Appeal 3355334

A council officer didn’t attend the site at the appointed time. I decided to carry out the visit without them having been invited to do so by the appellant’s representative. I did not discuss the merits of the case. The Council were contacted after my visit and confirmed that they had no objections to me continuing to make the decision without having to organise another site visit.

I am obliged to use the description of the development above with respect to Appeal A, as stated on the planning application form but the Council altered it with the decision notice describing it as “Retrospective application for erection of a dormer with a Juliet balcony, installation of rooflights and replacement of roof tiles.” From what the appellant says about this, the change by the Council was not agreed by them although their previous agent may have accepted it. I will continue to use the original description. The appellant’s name is also clarified on the appeal form as [name] whereas on the planning application form, only their surname was stated.

Ground (a) was pleaded in Appeal B but that ground of appeal was barred given that Appeal A concerns a related application which was still to be determined. Appeal A

The effect of the development on living conditions of the adjoining property at No [address].

The appeal site is a 2-storey, mid-terraced mews property where accommodation is split at first-floor level and within the roof-space. The rest of the terrace appears to include similar accommodation above the ground-level commercial premises.

The unauthorised development has included the construction of a dormer which incorporates full-length glazed French doors which face directly towards the roof-slope of the adjoining property at No 9. The roof-slope of No 9 includes a series long roof-lights 2 of which approximately align with the position of the French doors in the appeal property.

There is a very narrow gulley between the edge of the dormer and the leaded parapet that provides a physical boundary to the edge of the appeal property roof. This arrangement appears impractical to use as a sitting out space because it is too constrained. However, people standing inside the first floor of the appeal property can look directly towards the roof-lights within the roof-slope of No 9. When the French windows are opened, it is possible to get a little closer to those neighbouring roof-lights.

[name] carried out my site visit, I could see into the rooms in the roof of No 9 although the internal blinds across the roof-lights prevented me having a clear view. I did not have the advantage of being able to gauge the impacts from inside No 9 or assessing the relative floor-levels between the properties in order to Appeal Decisions APP/K5600/C/24/3355241 & APP/K5600/D/24/3355334 understand fully for myself the extent of the loss of privacy. However, this arrangement appeared to be intrusive from what I could see from the appeal site.

Whilst the blinds across the neighbouring roof-lights could protect the privacy of the adjoining occupiers, the presence of the French windows in the unauthorised development in such close proximity could necessitate the use of the blinds more frequently. That could exclude valuable daylight affecting the outlook from that property. This adds to my concerns about the impacts for the adjoining residents.

There were pre-existing roof-lights in the roof-slope of the appeal property prior to the development taking place. These were in the roof sloping away from the boundary which would have limited the ability to look into that property. Similarly, the other roof-lights that have been installed as one operation with the dormer and French windows do not lead to harmful overlooking.

I have considered the appellant’s suggestion that overlooking could be prevented by the inclusion of obscure glazing and restrictions on the opening of the French windows. However, I cannot know with any reasonable reliability whether this would overcome my concerns. Notwithstanding the “sight line diagram” submitted by the appellant, without having further agreed details about the floor levels of No 9, I cannot know whether those adjoining occupants would look towards the French windows and have a perception of being overlooked even if they were to be obscure glazed. The effects in these respects are worse than they would be if the dormer were replaced with roof-lights sloping away from the mutual boundary, which the appellant states would be permitted development. I also note the appellant’s plan to drop the floor level which could make a difference to the degree of impact from people standing and looking out of the dormer but I there is no certainty to when that could happen or what precisely it would involve. It was not part of this proposal and it has little weight with respect to this issue.

In relation to the main issue, the dormer and French windows have had a harmful effect on living conditions of the adjoining property at No [address]. This does not comply with Policy CD9 of the Kensington and Chelsea New Local Plan, 2024 which requires that all development ensures good living conditions for occupants of neighbouring buildings.

Even if the dormer was primarily installed due to some urgent maintenance needs following storms in 2023, the effects that I have described above would however be permanent. I also note that there is another similar dormer on the other side of the roof of No 9. This has no bearing on the impacts of the development that I am dealing with and does not provide a precedent for this development which I have considered on its own merits.

The dormer is discretely located, set within what is in effect a valley between roof-slopes. The roof tiles and rooflights are also in keeping with the building and those in the surrounding area. The visual qualities of the area are not harmed and therefore the character and appearance of the Courtfield Conservation Area is preserved by the development. That is therefore a neutral matter not weighing in favour or against the development.

I have considered whether I could grant planning permission subject to a condition requiring the removal of the dormer and then the re-roofing of the gap that would Appeal Decisions APP/K5600/C/24/3355241 & APP/K5600/D/24/3355334 be left in the roof. That would however be a materially different development. Interested people, such as neighbouring occupiers, may wish to comment upon such a proposal.

Overall, these other matters do not outweigh my conclusion on the main issue. Accordingly, I conclude that the development plan as a whole is not complied with and this is not outweighed by other material considerations. The appeal will be dismissed. Appeal B

The appeal on this ground is that the steps required exceed what is necessary to achieve the purpose of the notice. The Council has confirmed that the purpose of the notice is to remedy the breach of planning control, which is the purpose within s173(4)(a) of the Act.

In order to remedy the breach of planning control, it is necessary to undo what has done and which constitutes the breach of planning control. As separate operations, some of the work may have been ‘permitted development’ under the provisions of the General Permitted Development Order1 (the GPDO). However, all of the works were undertaken between February 2024 when the appellant found a suitable contractor and were, by their estimation, only 75% completed when the planning application was submitted in June. The notice was issued in October 2024. As a matter of fact and degree, the operations were undertaken as one operation over a relatively short period and which all affect the same roof. As such, the whole operation was unlawful and given the purpose of the notice, it goes no further than requiring the undoing the breach of planning control. The GPDO does not grant planning permission retrospectively and so even though the notice cannot interfere with those rights, the operations are not authorised by those provisions.

As such the appeal under ground (f) fails.

The appeal on this ground is that any period specified in the notice falls short of what should reasonably be allowed. The present period is 3 months.

[name] have no expert evidence about the work required to comply with the notice, the removal of all of what the notice requires appears in common sense terms to be complex. It would also be difficult for somebody to live in the property whilst some of that work is taking place because the roof may not be watertight. The tenant occupying the property may need to be re-homed for a period.

Furthermore, given what I have said in this case but also regarding the planning merits within Appeal A, the main parties may wish to start discussions regarding a solution to resolve the breach of planning control which would require a submission to the Council. Such discussions can take significant periods of time. 1 The Town and Country Planning (General Permitted Development) (England) Order 2015 Appeal Decisions APP/K5600/C/24/3355241 & APP/K5600/D/24/3355334 Furthermore, once a solution is hopefully agreed and the procedures undertaken, it would then be necessary to instruct a contractor and then carry out the work.

Whilst the Council does have powers and discretion to allow additional time to comply, I consider that the period specified is clearly unsuitable and that I should use my powers to extend it. The harms though should not be allowed to continue to an unreasonable extent and given that this does include adverse effects upon neighbours’ living conditions, I have to balance these matters carefully. I consider that a period of 6 months would strike a more reasonable and proportionate balance between the harm and either the installation of an alternative solution or compliance with the notice.

To this extent, the appeal on ground (g) succeeds.

For the reasons given above, I conclude that the period for compliance with the notice falls short of what is reasonable. I shall vary the enforcement notice prior to upholding it. The appeal (g) succeeds to that extent.