Eaves height - Architect v Council nightmare!

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I am currently experiencing some problems with architects who designed a single story rear extension of my bungalow, and the Planning Dept of Brighton council. Specifically regarding what is or isn’t a Permitted Development. I badly need some advice how to proceed next!

The architect confirmed from the outset that the build was within the PD rules, however one of our neighbours complained to the council about the extension build (which has almost been finished), specifically the height of the parapet wall that is now facing their kitchen window (it is within 2m of their boundary). After some negotiation with the Council it’s been confirmed that the parapet wall height isn’t a problem – it is within the 3m we are allowed – but that the problem now comes down to the height of the flat roof that’s behind the parapet wall as it joins the eaves of the existing house.

The Council say that the upper part of the new flat(ish) roof is above the eaves of the existing house and the build therefore requires planning permission. Our architects claim the part that matters for the measurement is the point where the new roof and new wall specifically meet, and they have built in a notch as a work around to this. The Council say the notch isn't relevant, that it is the upper roof measurement (as if it was continuing to the outer wall) that is key. Confusing! I've uploaded a drawing that may help.

The architects quote the Technical Guidance as a back up to this, but I'd say it confirms that they are wrong:

For the purpose of measuring height, the eaves of a house are the point where the lowest point of a roof slope, or a flat roof, meets the outside wall.

The height of the eaves will be measured from the natural ground level at the base of the external wall of the extension to the point where the external wall would meet (if projected upwards) the upper surface of the roof slope. Parapet walls and overhanging parts of eaves should not be included in any calculation of eaves height.

Luckily the council have agreed to drop and close the case (as the issue we’re arguing over doesn’t in their view adversely effect the neighbour), but still say the build should have Planning Permission as the main part of the flat roof is above the eaves height, and that they reserve the right to pursue this at a later date. They have also said that we are unlikely to be able to get a Lawful Development Certificate without some major changes.

In hindsight what clearly should have happened was the architect should have advised us we get an LDC at the outset before any building work was done. They insist they are right, the council is wrong, and that our best bet is to leave it for four years when any right to enforcement lapses, and that the since the Council have decided to close the case they are unlikely to open it again. If they do the architect will reply with the same argument. In my view this isn't an acceptable resolution and they are bordering on negligible for getting us into this mess.

Any ideas what I can do now? Given the Council have decided to close the case should I be satisfied and just continue with the build? Or could I pursue the architects to resolve it further?

Sorry for long post!






 

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I suspect that an LDC would not have been forthcoming in this instance. And I think it would ne difficult to establish negligence; the architect clearly appears to have been aware of the rules and thinks that their interpretation is the correct one.
 
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In hindsight what clearly should have happened was the architect should have advised us we get an LDC at the outset before any building work was done. They insist they are right, the council is wrong, and that our best bet is to leave it for four years when any right to enforcement lapses, and that the since the Council have decided to close the case they are unlikely to open it again. If they do the architect will reply with the same argument. In my view this isn't an acceptable resolution and they are bordering on negligible for getting us into this mess.
If they believe they are correct in their interpretation of the rules then there is no need to advise a client to apply for an LDC, that's the whole point in Permitted Development, the right to build without having to apply for anything.

edit just seen there is an image .......
 
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OK just looked at your image, I agree that it is not PD, am doing a very similar job at the moment and have just sent off a sketch to the client to explain why his ceiling will be so low if he wants to avoid having to get planning permission.
 

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If the council has stated that it is closing the matter, then they can only reopen it if significant new information comes to light.

The negligence argument is moot.

Move on. Wait four years and then if you like, apply for your LDC.
 
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they reserve the right to pursue this at a later date.

translate: "we are arguing about minor technicalities/interpretation, but we are not going to bother doing anything about it, either now
or in the future, because we would look petty and stupid jobsworths if we did. We just want you to be permanently worried about it, and to make you realize that we have that power over you"
 
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Thanks for the replies!

Currently favouring just leaving it and carrying on with the build, but only really because we don't have many other choices. Most of the advice I've seen seems to suggest that the Council are very unlikely to pursue it in the future given what's already been done and said. They've set a bit of a precedent and can't just change their minds unless something major changes.

I still feel like I've been shafted by the incompetence of the architects though. I just fundamentally don't think they've understood the PD rules.
 
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They haven't but going after an architect is easier said than done. There is a whole procedure you need to go through before you could even consider legal action. That said after you've dispensed with their services you could drop them an email and state you are considering legal action and that they might want to warn their PI supplier. That will likely not go down too well!

But I agree, just get on with it. It's a minor breach and would not be considered to be in the public's interest to pursue it.
 
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translate: "we are arguing about minor technicalities/interpretation, but we are not going to bother doing anything about it, either now
or in the future, because we would look petty and stupid jobsworths if we did. We just want you to be permanently worried about it, and to make you realize that we have that power over you"
In fairness to the council why should one person be able to build their extension higher than someone else? I've just told a client he needs to accept a lower ceiling or whack an application in because of this rule.

Where do you think the balance should be taken as to when enforcement is taken and it is not?
 
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translate: "we are arguing about minor technicalities/interpretation, but we are not going to bother doing anything about it, either now
or in the future, because we would look petty and stupid jobsworths if we did. We just want you to be permanently worried about it, and to make you realize that we have that power over you"
In fairness to the council why should one person be able to build their extension higher than someone else? I've just told a client he needs to accept a lower ceiling or whack an application in because of this rule.

Where do you think the balance should be taken as to when enforcement is taken and it is not?

The point I was making was that the council should be unequivocal about what they do - ie they should either enforce, or not enforce.

It seems to me that they want to let the matter drop but, if so, they shouldn't be so peevish as to threaten the OP with action some time in the future.
Clearly they don't want to take on the risk of enforcement, yet they want to get one back on the OP; petty and a bit spiteful IMO.
 
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This is very relevant to the issue we recently had with a rear single storey flat roof extension (check my thread i started on it). We are also under Brighton council and they refused our application under neighbour consultation scheme because the flat roof was too high and hence above the eaves (we have a bungalow). Their interpretation of the eaves of a flat roof is correct per the guidelines and therefore your extension is in breach. They are at least being consistent with what they told us.

What's interesting though is that if your 'lower roof' had been at the end that connected to the house, as a sort of gully, then this would have been fine. This 'connecting' gully was an idea we looked at doing as they were satisfied that this would be the eaves of the extension since anything above this that was not directly in contact with the original house and hence did not form part of the eaves (even as a flat roof) - made no sense to me at all. The whole experience we had with Brighton Council was one of sheer incompetence, inconsistency and timewasting.

One point re Freddymercurystwin - your client's flat roof could be raised some more since it is the point where the outer wall crosses the UPPER SURFACE of the roof surface (ie the faceof the tile). That was confirmed to me by Brighton council and follows the guidance.

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