Appeal 3320931

The appeal is dismissed.

From my site visit and based on the evidence before me, the decking has been erected and therefore the development is retrospective. I have considered the appeal on this basis.

The main issues of the appeal are the effect of the development: • on the character and appearance of the area and whether the development preserves or enhances the Morecambe Conservation Area; and • on the living conditions of neighbouring properties, with particular regard to the loss of privacy to the rear gardens of No.19 and No.[address].

The appeal site, No.[address] relates to a mid-terraced property, located within Morecambe Conservation Area (MCA). The dwelling is of traditional construction, and there is a general uniformity to the principal elevations, which front onto [address]. The rear elevations face towards the Cemetery and are separated from this by a private access road. Many of the rear elevations had been altered or extended, contributing to a greater degree of variety to their architectural form than could be said of the front elevations. However, most of these alterations and extensions were constructed using materials similar to the host property and do not unduly detract from its traditional character.

The significance of the conservation area as a whole lies in the pattern of historic structures, road layouts and streetscapes which tell the story of Morecambe’s growth from its origins as a small fishing village into a bustling and popular seaside resort of the nineteenth and twentieth centuries.

The significance of the conservation area in so far as it relates to the appeal site is the form and appearance as a row of late nineteenth century terraced houses, which represent a high-quality example of terraced housing from this period. To the front of the terrace, each property benefits from an attractive, detached allotment style garden. The Conservation Area Appraisal notes that these contribute to the attractive, mature open spaces found in this part of the conservation area. These front gardens are not affected by the decking area, which is located to the rear of the property.

There is a statutory duty imposed by Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requiring decision makers to pay special attention to the desirability of preserving or enhancing the character or appearance of a conservation area. Paragraph 193 of the National Planning Policy Framework (‘the Framework’) makes it clear that when considering the impact of a development on the significance of a designated heritage asset great weight should be given to the asset’s conservation.

The appeal relates to the construction of an area of decking to the rear of the property, which has been installed across the full width of the property and level with the original back door and patio doors which are present in the rear elevation. The deck is of timber construction and forms an L-shape within the rectangularly shaped rear garden.

The position of the rear garden, off a private access road, close to a public cemetery and without any boundary treatment enclosing the rear garden from this viewpoint means that the development is visible, if only partially, within the surrounding area. However, along the boundary with No. 19, retractable screens have been installed, which sit prominently above the decking and are brightly coloured, this serves to increase the prominence of the overall development and is harmful to the character and appearance of the host property and surrounding area.

The decking is constructed using timber and is partially enclosed by a mixture of timber and metal cable railings, which retains some openness, rather than enclosing the structure entirely. However, by virtue of its height, position, and use of materials together with the installation of prominent retractable screens, in combination this results in a discordant form of development which fails to have regard to the traditional character of the host property or the surrounding area.

[name] acknowledge that access to the dwellings on [address] is generally above ground level, necessitating either steps or a ramp to provide access, I observed that none of the properties in [address] have a rear platform of a similar design or scale.

For the above reasons, I conclude that the development be harmful to the character and appearance of the area and therefore fails to preserve or enhance the character and appearance of the MCA. It conflicts with Policies DM29 and DM38 of the Development Management DPD (DMDPD). Amongst other things, these policies require development to contribute positively to the identity and character of the area through good design, having regard to local distinctiveness and the character of the surrounding built form.

The development also conflicts with Paragraphs 130 and 134 of the National Planning Policy Framework (the Framework) which seek to promote high quality design.

In failing to preserve the character and appearance of the MCA, I find that the development, in the words of the Framework, results in less than substantial harm to the significance of a designated heritage asset. [name] find that the harm in this particular case is minor. Nevertheless, in such circumstances, the Framework requires that the less than substantial harm should be weighed against the public benefits. In this instance, no public benefits have been put to me. Therefore, there are no public benefits in this instance that outweigh the less than substantial harm to the significance of the MCA.

The properties on [address] benefit from a detached garden area opposite the front of the property and a more private rear garden. There is vehicle access to both sides of the property and some of the rear gardens are used for parking, with many having outbuildings or other structures.

The decking extends the full width of the rear garden adjoining the boundaries with both 19 and [address]. It provides for direct access from the rear of the property from patio doors which have been installed into the appellants living room. By virtue of its position and height, there is overlooking into the neighbouring gardens.

[name] accept that due to the design of these dwellings, with access to both the front and rear doors to the properties being via steps, above ground level, that there is already a degree of overlooking which can occur. The two-storey extension to No.21, with its side facing windows further contributes to overlooking between these two properties. Nevertheless, the installation of a decked area provides an opportunity for the occupiers of No.20 to enjoy external spaces for longer periods of time, thereby increasing the amount of overlooking and loss of privacy which can occur.

By way of mitigation, a retractable screen has been installed along the boundary between No.19 and No.20. Whilst this could be considered to satisfactorily mitigate harm by way of loss of privacy and overlooking into the garden of No.19, as discussed above, these screens are brightly coloured and cause harm to the character and appearance of the host property and the wider conservation area. Therefore, the use of these as form of mitigation is not acceptable, in this instance.

On the opposite boundary, there is no such boundary treatment and therefore the development overlooks rear garden of No.21. This results in loss of privacy to their rear garden. [name] have had regard to the letter of support submitted by the occupiers of No.21, and the presence of some existing trellis and planting, this is not sufficient to mitigate the harm caused by the height and position of the decking area. Therefore, in the absence of any appropriate scheme of mitigation, I find that the development results in an unacceptable level of harm to the living conditions of this property.

Consequently, I therefore conclude that the development causes unacceptable harm to the living conditions of neighbouring properties, with particular regard to the loss of privacy to the rear gardens of No.19 and No.[address]. This conflicts with Policy DM29 of the DMDPD which requires, amongst other things, for development to ensure that there is no significant detrimental impact to amenity in relation to privacy and overlooking.

[name] have had regard to the letters of support submitted by neighbouring residents, including the current occupiers of No.[address], this does not alter my findings.

I have also had regard to the appellant’s case that the decking constitutes a temporary structure. With regard to its temporary nature, case law has held there is no single conclusive answer as to what constitutes a building operation but the size of the building, the degree of permanence and the degree of physical attachment to the ground are relevant tests. Nevertheless, an application for planning permission has been made and I have considered the appeal on this basis.

For the reasons given, the development does not accord with the development plan when taken as a whole. There are no material considerations, including the Framework that indicate the appeal should be determined other than in accordance with the development plan. The appeal is therefore dismissed.