Appeal 3302229

The appeal is allowed and planning permission is granted for “Erection of detached dwelling” at [site address] in accordance with the application ref. 22/00572/APP, dated 16 February 2022, without compliance with the conditions (including condition

previously imposed on planning permission ref. 09/02323/APP, dated 18 February 2010.

The appeal property is a 2-storey detached house of brick and tile construction. It has been erected pursuant to a planning permission that was granted over 12 years ago. That original planning permission will continue to exist whatever the outcome of this appeal.

This appeal seeks permission for the development without complying with a condition of the 2010 planning permission as set out in the heading above. Section 73 is drafted widely and so, in addition to considering the disputed condition, it does provide the power to attach new conditions, to not attach conditions which were previously imposed or to attach modified versions of them.

In the application, the appellant stated that permitted development (PD) rights should be made available to the property. He wishes to add a second-hand conservatory at the rear of the dwelling and install solar panels in the future.

I do not think the Council were unreasonable to interpret the phrase “the amenities of the area”, as set in the reason for the disputed condition, as meaning the visual and residential amenities of the area. The Council wishes to retain the condition to safeguard those amenities.

The main issue is therefore whether the disputed condition is reasonable and necessary, having regard to national and local planning policies and the interests of safeguarding the visual and residential amenities of the area.

The National Planning Policy Framework (the Framework) states at paragraph 54 that planning conditions should not be used to restrict national PD rights unless there is a clear justification to do so. The appellant has correctly highlighted the Planning Practice Guidance (PPG) which confirms that such conditions may not pass the test of reasonableness or necessity. In particular, the PPG cautions that the blanket removal of freedoms to carry out small scale domestic and non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness and necessity.

The Framework and the PPG set a high bar when seeking to justify conditions that restrict PD rights. The condition in dispute was written a long time ago. Still, it is not precisely defined by reference to the relevant provisions in the General Permitted Development Order (GPDO). It essentially seeks the blanket removal of PD rights at the appeal property. It is also of concern that only the matter of extensions is referred to in the reason for the disputed condition, yet the condition itself restricts many other operational developments.

Policies BE2 and BE3 of the Vale of Aylesbury Local Plan (VALP), adopted in September 2021, cover the design of new development and the protection of the amenity of residents respectively. There is no indication in those policies or in their explanatory text that their important aims might be achieved by the specific removal of PD rights. 10.The appeal property has been built in accordance with the approved drawing on a corner plot near the junction between [address] (part of the B4032) and [name], a short cul-de-sac of semi-detached residential properties at the eastern edge of Swanbourne. The rear garden is mostly given over to a lawn and is enclosed by substantial fences. A public footpath passes to the rear 2 of the property. The appeal site does not fall within any designated heritage or landscape area and its surroundings are not characterized by the presence of any important buildings or features of obvious scenic, historic or architectural quality. Being on a corner plot actually limits the exercise of PD rights to a certain extent. 11.Given the degree to which the dwelling is set back from [address] and the presence of a mature mixed hedgerow growing outside the fenced roadside boundary there, the house and the rear garden, where PD rights are most likely to be exercised, are not unduly prominent even though this is a corner plot. When viewing from public vantage points, the removal of PD rights would not have such a significant impact as to disrupt the character and appearance of the street scenes or to erode the character, visual amenity and local distinctiveness of the locality more generally. 12.The host dwelling is detached, of conventional design and offers a reasonable gap between it and no. 16. That neighbouring property has a conservatory to the rear which is actually set well in from the common boundary beyond what appears to be a kitchen window. I have taken into account the fact that the appeal dwelling is set back slightly from the front of no. 16 but I find nothing so unusual about the particular layout and design of the development that would make the removal of PD rights necessary to protect the reasonable amenities of the occupiers of no. 16. I note that those neighbours raised no objections. I am conscious of the important conditions and limitations in the GPDO that are attached to development to be carried out under PD rights, including a prior approval and neighbour consultation exercise for larger home extensions. 13.Drawing these threads together, in my view the exercise of the GPDO provisions in relation to this property is unlikely to have such a significant adverse impact upon the visual and residential amenities of the area as to conflict with [name] BE2 and BE3. I find that there is no clear justification to remove these PD rights, so the disputed condition is neither reasonable nor necessary to make the development acceptable. 14.Reading the [name] (DOR) it is clear that the Council is aware of the operation of section 73 and the need to consider whether any previous conditions that are relevant and continue to have effect should be reimposed on any new permission which may be granted. The Council’s relevant response in the Questionnaire indicates that no conditions are regarded as necessary. This, as seems very likely, suggests that the other 9 conditions on the original planning permission have either been discharged or served their purpose or are no longer relevant owing to the sheer passage of time and the full completion of the development in good order. I see no reason to disagree with the Council’s response and the DOR did not refer to the breach of any of those planning