IMPORTANT: High Court judgement about the 20cm set-back under Part 1 Class - Public forum - Planning Advisory Service (PAS)

Hi all, In my opinion, all Councils, planning consultants, and developers should ensure that they're aware of the following recent High Court judgement, which has found that the advice in the DCLG "Technical Guidance" document (August 2010, updated January 2013) is incorrect in relation to condition B.2(b) of Schedule 2, Part 1, Class B of the GPDO 1995. For reference, for a roof extension, condition B.2(b) requires the following: "B.2 Development is permitted by Class B subject to the following conditions— ... (b) other than in the case of a hip-to-gable enlargement, the edge of the enlargement closest to the eaves of the original roof shall, so far as practicable, be not less than 20 centimetres from the eaves of the original roof;" In relation to the above condition, the DCLG "Technical Guidance" document provides the following advice: "The measurement of 20cm should be made along the original roof slope from the outermost edge of the eaves (the edge of the tiles or slates) to the edge of the enlargement. Any guttering that protrudes beyond the roof slope should not be included in this measurement." The above interpretation has also been supported by the majority of appeal decisions that have dealt with this particular issue. For example, the "Part 1 of the GPDO - Appeal Decision Summaries" document on the Planning Jungle website shows that from October 2008 until June 2013 there were 10 appeal decisions that supported the above interpretation versus 2 appeal decisions that contradicted the above interpretation. However, it appears that the recent High Court case of "Waltham Forest LBC v Secretary of State for Communities and Local Government", for which judgement was handed down on 18/06/2013, has found that the above interpretation is incorrect. Although it appears that a transcript for this judgement is not yet publicly available, the following quotes from 2 recent appeal decisions provide further information about this judgement: --------------------------------------------------------------------------- Appeal Decision reference: APP/T5150/X/12/2181645 Decision date: 15 July 2013 Link: http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2181645&coid=2181132 Quote: "The Department for Communities and Local Government's [DCLG’s] Technical Guidance "Permitted development for householders" says “The measurement of 20cm should be made along the original roof slope from the outermost edge of the eaves (the edge of the tiles or slates) to the edge of the enlargement. Any guttering that protrudes beyond the roof slope should not be included in this measurement" [page 35]. However Waltham Forest [LBC v Secretary of State for Communities and Local Government] held that eaves were the part of the roof overhanging or projecting from the wall below and on a natural interpretation, the measurement of 20 cm in condition B.2 (b) should be from the nearest point of the eaves. To this extent the Technical Guidance is wrong." --------------------------------------------------------------------------- Appeal Decision reference: APP/L5810/C/12/2190152 Decision date: 24 July 2013 Link: http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2190152&coid=2165568 Quote: "A recent court judgement [Waltham Forest LBC v Secretary of State for Communities and Local Government 2013] confirms that the measurement of 20cm 'from the eaves' means 20cm from the point at which the eaves start (i.e. the intersection with the wall), rather than from where the eaves end (i.e. the gutter or the edge of the eaves). The judge found the Department for Communities and Local Government Technical guidance to be in error in this respect." --------------------------------------------------------------------------- As such, in my opinion, regardless of the advice in the "Technical Guidance" document and the majority of previous appeal decisions, Councils should now be applying the interpretation set out by the above High Court judgement - i.e. that the 20cm set back should be measured from the closest point of the projecting eaves (which is the intersection with the wall), rather than from the outer edge of the projecting eaves. It should be noted that it appears that DCLG has still not updated its "Technical Guidance" document to correct the above advice that the High Court found to be incorrect in June 2013. This is very disappointing, because it means that a member of the public could now erect a roof extension (without an LDC) based on the advice that is still currently provided by the government about its own legislation, only to subsequently find out that their roof extension is unlawful (and potentially subject to enforcement action). Thanks, Steve