Appeal 3374040

The appeal is dismissed.

The address on the application form is No 153, [address]. All other evidence, including the plans, state that the address is No [site address] . It is clear from examining this evidence, and from my site visit, that the appeal site is No [site address] . I have therefore used this address in my decision.

The appellant submitted amended plans with their appeal. The amendments relate to the proposed design of the roof. The plans determined by the Council propose a mono-pitch roof and are annotated with a proposed eaves height of 2.7m above ground level rising to 3.6m at the point of connection with the host dwelling. The amended plans also propose a mono-pitch roof with the same orientation, but with proposed heights annotated at these points of 2.5m and 2.88m respectively. The Council has noted references to the amendments in the appellant’s statement and has submitted comments. However, neither the Council or third parties have seen sight of the amended plans or been formally provided the opportunity to submit evidence in respect of them. The amended set of plans do not constitute a substantial difference or a fundamental change to the application. However, they have not been the subject of public consultation and the impact on a specific third party is at the heart of the Council’s decision and the main issue at this appeal. A decision based on this amended set of plans would therefore cause unlawful procedural unfairness. Applying the principles established in Holborn1 I am not accepting the amended plans, and my decision is based on the plans the subject of the decision by the Council.

The main issue is the effect on the living conditions of No 153, [address]. 1 Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin)

The host dwelling at the appeal site is a semi-detached 2 storey dwelling, sharing a party wall with No 153, [address]. A conservatory currently projects from the rear elevation by approximately 3.9m and is set in from the boundary by about 1m. Its elevation facing No 153 includes a mix of both glazing and solid wall. No 153 sits on lower external ground than No 155, but the lintel height of the ground floor window on its rear elevation, and the view into the room it serves, evidence that both dwellings share the same internal ground floor level. The room is part of No 153’s primary living accommodation. The transition in external ground levels between the 2 dwellings is characterised by a retaining wall between the [address].

In contrast to the existing conservatory to be demolished, the proposed extension would extend approximately a further 2.1m from the host dwelling’s rear elevation. The eaves height of the proposal would be similar to that of the conservatory’s, but the height at the point of connection to the main rear elevation of the host dwelling would be noticeably higher. The massing of the proposal is increased by the proposed use of facing brick in contrast to the existing conservatory’s white cladding and extensive glazing on all of its 3 external elevations.

The Council’s reason for refusal states that the proposal conflicts with the 60 degrees guidance, the details of which are contained in the Council’s Wycombe District Householder Planning and Design Guidance SPD (2020) (HPDG) submitted as part of their evidence. The HPDG advises that, if a line drawn on a horizontal plane from the midpoint of the affected window, at an angle of 60 degrees, infringes the proposed extension, it indicates a loss of light. The extent of infringement would inform the assessment of the level of loss. However, in this case, I have no evidence before me clarifying the extent, if any, of the infringement. I have therefore based my assessment on the evidence that I do have, including examination of the plans and my observations on site.

I observed that there is a small window on the side elevation of No 153 and it is unclear as to whether this also serves the affected room. However, the affected window on the rear elevation is much larger and, with the exception of some bushes within No 153’s garden, has an open aspect whereas the side window faces No 151, [address]. As such this window on the rear elevation of No 153 provides the majority of the daylight into the room and the outlook for its occupants. The proposal would not affect the outlook towards [address] and the openness and falling land levels in this direction would also afford a degree of daylight to permeate into the affected room. Nevertheless, the extent of projection of the proposal, in combination with its height, solidity and proximity to No 153’s window, will result in a significant loss of daylight. It will also constitute an oppressive form so near to the window with resultant significant harmful impacts to the overall outlook.

I observed on site that the orientation of No 153’s rear elevation means that the affected room will still enjoy afternoon sunlight and is already in shadow during the morning because of the position of No 155 and its conservatory. However, this neutral impact does not outweigh the harm to living conditions of future occupiers of No 153 in terms of loss of daylight and outlook. This significant harm results in conflict with policies DM35 and DM36 of the Wycombe District Local Plan (2019). These policies seek to ensure that developments prevent significant adverse impacts on the amenities of neighbouring land or property (DM35) or preserve the amenities of neighbouring properties (DM36). In reaching these findings I have had regard to the guidance contained within the HPDG, albeit not applying the specific 60 degrees guidance.

The appellant refers to a planning application for a rear extension at No 153, [address] and that this follows discussions and subsequent consensus between the 2 parties to pursue proposals of the same depth in order provide equitable additional family space and neutralise the impacts of the respective developments. This consensus and the simultaneous implementation of the extensions would have the potential to mitigate the harm of the appeal proposal. However, no details of the design of this extension at No 153, or the status of this application, have been supplied in the evidence before me. I therefore afford this matter negligible weight in the overall planning balance.

There may be a fallback position of the planning permission granted for extensions under Class A, Part 1, Schedule 2 of The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). However, I have little evidence to support this claim. I am therefore unable to conclude that this offers a realistic or probable prospect and consequently it does not represent a legitimate fallback position. It would be open to the appellant to apply to have the matter of lawfulness of the proposal determined under Sections 191 or 192 of the Town and Country Planning Act 1990. Any such determination would be unaffected by the outcome of this appeal. I have therefore considered the appeal on the basis of what is proposed and its consequent effects.

The appellant has referenced that the proposed extension would be consistent with the evolving pattern of development locally. I noted that the neighbouring dwelling, No 157, [address], has a single storey, masonry faced extension projecting from its rear elevation. I do not know the circumstances under which it was constructed or its status with regard to planning permission and therefore cannot draw any direct comparison with the proposal that would weigh in its favour. The presence of this extension does not overcome the harm that I have otherwise found.

The appellant has suggested several conditions in their evidence. These include those to secure implementation in accordance with the approved plans and for materials to match existing. [name] been allowing the appeal, these conditions would have been necessary, but their imposition would not overcome the significant harm to the living conditions identified above as they do not change the proposal being assessed. Other conditions suggested by the appellant are, specified overall and eaves level height caps which the development could not exceed, no side windows facing No [address], and no encroachment onto neighbouring land. A condition requiring accordance with the approved plans would have the same effect as these conditions. The appellant’s final suggested condition requiring a shallow roof pitch solely for drainage, would have imprecise wording and potentially result in the unreasonable evolution of the scheme. For these reasons such a condition could not be imposed to overcome the harm I have identified.

There is common ground between the appellant and the Council in relation to the lack of harm to the character and appearance of the area, privacy, highways impact, flooding and/or biodiversity. These are all neutral impacts that have no effect on the overall planning balance.

Finally, whilst I have determined this appeal on the plans before me, had I accepted the amended plans, my conclusions would have been no different. The amended plans and their effects on living conditions are not materially different to the plans determined by the Council because of the same extent of proposed projection and similar overall scale abutting the shared boundary. I note references in the appellant’s evidence that the amended plans would pass the Council’s 60 degrees guidance contained in its HPDG, but it appears that the appellant has mistakenly used a vertical rather than horizontal plane when applying this guidance and finding that there is accordance with it. I have also not based my assessment on the application of this specific guidance.

For the reasons given above, the proposed development would conflict with the provisions of the development plan as a whole, and there are no other considerations which outweigh this finding. Therefore, the appeal is dismissed.