Appeal 6001211

The appeal is dismissed.

The appeal site is subject to an extensive planning history. Outline planning permission has previously been granted, some time ago. The appellant contends that in granting this outline permission, that the massing and location of the building, amongst other things, was deemed acceptable. However, no subsequent reserved matters application to finalise the full details of this building was determined, following this outline permission. As no reserved matters application had been determined within an agreed timeframe, the evidence suggests to me that the building did not benefit from full planning permission.

Certain specific elements of the proposal subject of this appeal, namely the alterations to the fenestration and the internal layout of several first and second floor flats differ from the existing elements. During my site visit, I observed that the building was occupied. I have therefore determined the appeal on this basis.

The main issues are: • the effect of the development upon the living conditions of neighbouring occupiers, with specific regard to privacy and on the effect of the development upon the living conditions of the occupiers of the appeal building, with specific regard to outlook and light; and, • the effect of the development upon the character and appearance of the area.

The appeal building comprises a three‐storey apartment block positioned within a triangular-shaped site. The boundaries of residential properties along Herringthorpe Valley Road, [address] and [address] adjoin the appeal site. The land slopes and sits at a slightly lower level than these neighbouring streets. The submitted plans show that two first and second floor apartments would have their existing Juliet balconies removed, with obscure glazing installed to a height of 1.7 metres to the proposed windows. A kitchen would be introduced in an area currently functioning as a living space to these flats. For the purposes of this assessment, both uses are considered to constitute habitable rooms.

The appeal building, including the two nearest first and second floor flats, are positioned close to the shared boundary with 19 and [address]. The [site address] [name] 2011 (RDG) advises that, to safeguard privacy, among other considerations, a minimum back‐to‐back separation distance of 21 metres should be maintained between facing habitable‐room windows. The appellant’s evidence indicates that the distance between the appeal building and the rear elevations of these neighbouring properties is approximately 18 metres. Accordingly, the development would fall short of the RDG’s recommended minimum separation distance for facing habitable rooms and would be closer to the rear amenity areas of these neighbouring properties at the outset of this

Notwithstanding this, as previously noted, the nearest windows facing these neighbouring properties would be altered to include obscure glazing to a height of 1.7 metres. The overall window height would remain broadly comparable to the existing arrangement, and there is no evidence before me to suggest any change to the internal floor levels. During my site visit, I observed that when standing within these window spaces, an individual of average height would be capable of looking over the 1.7‐metre obscure‐glazed section and into the rear garden of [address] with ease, as I did during my site visit.

I am therefore not persuaded that the introduction of obscure glazing to a specified height would adequately prevent overlooking of the rear garden and main relaxation area at [address], given the ability to obtain clear views over a 1.7 metre screen and the shortfall in the recommended separation distance. While some degree of overlooking towards [address] would occur, this would require the occupants of the appeal building to significantly turn their bodies to view the garden at an acute angle. On balance, this would not result in a materially harmful loss of privacy for this specific neighbouring property.

I am mindful that, in this context, a planning condition could be imposed to require the obscure glazing to extend above the 1.7‐metre height proposed. While fully obscuring the windows would address the identified harm to the privacy of the occupiers of [address], this in turn raises concerns regarding the living conditions of the future occupiers of the appeal building, particularly in respect of outlook and the availability of natural light, as suggested by the Council. My attention is now drawn to its effect to the living conditions of its occupiers, with specific regard to outlook and light.

As previously noted, the submitted plans show that the area adjacent to these windows would be reconfigured from a living space to a kitchen. However, both uses constitute habitable rooms. The resultant rooms to each of the first and second floor apartments would be of a substantial size and would be served by one obscurely glazed window and a second window positioned on the opposite elevation at a considerable distance. Given the separation between these openings, the resulting outlook from the combined kitchen and living space would be restricted and would not provide an efficient or satisfactory level of outlook for a room of this scale, particularly when an occupier is within the kitchen area of these flats.

With regard to light, an obscure glazing window would let in less light than a clear window somewhat, however, the differences in these glazing types with regard to light would have minimal and negligible upon the living conditions of future occupants.

To conclude, I am not satisfied that, given the specific contextual circumstances of the appeal building, obscure glazing fixed to a height of 1.7 metres would sufficiently mitigate the harm caused to the living conditions of the occupiers of [address], particularly in respect of privacy. I have had regard to the possibility of imposing a planning condition requiring the entire window to be obscurely glazed. However, even if such a condition were applied, it would result in unacceptable harm to the living conditions of future occupiers of the development, specifically in relation to outlook.

The proposal therefore conflicts with Policy CS28 of the [name] 2014 and Policy SP55 of the [name] and Policies Plan 2018, which collectively seek to ensure that development appropriately considers neighbouring land uses and is designed so that the amenity of all users is not adversely affected.

The appeal site occupies an irregular, triangular parcel of land situated to the rear of dwellings on Herringthorpe Valley Road, [address] and [address]. Along Herringthorpe Valley Road, behind the appeal site, stand four, three‐storey apartment blocks with gabled roofs. In contrast, [address] and [address] are characterised by two‐storey semi‐detached dwellings with hipped roofs. The immediate area therefore contains a varied mix of built forms.

The appeal building shares a comparable height and general form with the apartment blocks visible along Herringthorpe Valley Road. Although it differs from the two‐storey semi‐detached properties on [address] and [address], this contrast does not appear visually incongruous. This is due to the difference in land levels between the appeal site and the neighbouring streets, which reduces the perceived height of the building and brings it closer in height to the surrounding residential properties.

For these reasons, I conclude that the proposed development would not be harmful to the character or appearance of the area. It would therefore comply with Policy CS28 of the [name] 2014 and Policies SP11 and SP55 of the [name] and Policies Plan 2018. These policies collectively seek for residential uses to respond to their context, through their size, scale, mass, volume, height and form, amongst other things.

It was confirmed during my site visit that the development was occupied. It was also evident that the property was also occupied by children. I recognise that the failure of this appeal could affect the living arrangements for the current occupants of the development. I have had due regard to Article 8 of the Human Rights Act 1998, Article 3 of the [name] on the Rights of the Child and the Public Sector Equality Duty (PSED) under the Equality Act 2010. These rights are engaged in reaching my decision and therefore, comments were requested by the parties during the appeal.

The appellant has provided a statement on these matters. This statement cites various considerations on the convention and acts which I have had due regard to above. These include the right to a home, private and family life, the right to peaceful enjoyment of possessions, the importance of considering the best interests of a child, the right to an education, and that this decision would have serious consequences on vulnerable children and those with disabilities.

However, these rights are qualified rights, and interference may be justified where in the public interest. I have had regard to the development plan, which aims to provide developments that appropriately considers land uses and is designed so that the amenity of all users is not adversely affected, which is overall in the public interest. I have found that the development would have a harmful effect to the living conditions of neighbouring occupiers, with specific regards to privacy. In consideration of whether a planning condition would overcome this matter, I conclude that this would result in inappropriate living conditions to the occupiers of the development.

It is not appropriate to refrain from intervening in these rights simply because the development is already occupied and may be affected by this decision. The decision to construct and subsequently occupy a building without planning permission, regardless of whether substantial personal savings were invested ‘in good faith’, does not justify setting aside these considerations. I am sympathetic and attach moderate weight to this situation. However, the planning system exists for a clear and necessary purpose, and compliance with the established rules and procedures is fundamental in maintaining public confidence in the planning system.

The appellant’s further comments indicate a willingness to consider a range of measures intended to address the identified planning concerns. These include reducing the roof height, restricting any future development of the building, limiting occupancy to nine units, providing obscure glazing, and undertaking internal alterations. However, notwithstanding my concern that some of these suggested conditions would not meet the established tests of reasonableness for planning conditions, they would not overcome the harm identified in relation to the main issues of this appeal. These matters have already been addressed in my earlier discussion on conditions, or would otherwise involve development beyond the scope of what can be considered as part of this appeal.

Therefore, the dismissal of the appeal would not unacceptably violate the rights under Article 8 of the Human Rights Act 1998, Article 3 of the [name] on the Rights of the Child and the PSED under the Equality Act 2010.

The appellant has also suggested that certain comments made by interested parties were discriminatory and may have influenced the Council’s decision to pursue enforcement action. I am unable to comment on the Council’s reasoning in this regard. Decisions on whether to take enforcement action rest solely with the Council, based on their assessment of whether such action is expedient. My remit in this appeal is confined to the main issues before me.

The appellant has presented concerns with the conduct of the Council in their handling of the history and previous applications which relate to this appeal site and puts various questions to it. Ultimately, I have had regard to the planning merits of the respective parties’ cases insofar as they relate to the main issues for consideration of the development in this appeal. It is not within my remit to form a view or verdict on these matters where they relate to an application that is historical and beyond the realms of this appeal.

It is contended that there is an identified need for housing in the Rotherham area. However, this has not been identified thoroughly with sufficient evidence to demonstrate the official housing land supply position within the evidence before me. Nevertheless, Section 38(6) of the Planning and Compulsory Purchase Act 2004 outlines that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. The Framework indicates that a decision should be taken in accordance with the development plan.

I acknowledge that the building provides nine apartments, within an accessible location. This is a matter that attracts moderate weight in favour of the appeal. The works to construct the building, and any further changes to it as a result of this application, would have provided and will provide additional construction employment opportunities and economic benefits through the procurement of materials. The occupants of the building are likely to have utilised local shops and services since their occupation. These matters attract limited, but still positive weight.

However, in my overall consideration of the scheme, these benefits are modest. They do not outweigh the harm I have found above in relation to the living conditions of the neighbouring occupants to the appeal site, or the living conditions of the occupants of the appeal building. There are no material considerations of such weight or significance before me, including the Human Rights considerations, as to justify a decision otherwise than in accordance with the development plan.

For the reasons given above, the appeal should be dismissed.