Side Return Extension Height

[MuddledEgg]

My neighbour is planning to extend into the side return up to the boundary. They are planning a flat roof, of 3m height but the parapet on the wall supporting this is going to be 3.4m high.

I read the PD Order 2015 saying eave height when construction is within 2m of boundary to restrict the height of that wall at 3m. But the neighbour's architect says that the eaves height of a flat roof is measured at top of roof, ignoring the parapet. The guidance on the 2015 Order does allow this reading because when it talks about measuring 3m eaves height it refers back to guidance under a different section (A.1(d)) not relating to eaves heights not exceeding current eave heights, not to boundary restrictions... But it is completely contrary to the spirit of the 3m eave high limit. Isn't it? It is absurd.

If read this way the neighbour could build a 4m wall and then have a 'roof' intersecting the wall at 3m. What would the purpose of A1(i) be if that were the case?

Any thoughts or expertise? Yes it is 40cm, but even 3m is high in such a narrow space!

 

[^woody^]

You probably can't do anything about the extension as it is likely permitted development, and so allowed. IIRC there is an inspectorate decision on this very situation and a flat roof has no eaves and a parapet height does not count.

If the wall is on the boundary, no part of the parapet projection or the foundation should cross the boundary. So the wall may need to be set back - depending on the design detailing.

The Party Wall Act should apply, so be aware of that.

 

[^woody^]

I'll need to look for the case I was thinking of, but in the meantime try this Appeal Decision 73-Permitted Development England - there is no mention of the case, as the links point to a paid area of the planning jungle site, so it may or may not be the one I was thinking of but the decision seems similar.

There are other instances where a parapet can be deemed part of the enlargement of the house, but this would not aplly in the situation you describe

 

[Notch7]

Why has the architect designed a parapet - they are ugly and prone to leaking. I guess it’s to avoid a gutter overhang, but there are ways to overcome that issue - ask Woody for one his famous sketches

How is the parapet finished - usually it has a drip groove and needs an overhang - not sure if thats allowed to overhang your boundary.

the PD heights are from ground level not from Floor level

 

[MuddledEgg]

Thanks both!

I actually think the case law would be in my favour... The guidance is not law, and there is a court decision stating that the meaning of 'eaves' for the purpose of the Order is the ordinary meaning (bit of roof above wall). This should apply to the boundary exception to building height which just says 'eaves height'.
But it is annoying that the guidance is not clear.

 

[MuddledEgg]

I think the parapet finish is just brick?
... And yes, have also had this thought... The parapet is just aesthetic, so why not remove to placate neighbour? Maybe I will suggest this. 3m is still pretty rough! I kind of wonder where the 45 degree angle rule would land for wall height...

 

[^woody^]

If this is permitted development, there is little you can do.

Parapets are fire-breaks so do have a purpose and can be necessary.

 

[MuddledEgg]

Yes, the question is 'if'.

The PD rules have a rule for not building higher than 3m at the border. There is a reason for that. It is to protect the livability of neighbouring spaces. It makes a mockery of the order to say that while you can't build a normal eave higher than 3m, you can build a wall as high as 4 m to sit upon the 'eave' of a flat roof. That is plainly nonsense.

I guess this may go down the route of having to set a precedent

Hopefully friendly discussion will resolve it instead.

 

[mrrusty]

https://assets.publishing.service.g...e/830643/190910_Tech_Guide_for_publishing.pdf page 12. The parapet will be ignored. Don't think there is anything you can do.

 

[MuddledEgg]

MrRusty, I understand the guidance, but the guidance is clearly contrary to the legal definition of 'eaves' which should apply to A.1(i).

Imagine the side return scenario... Following the guidance you can build a wall 4m high above the 'flat roof' height. Imagine what that does to a sidereturn in a terrace house. This makes the 3m high eaves rule completely redundant. Its whole purpose is to stop construction near boundaries exceeding 3m.

A.1(i) happens to unhelpfully use the word eaves. The order (not the guidance) does nothing to suggest that eaves for this purpose are to be measured from top of flat roof not including the parapet. That measurement idea comes from cases which have nothing to do with boundaries. They relate to not building eaves above existing eave height. Following the High Court decision in Waltham Forest 2013, the definition of 'eave' in the PD rules is the ordinary definition, which in the judgment makes clear that the wall is below the eave. This definition applies to A.1(i) because that rule has nothing in its words to suggest otherwise. To use the measurement guideline in relation to A.1(d) for A.1(i) completely defeats the purpose of A.1(i).

The guidance is not law, and this interpretation of the guidance will lead to disputes... Because you shouldn't be able to build a two storey wall near a boundary without planning approval.

I have convinced myself of this now. It is the most sensical position, and the case law also says that this is how you should interpret the PD order. I just hope I don't need to go to the bother of getting the courts to agree with me.

 

[mrrusty]

I just hope I don't need to go to the bother of getting the courts to agree with me.

I think you will. The problem you have is that you are relying on your interpretation to justify your position. The builder just has to point to the illustration, which is quite clear, and state that the governments guidance shows it's OK - no interpretation necessary - the picture shows the situation. For the courts to agree with you, the government guidance document would have to be altered - it isn't a case of interpretation - if you won the guidance would be 100% wrong. That is a mountain tio climb, and certainly one I wouldn't want to fund the legal costs for.

 

[Notch7]

If this is permitted development, there is little you can do.

Parapets are fire-breaks so do have a purpose and can be necessary.

Ah yes, fair point

still ugly as F though

 

[^woody^]

I just hope I don't need to go to the bother of getting the courts to agree with me.

How would you do that?

Strictly this is between the person carrying out the development and the council as the local planning authority. There is no duty on a planning authority to enforce planning regulations.

 

[MuddledEgg]

I think you will. The problem you have is that you are relying on your interpretation to justify your position. The builder just has to point to the illustration, which is quite clear, and state that the governments guidance shows it's OK - no interpretation necessary - the picture shows the situation. For the courts to agree with you, the government guidance document would have to be altered - it isn't a case of interpretation - if you won the guidance would be 100% wrong. That is a mountain tio climb, and certainly one I wouldn't want to fund the legal costs for.

Actually I am relying on the case law and my knowledge of how law works for my interpretation of the order.
The case law of the high court is clear on at least the following things:
1. The guidance is not the law, the law is the order - this is in the case law specifically relating to the PD order but is also a general principle of administrative/public law. Government guidance is not law.
2. The order says max eaves height of 3m within 2m of boundary - this is law.
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',
4. The case law says this definition applies throughout the order.
5. There is nothing in the order relating to eave height at the boundary to suggest that eaves takes on a different meaning to the ordinary meaning.
6. Finally, to interpret 'eaves' as including the flat roof scenario used for rear extensions which are not near borders, completely defeats the purpose of the 3m rule in the order relating to the boundary scenario. In other words it is an illogical understanding of the boundary rule and goes against the purposive approach to interpretation of the law which judges use if there is an ambiguity. This idea comes again from administrative/public law generally.

This isn't my interpretation of the law, it is how the law has been interpreted and it is how law works. I think it is easily understood and I really don't think it should be controversial... No one wants a 4m high wall built within a meter of their kitchen window in a side return, even 3m is quite oppressive. So yes, I am saying that the guidance is incorrect in so far as there is a reference in the guidance on measuring eaves height which directs to measurement diagrams relating to a scenario which is not taking into account the boundary rule. The guidance should refer to the pitched roof diagram only or have different diagrams which respect the purpose of the 3m rule.

Meanwhile I am informed that councils will often request that builders reduce eaves height at boundaries below 3m.
This, by the way, also all makes sense when we consider the separate rules for outhouses which are limited to 2.5m at the boundary.
Builders who go around building 4metre walls along side returns without council planning approval whilst pointing at drawings in the poorly structured guidance are hopefully in the minority, because the walls they are building are not PD.

 

[Notch7]

Builders who go around building 4metre walls along side returns without council planning approval whilst pointing at drawings in the poorly structured guidance are hopefully in the minority, because the walls they are building are not PD

Builders construct what the client asks them to.

the onus is on the householder.