Appeal 6001058

The appeal is dismissed.

The description of the development on the application form is “balustrade to existing flat roof”. The decision notice states, “balustrade to existing flat roof on rear extension to form balcony at first floor level”. I find this to be the most accurate description, and I also note the appellants’ agreement with the Council to the change in description. Accordingly, I have used the decision notice description in my decision.

Following the appeal site visit, with prior agreement with the relevant interested party, I also assessed the appeal proposal from the rear garden area of No [address].

The main issue is the effect of the proposed development on the living conditions of future occupiers of Nos 34 and [address], having regard to privacy.

No [site address] is a detached dwelling that lies within a residential area. It includes a single storey, flat roofed rear extension extending across the whole width of the original dwelling. Part of this roof is edged with balustrading on two sides. The roof area sits adjacent to and is accessed from glazed doors serving a bedroom. A window serving a different bedroom is adjacent to the remaining area of the flat roof which has no balustrading along its edge.

The appellants’ evidence refers that the current balustrading arrangement permits unimpeded access onto all of this area, with no planning restrictions preventing the entire roof being used in this way. The Council considers that the balustrading has not been constructed in accordance with the permitted plans (Ref. 17/0409/FUL), with no permission for the entire roof to be used as a balcony. Whether or not this existing use is lawful is outside of my determination.

However, even assuming some existing use, for reasons of safety and a degree of protection from the wind, it is very likely that the use of the roof area nearest No [address] would materially increase with the proposed additional balustrading in place. Persons standing near to or against the proposed balustrading would have direct and proximate views down into its garden, including particularly of the main patio and seating amenity area for No 34. This would increase the intrusive loss of privacy that would result from the proposal, as well as the perception of overlooking. Relying on vegetation growth to mitigate this loss of privacy would not be effective for several years and also could not be guaranteed in perpetuity.

The proposal would not result in any harmful loss of privacy to the future occupiers of No [address]. This is because the area of roof proposed to be edged by balustrading is further away from this neighbouring property than the area of roof currently with balustrading.

However, given the impact on No [address]’s living conditions, I find the level of harm resulting from the proposal would be significant and conflict with policy DG4 of the Exeter Local Plan First Review 1995-2011 (ELPFR). Amongst other things, this requires that developments ensure a quality of amenity which allows residents to feel at ease within their homes and gardens.

The proposal will result in a minor visual change to the appearance of the host dwelling. The balustrading would predominantly be seen against the backdrop of the existing host dwelling, and the overall impact to the character and appearance of this building, and the surrounding area, would be neutral.

The evidence submitted by the occupiers of No [address] includes photographs, but I have placed more weight on my own site visit observations. I also note the recent rear extension, and garden works at No 34, but even were I to accept the appellants’ arguments that this has impacted upon their own privacy and increased intervisibility, I do not find this to be of such a degree so as to overcome the harm I have identified from the appeal proposal.

The appellants’ comments in relation to the Council’s handling of the appeal application is not directly relevant to the planning merits of the proposal, on which I have made my determination. The proposal’s compliance with other legislation including Building Regulations is similarly not determinative.

The appellants note the Local Plan and the [name] development plan documents are out of date such that their policies carry less weight than the National Planning Policy Framework 2024 (the Framework). However, paragraph 232 of the latter advises that existing policies in the development plan should not be considered out-of-date simply because they were adopted or made prior to the publication of the Framework. Due weight should be given to development plan policies according to their degree of consistency with the Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given). I find the policy most important for determining the appeal is DG4 of the ELPFR. This has a high degree of consistency with the Framework, specifically the provision in paragraph 135 that developments should result in a high standard of amenity for existing and future users. On this basis, I do not find it to be out of date with relation to the Framework paragraph 11d). The Government’s recent consultation on proposed reforms to the Framework could be subject to further change and can therefore only be given very limited weight at this stage.

I conclude that the proposal would conflict with the development plan as a whole and there are no material considerations that indicate that the development should be determined otherwise than in accordance with it. Therefore, the appeal is dismissed.