Appeal 6000195

The appeal is dismissed.

On my site visit, it was evident that the proposed changes are largely complete. I have considered the appeal accordingly.

Planning decisions must be based on the development plan policies prevailing at the time of determination. The Council has recently adopted the Barnet Local Plan 2021-2036 (BLP). As a result, the BLP now forms part of the development plan. It has replaced Barnet’s Local Plan ([name]) Development Plan Document (CS) and Barnet’s Local Plan (Development Management Policies) Development Plan Document (DMP), which are cited in the reason for refusal. The main parties have had the opportunity to comment on the relevant policies of the BLP during the appeal process. The Council have advised that the relevant policies from the BLP are CDH01 and CDH05.

Planning permission was granted for the subdivision of a dwelling to create three self-contained flats. Condition 1 of that approval requires development to be built in accordance with plans.

In essence, the appellant seeks a new permission to amend Condition 1 to allow for alterations to the rear dormer, first floor rear window with balustrade and screening and fenestration to the window in the side dormer.

From the evidence before me, there does not appear to be any dispute regarding the alterations to the rear dormer and the window in the side dormer. The Council’s concerns are regarding the first-floor rear window with balustrade and screening.

Therefore, the main issue is the effect of the amendments to the first-floor rear window on the living conditions of the occupiers of 44 and [address], with regard to noise and disturbance, and privacy.

The appeal site relates to a semi-detached property on [address]. The property has been subdivided into three flats. The street is predominately characterised by single family dwellings, generally of a similar size and style.

The amendments to the first-floor rear window result in the creation of a terrace area. The plans before me indicate that it is 800mm in depth. It has screening to either side. Given its depth, it is unlikely it would be used for sitting out on, due to the lack of space for furniture. Nonetheless, it is of a considerable width and still has the potential for occupation, such as standing out on it. Its use therefore gives rise to potential noise and disturbance.

The terrace is situated adjacent to the side boundary with [address] (No.48). Given this close relationship, any noise and disturbance from the use of the terrace would be readily perceptible to the occupiers of No.48. In addition, the evidence before me outlines how the first-floor bedroom at No.[address] proximity to the terrace. The additional noise and disturbance would be detrimental to the living conditions of the occupiers of No.48.

The Council have not raised concerns regarding the effect on the living conditions of the occupiers of [address] (No.44), with regards to noise and disturbance. Given the separation distance, I see no reason to disagree with this.

Whilst the terrace may not be considered a terrace under the standards set out in the London Plan (LP), this does not preclude it from functioning like a terrace and occupiers using it to stand out on.

The appellant puts forward that the terrace functions the same as a Juliette balcony, therefore presenting the same capacity for impact. They go on to explain that a previous planning application (Ref: 24/0041/S73) granted planning permission for a Juliette balcony in the same position as the terrace, and of the same width. However, the plans approved under 24/0041/S73 clearly state that no terrace is present at first floor level. They also do not demonstrate the presence of a terrace from the side elevation.

Furthermore, I am not satisfied that a terrace would function the same as a Juliette balcony. A Juliette balcony typically includes no floor area to step out on. Whereas the terrace facilitates external activity such as standing out on, thereby introducing a greater potential for noise and disturbance. Whilst there may be some potential for noise from opening the doors to the Juliette balcony, this would be similar to having a window open. It is not directly comparable to a terrace which occupiers can physically stand or congregate on.

My attention has been drawn to an appeal at a nearby site which was allowed (Ref: APP/N5090/W/17/3191062). The evidence before me outlines how this terrace was bigger than the one sought under the appeal before me. Noise and disturbance was however not a main issue under this appeal. Nonetheless, I am not satisfied by the evidence before me that this appeal is directly comparable to the scheme before me with regards to its relationship with neighbouring properties and any potential for noise and disturbance.

An interested party outlines how noise from neighbouring gardens would likely be greater than any noise from the terrace. However, the terrace is in an elevated position, thereby additional noise and disturbance is likely to be somewhat amplified. Furthermore, fencing between the site’s garden and neighbouring gardens would mitigate noise from the garden to a certain extent. I have therefore afforded this consideration limited weight in favour of the appeal.

For the reasons outlined above, I conclude that the terrace has an unacceptable impact on the living conditions of the occupiers of No.48, by way of noise and disturbance. This is contrary to Policies CDH01 and CDH05 of the BLP. Collectively, amongst other things, these policies seek to ensure that development does not adversely impact the amenity of neighbouring properties and mitigates any noise impacts. It would also be contrary to Policy D3 of the LP. This policy seeks to mitigate the impacts of noise.

Due to the property’s relatively close relationship with its neighbours, the terrace results in additional overlooking into the garden areas of No.44 and No.48. Whilst the first-floor rear window approved under the original plans (Ref: 19/0907/FUL), would allow for some views into the rear gardens of the neighbouring properties, the use of the terrace exacerbates this impact as occupiers are physically able to stand out on the balcony and view neighbouring gardens.

I do not agree that the second floor Juliette balcony, previously approved under 24/00041/S73, has a greater scope for overlooking. The first-floor terrace is wider than the second floor Juliette balcony, thereby resulting in additional scope for overlooking. I am also not satisfied that the previously approved first floor Juliette balcony would have the same impact as a terrace. A terrace and a Juliette balcony are not the same, they function differently for reasons previously outlined. As such, in this case any overlooking would be above and beyond that allowed by the Juliette balconies.

My attention has again been drawn to an appeal at a nearby site which was allowed (Ref: APP/N5090/W/17/3191062). The Inspector however outlines how the siting of No.8 and the mature shrubs along the common boundary would screen large parts of No.6’s garden, while the rear garden of flat 3 is a substantial distance away. The Inspector also discusses the stepped back layout. I am therefore not satisfied that the site contexts between this appeal and the scheme before me are directly comparable. The appeal property has a close relationship with its neighbours and the terrace results in additional overlooking and therefore a loss of privacy to the occupiers of No’s 44 and 48.

My attention has also been drawn to a larger terrace at [address]. The appellant suggests that this has no planning record and overlooks many properties. However, I do not know the circumstances under which this was constructed or its status with regard to planning permission. In any case, rather than providing justification for the development in question, if anything, its presence points to a need for such proposals to be carefully controlled if the living conditions of neighbours are to be safeguarded.

I am not satisfied that the privacy screens sufficiently mitigate the loss of privacy as a result of the terrace.

For the reasons outlined above, the terrace has an unacceptable impact on the living conditions of the occupiers of No.44 and 48, by way of loss of privacy. This is contrary to Policies CDH01 and CDH05 of the BLP and Policy D3 of the LP. Collectively, amongst other things, these policies seek to ensure amenity for neighbouring occupiers, with particular regard to privacy.

I acknowledge the appellant’s concerns over the Council’s handling of the application. However, this is not a matter that I can consider under a Section 78 planning appeal and does not alter my findings, in which I have had regard solely to the planning merits of the proposal.

The lack of enforcement notices served at the appeal property does not equate to a lack of harm. I have afforded this consideration limited weight in favour of the appeal scheme.

The terrace allows additional outdoor space and the circulation of fresh air. It may therefore improve the quality of life for occupants. It may also improve the appearance of the building. These considerations however do not outweigh the harm I have identified above. A third party suggests that there are many other neighbouring properties which also have balconies. No further details such as addresses, other than the ones I have considered above, have been provided. I therefore afford this matter limited weight in favour of the appeal.

For the reasons set out above, I conclude the appeal should be dismissed. [planning inspector] - INSPECTOR