Side Return Extension Height

[^woody^]

Please remember to post back with the results of your legal action

 

[wessex101]

3. The case law defines eaves as they are ordinarily understood, the roof which sticks out from wall, with the wall being below the 'eave',

Could you quote the relevant case law as I've always found the definition of eaves in the guidance rather baffling? Thanks.

 

[MuddledEgg]

Could you quote the relevant case law as I've always found the definition of eaves in the guidance rather baffling? Thanks.

Sure... and understandably because the order doesn't define eaves and the guidance is a mess...

The case is Waltham Forest v SSCLG [2013] EWHC 2816. It is actually a case about the guidance having an incorrect interpretation of 'eaves' for the purposes of the order.

It has been followed since amendments to order. With the same definition and reasoning of the judge being supported in the case of Kulah v SSCLG [2021] EWHC 3028 at para 32 and 50.

The judge refers to different uses of 'eaves' in the order.

At paragraph 13 the judge explains that the guidance is not law. The judge says 'ultimately the interpretation of statutory instruments is a matter for the courts.

At paragraph 15 the judge says:
'The term "eaves" is usually taken to mean the overhanging or projecting part of the roof which projects beyond the wall below.'
The judge then refers to dictionary definitions to support this as well as to its use in other judgments.

At paragraph 16 the judge explains that the guidance actually accepts and generally uses this definition of the term eaves.

At [17] the judge repeats (and is a sense explaining my common sense approach):
'The common interpretation of the term "eaves" is that part of the roof which projects beyond the wall. It is important to remember that these provisions are intended to be relied upon by householders and others and in such circumstances one would expect common words to be given their common meaning unless there was something clearly indicated to the contrary. Similarly words used in statutory instruments can be expected to be used consistently unless there is a clear reason for concluding that they are bein used to mean different things in different contexts.'

The judge then says that the guidance document does not question this definition but largely adopts it.

And at para 21 repeats:
'the term "eaves" is to be taken as meaning the overhanging or projecting part of a roof which projects beyond the wall below and that measurement is to be taken from the eaves'.

The issue with flat roofs is that there is often no projecting part beyond the wall. So... When it came to case law on a different part of the order relating to whether the 'eave' was higher than the existing eave... Which it was not allowed to be... The courts found the eave to be the top of the roof and not the parapet. That can make sense in terms of architectural design and the point of the planning rules (consistency of extension with main house)... However, it does not make sense when it comes to the boundary situation when the point of the rule is to protect the neighbouring property from being walled in. Remember it is 'within two metres of boundary' so apparently many councils want construction lower at the actual boundary.

Other case law says the following on taking a common sense approach to interpreting the PD order:
Mawbey [2019] EWCA Civ 1016 ( this is court of appeal so higher authority than high court):
Para [20]: The correct approach to construing provisions of the GPDO (the. Refers to other case) "the ordinary meaning of the language used is to be ascertained when construing the development order in a broad or common sense manner".
The judge there then refers to Waltham for the similar point.

PS:
My neighbour and architect have agreed to lower the height of the wall.