Appeal 3344697

The appeal is allowed and the planning permission Ref 24/P/0126/FUL for Installation of 2no.ground floor windows on south elevation, a rooflight on rear (East) roof sloping roof plane and a flat rooflight on the flat roof to the East. Retrospective application for the rebuild of property comprising the removal of 2no. existing fire damaged pitched roofs, erection of 1no.replacement pitched roof including an increase in ridge height and 1no. flat roof. Replacement wall on 1st floor rear elevation. Replacement windows and alterations to window sizes on south (side) elevation (4 in total), re-instatement of 1no. door opening and reduction of barge board depth on south (side) elevation. Replacement window on first floor front elevation. Installation of 1no. window on first floor north (side) elevation and 1no. replacement window and alteration to window size of 1no. first floor window on North (side) elevation. Re-rendering of external walls. 2no. rooflights. at [site address] granted on 20 March 2024 by [site address] Council, is varied by deleting condition 6.

An application for costs was made by [site address] Council against [name]. This application is the subject of a separate Decision.

I have also dealt with another appeal (Ref: APP/D0121/W/24/3343906) on this site. That appeal is the subject of a separate decision.

The Council has granted planning permission for the partial rebuild and alterations at the appeal property including replacement roof and windows. The application followed the building being damaged by a fire. The planning permission was granted subject to a number of conditions. These included conditions requiring the investigation of any land contamination and, if contamination is found, the implementation of an appropriate remediation strategy, restriction of the premises to office use under Class E (g)(i), and the obscure glazing of windows to the first floor north and south elevations.

The appellant has confirmed that they dispute the imposition of conditions 3, 4, and 5 due to the submission of a contamination report and the Health and [name] agreeing to the removal of an asbestos pipe. The appellant has confirmed that they dispute conditions 6 and 7 on the basis that the building has been re-built as previously constructed and as a result the conditions are not appropriate.

In light of the above, the main issue is whether or not the disputed conditions are necessary and reasonable having regard to the previous use and condition of the appeal building. https://www.gov.uk/planning-inspectorate - APP/D0121/W/24/3344697

The appeal statements from both parties confirm that the appeal building was damaged by fire. Although the roof has subsequently been re-constructed, the building requires further works to make it usable.

The National Planning Policy Framework (the Framework) states that planning decisions should ensure that a site is suitable for its proposed use taking account of ground conditions and any risks arising from land instability and contamination. In this instance it is not known what contamination, if any, may have resulted from the fire.

I acknowledge that an asbestos survey confirms that an asbestos pipe in the building needs removing, and that the Health and [name] have confirmed that they are satisfied with the report. However, and while I also acknowledge that the application is accompanied by a ‘[name], none of the reports contain detailed information regarding any possible contamination or environmental risks as a result of the fire at the property.

The health and safety of people using the building is important. Consequently, given the fire damage, based on the evidence before me, the risks need to be investigated and evaluated by a standard methodology such as a desk top study and site investigation to clarify what the risk may be and if it is acceptable or any remediation measures that may be required. Paragraph 189c of the Framework states that adequate site investigation, prepared by a competent person should be available to inform assessments.

For the reasons above, I conclude that without knowing the extent of any contamination from the fire damage or clear mitigation proposals to overcome it, the residential use of the site could be harmful to the prospective users of the building. I therefore find that the disputed condition Nos 3, 4 and 5 are necessary and reasonable having regard to the previous use and condition of the appeal building in order to ensure the safety of the end user. Condition 6

Prior to the fire damage to the building, it had been in use as an office. This has been confirmed by the grant of a subsequent Certificate of lawfulness application in 20231 affirming a lawful office use under Class E(g)(i). In light of this and given that the planning application the subject of this appeal was not seeking a change of use of the building, a condition limiting the use of the building as imposed by the Council is not required.

For these reasons, condition 6 is not reasonable or necessary having regard to the previous use of the appeal building. Condition 7

I have not been provided with agreed plans or details of the building prior to the fire damage to be able to confirm the position and size of first floor windows previously within the building. Furthermore, I note that the 1 23/P/0045/LDE https://www.gov.uk/planning-inspectorate - APP/D0121/W/24/3344697 description of development includes alterations to window sizes and installation of a new window at first floor level. I cannot therefore be sure that the first floor windows to the south and north elevations are like for like replacements for those previously present within the building.

In light of this and given the very close relationship between the first floor windows and windows to neighbouring properties affording direct overlooking, I find condition number 7 both reasonable and necessary in order to protect the living conditions of occupiers of neighbouring properties having regard to the previous use and condition of the appeal building.

The appellant has submitted a copy of an appeal decision in Redhill2 in support of their appeal. However, as I have limited information in relation to this appeal and it relates to a condition removing permitted development rights, I cannot be sure it is directly related to the current appeal. Furthermore, I am required to consider the appeal on its merits.

For the reasons set out above conditions 3, 4, 5 and 7 are reasonable and necessary and should therefore remain. However, condition 6 is not necessary to make the development acceptable and therefore does not meet the tests as set out in paragraph 56 of the Framework. Therefore, the appeal is allowed by deleting condition 6 as set out in the decision paragraph above.