Appeal 3314050

The appeal is allowed and planning permission [name]/22/05141 for a ground floor rear extension with balcony (extension previously approved) at [site address] , [site address] , Whepstead, [name]. Edmonds, [postcode] , granted on 1 December 2022 by Babergh District Council, is varied by deleting condition No.3.

The appellant describes the proposed development as a ‘ground floor rear extension with balcony (extension previously approved)’ while the local planning authority (LPA) describes it as the ’installation of a glass balustrade balcony (over an approved rear extension)’. I have used the appellant’s description in the banner heading above and in my decision.

The appellant describes the address as being in Whepstead whereas the LPA describes it as being in Lawshall. I have used the appellant’s site address in the banner heading above and in my decision.

Planning permission has been approved for a flat roofed extension at the appeal site, where the flat roof is to be used as a balcony with glass balustrading around it. It was approved subject to condition No.3 requiring that the glass balustrade on the north facing elevation shall be 1.8 metres high, whereas the submitted plans show the balustrade to be approximately 1.0 metre high. It is this condition which is the subject of this appeal.

The main issue is, therefore, whether the condition No.3 of planning permission DC/22/05141 is reasonable and necessary, taking into account the living conditions of the occupiers of the adjoining property to the north in terms of privacy.

[site address] is a two-storey, relatively large, detached dwelling with a neighbouring property immediately to the north. Planning permission has been granted previously for an extension where the appeal proposal is to be sited. The current appeal relates to an application for a flat roofed extension including a glass balustrade to its balcony roof. The approved plans show the balustrade to be approximately 1.0 metre high. The decision notice includes the appeal condition that the balcony on the north facing side shall be 1.8 metres high to restrict overlooking to the property on the north side.

The appellant has included a cross section showing that a person standing at the front of the balcony would be some 20 metres from the northern boundary of the host property. The LPA considers that the distance is some 15 metres. Notwithstanding this dispute, I was able to consider distances as part of my site visit. The cross section includes an intervening garden structure on the boundary.

The LPA has not provided any guidance as to advisory distances to protect privacy. However, on my site visit I was able to note that the intervening, substantial, open fronted garden structure with a pantile roof would provide significant screening from any overlooking and that there are some intervening boundary trees, albeit somewhat sparce, but of approximately 10 metres in height, located in the neighbouring garden. The boundary is marked by a close boarded fence of some 1.8 metres in height.

The adjoining property is a detached dwelling in substantial grounds. Its garden land immediately facing the appeal property is a relatively narrow piece of land relative to the main garden. Its elevation includes two obscurely glazed windows and a further window located behind the existing garden structure to the host appeal property. Thus, any overlooking from the proposed balcony would be substantially reduced by the existing garden structure and the existing trees.

I can appreciate that it might be possible to see into the neighbouring garden land on the eastern side of the neighbouring property, but this area would be at a somewhat greater distance from the proposed balcony than the neighbouring garden immediately facing it.

The host property already has windows and also an existing balcony at first floor level facing the neighbouring dwelling. I accept that the proposed additional balcony would bring its users somewhat closer. Nevertheless, given the distance to the adjacent dwelling and the intervening garden structure and some tree planting in the neighbouring garden, I do not find that the balcony with the proposed height of the balustrading would lead to material overlooking in relative terms.

It is possible that the garden structure might not always be present, in which case the impact upon overlooking would be somewhat greater. However, given the distance involved and the presence of trees on the boundary side of the neighbouring property, I do not consider that this would be decisive. In any event, I have no evidence before me to indicate that the garden structure might be removed.

Furthermore, as some people may exceed a height of 1.8 metres, the condition relating to the height of the balustrade would not, in any case, be effective in all instances.

For the above reasons, I conclude that condition No.3 is not reasonable or necessary. The proposed development, without it, would accord with paragraph 130(f) of the National Planning Policy Framework 2021 which requires a high standard of amenity for existing and future users. Consequently, the appeal should be allowed.