Appeal 3273866

The appeal is dismissed.

On 20 July 2021, during the appeal process, the Government published its revised National Planning Policy Framework (the Framework). Both parties have had an opportunity to comment on the revisions where they may be relevant to the case, and any comments received have been taken into account in determining the appeal.

I have used the description of the development proposed that was entered by the appellant onto the application. Although this was changed by the Council with agreement from the appellant the original description appears to be an accurate description of the proposal.

At the time of my visit the building was in use as three separate dwellings comprising a very small one bedroom unit at the front at ground floor level, a three bedroom unit set over the first and second floors and a one bedroom unit at the rear, occupying the basement floor and part of the ground floor. I understand that this existing arrangement does not benefit from planning permission.

The proposal would see the existing one bedroom flat at the front of the building and the three bedroom unit over the first and second floors joined, to form a three or four bedroom dwelling, referred to as Flat 1. This would occupy all of the building’s first and second floors and part of its ground floor. It would have an access at the front through the front garden, and at the side off the driveway. The remaining area at the rear would be retained to provide a one bedroom dwelling set over the basement and part of the ground floor, with some of the accommodation provided within a new rear extension. This unit is referred to as Flat 2.

The main issues are: a) Whether the proposal would secure adequate living conditions for future occupiers, with particular regard to privacy, natural light, outlook and external space, and b) The effect of the proposal upon the character and appearance of the area.

Flat 2 would be dominated by two staircases. One would provide the principal route from the front door to the main living accommodation above, and a secondary stair would provide access from the living room to the basement level bedroom. The living room would be the only room with a reasonable outlook, achieved from the large window set within the wall of the proposed extension. Although extending this room in this direction, past the head of the secondary staircase, would make for a rather awkward room layout that would be difficult to furnish or use efficiently. The Kitchen would be an inner room, with a door and window that would borrow light from the adjacent landing at the top of the stairs. As a result, the Kitchen, which is already a small room with an awkward change in level, would not be well lit or easy to ventilate.

A small new window would be inserted into the side wall to provide daylight to the bedroom, in addition to borrowed daylight from the lobby at the base of the stairs. The new window would face north, towards the side of the neighbouring dwelling and would therefore provide a poor outlook. It would also not provide a significant level of natural light, the sense of which would be exacerbated by the lack of natural light to the adjoining bathroom.

The proposed bedroom window would face towards the driveway at a low level, serving a room with a floor level that is lower than the driveway. The driveway provides access to a bike store, which would be used by the occupants of the other flat. It also allows third parties to access the substantial retained garage at the rear of the plot and provides access for the occupiers of the neighbouring dwelling, which share the use of the driveway. It would be easy for these other users of the driveway to look down into the bedroom, which would result in a poor level of privacy for users of this room. Attempts by future occupiers to improve privacy through the use of curtains would only serve to further reduce daylight levels, and the suggestion that the window could be fitted with obscure glazing would make the outlook from this room even worse.

The appellant advises that the garage at the rear of the plot is used by one of the tenants as a personal gym. At the time of my visit I saw that a small part of the building was used for this, however most of the building was used for storage. In any case, there is nothing before me to suggest that the appellant would be willing to restrict the use of the garage to the occupants of the flats. As such my concerns regarding third party access to the garage, and the impact of this on the living conditions of the occupiers of Flat 2, remain.

Flat 2 would benefit from direct access onto a newly formed external terrace, which would be well orientated and provide occupants of Flat 2 with a useful and pleasant area of private open space. Owing to the connection this area would have with Flat 2, and its separation from the rest of the external area by an external stair, this is not an area that could be realistically used by the occupants of Flat 1. The remainder of the rear area at ground level is essentially circulation, providing access to the bike store, garage and Flat 2. It would not provide a practical or pleasant area of external space that would be useful to the occupants of Flat 1.

Flat 1 would have three or four bedrooms, depending on how the rooms are used, and would be easily large enough to house a family. It would have use of the small road facing front garden. Although this space is reasonably enclosed by existing hedges, and these could be allowed to grow further, it is dominated by its relationship with the busy main road at the front of the building. It would also be used as bin storage for both flats. The noise of passing traffic as well as traffic odour, combined with the lack of privacy and safety are characteristics of this small area that would mean that it could not usefully serve as private external space for Flat 1. Furthermore, the Council’s Residential Design Guide Supplementary Planning Document 2010 (SPD) suggests that front gardens should not count towards minimum private garden space provision.

I have reviewed the examples put forward by the appellant of comparable cases, including those where the Council has accepted schemes for flats with no external space. There will of course be circumstances where positive aspects of a scheme or material considerations outweigh other deficiencies. I do not have full details of most of the schemes that would enable me to make a detailed comparison, however ground floor plans of two of the schemes are before me.

At [address] the use of the bin store at the front and the bike store at the rear would be limited to the occupants of the two flats, which is unlike the appeal proposal where third parties would access the driveway and garage, passing by the proposed bedroom window. The upper flat would be without a garden area, which does not accord with the SPD. However, I note that the upper flat would have two bedrooms, which would be less than Flat 1 and thus the lack of useful private outdoor space for Flat 1 would represent a greater deficiency in the provision of private external space than the example at [address].

The areas of garden serving [address] are large. Although there are some examples of windows to habitable rooms facing onto the gardens, the size of the area and the remote location of the bin and cycle stores mean that these rooms need not be regularly overlooked, and any impacts would be offset by what is otherwise a pleasant outlook.

The appeal site is close to a number of public parks and external spaces. These would provide occupants of the proposed units with large areas of open space within short walking distance of the flats; however, such spaces are not private or immediately accessible for everyday functions such as the drying of laundry or for children to safely play independently. The provision of these public spaces is therefore not sufficient to outweigh the proposal’s inadequate provision of private external space.

In summary, the proposal would not secure adequate living conditions for future occupiers. It would fail to accord with Objectives 3 and 9 and Policy CP17 of the Exeter City Council Core Strategy 2012 (CS) Saved Policy DG4 of the Exeter Local Plan First Review 2005 (LP) and the Framework, in so far as they seek to ensure that development proposals provide good quality homes that are well designed to allow residents to feel at ease within their homes and gardens with a high standard of amenity.

The division of the building is unconventional. I accept that the Council would not be keen on the precedent it could set for further undesirable forms of plot division. However, the proposal would appear to largely be the result of an overly intensive subdivision of a building that was carried out with little planning and without the necessary permissions. I consider it unlikely that other building owners would be keen to develop similarly sized dwellings in a similar way. Furthermore, the proposal would result in very little change to the exterior of the building. The appearance from the street would be retained. The proposed replacement extension would have a simple lean-to form that would be subservient to the host building.

In summary, the proposal would not harm the character or appearance of the area. It would thus accord with Objective 8 and Policy CP17 of the CS and Policies H5 and DG1 of the LP, in so far as they seek to ensure that development proposals protect local character.

The appellant suggests that the Council is falling short of its 5 year housing land supply, with reference to paragraph 11 of the Framework. There is however no evidence before me to confirm this, and I note that the Council does not refer to this in any of its submissions. Furthermore, the 2020 [name] show that it well exceeded its delivery over the preceding three years. As such I am not satisfied that the policies which are most important for determining the application should be considered out of date and therefore the tilted balance is not engaged.

The proposal would deliver new housing in a highly accessible location and would make use of an existing building. However, these benefits would not outweigh the significant failure of the proposal to deliver adequate living conditions for future occupiers.

I have found that the proposal would not harm the character or appearance of the area. This is a neutral matter that does not weigh in favour of the proposal.

In conclusion, the proposal would conflict with the development plan and there are no other considerations, including the Framework, that outweigh this conflict. Therefore, for the reasons above, the appeal should be dismissed.