An Bord Pleanála INSPECTOR S REPORT DEVELOPMENT: 09.RL2451 QUESTION: whether the construction of an extension (32 sq metres) which has 5 roof lights installed on both side elevations is or is not exempted development or is or is not development at 9 The Rise, Sallins, Naas, Co. Kildare. REFERRER: Kildare County Council PROJECT UNDERTAKER: Graham Flood PLANNING AUTHORITY: Kildare County Council DATE OF SITE INSPECTION: 09 January 2008 INSPECTOR: Mary Crowley 09.RL2451 An Bord Pleanála Page 1
INTRODUCTION A referral case has been received by An Bord Pleanála pursuant to Section 5 of the Planning and Development Act, 2000 whereby Kildare County Council have sought a determination as to whether the construction of an extension (32 sq metres) which has 5 roof lights installed on both side elevations is or is not exempted development or is or is not development at 9 The Rise, Sallins, Naas, Co. Kildare. SITE LOCATION AND DESCRIPTION The referral site comprises the curtillage of a two-storey semi detached dwelling located at the end of a cul de sac within a large residential development on the north side of Sallins. The development within the immediate vicinity of the site is characterised by modern two storey dwellings, comprising detached, semi detached and terrace housing. The referral site forms the eastern part of a semi-detached dwelling and is adjacent to a pair of semi-detached dwellings to the west that are similar in style and design to which the referral site forms part. The referral site comprises a two-storey semi detached dwelling, which has been extended northwards into the rear garden to provide single storey accommodation (32 sq metres). Three velux roof lights have been inserted in the eastern face of that pitch roof facing the rear garden of the adjoining dwelling to the east. Two further velux roof lights have been inserted in the western face of the roof facing the rear garden of the adjoining dwelling to the west. DEVELOPEMNT PLAN The site is within the development plan boundaries of the Sallins Local Area Plan 2001 in an area designated Zone B Existing Residential where it is an objective to protect and improve existing residential amenity; to provide for new and improved ancillary services. REFERRAL PLANNING HISTORY Reg Ref UD4576 - Under section 154 & 155 Planning & Development Act, 2000 to 2002, Kildare County Council served an Enforcement Notice to Graham Flood, 9 The Rise, Sallins Park, Sallins, Co. Kildare on 12 th December 2006 advising that lands had been developed without permission as required by Part III of the Planning & Development Act, 2000 consisting of the construction of an extension to the rear of the primary dwelling, including the installation of Velux type windows above ground floor level. BACKGROUND Planning Authority Report The Planning Authority s decision to issue an Enforcement Notice is based on a report by the Local Authority Planner following a complaint regarding the development of lands to the rear of No 9 The Rise, Sallins. The Local Authority Planner carried out a site inspection where it was noted that the extension under construction was approximately 4 metres X 8 metres with windows on both sides at ground floor level together with 5 no Velux type windows located on the roof of the extension, 3 of which face the complainants land. 09.RL2451 An Bord Pleanála Page 2
The Planner noted that under Class 1 of Schedule 2 of the Planning Regulations 2001 any window proposed above ground level in any such extension shall not be less than 11 metres from the boundary it faces. Based on the fact that the windows are approximately 1 metre from the common boundary the Planner is of the opinion that the windows constitute an unauthorised development. The Planner recommended that an enforcement notice be served on Graham Flood in respect of the complaint received. Project Undertakers Submission to the Planning Authority A case on behalf of the project undertaker, Graham Flood was prepared and submitted by JJ Martin, Engineering & Design. The submission is outlined below: The extension in its entirety is exempt from planning permission under Schedule 2, Part 1, Class 1, (Exempted Development). Furthermore as a conservatory less than 40 sq metres in area and totally to the rear of the original house is exempted then it naturally follows that skylights/roof lights are also exempted. The Velux type units in question as with a glass conservatory roof do not allow for overlooking as they are in the roof and thus above head height. The purpose of the skylights/roof lights is to allow natural light to the ground floor extension, they do not allow for the overlooking of neighbouring properties as they can only be seen through from the ground floor. Three other County Council Planning Offices, (Dublin City Council, South Dublin County Council and Meath County Council) confirmed that Velux Type Skylights/Roof lights are exempt as overlooking is not an issue. Dormer windows require planning permission as they allow overlooking. Planning Authority Response to Project Undertakers Submission Following a further site inspection the Planning Authority issued a written response to the project undertaker stating that the Planning Authorities opinion that the Velux type windows are unauthorised remained together with the reasons behind the Planning Authorities decision to issue the enforcement notice, summarised below: The windows are situated approximately 1.5 metres from the site boundary and represent and intrusion on the amenities of both side-adjoining dwellings. The opinions of three other Councils notwithstanding the subject windows in the instance are to the side of the house and without question have overlooking issues. Furthermore, Schedule 2, Part 1, Class 1 6(b) states any window proposed above ground floor level in any such extension shall not be less than 11 metres from the boundary it faces. Since these widows are above the eaves level they are considered to be above ground floor level. Project Undertakers Submission to the Planning Authority A further submission on behalf of the project undertaker, Graham Flood was prepared and submitted by JJ Martin, Engineering & Design. The submission raise similar points to the previous submission. Additional comments are outlined below: 09.RL2451 An Bord Pleanála Page 3
Having regard to the height, and depth of roof structure the velux windows do not permit overlooking in any fashion towards any of the adjoining properties as they are between 3.1 metres and 3.8 metres above ground floor level. This is a single storey structure with a vaulted ceiling where the velux windows are a part of the roof at ground floor. As the velux unit is in the same plane as the roof structure it ultimately faces upwards. A velux unit is intended to allow light ingress and not for observation. Planning Authority Response to Project Undertakers Submission The developer is of the belief that the works carried out are entirely exempted development. The planning authority considers that the said windows to be unauthorised. On this basis it is recommended that the matter be referred to An Bord Pleanála under the provision of Section 5(4) of the Planning and Development Act 2000-2006 to decide whether the installation of 5 no roof lights on a single storey extension is or is not exempted development. THE REFERRER S SUBMISSION TO AN BORD PLEANALA The referral by Kildare County Council summarises much of the foregoing correspondence. The main points of which may be summarised as follows: Overlooking in this case is occurring by the presence of 5 no velux windows each of which is below 4 metres in height. In a similar situation where Fingal County Council decided that the 5 no windows were not exempted development An Bord Pleanala found in favour of the referrer (developer). In deciding in favour of the referrer, the ABP inspector states: Having regard, therefore to the fact that the roof lights inserted in the western face of the roof over the extension and in the southern face of the roof over the main body of the dwelling comprise works of alteration to that dwelling which do not materially affect the external appearance of the dwelling so as to render its appearance inconsistent with the character of the dwelling or of neighbouring dwellings, I consider that the roof lights are exempted development by virtue of Section 4(1)(h) of the 2000 Act ad are therefore, development which is exempted development. Given that the completed extension is a single storey unit, it is the planner s view that inclusion of 5 no velux windows, each of which is clearly visible from adjoining properties, has materially altered the external appearance of the dwelling. Furthermore it is clear that if an individual development does not satisfy the parameters set out in Section 4(1)(h) of the Act, then the regulations cannot be relied upon for subsequent amelioration. PROJECT UNDERTAKERS CASE A case on behalf of the project undertaker, Graham Flood was prepared and submitted by JJ Martin, Engineering & Design. The points raised are similar to those raised in previous correspondence to the Planning Authority. Additional points can be summarised as follows: Any exempted development in the form of an extension, sunroom or conservatory would materially alter the external appearance of the initial subject structure, as it is the addition of an entirely new structure. 09.RL2451 An Bord Pleanála Page 4
Article 4(1)(h) is of more prominent importance when the alterations are being made to the front elevation of an existing structure or an area of the structure which can be visible from the main road. This explains the stipulation that exempted developments should be entirely to the rear. Based on a site visit report that stated that the rest of the extension has been constructed within the parameter of exemption restrictions it can be decreed that it has always been the opinion of the Local Authority that only the velux windows were contestable. Valid arguments and physical proof have been expressed to counteract the logic behind the argument that roof lights on a single storey extension are considered to be first floor windows and thus subject to the same dimensional criteria laid out in the Guidelines. It has also been expressed that it is a physical impossibility that these windows allow for any possible overlooking by the occupants of No 9 the rise. The reasoning behind the Local Authority s view on the exemption/non exemption of the roof lights has changed over time demonstrating a lack of consistency in the Local Authority s argument. Initially the reasoning is expressed that these are subject to first floor window stipulations. However the most recent report stated that is considered that the inclusion of 5 no velux units have materially altered the external appearance of the subject structure relative to those adjoining. PLANNING AUTHORITYS OBSERVATIONS ON PROJECT UNDERTAKERS SUBMISSION The Authority s has indicated, in a short letter, that it has no further comments to make and requests referral to the previous planners report. LEGISLATIVE CONTEXT Planning and Development Act Section 2(1) of the Act defines works as Any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal Section 3(1) of the Act defines development except where the context otherwise requires as: The carrying out of any works on, over or under land or the making of any material change in the use of any structures or other land. Section 4(1)(h) provides for exempted development as Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures. Section 4(2) of the Act provides that the Minister may, by regulations, provide for any class of development to be exempted development. The principle regulations made under this section are the Planning and Development Regulations, 2001. 09.RL2451 An Bord Pleanála Page 5
Planning and Development Regulations 2001-2006 Article (6)(1) states that subject to Article 9 development of a class specified in column 1 of Part 1 of Schedule 2 shall be exempted development for the purposes of the Act, provided that such development complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that class in the said column 2. Article 9 provides restriction on exemptions where it states: 9(1) Development to which Article 6 relates shall not be exempted development for the purposes of the Act (a) if the carrying out of such development would (viii) Consist of or compromise the extension, alteration, repair or renewal of an unauthorised structure or a structure the use of which is an unauthorised use Schedule 2 Part 1 Exempted Development General Classes 1 8 describes classes of development situated within the curtillage of a house which are exempted development, provided that such development complies with the conditions and limitations expressed at Column 2 for each class. Class 1 which is the relevant class in this case refers to: Class 1 The extension of a house, by the construction or erection of an extension (including a conservatory) to the rear of a house or by the conversion for use as part of the house of any garage, store, shed or other similar structure attached to the rear or to the side of the house. The conditions and limitations, which apply to the class, include: 1 (a) Where the house has not been extended previously, the floor area of any such extension shall not exceed 40 square metres. 4. (a) Where the rear wall of the house does not include a gable, the height of the walls of any such extension shall not exceed the height of the rear wall of the house. (c) The height of the highest part of the roof of any such extension shall not exceed, in the case of a flat roofed extension, the height of the eaves or parapet, as may be appropriate, or, in any other case, shall not exceed the height of the highest part of the roof of the dwelling. 5. The construction or erection of any such extension to the rear of the house shall not reduce the area of private open space, reserved exclusively for the use of the occupants of the house, to the rear of the house to less than 25 sqm. 6. (a) Any window proposed at ground level in any such extension shall not be less than 1 metre from the boundary it faces. (b) Any window proposed above ground level in any such extension shall not be less than 11 metres from the boundary it faces. 7. The roof of any extension shall not be used as a balcony or roof garden. RELEVANT DECISIONS OF THE BOARD 09.RL2451 An Bord Pleanála Page 6
I have searched the Board s list of references/referrals and there is no previous case with exactly the same circumstances as the present one, from which precedent may immediately be taken. ASSESSMENT This referral has been made under Section 5 of the Planning and Development Act, 2000 and has arisen from a request to the Board from Kildare County Council to decide whether the construction of an extension (32 sq metres) which has 5 roof lights installed on both side elevations is or is not exempted development or is or is not development at 9 The Rise, Sallins, Naas, Co. Kildare. It clearly comprises development but the question to be determined is whether it comprises exempted development. This question, as pointed out in the referral and other submissions, hinges on the interpretation and application of that part of the exempted development regulation relating to domestic extensions, in this case the extension and roof lights to the rear of the subject site. The Planning Authority initially took the view that the roof lights were above the eaves level and for that reason above ground floor level. Based on this view that the roof lights were above ground floor level and were located less then 11 metres from the common boundary it was considered that they constituted an unauthorised development under Schedule 2, Part 1, Class 1 6(b) where any window proposed above ground level in any such extension shall not be less than 11 metres from the boundary it faces. An Enforcement Notice issued to this effect. However in their referral submission to An Bord Pleanála the Planning Authority view shifted to the opinion that the roof lights have materially altered the external appearance of the structure and are therefore unauthorised development by virtue of Section 4(1)(h) of the 2000 Planning Act. In support of this view reference is made to a similar situation where Fingal County Council decided that 5 no windows were not exempted development. However An Bord Pleanála found in favour of the developer in this instance stating that the roof lights are exempted development by virtue of Section 4(1)(h) of the 2000 Act and are therefore, development, which is, exempted development. The project undertaker argues that like a conservatory the roof lights are on a single storey extension, are part of the roof at ground level and thus exempted development. This contradicts the Planning Authority logic that roof lights on a single storey extension are first floor windows and thus subject to the same dimensional criteria laid out in Schedule 2, Part 1, Class 1 6(b) of the Planning and Development Regulations 2001 2006. As can be noted above the issues arising in the case have moved from the reasoning as expressed that the 5 roof lights are subject to first floor window stipulations to the most recent Planning Authority report stating that the inclusion of 5 no roof lights have materially altered the external appearance of the subject structure relative to those adjoining. It is therefore appropriate in the first instance to adjudicate as to whether Class 1 of Part 1, Schedule 2 relating to extension to the rear of a house applies. A total of seven conditions and limitations are set out in relation to this class, which must be satisfied if the development in question can be considered to be exempted. Those that are relevant to this case are Nos 6(a) and 6(b) and they will be examined below. For the purposes of clarification I would submit that the proposal: (a) does not exceed 40 sqm (proposed floor area 32 sqm.) 09.RL2451 An Bord Pleanála Page 7
(b) the extension is single storey only (c) the height of the walls does not exceed the height of the rear wall of the house (d) the height of the highest part of the hipped roof does not exceed the eaves of the existing dwelling. (e) does not reduce the area of private open space to the rear of the house to less than 25 sqm. (f) The roof of the extension is not to be used as balcony or roof garden. Schedule 2, Part 1, Class 1 6(a) and (b) of the Planning and Development Regulations 2001 2006 sets out the following conditions and limitations; 6. (a) Any window proposed at ground level in any such extension shall not be less than 1 metre from the boundary it faces. (b) Any window proposed above ground level in any such extension shall not be less than 11 metres from the boundary it faces. In this context the referrer contends that the roof lights are above the eaves level and for that reason above ground floor level and should be subjected to the conditions and limitation of Schedule 2, Part 1, Class 1 6(b) where any window proposed above ground level in any such extension shall not be less than 11 metres from the boundary it faces. The project undertaker argues the roof lights are part of the roof at ground level and thus exempted development. Article 5(2) of the Local Government (Planning and Development) Regulations 2001 defines ground level as: In Schedule 2, unless the context otherwise requires, any reference to the height of a structure, plant or machinery shall be construed as a reference to its height when measured from ground level, and for that purpose ground level means the level of the ground immediately adjacent to the structure, plant or machinery or, where the level of the ground where it is situated or is to be situated is not uniform, the level of the lowest part of the ground adjacent to it. Ground level under the above definition can be reasonably construed as the level of the ground immediately adjacent to the structure, and the level of the lowest part of the ground adjacent to it, which in this case is the ground level of this single storey rear extension. The referrer and the project undertaker are satisfied that the single storey rear extension is at ground level and as the windows at ground level in the side and rear elevations are not less than 1 metre from the boundary they face they are considered to be exempted development. However the Referrer is of the opinion that the 5 no roof lights are above ground level and therefore subjected to different conditions and limitations then those in side and rear elevations of this ground floor extension. While I concur with the Planning Authority s observation that the roof lights are above the eaves level I fundamentally disagree with the notion that for this reason they are above ground floor level. I would draw the Boards attention to the fact that within Schedule 2, Part 1, Class 1 Planning and Development Regulations 2001-2006 condition and limitation No 6 uses the terms at ground level and above ground level whereas the term at ground floor is used only in condition and limitation No 3 therein. To take condition and limitation No 6(a) literally, it would mean that any window would have to be at ground level and condition and limitation 6(b) would 09.RL2451 An Bord Pleanála Page 8
mean literally that any window above ground level would have to be not less than 11 metres from a boundary. This is clearly unworkable and must not be what was intended. Accordingly, one must take a commonsense interpretation of 6(a) and 6(b) to respectively mean any window proposed at a ground floor level has to be not less than 1 metre from the boundary it faces and any window proposed at an above ground floor level has to be not less than 11 metres. Applying this to the current case I would make the following comments. From my site inspection it was evident that the single storey extension has a vaulted ceiling where the roof lights are a part of the roof. Similarly to the windows on the side and rear wall it is reasonable to conclude in this instance that the 5 no velux windows are also at a ground floor level as the purpose of the roof lights is solely to allow light ingress to the ground floor extension. On this basis I am satisfied that there is no development above ground level and therefore the conditions and limitations of Schedule 2, Part 1, Class 1 6(b) do not apply. Therefore I agree with the project undertaker s argument that the extension in its entirety is exempt from planning permission under Schedule 2, Part 1, Class 1, (Exempted Development). However should the Board concur with the referrers latter view that the inclusion of 5 no velux windows has materially altered the external appearance of the dwelling, I would submit the following. The referrer places reliance on the precedent value of two previous referral decisions by An Bord Pleanála in support of their opinion. In referral case PL06F.RL.2162 as to whether the installation of five roof lights is or is not development or exempted development An Bord Pleanala decided that the installation of one roof light in the southern face of the roof of the original dwelling is development and is exempted development, and the installation of four roof lights to the rear of house is development and is not exempted development not coming either within the scope of section 4(1)(h) of the Planning and Development Act, 2000, or within the exempted development provisions of Class 1 of Part 1 of Schedule 2 to the Planning and Development Regulations, 2001. In referral case PL06D.RL.2335 as to whether the replacement of single glazing with double glazing to the front and rear elevations and the addition of roof lights to the rear of the existing house (a protected structure) is or is not development and is or is not exempted development An Bord Pleanala decided that the said replacement of single glazing with double glazing to the front and rear elevations and the said addition of roof lights to the rear of the existing house, (a protected structure) are development and are exempted development as the scope of the works comes within the provisions of section 4(1)(h) of the Planning and Development Act, 2000. It is clear that the these two examples relate to Section 4(1)(h) of the Planning and Development Act, 2000 that provides for exempted development as development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures. I do not consider the example referred to by the Planning Authority to be relevant to this referral as the circumstances in the quoted example are not similar to the circumstances in this case and cannot be used as a comparator. In my opinion the roof lights are minor works, they do not alter the shape of the roof, its colour, design or layout. I am satisfied that the addition of the five roof lights, would not, in my view, render the appearance of the structure inconsistent with 09.RL2451 An Bord Pleanála Page 9
the character of the structure or of neighbouring structures, as the roof lights would be entirely unobtrusive. I would therefore reject the Planning Authority s view on this matter. RECOMMENDATION Having regard to the above, I recommend that the Board decide that the proposed extension is an exempted development by virtue of Section 4(2) of the 2000 Act. The five roof lights inserted on both sides of the roof over the ground floor extension adjacent to the party boundary/wall comprises development at ground level, complies with Condition and Limitation 6(a) of Class 1 of Part 1 of the Second Schedule to the Planning and Development Regulations, 2001 and is therefore exempted development. If the Board concurs with this recommendation I would suggest the following draft order: WHEREAS the question has arisen as to whether the construction of an extension (32 sq metres) which has 5 roof lights installed on both side elevations is or is not exempted development or is or is not development at 9 The Rise, Sallins, Naas, Co. Kildare. AND WHEREAS Kildare County Council, Aras Chill Dara, Devoy Park, Naas, Co. Kildare requested a declaration to An Bord Pleanála on the said request on 27 th June 2007 AND WHEREAS An Bord Pleanála, in considering this reference, had regard particularly to: a) Sections 2, 3 and 4 of the Planning and Development Act, 2000 (as amended), and b) Article 6 and 9 of the Planning and Development Regulations, 2001 and c) Article 5(2) of the Planning and Development Regulations 2001 including the definition of ground level and d) Class 1 of Part 1 of Schedule 2 of the Planning and Development Regulations, 2001 AND WHEREAS An Bord Pleanála has concluded that- The rear single storey extension which includes 5 roof lights installed on both side elevations of the roof (further to the definition of ground level under article 5(2) of the Planning and Development Regulations 2001) adjacent to the party boundary/wall with the adjoining property No 8 and No 10 The Rise, Sallins complies with Condition and Limitation 6(a) of Class 1 of Part 1 of the Second Schedule to the Planning and Development Regulations, 2001 which requires any window proposed at ground level in any such extension shall not be less than 1 metre from the boundary it faces. NOW THEREFORE An Bord Pleanála, in exercise of the powers conferred on it by Section 5(3)(a) of the Planning and Development Act, 2000, hereby decides that the works involving an extension and five roof lights to the dwelling is development and are exempted development. Mary Crowley Planning Inspector 24 January 2008 09.RL2451 An Bord Pleanála Page 10