Gone potty

While we are on the subject of unauthorised development, people do sometimes find themselves in trouble after erecting panels, fences, or balustrades around the perimeter of flat roofs in order to use the enclosed area for sitting out. No doubt this is often done with no thought that planning permission might be required. A householder in west London, however, has succeeded in his appeal (DCS Number 400-032-983) against an enforcement notice alleging ‘the creation of the roof terrace, by virtue of the placement of potted plants to the roof edge’, the inspector concluding that it was not development. 

The potted plants were considered by the council to create an enclosure of the roof at first floor level and their presence resulted in an intensification of use, the inspector reported. He pointed out, however, that ‘s55(2)(d) of the 1990 Act provides that the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such, shall not be taken for the purposes of the Act to involve development.’ In addition, he did not find, as a matter of fact and degree, that the placement of potted plants had resulted in such a change in the definable character of the use of the land that it amounted to a material change of use. In terms of building operations, he observed that the plant pots were rectangular in shape and, taken individually, were not particularly large. Taken together, he acknowledged that they did provide a relatively low enclosure, although there were gaps between them. However, whilst there was no suggestion of them being moved in the near future, he did not generally associate plant pots as permanent features. They were not fixed to the roof and were capable of being moved, he noted, and their placement would not normally be undertaken by a builder.

Quashing the notice, the inspector concluded that the placement of potted plants on the roof edge did not amount to building operations, and did not fall within the meaning of development requiring planning permission.

There are other appeal examples at section 12.414 of DCP Online which covers balconies and roof terraces.