Appeal 3327026

The appeal is allowed and the planning permission Ref 23/00607/FUL described on the decision notice as “Variation of condition 1 of planning approval 22/01420/FULH. Position of kitchen window to be moved along existing wall [name](s): Condition 1 Conditions(s) Removal: position of kitchen window is being moved along the existing wall PO-20-100 [name].” at [site address] , Tyne and Wear [postcode] , granted on 4 July 2023 by North Tyneside Council, is varied by deleting condition No 3.

An update to the National Planning Policy Framework (the Framework) was published on 19 December 2023 but there are no material changes relevant to the substance of the appeal.

The appellant’s name was spelled differently on the planning application and appeal forms. The appellant has confirmed that the name given on the appeal form is correct and this has been used in the banner heading above.

The main issue is whether the disputed condition is necessary and reasonable in terms of safeguarding the living conditions of the occupiers of the neighbouring property at No [address], with specific regard to the privacy of the side-facing kitchen window of No 33.

Nos 33 and [site address] comprise an adjoining pair of semi-detached bungalows. Both dwellings feature rear projections which retain a gap to the shared side boundary and contain windows facing each other.

The planning permission to which the appeal relates was granted as an amendment to an extant planning permission, to include a repositioned window on the side elevation of the rear projection of No 33A facing No 33. Prior to the works taking place, it is understood that the windows directly faced one another. The planning permission to which the appeal relates granted consent to block up the former window and install a new window further to the rear, offset from the kitchen window of No 33, subject to the disputed condition that it would be fixed shut and obscure glazed up to a height of 1.7 metres above the finished floor level. At the time of my visit the window was in situ as per the approved plans, albeit featuring clear glazing.

A close-boarded fence topped with an open trellis runs along the shared side boundary. Whilst part of the trellis features planting that would have screened views between the two pre-existing windows, a gap in the planting allows direct views between the two existing windows. When viewed from inside No 33A the window of No 33 is visible from a standing position. Due to the partial boundary screening, these views are greatly reduced from a sitting position.

The window sits towards the rear corner of a room comprising an open-plan kitchen and living area. Due to the offset position of the corresponding windows, the kitchen window of No 33 is only visible from the rearmost part of the room.

Kitchen activities would be expected to primarily take place from a standing position, thereby affording more elevated views. However, the window is positioned within the living area where the space is more likely to be used for sitting and relaxing. As such, whilst the neighbouring window of No 33 is visible from some parts of the room, given its likely usage, the potential for prolonged overlooking is limited. Moreover, even acknowledging that the garden area sits slightly lower than the internal floor level, given the likely uses, the potential for overlooking from the window would be broadly comparable to that from the garden area.

I acknowledge that the neighbouring occupier should not be expected to mitigate harm from development on adjacent land. However, such relationships between ground floor windows on neighbouring properties are commonplace. Without boundary treatment, the pre-existing arrangement would have afforded direct views between the two windows. Furthermore, the level of overlooking would be broadly comparable to that already available from the garden. As such, having unobscured outlook from the repositioned window would not worsen the situation.

Based on my findings above, I find no substantive evidence that the disputed condition is necessary to prevent harm to the living conditions of the occupiers of the neighbouring property of No [address]. As such, I do not find the continued imposition of the condition to be necessary or reasonable when assessed against the tests outlined in paragraph 56 of the Framework and the Planning Practice Guidance (the PPG).

For the reasons given above, condition No 3 is not necessary or reasonable to safeguard the living conditions of the occupiers of the neighbouring property, and its continued imposition would conflict with paragraph 56 of the Framework and the PPG. I therefore conclude that the appeal should be allowed, and the planning permission is varied to delete condition No 3.