Appeal 6001842

The appeal is dismissed.

The appellant effectively seeks only to vary condition 12 to remove the part relating to Class E of the Town & Country Planning (General Permitted Development) Order 2015 (the ‘GPDO’). As such, the main issue is the effect of varying the condition, as proposed, on the character and appearance of the area.

[address] is a private road populated by substantial plots containing large detached dwellings. The appeal site is consistent with this as it currently accommodates a large detached dwelling in a considerable plot. The plots provide a good degree of spaciousness which is a distinctive characteristic of the area. The verdant nature of the area is also a key characteristic with [name] being opposite the site, and all the residential gardens are well treed. Indeed some of the trees at the appeal site and in neighbouring gardens are protected by a Tree Preservation Order1.

The extant planning permission is for two houses, roughly side by side, in two similarly sized plots. Both are smaller than the adjoining plots. The houses would be positioned deep in their curtilages with the front gardens being marginally larger than the rear gardens.

Class E of the GPDO refers to outbuildings within the curtilage of dwellings. The rights do not apply to outbuildings forward of dwellings, and there would be very little space for detached buildings to the side of the proposed houses. As such, it would only be outbuildings in the rear gardens that condition 12 would effectively restrict.

Class E rights allow for outbuildings to cover 50% of the curtilage of a dwelling excluding the size of the dwelling itself. Due to the large size of the front gardens contributing to the curtilage, it would theoretically be possible for the vast majority of each of the rear gardens of the development to be taken up by outbuildings were condition [address] in full. In practice it would be unlikely that the Class E permitted development rights would be utilised to the fullest, but it remains to be the case that without the condition a substantial proportion of the rear gardens could be occupied by outbuildings. This would contrast with the spacious characteristic of the area.

I do not doubt that some small outbuildings, such as garden sheds could be provided without harming this spacious character; indeed some small structures may not constitute development at all. But, conversely, larger ones could. Both would be possible were the restriction on Class E development in condition [address].

The TPO covers a group of trees in the southwest corner of the site as well as those in the neighbouring garden at [address] along the common boundary. It would be unlawful for any outbuilding to result in the damage to any of the protected trees, including their roots and canopy. This would mean, even if condition [address], it may not be possible to provide an outbuilding in much of the southwestern half of the garden at plot 1 or along the north boundary of the rear garden at plot 2. Nonetheless, around half of the rear garden of plot 1 would be unfettered by trees and much of the rear garden of plot 2 could also be developed without harm being caused to any TPO tree.

Furthermore, it may be possible that some outbuildings could be provided very close to the protected trees without causing damage to their canopies or roots if, for example, they did not require any excavation and were limited in height. Although this would ensure the preservation of the trees, it would conflict with the distinctive spacious nature of the area.

In addition, even if the protected trees were not harmed by the provision of outbuildings, other trees may be unacceptably affected such as the large evergreen tree at [address] which would overhang the rear of the garden at plot 2. 1 TPO 362

It is acknowledged that the extant permission followed the dismissal at appeal2 of a previous proposal, and in that decision, the Inspector set out that it was the small rear gardens that would be at odds with the surrounding area, rather than the scale of the development. However, in the case before me I must consider what could be built were Class E permitted development rights not removed, which could be substantially more built form than that proposed in the previous appeal. The two proposals are therefore not comparable in this regard.

It is noted that the Inspector into that appeal considered [address] had a spacious low density pattern of development and that the proposed rear gardens, despite not being visible in the street scene, would be at odds with the surrounding area. My view is consistent with this and so although any outbuildings in the rear gardens would also have limited visibility in the street scene, they would nonetheless be at odds with the surrounding area.

I have had regard to the advice in the national Planning Practice Guidance which advises that conditions restricting the future use of permitted development rights may not pass the test of reasonableness or necessity. However in this case, I consider it is necessary for condition [address] unamended in order to protect the character and appearance of the area.

Without the condition in place in full, the development, due to the outbuildings that could be erected, would be contrary to policy DM1, and Appendix 2 of the Development Management Policies Development Plan Document (2013) (the ‘DMPDPD’) and policies CP1 and CP12 of the [name] (2011) which together seek to conserve the character of an area and protect the environment from inappropriate development. The development would also conflict with policy DM6 of the DMPDPD which seeks to retain trees.

The proposal, without condition [address] in full, would conflict with the development plan taken as a whole. There are no other considerations that indicate a decision other than in accordance with the development plan. The appeal is therefore dismissed.