Appeal 6000895

The appeal is dismissed.

The appellant has submitted amended plans1 with their appeal which seeks to address the Council’s concerns. These changes relate to the provision of an obscure glass panel to each of the shared boundaries with the adjoining properties. The obscure panels would have a total height of approximately 1.7 metres and would be installed in addition to the 1.1 metre high railings and project almost the full depth of the existing rear extension. This scheme would be substantially different to that considered at the application stage. I have considered whether to accept the changes, applying the principles of ‘[name] Ltd2. In the absence of evidence that the proposed additional screen has been subject to full consideration and consultation by the Council, I consider it would be prejudicial to interested parties to accept them. I have therefore determined the appeal on the basis of the plans listed on the Council’s decision notice.

The appellant has also submitted a [name] (FSS) with their appeal. The document seeks to clarify concerns raised by the Council and support the appellant's proposal. I am satisfied that no interested parties have been prejudiced by my acceptance of this in the determination of this appeal.

The main issues are: • the effect of the proposal on the character and appearance of the host property and surrounding area, and whether the development preserves or enhances the character or appearance of the surrounding Lexham Conservation Area and [address]/Scarsdale & Abingdon Conservation Area (the CA’s); 1 A102 Rev 09/07 00, A203 Rev 09/07 00, A204 Rev 09/07 00, A205 Rev 09/07 00, A306 Rev 09/07 00 and A608 Rev 09/07 00 2 Holborn Studio Ltd v The Council of the London Borough of Hackney (2017) EWHC 2823 (Admin) • the effect of the proposal on the living conditions of nearby residents with particular regard to privacy, noise and disturbance; and, • whether the development would provide its occupants with acceptable living conditions with particular regard to fire safety.

The appeal property (No 6) is a five-storey mid-terraced dwelling located within a gated estate of Kensington Green. I saw that the rear upper ground and upper floors of No [address] were visible above the boundary of 10 [name] from [address], and that relatively small balconies were present at upper floors across the terrace. I also saw that a number of properties within the same terrace as No 6 had single-storey rear extensions, and that some of these had railings which were visible from within the rear and from [address].

I saw that the separation between the rear of [name] and the property to the rear currently provides a welcome visual relief between the scale of the residential terrace and the buildings beyond. It also provides a view of buildings on the opposite side of [address].

The proposed railings would be installed on top of the roof of the existing single-storey extension and would extend around the outer edge. Access to this area and the private amenity space would be from a current door within the upper ground floor.

The appellant’s photograph3 shows that the extension to the rear of the property currently projects beyond those of their neighbours. It also shows railings to the rear of nearby properties either above or close to those similar extensions, which I consider to be those I saw from [address].

I acknowledge that other properties on [name] have railings to the rear; however, from the evidence before me and observations on site, none extended around the perimeter of the rear extension. Rather, one projects approximately half the depth to only one side, another projects almost the full depth on only one side, and another slopes downwards. None of those railings which I saw, and which are shown in the appellant's photograph, project as far as the proposed development. Moreover, I have not been provided with the circumstances relating to these cases and, as such, I cannot be certain that they are directly comparable to the proposal before me, which I have assessed on its own merits.

Given their overall projection, the railings would likely be readily visible beyond those I saw on neighbouring properties. Their presence would partially infill an existing openness to the rear and disrupt the uniform rhythm, even taking into account the existing railings. The proposed railings would therefore appear as an unduly prominent feature within the existing context.

The appellant has drawn my attention to the presence of additional railings on other properties4 to the rear of No 6. Whilst there are railings in the photograph, they are located on a different street from that of No 6. I have not been provided with the 3 Clients comments 4 Clients comments circumstances surrounding their presence and, as such, cannot be certain that they are directly comparable to the proposal before me.

Furthermore, whether or not the railings would be reversible does not mitigate the harm they would have upon the character and appearance of No 6 and the surrounding area when in situ.

The appeal site is set outside but adjacent to two CA’s. The Council has provided little evidence as justification for the perceived harm. I note that the officer report refers to [name] being located on the other side of the medical centre, and [address]/Scarsdale & [name] being located to the opposite side of [address]. I saw that the rear of the terrace, within which No 6 is set, is predominantly screened from the [name] by the medical centre and by other buildings within the same gated estate. In my mind, given the scale of the intervening buildings, the proposed railings would not be visible from the [name].

Given the above, and based on the evidence before me and observations on site, I am not convinced the proposed railings would materially detract from how the heritage asset is appreciated. Rather, to my mind, it would result in a neutral effect and would thereby preserve, rather than harm, its significance. Therefore, the desirability of preserving or enhancing the setting of the [name] is upheld in accordance with the Act. It would result in no material harm to the [name].

I saw that the rear elevation of properties within [name], closest to [address] and within the same terrace as No 6, were visible from the [address]/Scarsdale & [name]. However, I also saw that the estate wall, which bounds [address] and which has a brick and stone parapet extended approximately the full height of the ground floor properties in [name]. Taking the distance between No [address]/Scarsdale & [name], together with my observations on site, the evidence before me, and in the absence of anything to the contrary, the proposal would unlikely be seen from the public realm of this CA.

Given the above, I am not convinced the proposed railings would materially detract from how the heritage asset is appreciated. Rather, to my mind, it would result in a neutral effect and thereby preserve, rather than harm, its significance. Therefore, the desirability of preserving or enhancing the setting of the [address]/Scarsdale & [name] is upheld in accordance with the Act. It would result in no material harm to the [address]/Scarsdale & [name].

Even if the proposed development would have a neutral effect on the CA, I have found that it would be materially harmful to the character and appearance of No 6 and that of the surrounding area. The proposal would therefore be contrary to Kensington and Chelsea New Local Plan Review 2024 (Local Plan) Policies CD1, CD2 and CD10, which collectively seek to ensure that small-scale alterations and additions do not harm the character and appearance of the existing building and that it is discreetly located. There would also be conflict with Local Plan Policy CD15 which seeks, amongst other matters, to ensure that all development protects and enhances gaps that contribute to the character and quality of the area.

I acknowledge that it is not the appellant's intention to use the enclosed roof area for leisure or amenity use, given that No 6 currently has access to adequate outdoor amenity space, and that the railings have been sought to provide a safe environment when using the area to undertake periodic maintenance. However, plans5 submitted alongside the appeal shows that access to the roof area would be unrestricted, and the majority of the roof, which extends significantly beyond the main rear wall of No 6 and its neighbours, would be accessible by occupants and their guests. I have nothing before me which would, in my mind, prevent occupiers from using the terrace, or that would adequately secure its use for maintenance purposes only.

I was able to stand on the roof and could directly overlook the external amenity areas of neighbouring properties and look into the rear habitable rooms of those directly adjoining. Any overlooking of this kind would undoubtedly have an adverse effect upon the living conditions of occupants in neighbouring properties.

With regard to noise and disturbance, given the size and position of the roof terrace, together with its unrestricted nature, any noise created at this level would, in my mind, be audible to occupiers of those neighbouring properties. Any noise, particularly late at night or early in the morning, would have the potential to adversely affect the living conditions of occupants in neighbouring properties.

I acknowledge occupants of No 6 can currently overlook the private external amenity spaces of its neighbours, particularly from the upper-level balcony, as shown by the appellant's photograph. However, I saw that this vantage point was from a relatively small balcony, and its size would more than likely restrict the number of persons able to stand on it and the amount of furniture capable of being arranged within it. The proposal, in contrast, would provide access to the whole of the flat-roofed area and this, in my mind, would enable the occupant and several others to walk, stand or sit on the majority of the flat roof. This example is therefore not comparable to the proposal before me.

For the above reasons, I conclude that the proposed development would have a harmful effect on the living conditions of existing nearby residents. Accordingly, the proposal conflicts with Local Plan Policy CD9 which seeks, amongst other matters, that all development ensures good living conditions and that the prevailing characteristics of the area are taken into account, and that there is reasonable visual privacy for occupants of existing properties, and that buildings, gardens and other spaces can be reasonable enjoyed and are not harmed due to increases in noise and disturbance.

Policy CD16 of the Local Plan relates to fire safety and states that all developments must demonstrate that they achieve the highest standards of fire safety ([name]), and that Minor or Other planning applications must have a Planning Fire Safety Strategy submitted ([name]). Supporting text alongside Policy CD16 states that a [name] (RES) can be submitted where [name] is not considered relevant by the applicant, with the RES setting out which policy criteria is not relevant to the development and why.

I acknowledge that fire safety should be undertaken in a sensitive way, given the profound impact on the borough’s communities of the [name] tragedy. However, I am mindful that the proposed railing would be external to the dwelling. The appellant’s submitted plan shows that the current means of escape to the rear would 5 A102 Rev 00 not alter as a result of the proposed development and their FSS states that the railings would comprise non-combustible materials and fire-resistant paint.

I am mindful that the FSS has not been considered by the Council and does not, in my mind, constitute a formal RES. However, given that the proposed development would be external to the dwelling and it does not affect the means of escape for the occupants, I am satisfied that if I were to approve the appeal, the submission of a RES in this case could be adequately addressed through a suitably worded condition.

For the reasons given above, I conclude that the proposed development, together with the implementation of a condition to provide a RES, would not result in material harm to the living conditions of existing occupiers with regard to fire safety. Accordingly, there would be no conflict with Local Plan Policy CD16.

I am mindful that the household has young children, and children’s safety is at the forefront of my mind. However, I saw that the current timber railings restricted access to the flat roof and, as such, I am not persuaded that the safety of the children cannot be secured by other means, which are less harmful to the character and appearance of No 6 or the surrounding area or the living conditions of existing nearby occupants.

I note that the railings could address the safety concerns of the appellant; however, the rear extension has been in situ for some time and will no doubt have required periodic maintenance since completion. I have nothing to demonstrate that any accidents have occurred or that the current structure does not comply with building regulations. Moreover, I have nothing before me to demonstrate that cleaning and maintenance cannot be achieved by other means, which are less harmful to the character and appearance of No 6 or the surrounding area or the living conditions of existing nearby occupants.

The appellant has drawn my attention to 3 appeal decisions6, [address] (No 55), [address] (No 94), and [address] (No 32), which they consider demonstrate that small-scale balustrades and railings have been allowed where their purpose is safety and maintenance.

With regard to No 55, the Inspector found that railings and roof-level terraces were a common feature of the surrounding locality. In the appeal before me, whilst I saw that No 6 and many of the neighbouring properties have relatively small balconies at upper floors, none which I saw were large enough to stand on or have furniture arranged within them. They would not therefore, in my mind, constitute a terrace. The circumstances of this example is therefore not directly comparable to the appeal before me.

In the case of No 94, the Inspector found that the frameless glass balustrade with a slight green/blue tint was only visible in near views and even where the structure could be seen, its lightweight, clear appearance did not form a particularly noticeable feature in the streetscene despite its elevated position. In the case before me, the balustrade would be painted black railings which project beyond any railing which currently exists at the same level. I have found that its projection would appear as an unduly prominent feature, incongruent within its context. Moreover, I note that in the case of No 94, the 6 APP/K5600/D/21/3269144 - [address], London [postcode] , APP/K5600/D/21/3273161 - [address], London, [postcode] , and APP/K5600/D/21/3271816 - [address], London, [postcode] . use of the roof extension, upon which the balustrade has been installed, was precluded by a condition of an earlier planning permission, and that a Juliette glass balustrade would be reinstated to the bay window, which would further restrict access. In the case before me, there would be no restriction to the area which the railings enclose and, as such, the circumstances of this example are not directly comparable to the appeal before me.

In the case of No 32, the Inspector found that the proposals would represent a small change to the public and private vantage points and that the effect on the streetscene and CA would be neutral. [name] have found that the impact on the nearby CA’s would also be neutral, I have found that the proposal would harm the character and appearance of No 6 and its surrounding area. In this example, the Inspector also found that there were already a number of roof gardens and terraces in close proximity to the appeal site, which provide mutual overlooking. However, in the case before me, I saw no other roof terrace in the immediate area. The circumstances of this example are therefore not directly comparable to the appeal before me.

The absence of harm with regard to flooding is a neutral matter in the overall planning balance, as this is a likely requirement of any well-designed development.

Given my findings above, the proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it.

Therefore, I conclude that the appeal should be dismissed