The High Court has held that a proposed pergola should not count towards floorspace for the purposes of Dacorum Borough Council’s local plan.
The dispute centred upon the direction in which the pergola gates swung. Elias J found that the mere fact that they swung outwards did not mean that the pergola could be used for practical purposes, thus requiring it to be calculated as floorspace. He backed an inspector’s decision to allow planning permission for the development.
The second and third defendants, Mr and Mrs Cannon, own 19 Ringshall, a 19th century rural cottage that lies within the Ringshall conservation area and the Chilterns area of outstanding natural beauty. They sought planning permission to erect a pergola and gates at the end of the drive to the rear of their property.
Under policy 23 of the emerging local plan, extensions to buildings in rural areas would not be permitted unless the extension was limited in size. Specifically, the plan stated that the resulting building, including any earlier extensions and alterations, should be less than 150% of the floor area of the original dwelling.
The council refused planning consent on the ground that, taking into account two earlier extensions and the construction of a double garage, the habitable floor area had already increased to 254% of that of the original dwelling. They argued that further development would result in a “disproportionate addition” to the building’s original size.
On appeal, the inspector overturned the council’s decision, and granted planning permission.
She said: “If the pergola can properly be regarded as ‘floorspace’, I would have no hesitation in endorsing the council’s position, having regard to the status of the emerging local plan policy. I can appreciate that there will be some forms of open-sided structure, possibly including carports, that can properly be regarded as enclosing usable ‘floorspace’ that is an adjunct to the dwelling.
“However, I am not convinced that the proposed pergola falls into that category. It appears to me that it is little more than a shelter, of an aesthetic, rather than practical, nature, over a pair of gates. The use for any purpose of the space beneath it would render the gates unusable, and, for that reason, I do not regard that space as ‘floorspace’.”
The High Court has dismissed the council’s appeal under section 288 of the Town and Country Planning Act 1990. Elias J held that the question as to whether the enclosed space constituted “floorspace” for the purposes of the policy “depended significantly upon the purpose for which that space had been constructed”.
He maintained that the fact that an enclosed space could be used for non-aesthetic purposes was merely a factor to be taken into account, and that it did not compel the conclusion that the area had to be treated as floorspace for the purposes of the policy.
He said that any other view would give “floorspace” too narrow a definition.
Dacorum Borough Council v First Secretary of State and others Queen’s Bench Division: Administrative Court (Elias J) 5 May 2004.
Lisa Busch (instructed by the solicitor to Dacorum Borough Council) appeared for the claimants; Robert Palmer (instructed by the Treasury Solicitor) appeared for the first defendant; the second and third defendants did not appear and were not represented.
References: EGi Legal News 06/05/04
