Appeal 6002557

The appeal is dismissed.

The application form cites the description of development as “Erection of 5 retail units with 5 flats above.” The decision notice cites it as “Erection of two-storey building with rooms in the roofspace comprising of 5 retail units (use class E) at ground floor with 5 residential flats above.” The appellant confirms that there was no dialogue with the Council for this change, but they did not challenge it as the new description is not inaccurate. On this basis and as it provides more accuracy, I have also therefore used this description for my determination.

The main issue is the effect of the proposed development on the living conditions of the occupiers of neighbouring properties, with particular regard to outlook and privacy.

The appeal site is a vacant plot of land accessed off [address]. There is a 1.8m high timber fence along the boundaries with the residential properties to the south on [address], and to the east on [address].

The southern side elevation of the proposed building would be a blank wall at 10.2m wide and 5.4m high to the eaves, plus a hipped roofline. It would be set back 1.2m from the rear boundary of the adjacent dwellings at Nos. 5 and [address], and approximately 15m away from their rear windows, on approximately the same ground level.

There is limited information before me as to the effect on sunlight, but I acknowledge that as the [address] dwellings lie to the south of the appeal site, direct overshadowing would be unlikely due to the pattern of the sun’s movements. The proposal would also meet the 25 degree requirement specified in the [site address] [name] (SYRDG) section B1.3, which is stated as being for the purposes of ‘daylighting’ for internal windows.

Nonetheless, the main outlook for those dwellings would be a large expanse of blank wall. This would be directly opposite No. 5, and so would limit forwards views at relatively close range from that dwelling’s rear windows. There would also be a lesser impact on oblique views from the windows of No. 6.

The gardens for these properties are part angled, presumably to take account that otherwise the garden of No. 6 would be very small as it is relatively shallow. As such, the new building would also compromise open views from the No. [address] range, and be a marked presence, resulting in a detrimental impact on the occupants’ enjoyment. The effect would be less for No. 5 as the garden is much bigger, but would still be noticeable in the part closest to the dwelling.

The appellant considers this form of development to not be uncharacteristic in the local context, including many other Treeton new build properties with a much narrower separation distance. Arieal view photos are provided for some of these. However, any existing harm does not excuse further harm. I have no details of what other harm and benefits may have been weighed in the planning balance overall for these other examples. Some of these form part of the same site, whereby both dwellings were considered at the same time, and the [address]/[address] example has quite a different dwelling form and relationship than that before me. In any event, each proposal must be assessed on its own merits and site context.

I find that the proposed development would be unduly oppressive and overbearing to views from the dwellings and gardens of Nos. 5 and [address], and so would have a significantly harmful impact on the living conditions of the occupiers of those dwellings.

The rear elevation of the appeal building would include apartment windows at first floor, and 6 rooflights. These would be separated from the rear windows of the [address] dwellings by more than 21m, as specified in the SYRDG section B1.3 as being necessary to maintain privacy and to avoid an overbearing relationship. However, due to the slight rear projection on the building’s southernmost section, the two first floor windows of the kitchen/living area on the southern apartment would be only 9.4m to the boundary fence with two of the [address] properties. This would conflict with the SYRDG, whereby the minimum back-to-back dimension of 21m “also corresponds to a common minimum rear garden or amenity space of about 10m in depth.”

The appellant argues that ‘about 10m’ does not therefore prescribe 10m as a precise minimum. However, I find it evident that this leeway is given on the basis of the distance to the boundary being approximately half of that of the 21m from window to window, which equates to 10.5m. Therefore, at 9.4m the windows would not be set back at a distance which I consider would meet the ‘about 10m’ cited.

Notwithstanding the above, the [address] gardens are relatively long, with an overall 27m separation distance from elevation to elevation. The massing of the new building would thus not be overbearing in this regard. The rearmost parts of the gardens which would be most subject to overlooking due to the proximity of the new windows, are not the only garden area available to those occupants, and would already be subject to oblique views across from other existing properties. The windows would only be slightly closer than that allowed for in the SYRDG. I therefore find that although there would be undue harm caused to privacy due to the proximity of the new windows, this would be very limited in extent.

I acknowledge the amendments made to the proposal’s design and massing since its original submission. However, overall it would still cause harm to the living conditions of the occupiers of neighbouring dwellings. This would be significant harm in relation to outlook for the [address] dwellings, and very limited harm in relation to privacy for the [address] dwellings. It would conflict with Policy SP55 of the Rotherham Local Plan Sites and Policies (LP), which requires that all forms of development are required to be of high quality, and create decent living and working environments. It would also conflict with the SYRDG as outlined above. The National Planning Policy Framework ('the Framework') (2024) paragraphs 135 and 139 further require a high standard of amenity for existing and future users, and that development that is not well designed should be refused.

Several interested parties have identified support for the principle of apartments and retail units on the site, stating a local need. It has been effectively vacant since approximately 2008, whereby the proposal would bring it back into beneficial use. The Framework paragraphs 124 and 125 identify that decisions should promote an effective use of land in meeting the need for homes and other uses, encourage multiple benefits including through mixed use schemes, and promote and support the development of under-utilised land, especially if this would help to meet identified needs for housing where land supply is constrained. Substantial weight should be given to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved unless substantial harm would be caused.

The Council supports the principle of development use on the site, including that the retail sequential test has been passed in accordance with the relevant development plan policies and the Framework, and I see no reason to conclude differently. The retail units would provide ongoing employment. There would also be social and economic benefits during construction, in a settlement which the appellant identifies has limited opportunities for localised employment.

The site lies within the LP allocation of the wider residential use area. Five additional dwellings would be a modest contribution to the housing land supply, albeit I have been presented with no evidence of a local under-supply. The Framework also seeks to significantly boost the supply of homes, with Paragraph 135 identifying that developments should optimise the potential of sites, which would support maximising densities. Paragraph 73 identifies that small and medium sized sites can make an important contribution to meeting the housing requirement of an area. There would be modest social and economic benefits from the new occupiers increasing local expenditure and demand for local services. I give substantial weight to the benefits of the proposed new dwellings.

I also give limited weight to the minor biodiversity benefit from the provision of bird and bat bricks, hedgehog holes, and a 0.1 habitat unit increase to achieve 10% biodiversity net gain.

The benefits would be of cumulatively substantial weight, with the proposal being supported by parts of the development plan and aspects of the Framework. The harm would be of significant weight, albeit localised, and would result in conflict with the LP Policy SP55, the SYRDG, and aspects of the Framework. My planning judgement is therefore relatively finely balanced for the proposal as a whole.

However, determination of a planning balance is not a mathematical calculation or on a numerical scale. There is an inherent range within the terms ‘significant’ and ‘substantial’ when defining the extent of harms and benefits and the weight to be given. It is also not necessarily the case that the identification of several different benefits must amount to more cumulative weight than a single matter of harm.

Moreover, there is nothing before me to demonstrate that similar benefits could not be achieved in some other form within the site, for example through a slightly different layout or building form. This slightly tempers the positive weight which I give to them.

Overall, I find the harm in this instance to be most significant, such that it would not be outweighed by the identified benefits.

In conclusion therefore, the proposal would conflict with the development plan as a whole. With no other material considerations outweighing this conflict, for the reasons given above I conclude that the appeal is dismissed.