Appeal 6002519

The appeal is dismissed.

The appellant sought pre-application advice before the submission of the application, at which stage the proposed number of dwellings was increased from two to three. Notwithstanding this, the appeal has been assessed on its own merit.

The Council has confirmed that typographical errors are present in the refusal reasons for application 2025/1984. The refusal refers to “ [site address] ” when describing adverse impacts on daylight/sunlight, outlook and privacy, these references should refer to “[address]” instead. Furthermore, references to “[address]” in terms of acceptable levels of daylight/sunlight and outlook, which should refer to “[address]” instead.

The original reasons for refusal included the effect of the development on protected species and biodiversity net gain. Following the submission of updated ecological information by the appellant, the Council no longer wish to sustain this as a reason for refusal and as such I have considered the appeal on this basis accordingly.

The main issues are: • The effect of the development on the living conditions of occupiers of neighbouring properties, with particular regard to daylight and sunlight, outlook and privacy. • Whether the proposal would provide acceptable living conditions for the future occupiers, with particular regard to daylight and sunlight and the provision of private amenity space.

This site is located within Oxshott, on a private road called [address]. The surrounding area comprises a mix of housing, but is characterised predominantly by detached one-and-a-half to two storey dwellings set within private gardens.

The development would be located on a parcel of land currently part of a rear garden of a large detached two-storey dwelling called [site address] . The site is a sloping site from [address] down to the rear garden boundary. The site has currently mature trees and vegetation to site boundaries to three sides, fourth being the road. There is a short boundary section towards neighbouring [address], which comprises of a low boundary wall with low vegetation.

The development would create a new vehicle access by extending the existing driveway to [site address] , and a new access road between the [site address] and the boundary to neighbouring [address] and [address].

The development comprises three new dwellings, each with a private rear garden. The scheme includes one detached and two semi-detached two-storey buildings, all with integral garages. The proposed dwellings have been identified as Plots 1, 2 and 3. Plot 1 is the closest to the neighbouring Kingfisher. Plot 3 is the closest to the neighbouring [address].

The development incorporates associated landscaping works, including the removal of five trees and three groups of trees within the site.

The Council contends that the development would result in a harmful loss of daylight and sunlight, outlook and privacy to the occupiers of neighbouring property [address].

The Council has relied on the 45-degree angle test contained in The Elmbridge Design Code (2024) Supplementary Planning Document (SPD) to assess the effect of the development on daylight and sunlight to occupiers at [address]. The SPD guidance applies to two-storey extensions located within 15 metres measured along that sight line from the neighbour’s window. Although this guidance relates specifically to extensions, the Council considers that the underlying principles for assessing daylight and sunlight impacts are applicable to this proposal for new dwellings.

The development on Plot 3 comprise a two-storey dwelling located approximately 10 metres from the rear ground and first floor habitable room windows of [address], and within a 45-degree sight line of this neighbour. Given its position to the south-east of [address] rear windows and primary amenity space, the development would cause obstruction to sunlight, overshadowing, and loss of light.

The appellant has submitted a Daylight/sunlight Assessment to demonstrate that the development would not lead to reductions in daylight and sunlight below BRE recommended levels. The assessment includes a vertical sky component, daylight distribution assessment, annual probable sunlight hours and sun-on-ground tests. The appellant considers that the findings show that the development would not adversely impact daylight and sunlight to [name] or its gardens.

The Council does not agree with the appellant’s findings and argues that, although the assessment may show compliance with BRE guidance, it nevertheless identifies a reduction in light. Having regard to the height, scale, siting and orientation of the proposed dwelling, in my view, it is likely to lead to a loss of natural light affecting neighbouring property at [address].

The SPD advises that a minimum back-to-back distance of 22 metres between facing windows of habitable rooms to retain sufficient outlook. In this case, the distance between the front wall of proposed dwelling on Plot 3 and the rear wall of [address] would be approximately 10 metres, which is substantially below the guideline. Although the buildings would not be directly back-to-back and in an angle relative to one another, the reduced separation distance and associated sight lines indicate that the development would fail to provide an adequate level of outlook for the occupiers of [address].

The Council contends that the proposed two-storey dwelling on Plot 3 would introduce a new mass and bulk of development on garden land that is currently undeveloped, and thus would make a significant change to the existing outlook from [address]. The building would be positioned approximately [address] and would lie within a 45-degree angle sight line.

The appellant contends that since Plot 3 is set away from the boundary, at an oblique angle from [address], and incorporates a recessive roof form, would alleviate any sense of enclosure or loss of outlook for occupants of [address]. Nonetheless, due to the two-storey height of the building and its close proximity and visibility from the main living areas of [address], the proposal would materially alter the existing outlook from this property.

The SPD recommends a minimum 22 metres back-to-back distance between facing windows of habitable rooms to retain sufficient privacy. The distance between the first-floor front windows of proposed dwelling on Plot 3 and the first-floor rear windows of [address] would be approximately 12 metres, which is substantially below the guideline. As a result, the proposal would allow direct and harmful views from the first-floor front windows of Plot 3 into the rear habitable rooms of [address], particularly at first-floor level, leading to an unacceptable loss of privacy for neighbouring occupiers. Although the buildings would not be positioned directly back-to-back and would instead be angled relative to one another, the reduced separation distance and associated sight lines indicate that adequate privacy would not be retained.

The appellant contends that since there would be no directly facing habitable room windows between the buildings, the oblique angles of view, as well as the boundary vegetation providing a degree of screening, would alleviate any loss of privacy of occupants of [address]. However, the angled relationship would not prevent overlooking. In addition, the Proposed Site Tree Plan 682-SK-21 Rev.C shows the removal of various existing trees along this boundary. In particular the sycamore (No. 4), sycamore (No. 5) and the group of trees (G5 various) would be removed. The loss of this vegetation would increase views from the proposed dwelling on Plot 3 into habitable rooms serving [address], resulting in a harmful loss of privacy for neighbouring occupiers.

It is noted that The Proposed Landscape Plan WFS-100 Rev. P2 shows that the existing hedge along the boundary would be retained. Nevertheless, this would not adequately mitigate the identified loss of privacy, and landscaping cannot be relied upon as permanent mitigation given the lack of certainty over its long-term retention and effectiveness.

Although the relationship between the proposed dwelling and properties at [address] would be at a diagonal angle, this would not eliminate direct views or prevent a loss of privacy for neighbouring occupiers. The harm would be intensified by the relatively short separation distance between Plot [address], together with the removal of boundary trees, which would otherwise provide a degree of screening.

Consequently, I conclude that the proposal would result in an unacceptable impact on the living conditions of the occupiers of the neighbouring property at [address] with particular regard to daylight and sunlight, outlook and privacy. It would be contrary to Policies DM2 and DM10 of the Elmbridge Development Management Plan (2015) which, amongst other things, seek to ensure that developments are well designed, and protect amenity of neighbouring occupiers, and offer an appropriate outlook and adequate daylight, sunlight and privacy. In addition, it would conflict with the guidance set out in the SPD, which seeks to ensure that developments retain an acceptable level of privacy and outlook, and provide adequate levels of daylight and sunlight.

The Council considers that the sizes of the gardens for all plots would be sufficient. However, it contends that the development would fail to provide adequate living conditions for future occupiers of the development in terms of sufficient internal daylight and sunlight for the dwelling on Plot 3. These shortcomings would also extend to the quality of the external accommodation space associated with that dwelling.

The Plot 3 would be located in the corner of the site. The Proposed Site Tree Plan (drawing no. 682-SK-21 Rev.C) indicates that all the existing trees within Plot 3 would be removed, with the exception of the group of Leyland cypress (no.G1) and English oak (no. 7) located on the boundary with [address]. Of the three proposed dwellings, the building on Plot 3 would be positioned closest to the Leyland cypress (no. G1), which measures approximately 5.5 metres in height, and the [name] (no. 7), which is approximately 17.5 metres high. The principal living space of the dwelling on Plot 3, including the living room, kitchen-dining area and the adjacent garden space, would face towards these retained two trees. As a consequence of the close proximity of these mature trees, both the internal living spaces and the external amenity area would be adversely affected by overshadowing and a reduction in levels of daylight and sunlight.

The appellant has submitted a Daylight/Sunlight Assessment, which indicates that the development would not result in a reduction in daylight and sunlight to levels below BRE recommendations. However, the Council disputes these findings and highlights that the English oak (no. 7) has been excluded from the Daylight/ Sunlight Assessment. Given its substantial size, location and close proximity to the dwelling, it would be likely to affect levels of internal daylight/sunlight of the dwelling within Plot 3. In the absence of an assessment, which takes this tree into proper account, there is insufficient information to demonstrate that the development would provide acceptable living conditions for future occupiers of the Plot 3 dwelling, particularly in respect of internal daylight and sunlight levels.

Nevertheless, although the size of the gardens for all plots would generally be sufficient, concerns arise in relation to Plot 3. When taking into account the proposed garden size for the dwelling on Plot 3, alongside the orientation of the building and its main living areas, as well as the size and positioning of surrounding trees, it is concluded that the development would result in overshadowing. This would adversely affect the quality of the accommodation, both internally and within the external amenity space.

Consequently, I conclude that the proposal would result in an unacceptable impact on the living conditions of the future occupiers of the development with particular regard to daylight, sunlight and private amenity space. It would be contrary to Policies DM2 and DM10 of the Elmbridge Development Management Plan (2015), which amongst other things, seek to ensure that developments are well designed, and offer an adequate daylight, sunlight and outdoor amenity space. In addition, it would conflict with the guidance set out in the SPD, which seeks to ensure that developments to provide adequate levels of daylight, sunlight and private amenity space.

The Council has confirmed that it is unable to demonstrate a five-year supply of deliverable housing sites and, as a consequence, paragraph 11(d) of the National Planning Policy Framework (the Framework) is engaged. The proposed development would make a contribution towards housing supply in a sustainable location, and in the context of the identified housing land supply shortfall, this attracts positive weight in the overall planning balance.

I have considered the various other benefits put forward by the appellant that the proposal would bring arising from the scheme’s design, energy efficiency, biodiversity net gain, the efficient use of land on a small site within an accessible location and through contributing to the local economy. [name] have given them some weight in favour of the appeal, these modest benefits would not be sufficient to outweigh the harm I have identified. I have found above that taken overall the development would harm the living conditions of the neighbouring property and the future occupiers of the proposal and would be contrary to the design and amenity aims of the relevant development plan policies set out above.

The harm set out above, in my view, would be sufficient to significantly and demonstrably outweigh the scheme’s benefits when assessed against the Framework when read as a whole. The proposal would not therefore amount to sustainable development in the terms of the Framework.

For the reasons given above, I conclude that the development would conflict with the development plan, as a whole. There are no material considerations, including the Framework that indicate a decision other than in accordance with the development plan. Accordingly, the appeal is dismissed.