpful suggestions in the meantime appreciated. I'll keep everyone posted.