Appeal 3327829

The appeal is dismissed.

The main issue is whether or not the disputed condition is relevant to the development, necessary, in the interests of protecting amenity, and reasonable in all other respects.

The Wandsworth Local Plan 2023-2038 (WLP) was adopted on 19 July 2023 superseding the [name] and the Development Management Policies Document (March 2016). The policies within these plans cited in the decision notice have thereby been replaced by the relevant policies within the WLP which was referred to in the decision notice as Local Plan Publication Version (2023). Appeal Decision: APP/H5960/D/23/3327829

The side (southern) boundary to No. [site address] forms the rear boundary to No.[address] and Nos.11 to [address]. The flank elevation is positioned at the end of the gardens of Nos. 11 and 13 and currently contains three windows at the first-floor level.

The plans for the approved scheme (Council reference 2022/4187) show that two of the first-floor windows are to serve en-suites and the middle window, which is the window in dispute, is to a study. The plans have an annotation which indicates that the two en-suite windows would be obscurely glazed. In granting planning permission condition 3 required all the first and second floor flank windows to have obscure glazing and be non-opening below 1.7m.

There are two previous applications relating to the property. Planning permission was granted in November 2019 (application reference 2019/4254) for ‘Alterations including erection of part single, part two-storey rear extension’ and the accompanying plans show a single first-floor flank window serving a bathroom. An application for a Certificate of Lawful Development (LDC) was also granted in November 2019 (application reference 2019/3449) for alterations to the roof and a rear extension. As noted on the decision notice, and in line with conditions of the permitted development rights any window inserted on a wall or roof slope forming a side elevation of the dwellinghouse must be obscure-glazed, and non-opening unless the parts of the window which can be opened are more than 1.7 metres above the floor of the room in which the window is installed. The accompanying plans show two new second-floor windows and that the existing first-floor window would serve a bedroom. The ‘existing’ first-floor window which was directly above a ground-floor window and positioned towards the rear of the main flank elevation is no longer in situ.

As set out in paragraph 56 of the National Planning Policy Framework (the Framework) planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.

In refusing the application for the variation of the condition, which would enable the middle window to have clear glazing, and in the original planning application, the Council’s concerns are that the siting and scale of the flank windows would lead to a marked sense of overlooking and loss of privacy for neighbouring occupiers.

The appellant advises that the room served by the middle window is a bedroom, rather than a study, and as such it was unreasonable to require it to be obscurely glazed, and that there was always a clear glazed window at the first-floor level.

There is no evidence before me which provides specific details of the original flank window. All of the plans are marked “proposed” or “as constructed” and the type of glazing is not indicated. Nonetheless, even accepting that the original window had clear glazing, it has been removed. Appeal Decision: APP/H5960/D/23/3327829

The now-inserted windows are in a different position with the clear glazed middle window sited further to the west. It is also wider than the original and is an opening sash window. The window serves a small box room. [name] do not doubt that the room serves a useful purpose for the occupiers it is limited in size and is below that of a single bedroom as set out in the Technical housing standards – nationally described space standard.1

In my view, based on the information before them, it was reasonable for the Council to make the judgement that the room could be obscurely glazed without harm to the occupier's living conditions. The development also significantly increases the number and scale of windows to the flank elevation. I agree with the Council that this both increases the potential opportunities for direct overlooking and creates a perceived loss of privacy to the occupiers of the neighbouring properties in [address].

In accordance with paragraph 55 of the Framework consideration should be given to whether otherwise unacceptable development could be made acceptable through the use of planning conditions. The restrictions to the windows provided mitigation and thereby enabled the development to proceed where it would otherwise have been necessary to refuse planning permission.

In conclusion, I find that the condition was reasonable, necessary and directly related to the development proposed. The variation sought by the appellant to the wording of the condition would fail to protect the amenities of the occupiers of the neighbouring properties. Thus, it would be contrary to policy LP2 of the WLP which seeks to protect the amenity of occupiers of nearby properties including against unacceptable and perceived levels of overlooking.

For the reasons set out the appeal is dismissed.