Permitted Development and 200mm setting back from eaves

The wider issues first:

1) People quote the Planning Portal as if it's the definitive work on PD. It isn't. It's a bloke at the CLG disseminating badly drafted Statutory Instruments, written in haste by civil servants, none of whom have ever submitted an application, nor had determine to one (I had a senior CLG officer work shadowing me and my colleagues earlier in the year 'to get planning experience'). The Planning Portal carries as much weight as any other website interpreting the General Permitted Development Order. It's a guide, nothing more.

2) If CLG had intended the 20cm to be measured from the edge of the roof slope, for heaven's sake why didn't they put that in the GPDO? The specific reference to eaves makes me interpret the Order as referring to the undercroft beneath the roof overhang. I know a lot of you don't agree with my interpretation, but it's not an unreasonable interpretation.

On your more specific issues:

Enforcement is referenced to when the building works were started not completed. The PD rights at the time are the ones are applied, not any subsequent revisions.

Whether the window introduces any privacy or overlooking issues is irrelevant in the Council's determination of your application. You simply don't have the PD rights to install such a window. Had all other aspects of the dormer been acceptable (in the Council's opinion) the Council would probably decide to take no further action or invite you to submit a planning application to retain the window.

It seems to me that your window is the least of your worries.

Enforcement is referenced to when the building works were started not completed. The PD rights at the time are the ones are applied, not any subsequent revisions

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So in our case the Council would have to aknowledge if they wish to enforce that the PD rights at the beginning of construction stated 20cm from the front of the eaves? I have plans from a house opposite applied for and built roughly at the same time that clearly shows this to be the case.
This may seem like strange thinking but I'm trying to determine whether a potential appeal is better focused on the decision itself or possible enforcement at a later stage. It seems if the Council do not have grounds to enforce on the set back where does that leave the window again? Anything I could do to take the sting out of that one?

I partially agree with your views on the 20cm setback spongobongo but on the basis of the guidelines being a mess and ambiguous. What's the definition of eaves and where should one take measurement from? The revised guidelines however illustrate this very well (even with a little diagram) and therefore take the guesswork and interpretation out of the equation. I'm sure this would speed up the planning process considerably and probably have prevented us landing in this mess. Then again it helps to have the certificate in place first of course. Mistakes learnt.

Frank2010 said:

So in our case the Council would have to aknowledge if they wish to enforce that the PD rights at the beginning of construction stated 20cm from the front of the eaves?

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Not sure I follow you. Where are you quoting from when you refer to the front of the eaves? The 2008 Order doesn't make any mention of this.

Basically, if you started building works after 1 October 2008, the link I gave you in my earlier post applies.

Frank2010 said:

I have plans from a house opposite applied for and built roughly at the same time that clearly shows this to be the case.

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Are you quite sure your neighbour's dormer commenced on site before 1 October 2008? And did he apply for planning permission or a lawful development certificate?

Frank2010 said:

I'm trying to determine whether a potential appeal is better focused on the decision itself or possible enforcement at a later stage.

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If you choose to appeal against the decision, you'd lose on the basis that the window is not obscured. You may or may not also lose on the basis of the 20cm rule. Either way, you still won't have a lawful development certificate.

As I stated earlier, if you choose to appeal against an enforcement notice you have more than one ground on which to base your appeal. You can argue that the dimensions, set-back from the eaves and volume all comply with the 2008 Order and therefore don't require planning permission. Secondly, you can argue that the window ought to have been granted permission because it introduces no adverse amenity issues for your neighbours.

The current problem with appealing against an enforcement notice is that you haven't actually been served with the notice yet. And you may never get served with it.

The refusal of a lawful development certificate does not necessarily mean that the Council will pursue enforcement action. You could, in theory, be left in a planning limbo where the Council refuses to issue a lawful development certificate but doesn't consider it to be in the public interest to enforce. So you'd have an unauthorised dormer until such time that it becomes lawful (four years from the date you started building it).

Or you could make a planning application to retain what you've built. Given the long history, the planning officer ought to give you a steer on the likelihood of recommending an application for approval. Tempting though it might be, don't lose your rag with the planning officer. The amicable and patient applicant nearly always wins the day.

Not sure I follow you. Where are you quoting from when you refer to the front of the eaves? The 2008 Order doesn't make any mention of this

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I'm not quoting as such. I'm referring to the property opposite us. They applied and started their build middle to end of 2009, same as us. Below is a detail from their plans and a photograph of the actual build. These plans were approved by Richmond Council under permitted development as confirmed on their planning website. At least our build stuck to what was drawn on plan and is set back accordingly. In case it is difficult to see the dimensions are taken from the front of the eaves. A note has also been put next to it saying "roof dormer construction to be set-in 200mm from eaves of original roof to comply with GDP Order 2008"



The link you provided says this:-
"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"
So it's very open to interpretation and at the time of our build and that of our neighbours it seems that 20cm set back from the front of the eaves was acceptable end of 2009 to the Council. It clearly shows this illustrated on plan.

We've been told that a planning application would most likely be turned down as the Council does not encourage hip to gable conversions and that the dormer is not set low and back enough.

Is there a timeframe by when the Council should serve a notice (if they do) or can they just leave you in limbo for years, sort of hanging on in fear of a notice being served any day?

What are the implications on further development? We still have a rear extension to go, that was applied for under planning at the same time and turned down, asking us to reduce to 3m. Can this still go ahead if we make changes to plans and approved or could there be further ramifications stopping this?

What are the implications on mortgage and house insurance having an unlawful build?

Tempting though it might be, don't lose your rag with the planning officer. The amicable and patient applicant nearly always wins the day.

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Now you tell me

Did your neighbour apply for a lawful development certificate and then build the dormer, or did he build it and then apply for the certificate? From what you've written previously, I assume it's the former. It's difficult to see definitely from the photos you've posted, but it seems to me that there are three issues:

1) The plans appear to show an extension that falls within the PD tolerances allowed by the 2008 Order. But I can't enlarge the plan and therefore can't tell whether the 200mm is from the front of the eaves or from where the eaves meet the rear wall.

2) Are those plans correct? This looks like a Victorian property (given the soldier course of bricks above the first floor windows) which would have an eaves much deeper than is shown on the section drawing.

3) Has your neighbour built his dormer in accordance with the approved plans? Perhaps my eyes are playing tricks on me at this late hour, but the dormer appears to be set on the same plane as the original rear wall. It may well be that your neighbour also has an unlawful dormer but both he and the Council are blissfully unaware of the fact.

To answer your specific questions:

I'm not aware of any timeframe for enforcing against unlawful development, apart from the four year limitation which would give you immunity from enforcement sometime in 2013.

There will be no implications for future development. You can make an application for a lawful development certificate for a 3m extension irrespective of the planning status of your dormer.

As for your mortgage and insurance, I'm afraid I've no idea.

Did your neighbour apply for a lawful development certificate and then build the dormer

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Yes, the way things should be done

But I can't enlarge the plan and therefore can't tell whether the 200mm is from the front of the eaves or from where the eaves meet the rear wall

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Front of the eaves

Are those plans correct? This looks like a Victorian property (given the soldier course of bricks above the first floor windows) which would have an eaves much deeper than is shown on the section drawing

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Correct enough for someone to sign them off. They are the plans for the property shown in the picture

Has your neighbour built his dormer in accordance with the approved plans? Perhaps my eyes are playing tricks on me at this late hour, but the dormer appears to be set on the same plane as the original rear wall

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Yes, correct, built up straight from the back wall with all eaves removed. So no, not what was drawn on plan.

It may well be that your neighbour also has an unlawful dormer but both he and the Council are blissfully unaware of the fact

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Well, the Council aren't anymore as I sited it as an example that the neighbour's plans were acceptable and they have deviated from plan and we haven't done either. When I say neighbours they are within our general area and view of our property. I did keep the identity of the property concealed and offered to only reveal further details through our local Ward Councillor and assurances they wouldn't enforce. I don't have an issue with what they have constructed and overall it's what all their neighbours have done in that road so it fits in well.
I wouldn't be so mean and want enforcement on anyone .....

And this is what seems slightly odd. If we had the certificate of permitted development first we would never had any issues, I'm sure. The set back would have been sufficient at the time and no one would have checked the window as on plan our says frosted too.
Looks like if you have the paperwork in hand you can do what you want. Retrospectively you get much more scrutinised. I guess having a physical extension to reference against plan makes all the difference
This isn't the only property I have seen. Since this whole thing started I've become very 20cm setback aware and have seen at least a further 2 properties within Richmond Borough doing the same. New extensions, facing the railway line. How sad am I

I have a few more questions to ask if someone possibly knows the answer:-

We will have to appeal the rear set back of the wall at some stage. On the basis of 'fairness' alone as we couldn't have known at the time of build that the Isleworth appeal 3 months later would change the Council's interpretation of the 20cm set-back. I know it's not an argument but I will most likely let an Inspectorate decide that one.

However on the window I agree that guidelines were not followed. Although I still believe it's daft as the window faces a brick wall with no windows next door being set to the front of the house, our neighbour will put in writing that she has no objections and I can see more from the 1st floor window already in place that could justify issues with privacy. In fact I could look out the back window and see more of their garden although none of the windows face any bedrooms.

Apologies if my questions may sound desperate but I'm trying to get an idea of all possible angles.

1. One option is to obscure alone. I don't think this will be sufficient to sway the argument.
2. We can install a new window that complies. Would this mean that an Inspectorate would see this favourably and ignore the issue/ accept this to be OK or has the damage been done so to speak and they would judge on what's written in the paperwork irrespectively?
3. Can we make a 'planning application' on a window alone? What I mean is can we ask for just the window to be taken into account for a planning application or equivalent that would bring the views of the neighbour into play and the actual environment it's sitting in? Another neighbour two doors further has a non frosted window at the same height etc. and they had theirs approved as part of a planning application years ago.

Perhaps I'm making a mountain out of a molehill but we would very much like to hang onto the tilt and swivel for various reasons. Given that it opens inside cleaning isn't an issue as it's on the 2nd floor and the tilt is great for letting fresh air in without having to worry about rain.

Thanks!

Frank, I know you think the window issue is daft, but when you make an application for a lawful development certificate you're asking a basic question of the local authority: "Is what I've built, or about to build, within the parameters of the Town and Country Planning (General Permitted Development) Order 2008?" It's a black and white issue. There's no room for issues of amenity, overlooking, desirability of materials etc. You're asking for a yes or no answer. If you install a window on a side elevation at first floor level or above, it's unlawful because the 2008 Order doesn't give you that permitted development right. If you want to install such a window, you need to make an application for planning permission.

Your neighbour has a lawful development certificate. That's great, but he hasn't built his dormer in accordance with the plans listed on that certificate. So his dormer is unlawful, irrespective of what is shown on his plans. He is in exactly the same position of you, except he is currently unaware of his situation.

You could install a window that is obscured and therefore complies with the PD rights, but it won't (or shouldn't) sway an Inspector. In making your application, you asked the question whether or not what was shown on your plans was lawful. And the answer was no. If you appeal, you're basically asking the Inspector whether or not he thinks the Council's decision was correct. On the window issue alone, the Council is correct. If you want to appeal against just the 200mm set back, then you'll need to make a new application to the Council for a lawful development certificate with the plans showing the window with obscured glazing. You could then appeal against the refusal of the new application.

You can't make a planning application for just the window at this stage, because the window is part of a larger, unlawful development. The application would therefore be refused on the grounds of prematurity. The dormer needs to lawful in order for any of its constituent parts to be lawful.

If you're not already sick of my responses I'd be happy for you to send me a PM and I'll give you my number.

Has this not been sorted yet?

Your neighbour has a lawful development certificate. That's great, but he hasn't built his dormer in accordance with the plans listed on that certificate. So his dormer is unlawful, irrespective of what is shown on his plans. He is in exactly the same position of you, except he is currently unaware of his situation.

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I'm not about to ruin their day but perhaps I'll informally speak to friends of ours who know them. Not sure if it is better they should be aware in case of subsequent problems or let them get on with their lives. It's not really my business to interfere with and I'm probably the only one in the neighbourhood that has actually realised. And in all honesty I wish them well and hope that nothing happens in the next 3.5 years to change this. Their build is irrelevant in any case to our problem. It's their plans that showed that a 20cm setback from front of eaves before February 2009 was acceptable to the Council. Of course an argument may arise that a clerical error was made.

Has this not been sorted yet?

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We are making progress. At least we have a decision to move on from. I just hope this doesn't turn into the longest running thread on this forum.

Desperate times, desperate question:-

Can anyone confirm where measurement should be taken for the opening part of the window to sit 1.7m from ground? I presume centre of window but this isn't stated anywhere in the guidelines. As ours is in the hallway leading up the stairs the point of measure obviously changes. Is there any further information or even an appeal that may have been upheld on grounds of differing points of measure?
Clutching at straws now but worth asking the question nevertheless .....

I'd take it to mean the cill, the centre of the window would be daft as the perceived overlooking issues would depend on the size of the window.

Sorry, lost in translation.

I meant the measure taken from the centre of the window as in running down a vertical line and of course taken from the cill.

Frank2010 said:

As ours is in the hallway leading up the stairs the point of measure obviously changes.

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Of course it is!

Sorry, I misunderstood, I'm afraid I would interpret it as being from the floor level at least that's what I'd advise any of my clients in the absence of any further clarification.

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Frank2010 said:

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.

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The document to which you refer: http://www.permitteddevelopment.org/pdf-documents/100226 draft 3.2 of new PDRs guidance.pdf actually clarifies this on page 26 so some hope for the future if not now.

I'm afraid I would interpret it as being from the floor level

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So what is the floor level though on a set of stairs? That's what I'm trying to determine? Is it any flight? Is it the one drawing a vertical line through the centre down the window? I can take measure from 3 different flights and of course they all come out different, some better, some worse.

I've seen the clarification in the revised guidelines but as they are not in force yet and I can't make a valid reference for my set-back I'm playing devil's advocat and want to see whether there is any ambiguous interpretation in the current guidelines I can use to our advantage. And curious if there is even an appeal case this has been argued on successfully that it isn't down the centre of the window. I did say desperate didn't I