Appeal 3307401

The appeal is allowed and planning permission is granted for the rear garden outbuilding at No. [site address] in accordance with the terms of the application, ref. 22/1329, dated 11 April 2022, subject to the following conditions:

The development hereby permitted shall begin not later than 3 years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following approved plans: DWG01 - Location Plan; DWG01 – Existing Block Plan; DWG01 - Proposed Block Plan; DWG01 – [name] and Roof Plan Drawing Number DWG02 – [name]/Specification.

The main issues in this appeal are whether or not the proposed rear garden outbuilding would be too prominent, have an overbearing impact or cause undue overshadowing on neighbouring occupiers’ gardens.

Relevant Council guidance is contained in their SPD2 document following General Policy 1 of the Brent Local Plan 2019-2041 [name]. SPD2 says only one outbuilding will normally be permitted in the rear garden of a dwelling. The maximum size is to be 20m2 floor area where the garden cover is less than 100m2. The outbuilding should be located within the final fifth of the garden, be single storey, with a maximum height of 2.5m. Matters to be taken into account are the effect of the outbuilding on the character of the host dwelling and street scene and on the residential amenity of neighbouring properties.

The Council said the proposed outbuilding’s ground cover area of 14.57m2 was acceptable. Construction materials were suitable. Their main concern was that the outbuilding’s height of 2.85m would make it unduly bulky. It would not comply with SPD2 guidance. [name] outbuilding would be overly dominant and prominent when seen from neighbouring property. There would be a harmful sense of enclosure on next doors’ gardens.

The Council’s policy that domestic outbuildings should have a maximum height of 2.5m recognises the limitations in The Town and Country Planning (General Permitted Development) (England) Order 2015 at Class E. That deals with buildings incidental to the enjoyment of a dwellinghouse. The Order permits provision within the curtilage of the dwellinghouse of - (a) any building ... required for a purpose incidental to the enjoyment of the dwellinghouse as such. E.1 says development is not permitted by Class E if — (e) the height of the building, enclosure or container would exceed - (ii) 2.5 metres in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the dwellinghouse. There is a ‘fallback position’, in that the extent of Order rights is a material consideration in dealing with applications as here, although development in excess of Order limits is, as a whole, development without planning permission. The case of [name] v SSE & Gray [1996] JPL 939 determined it is necessary to address the realistic likelihood of ‘fallback’ permitted development rights being exercised. It is relevant in this instance, where a similar outbuilding to that proposed could, if limited to a height alongside the garden boundaries of no more than 2.5m, and otherwise comply with Order limitations, be built without the need for planning permission.

In my view, whilst the proposed outbuilding, although tight alongside the rear garden boundaries of neighbouring properties at Nos. 41 and [address] to the side and Nos. 45 and [address] at the rear, would not cause the level of enclosure or overshadowing that the Council fear in those next door gardens. The ends of the rear gardens in the immediate vicinity, including that at the appeal property, are covered by small trees to a considerable extent and are enclosed by high fences and screening boundaries. The proposed outbuilding would be only 0.35m higher than might be built under permitted development rights, the excess not likely in my opinion to produce such harm on neighbouring amenity as to justify a refusal of planning permission.

In concluding that planning permission should be granted for the appeal extension, I note that no objections in relation to possible adverse effects on neighbouring houses’ garden amenities were identified. For the reasons given above, the appeal succeeds. The general condition limiting the duration of the permission is applied, (s.91 of the Act), as is a condition relating to the submitted plans defining the project.