OLGUN KULAH v SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT

On an appeal under section 289 of the Town and Country Planning Act 1990, the court reviews legality, not the planning merits or the Inspector’s exercise of planning judgment. A decision letter must be read fairly and as a whole by an informed reader, without excessive legalism.

For permitted development, the eaves height is measured at the lowest point where the roof slope meets, or would meet, the outside wall. Guidance concerning houses with eaves at different heights requires a factual basis. A fall-back proposal attracts weight only where there is a realistic prospect that it would be implemented and it would materially affect the planning assessment.

The appellant challenged, under section 289 of the Town and Country Planning Act 1990, an Inspector’s decision dismissing his appeal against an enforcement notice issued by the London Borough of Waltham Forest concerning an unauthorised single-storey side extension.

The Inspector found that the extension exceeded the permitted development eaves-height limitation in Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015. She also found that it harmed the neighbouring occupiers’ living conditions and that the enforcement steps were no more than necessary. The central issues were whether the Inspector had misunderstood the eaves-height requirement and whether she had addressed the correct fall-back position.

1. Appeal dismissed. The Inspector’s decision was legally sound.
2. An appeal under section 289 of the Town and Country Planning Act 1990 is confined to errors of law, irrationality, failure to consider relevant matters or procedural impropriety. The court must not revisit planning judgment or re-weigh competing planning considerations. The decision letter must be read fairly, in good faith and as a whole, in a straightforward manner and through the eyes of an informed reader.
3. Paragraph A.1(d) of Class A of the 2015 Order required comparison with the eaves of the existing dwellinghouse. Applying the ordinary meaning of eaves and the Technical Guidance, the relevant point was the lowest point of the roof slope where it met the outside wall, at the corner adjoining the extension. The Inspector was entitled to rely on visual assessment and reject a measurement taken part-way up the roof slope.
4. The Technical Guidance’s reference to different eaves heights did not require consideration where the evidence showed that the existing house had eaves at a uniform height. The appellant had not raised that factual case before the Inspector.
5. The claimed fall-back of rebuilding the exact extension had little weight because the existing extension did not comply with the eaves-height limitation and also exceeded the applicable aggregation limits. The Inspector nevertheless considered a smaller, compliant side extension and was entitled to conclude that it would have a lesser impact on the neighbouring property.
6. The Inspector’s brief reasons on daylight, sunlight and the alternative fall-back were sufficient, particularly as the appellant had not advanced the compliant-extension case before her.

The Inspector dismissed the appellant’s enforcement appeal on 18 February 2021. The High Court dismissed the section 289 appeal.