Appeal 3339331

The appeal is allowed and planning permission is granted to erect rear decking (Variation of condition 2 of planning approval WP/20/00915/FUL - decking, as approved, has been built other than in accordance with approved plan 2904:001 [name]) without complying with conditions 2 and 3 attached to planning permission [name]/VOC/2023/01316, dated 26 July 2023, at [site address] , Dorset, Portland [postcode] and subject to the following conditions.

With the exception of the requirement of condition 2 of this permission, the development hereby permitted shall be carried out in accordance with the following approved drawing: 2904:374/001 [name] – As built decking.

Within one month of the date of this permission, the sections of glass balustrade shown along ‘as built north west elevation 1:100’ and ‘as built north east elevation 1:100’ on approved drawing: 2904:374/001 [name] – As built decking, shall be obscured to a minimum level three obscurity and retained as such thereafter.

A costs application was made by [name] against Dorset Council. This application is the subject of a separate Decision. A separate costs application was made by Dorset Council against [name]. This costs application was subsequently withdrawn by Dorset Council.

On the information before me, disputed conditions 2 and 3 of planning permission P/VOC/2023/01316, stem from conditions originally proposed by an Inspector in allowing an appeal1 for raised decking at the appeal property. At the time, both conditions were considered necessary to reduce overlooking of neighbouring properties to the rear of the appeal property in [address].

During my visit, I observed that an area of raised decking has been installed at the appeal property. The approved drawing2 before me is intended to show this ‘As built.’ Accordingly, I have determined the appeal on the basis of the approved drawing and my observations.

The appellant’s application and subsequent submissions to support the removal of disputed conditions 2 and 3, are largely predicated on the assertion that the requirements of these conditions cannot be enforced.

However, the appeal before me is under Section 73 of the above Act. In particular, and irrespective of whether or not disputed conditions 2 and 3 are enforceable, Section 73(2)(a) allows me to grant planning permission “subject to conditions differing from those, subject to which the previous planning permission was granted, or that it should be granted unconditionally...”.

Against the above background, the main issue is whether disputed conditions 2 and 3 are necessary or reasonable in respect of safeguarding the living conditions of neighbours.

The raised decking is in part supported by a wall (‘the boundary wall’) which faces the neighbouring properties to the rear of the appeal property along [address]. Based on the reasoning in allowing the above mentioned appeal, the Inspector found that views from the residual lower amenity area towards the properties on [address] would largely be contained by the boundary wall which would be increased in height to 1.8m. The Inspector also found that the increased height of the boundary wall would partially restrict views down into the rear garden areas from the raised decking area. 1 ref: APP/P1235/D/20/3247226 2 2904:374/001 [name] – As built decking.

On the information before me, the appeal property already incorporated a patio area which allowed some overlooking to the rear. Moreover, this property incorporates upper floor accommodation and from this there are views available towards the properties in [address] and their associated gardens. Therefore, notwithstanding the approved raised decking, a considerable degree of overlooking of these neighbouring properties already existed.

To measure the boundary wall accurately and to ascertain its height would require access onto third party land. Instead, my assessment of this is based on the approved drawing. On the approved drawing, the height of the boundary wall ranges between about 1.65m to 1.8m.

Nonetheless, where the height of the boundary wall does fall short of 1.8m, this is by a limited amount. Therefore, in my opinion, because of this and given that the residual lower decking area is largely a confined space and unlikely to be used for amenity purposes, any parts of the boundary wall which are less than 1.8m in height would not materially increase overlooking towards the properties on [address] or significantly change views down into the rear garden areas of these properties from the raised decking area. In particular, given the extent of overlooking already available from the living accommodation associated with the appeal property.

Accordingly, I do not consider that disputed condition 2 is reasonable or necessary to safeguard the living conditions of neighbours. Condition 3

The raised decking area is sizeable and extends closer to the rear of the properties in [address] than the internal accommodation associated with the appeal property. As such, and notwithstanding the extent of overlooking available from the appeal property, the use of the raised decking area does allow some additional actual overlooking and also increases the perception of overlooking for neighbours to the rear of the appeal property.

Because the balustrade is about 1.1m in height above the level of most of the raised decking area, even if the glazing for this is obscured, this would not prevent most adults and older children when standing close to the balustrade from being able to see over this. Nevertheless, obscuring the glazing of the balustrade would limit direct views towards the properties immediately to the rear, particularly when stood or seated back from the edge of the raised decking area. Moreover, an obscure glazed balustrade would reduce the perception of overlooking. Overall, the obscuring of the glass balustrade would provide some mitigation for neighbours against the loss of privacy associated with the use of the raised decking area.

Consequently, a condition requiring that the glazing to the balustrade is obscured is reasonable and necessary. Because the balustrade has already been installed, the installation of a film or finish to level three obscurity to the glazing of the balustrade would be acceptable. I also consider that a one month period to secure the implementation of this is reasonable and my condition 2 reflects these requirements.

The appellant has suggested that I instigate a costs application against the Council. This is wholly at my discretion and in this case, I do not consider this to be necessary.

I have also had regard to matters raised by third parties. However, these do not alter my findings on the main issue.

The guidance in the Planning Practice Guidance makes clear that decision notices for the grant of planning permission under section 73 of the Act should also repeat the relevant conditions from the original permission unless they have already been discharged. Condition 1 of the original permission requires the development to be undertaken in accordance with the approved plans. [name] cannot be certain that the development has been undertaken wholly in accordance with the approved plans, this form of condition needs to be retained. Therefore, my condition 1 reflects this and also refers to the requirements of my condition 2.

I have found that the removal of disputed condition 2 would not harm the living conditions of neighbours. However, a condition which reflects disputed condition 3 is necessary and reasonable to safeguard the living conditions of neighbours. Accordingly, I conclude that the appeal should only succeed in respect of the removal of condition 2 but with a new condition to reflect disputed condition 3 (my condition 2) as set out above.