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High Court judge upholds council enforcement notice over side extension to home

The High Court has thrown out a challenge to a planning inspector’s decision in a dispute over extensions to a bungalow in Chingford that turned on the height of eaves.

In Kulah v Secretary of State for Housing, Communities And Local Government & Anor [2021] EWHC 3028 (Admin) Mrs Justice Lang dismissed both grounds of appeal and said the inspector, appointed by the Secretary of State for Housing, Communities and Local Government, had been entitled to reach the conclusions she did.

Resident Olgun Kulah lives in a bungalow that has been extended twice and in 2015 began work that included a side extension which the London Borough of Waltham Forest said required planning permission.

Mr Kulah applied unsuccessfully in 2017 and 2019 for certificates of lawful use and development and in April 2019, the council issued an enforcement notice which required removal of the rear section of the single storey side extension.

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The inspector later upheld the council’s position and Mr Kulah appealed under section 289 of the Town and Country Planning Act 1990 against the inspector’s decision.

She found, on the balance of probabilities, that the height of the eaves of the side extension roof exceeded the eaves height of the existing house and that the side extension significantly harmed adjacent residents because of the loss of daylight.

The inspector rejected Mr Kulah’s contention that he would be entitled to re-build the exact same extension, under his permitted development rights, and said the enforcement notice’s demand to remove the rear section of the extension was not excessive.

Mr Kulah argued in his appeal that the inspector erred in law in failing to have regard to the bungalow having eaves of different heights.

The Secretary of State submitted that the inspector correctly directed herself because photographic evidence showed it did not, and the submissions that the eaves differed “was never put to the inspector in the appeal before her, and therefore she cannot be criticised for not addressing it”.

Lang J said: “The appellant and his planning consultant did not, at any stage, submit to the inspector or the council that the existing house had eaves of different heights.”

She had been “unable to find any sound basis for [the] submission that, because the pitched roof above the bay window has a steeper plane than that of the pitched roof on the main building, it necessarily follows that the existing building has eaves of different heights, when measured from the ground”.

The judge also rejected the contention that the inspector failed to consider the appropriate fall-back position was a side extension which complied with permitted development limitations, and erroneously identified this as being a reconstruction of the existing side extension.

“In my view, the inspector was entitled to conclude as a matter of fact and law, that there was no realistic prospect that the appellant could re-erect ‘the exact same extension’, as it would not benefit from permitted development rights, and she was entitled to give it little weight as a fall-back position,” Lang J concluded.

Mark Smulian

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