Appeal 6000211

The appeal is dismissed.

I have taken the description of the proposed development from the decision notice, for reasons of clarity. The appellant has provided their agreeance to this amended description.

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 reasons for refusal. The main parties have had the opportunity to comment on the relevant policies of the BLP during the appeal process.

The main issues are the effect of the proposed development on: • the character and appearance of the area; and • the living conditions of occupiers at [address] ([name]), with regard to outlook; and • protected species (bats) and their habitats.

The appeal site relates to a single storey detached dwelling on [address], with accommodation in its roof space. The surrounding area is residential in character and contains predominately two storey detached dwellings set back from the highway on spacious plots, although there is a row of terraced properties situated opposite the appeal site. There is some variation in the architectural style of dwellings. Overall, the area is suburban in character and the appeal site contributes to this through its generous set back from the highway and spacious, open plot.

The two-storey replacement dwelling would have a larger footprint, bringing the front building line further forward and extending the rear building line deeper into the site. Small gaps between the side elevations and side boundaries would be maintained. The height would also be increased to allow for accommodation in the roof.

The front and rear building lines would be relatively in line with development to the west. The road slopes down from west to east, so the top of the dwelling would sit below the ridge of Halycon to the west, but above [name] to the east.

Notwithstanding the above, the increased footprint and height of the replacement dwelling and an overall lack of articulation would create a substantial dwelling with bulky massing and appearance that would be overly prominent when viewed within the street scene. Although there would be a two-storey front bay, its projection would be relatively shallow and provide little relief from the visual massing of the property.

[name] have no objection to the principle of the design of the roof given the variation in roof forms in the area, it would further exacerbate the prominence of the dwelling within the street scene and somewhat reduce the sense of openness between neighbouring dwellings due to its proximity to the shared boundaries.

Furthermore, the side elevations of the dwelling would be evident when travelling along [address], towards Barnet. The depth of them, coupled with the lack of articulation, would add to the visual impact of the increased scale and massing of the dwelling, reducing the sense of openness at the site. Whilst the side elevations of neighbouring properties are evident, as with Halycon, these tend to be broken up with other features or projections which soften their visual impact.

The evidence before me indicates that Halycon replaced a much smaller dwelling previously on site. I accept that the overall footprint and depth of the proposed dwelling is similar to Halcyon, however this property has a single storey garage and projection to the front. It is also set back at first floor level to one side and its roof form slopes in from the side boundaries due to its hipped design. As a result, despite its larger footprint, it has a much softer visual impact and does not appear overly prominent or bulky in the street scene. Although it occupies four levels, this includes a basement and accommodation in the roof.

This is also the case at 39 and [address] (No.39 and 49). Whilst both these properties have a large footprint and a similar depth to the proposed dwelling, they benefit from numerous projections and recessed elements which serve to break up the visual massing and reduce the visual impact of the increased size. As a result, these properties also have a lesser impact on the street scene, in comparison to the proposed dwelling.

Turning to the design and style of the property, the Council raise concerns regarding the design of the fenestration, in particular the large windows to the rear. However, large contemporary windows to the rear are evident on neighbouring properties such as Halycon and No.49, as well as other properties as demonstrated in the appellants Grounds of Appeal Statement. Furthermore, views from the street scene would be extremely limited, if any, given their positioning on the rear of the property. Views from [address] would also be very limited, if any, due to significant separation distances. I therefore do not agree that the proposed fenestration on the rear of the dwelling would be out of character with surrounding development.

Concerns are raised regarding the façade treatment and detailing. However, it was clear from my site visit that there are a range of architectural styles and designs evident in the area, including variation in materiality. The ‘tudorbethan’ style is somewhat reflective of the existing dwelling and similar detailing such as the panelling is evident on other properties along [address], as are the traditional style windows.

Whilst the roof form does exacerbate the increased scale and massing of the dwelling, it would not be an alien addition and entirely at odds with surrounding development. There are various roof forms such as crown tops, as well as pitched and gabled roofs in the area. I therefore do not agree that consistency in roof form is a defining feature of the area. Furthermore, there are various examples of two storey bays and similar projections to the front of dwellings. This element of the proposal would be in keeping with surrounding development.

With regards to the dormers, their projection is relatively minor. Whilst they would somewhat contribute to the overall massing and bulk of the development at roof level, given their small scale, their impact would be minor. Furthermore, similar examples are evident in surrounding development.

The approved scheme at [address] comprises numerous projected and recessed elements, therefore softening its visual impact on the street scene. Given the entirely different design at [address], I am not satisfied that it is directly comparable to the scheme before me. The dwellings at [address] appear to be part of a development, set back off the highway. They are also much smaller in width, as is [address]. I am therefore not satisfised that these properties are directly comparable to the appeal scheme.

Whilst Historic England may have advised that the existing property does not have the requisite special architectural and historic interests to be listed, this does not outweigh the harm I have identified.

Overall, for the reasons outlined above, I consider that the proposed development, as a result of its increased scale and massing, would result in the creation of an overly prominent dwelling that would fail to satisfactorily integrate into the street scene. It would therefore conflict with Policies CDH01 of the BLP and Policy D3 of the London Plan (2021) (LP). Together, amongst other things, these policies seek to ensure that development responds to the local character of an area.

I find no conflict with Policy CDH02 of the LP which relates to sustainable and inclusive design. The Council’s case officer report notes that the scheme would be acceptable in relation to sustainability and accessibility, subject to the attachment of planning conditions if the decision was allowed. I also find no conflict with Policy CHD05 of the LP which relates to extensions. The scheme does not seek planning permission for an extension.

The proposed dwelling would extend beyond the rear elevation of [name] and sit close to the shared boundary between. As a result of the increased height and depth of the proposal, outlook from windows serving rear habitable rooms close to the boundary would be dominated by it. Any windows situated on the side of [name], closer to the east, would not be adversely affected given the proposed separation distances. However, the evidence before me does not make clear the number and position of windows, or the use of the rooms that they serve within [name]. Accordingly, I cannot be certain that the proposal would not result in material harm to the outlook from that property. In particular, it is unclear whether the window configuration would enable the proposal to adhere to the guidance in paragraph 7.5 of the Residential Design Guidance- Supplementary Planning Document (2016) (SPD), which outlines that all habitable rooms should contain at least one main window with an adequate outlook where nearby walls or buildings do not appear overbearing.

Notwithstanding the above, the increased height and depth of the proposed dwelling would be readily apparent when viewed from the garden of [name]. The sheer height and depth of the flank wall would affect outlook from the garden area and create an unpleasant sense of enclosure, appearing oppressive and overbearing. This would affect the occupiers of [name] enjoyment of their garden and therefore be harmful to their living conditions.

[name] acknowledge that the appellant has demonstrated that the proposed dwelling would not breach a 45-degree line taken from a position on the rear elevation of [name], I cannot be sure if there is a window situated closer than where the line has been drawn from. In addition, given the increased depth and height I am not satisfied that this would adequately demonstrate that there would be no harm by way of loss of outlook from rear windows. In any case, there would still be a loss of outlook and sense of enclosure from the rear garden of [name].

The proposed dwelling is orientated slightly away from [name] and the separation distance between the side elevation of the dwelling and the shared boundary increases towards the rear of the property. However, given the height, depth and proximity to [name], I am not satisfied that this would adequately mitigate any harm through loss of outlook. Whilst the scheme would increase the separation distances between the side of the dwelling and shared boundary with [name], given the increased height and depth of the proposed dwelling, the increased separation distance would not adequately offset any harm.

There is some planting on the boundary between [name] and the appeal property. This may somewhat screen views of the proposed dwelling from [name], thereby reducing the loss of outlook. However, from my site visit it appears that the trees are located in the garden of [name] and therefore not within the control of the appellant. These may therefore be removed or cut in future. In addition, an image in the appellant’s Planning Statement shows one of these trees not in leaf. During these periods, any mitigating effect would be greatly reduced. In any case, given the proposed height and depth of the dwelling, I am not satisfied that the planting would adequately reduce the effect on outlook from [name].

I am not satisfied that ensuring additional planting through a planning condition would sufficiently minimise any harm. Any planting would take some time to become established and, in any case, given the proposed height of the dwelling I am not satisfied that it would adequately minimise any harm. The garage and storage shed close to the shared boundary at [name] would not sufficiently minimise any harm. In any case, the proposed dwelling would still be readily apparent from the rear garden space at [name].

The appellant outlines how the relationship between the appeal property and [name] would be comparable to that which exists between neighbours where there is a staggered building line. [name] cannot be sure of the precise location of the properties in the image shown on page 37 of the appellant’s Grounds of Appeal Statement, I do not agree that the relationship in the image would be directly comparable. The larger properties in the image have what appears to be single storey rear projections. This set down would help minimise any impact on outlook. Whereas the appeal property extends back at two storeys for its full depth.

My attention is drawn to an appeal at [name] whereby planning permission for a two-storey side and rear extension was granted. The Inspector concluded that they did not consider that the extension would appear overbearing or dominate the outlook from [address]. However, they also stated that the proposed extension would project only a short distance beyond the rear main wall of [address]. Given this, I am not satisfied that the two appeals are directly comparable as the proposed new dwelling would project a considerable distance from the rear elevation of [name]. In any event, this appeal was granted in

It was therefore determined under a different local plan context.

Whilst there is a window on the side elevation of [name], the evidence before me outlines that this serves a garage. As this is a non-habitable space, there would be no material harm through loss of outlook to this window.

For the reasons outlined above, the proposed development would adversely affect the living conditions of the occupiers of [name], with regard to outlook. It would therefore be contrary to Policy CDH01 of the BLP. Amongst other things, this policy seeks to ensure that development provides a good standard of amenity for neighbouring occupants.

The Council initially raised concerns regarding the lack of bat survey submitted with the application. As such, they concluded that they were unable to properly assess the likely presence or absence of protected species, nor any potential impact on protected species and their habitats.

The evidence before me outlines how at appeal stage a [name] was undertaken. This advised that whilst the site is located within a suburban area it lies near to parkland and woodland with habitats likely to function as commuting and foraging resource for bats. During the survey no droppings, staining, feeding remains or actual bats were observed. Whilst the building is in good condition, there are gaps on the roof and hanging wall tiles which could provide roost opportunities for bats.

The survey concluded that the property has a low suitability for roosting bats however recommended a further activity survey. The appellant has advised that as the main bat activity survey period is from May to August it has not been possible to do this yet. The appellant has therefore requested that this survey is ensured through a pre-commencement planning condition.

However, it is essential that the presence or otherwise of protected species, and the extent that they may be affected by a proposed development is established before planning permission is granted. This is regardless of whether the property has a low suitability for roosting bats in this case. This further survey can therefore not be ensured via a planning condition.

The appellant suggests that the property does not fall within the ‘potentially significant’ category or for that matter the impact found in the case of Woolley v [name], whereby it was confirmed that ecology surveys must be submitted before determination. However, I do not have details of this case before me and therefore cannot draw any conclusions from it. In any case, the presence or otherwise of protected species, and the extent that they may be affected by a proposed development must be established before planning permission is granted.

Wildlife enhancements such as bat boxes would not justify the lack of an activity survey. The appellant outlines how the Council did not request ecological information during the application stage. However, the onus to provide such information is on the appellant. In any case, this does not outweigh the harm identified.

Therefore, the absence of sufficient information means I cannot rule out harm to bats which are a protected species. The proposal therefore fails to accord with Policy ECC07 of the BLP and Policy G6 of the LP. Amongst other things, these policies seek to ensure that protected species are not unduly harmed through development.

I do not find any conflict with Policy CDH01 of the BLP which relates to high quality design in this regard. Policy ECC06 of the BLP is referenced in the third refusal reason. The Council however clarify in their Statement of Case that the scheme would be contrary to Policy ECC07 of the BLP. I do not find any conflict with Policy ECC06 which relates to Green Belt and [name].

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.

Whilst there are no objections relating to the principle of development, standard of accommodation, highway impacts, refuse and servicing, trees, sustainability and accessibility, impact on neighbouring amenity to Halycon and properties to the rear of the site and in terms of daylight, sunlight and privacy or proposed materials, these are neutral factors. As such, they would not weigh in favour of, nor against the proposed development.

The appeal property is not located within a Conservation Area, it is also not a listed building. The proposed dwelling may comply with building regulations relating to fire safety and internal space standards. The scheme would not impact the existing tennis court, swimming pool or rear garden at the appeal site. These matters are however considered to be neutral factors and would not weigh in favour of, nor against the scheme.

It is stated that additional landscaping and various energy efficiency measures such as underfloor hearing and electric vehicle charging points would be used. Materials from the existing dwelling would also be recycled and reused. These benefits would however not outweigh the harm identified.

Although the scheme would increase the separation distance between the property and side boundary with [name], allowing access for maintenance and servicing of the rear garden, this would not outweigh the harm identified above. [name] acknowledge the appellants need for more efficient and sustainable accommodation for their family, this does not outweigh the harm identified.

An interested party suggests that the existing house is in poor condition and requires expensive repairs. This does however not justify the harm identified. I am not satisfied that the scheme would directly address housing need, as it seeks planning permission for a replacement dwelling.

The appellant raises concerns that the Council have tried to bolster their case by adding further policies at appeal stage, specifically Policies CDH07, CDH08 and TRC03. These policies are however not referenced in refusal reasons. Instead, the Council have stated that they are now relevant to the application due to the adoption of the BLP. I have considered these policies insofar as they are relevant to the appeal. The appellant has queried several of the Council’s suggested conditions. [name] am dismissing the appeal I have not considered these further.

I am aware that there is considerable planning history at the site. Nonetheless, I have assessed the scheme before me based on its planning merits.

The appellant suggests that it is not necessary for development to accord with every policy in a Development Plan. They state that this position has been confirmed in a number of court decisions. Whilst this may sometimes be the case, as can be seen from my reasoning above the proposal would fail to accord with numerous local plan policies.

The proposal would conflict with the development plan as a whole and there are no other considerations, including the provisions of the Framework, which outweigh this finding. Therefore, for the reasons given above, I conclude that the appeal should be dismissed.