Appeal 6001992

The appeal is dismissed.

The description of development in the banner heading above has been taken from the appeal form and decision notice as this more succinctly describes the development than that given on the application form.

At the time of my site visit, the development had been carried out. However, by virtue of the lack of steps to the northern side of the deck seating area (the decking), provision of an associated handrail, and attached bamboo screen with connected frame and planting, the development did not accord with the plans before me. These changes have not been subject to formal public consultation, and due to the nature of the application, the Council and interested parties have not had an opportunity to comment on them as part of this appeal. In light of this, and having regard to the principles of Holborn1, if I were to take these matters into account, the Council and interested parties would be prejudiced by my consideration of the changes. As a result, and given that I am required to consider the appeal on the basis of the plans before me, I have not taken into account the removal of the steps and provision of the screening as part of this appeal.

The development is subject to an enforcement notice that forms part of a separate appeal reference APP/W0340/C/25/3376703.

The main issue is the effect of the development on the living conditions of the occupiers of No.[address] with particular regard to privacy, and on the living conditions of the occupiers of No.[address] with particular regard to privacy and outlook. 1 Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin)

The cabin and decking are positioned within the rear garden to No. [site address] (No.4) that forms part of a line of detached two-storey dwellings that benefit from long front and rear gardens. No.[address] (No.3) is to the east of No.4 with No.[address] (No.5) to the west. The long rear gardens to these properties rise in level considerably with the gardens generally separated by fencing and some significant planting to parts of the boundaries.

Due to the boundary fencing and planting between No.3 and No.4 and given that the two closest first floor windows within No.3 to the cabin and decking are obscure glazed, the cabin and decking can only be clearly seen from No.3 when standing next to the rear door to a ground floor side porch. Given the nature and use of this room, given the distance and angle of view to the cabin and decking, and given the limited viewpoints, the development as shown on the plans does not result in a detrimental impact on the privacy of the occupiers of No.3.

Turning to the effect upon No.5, given the raised position of the decking close to the boundary and distance to the ground and first floor windows to No.5, the proposal on the plans before me results in a harmful level of overlooking into the ground and first floor windows to No.5. As a result of this, and from within No.5, the level of direct overlooking experienced from the upper bedroom windows and ground floor rooms in particular is significant.

The appellant has suggested that the retention of the screen and associated planting could be secured by a condition. Alternatively, a condition could be imposed to secure different screening to the decking to prevent overlooking of the rear elevation of No.5 and overlooking from the side of the decking down into the garden of No.5 that was possible at the time of my site visit given the time of year and reduced leaf coverage. However, to prevent views back toward the rear elevation of No.5, the existing screening is, and any alternative screening would need to be, partly positioned where the stepped access is shown on the approved plans. As such, any condition to secure the retention of the screening as provided, or any alternative form of screening, would necessitate the removal of the steps and/or negate the use of these steps in conflict with the plans before me. As a result, any such conditions would not meet the tests of reasonableness.

With regard to the cabin, while I acknowledge the distances between the cabin and the windows to No.5 are in excess of 21m, and note that Policy DM30 v. of the [site address] Local Plan Review 2023 – 2041 [name] 2025 (LP) seeks a minimum distance of 21m between directly facing windows, it is noteworthy that the supporting text to LP Policy DM30 states that ‘There may be a higher expectation of privacy in areas with large, mature gardens, or in areas in rural fringe locations. Such areas may seek to achieve greater levels of distance.’ Given the large mature garden to the appeal site and No.5, along with the raised position of the cabin close to the boundary, a higher expectation of privacy is necessary in this instance. As such, the development would be harmful to the living conditions of the occupiers of No.5 in the absence of a condition securing the obscure glazing and fixing shut of the cabin window.

With regard to any overbearing impact from the cabin and decking, I acknowledge that the development is clearly visible from the garden and rear windows to No.5. However, given the presence of boundary planting and fencing, separation distances, and the cabin and decking being of a relatively modest scale viewed against and within a semi-verdant rear garden, I do not find that the development has a significantly harmful overbearing impact on the outlook from No.5.

I have had regard to the appellant advising that the cabin only exceeds permitted development rights by 35mm. Nonetheless, planning permission is required and I have found above that the development would result in significant harm to the living conditions of neighbouring occupiers.

It follows from the above that although the development does not have a harmful effect on the living conditions of the occupiers of No.[address] with particular regard to privacy, or upon the occupiers of No.[address] with regard to outlook, it does have a harmful effect on the living conditions of the occupiers of No.[address] with particular regard to privacy. As such, it is contrary to [name] SP7, DM28 and DM30. Amongst other things, these seek to ensure that new development strengthen a sense of place through high quality locally distinctive design and place shaping, is not of a form which would be detrimental to the amenity of nearby residents by virtue of loss of privacy, and supports development proposals where there is no unacceptable harm in terms of any significant overlooking of land and buildings that result in a harmful loss of privacy.

The appellant has stated that they would be willing to accept the issuing of a split decision to retain the outbuilding and remove the decking to the northern side of the building. In relation to this, I see no reason why physically and functionally the lower deck seating area is not clearly severable from the raised cabin and its immediately surrounding decking that is at a slightly higher level.

However, given that the evidence before me details the cabin sitting on a concrete base, and given that this is set at a different level to the slightly lower deck seating area to the northern side of the building, I cannot be sure that the upper part of the decking surrounding the cabin does not also sit on a concrete base, or be sure that the decking and any concrete base is clearly physically and functionally severable from the cabin and its base. Given this and given that the decking wraps around the cabin enabling people to stand on it and gain views back towards the windows to No.5, I do not find the issuing of a split decision as requested by the appellant to be acceptable in this instance.

For the reasons given above the appeal should be dismissed.