Appeal 3376074

The appeal is dismissed.

The main issues are:

the effect of the proposed development on the living conditions of the occupants of the neighbouring property at [address],

the effect of the proposed development on the character and appearance of the existing dwelling and surrounding area,

the effect of the proposed development on flooding, and

if there are any objections in relation to issues 1), 2) and 3) above, whether there are any other material considerations to justify the proposed development.

The proposed extension would project by 4.8 to 6 metres from the rear wall(s) of the existing property. Along the boundary with the neighbour at [address], this would have negligible to no impact on the living conditions of the occupants of this neighbouring property as there is an unbroken wall with no facing windows to this aspect.

However, the extension would project by 6 metres along the boundary with number 218. This would introduce an unbroken mass of walling which would be nearly 3 metres in height. This neighbour, at 218, has side and rear facing windows in proximity to the boundary and the proposal would introduce a significant tunnelling effect between an existing outrigger projection at 218 and the proposed extension. This would result in a loss of outlook for the occupants of number 218 to the detriment of their living conditions.

The proposal would therefore conflict with policies LLP1, LLP19 and LLP25 of the Luton Local Plan (LLP) and National Planning Policy Framework (the Framework) insofar as it would adversely affect the amenity of nearby occupiers.

The proposed extension is relatively large by reference to the existing dwelling. It would not be a proportionate addition to the property and would result in its elongation by a substantial degree. However, I must be mindful that the extension broadly aligns with an existing rear projection at number 222 and this somewhat unusual relationship means that the built form would present as a staggered arrangement to the rear.

As the homes are all terraced and well enclosed this means there would be a very minimal impression of this from beyond the appeal site, even when viewed from the rear gardens and outlooks of neighbouring properties. Accordingly, whilst I do recognise that the extension is somewhat large, there would be no material detriment to the character and appearance of the area due to the site’s secluded location.

It therefore follows that the proposal complies with policies LLP1, LLP19 and LLP25 of the LLP and Framework in this particular regard as the proposal is consistent with surrounding properties and the streetscape.

The site is located within [name] 1. Having regard to the Framework and Planning Practice Guidance, the proposed development does not meet the thresholds for a sequential test, nor the exception test as explained in footnote 62 of the Framework. Furthermore, the site size is well below the threshold for a site-specific flood risk assessment having regard to footnote 63 of the Framework.

No clarification is provided in the Council’s evidence as to the requirement for a Flood Risk Assessment or [name] and therefore, I must conclude that the proposal accords with the Town and Country Planning (Development Management Procedure) Order 2015.

I have concluded that there are no objections to the proposal in relation to the effect on the character and appearance of the area or in terms of flood risk. However, I have concluded that the proposal would be detrimental to the living conditions of the occupants of number [address].

The appellant has referenced a fallback position in that prior approval has been granted on appeal for rear extensions1. However, only very limited details of these schemes have been provided in evidence. The evidence is a block plan of one scheme (being reproduced on page 6 of the appellants statement) and some quotes or commentary from the previous Inspectors decisions (from both parties) although the full text of the previous decisions was not provided.

The extension illustrated shows three slim, and separate, single-storey extensions. Moreover, the appeals were allowed on the basis that the Council did not undertake the requisite consultation within the prescribed time frames under the 1 Council refs: 25/00543/PARES & 25/00544/PARES and APP/B0230/D/25/3369347 & APP/B0230/D/25/3369351 Town and Country Planning General Permitted Development Order 2015 (the Order) and are thus deemed to be granted. It does however not follow from this that such development would be lawful.

In order for a fallback position to be given weight, there must be a greater than a theoretical possibility that the development might lawfully take place. In this case, it has not been established that the single storey extensions would, in fact, be lawful. Moreover, the construction of three individual single storey extensions on this relatively narrow site would not appear to deliver any meaningful living accommodation. This raises doubts that there is a real prospect of such a form of development taking place.

[name] am aware that the Order grants permission for 6 metre deep rear extensions in certain circumstances, the somewhat unusual layout proposed in the illustrated fallback position, and lack of confirmation that the development would be lawful gives me cause for concern. For these reasons, I am unable to ascribe much more than minimal weight to this fallback position.

The appellant has highlighted numerous instances where fallback positions have been considered, and I have no reason to doubt the veracity of these. However, these cases appear to rely on lawfully established grounds and/or proposals which would be likely to be implemented and that is not the case here. In this case, as there is no firmly established fallback position, I have not gone on to consider the relative adverse effects of each cited proposal.

I have concluded that the extension would not be detrimental to the character and appearance of the existing property and local area and would not have any adverse flooding implications. There would, however, be a deleterious effect on the living conditions of the occupants of the neighbouring property. I have been mindful of the appellants suggested fallback position but for the reasons set out above, I can only give this minimal weight in the circumstances.

The proposal would therefore conflict with the development plan and the material considerations do not indicate a decision other than in accordance with it. The appeal is dismissed.