Appeal 6003129

The appeal is dismissed.

An application for costs was made by [name] against the decision of [site address] City Council. This application is the subject of a separate decision.

The description of development above is taken from the appeal form rather than the application form. The appellant has confirmed in their Appeal Statement (AS) that the proposal was amended during the application process from a four bedroom dwelling to a three bedroom dwelling. As the description on the appeal form reflects this change, and this is what the Council considered in making its decision, I have used this in the banner heading above.

Whilst on site I noted that a close boarded fence was present along two boundaries of the site. A 1.8m boundary fence is referred to in the description of development provided on the appeal form, however, the appellant has confirmed on page 2 of their AS that the fencing does not form part of the development proposal and it is described for contextual purposes only. [name] note reference in the AS to other fencing in the local area including at [address], the fencing does not form part of my assessment of the planning merits of the case, albeit I will refer to it where necessary in my reasoning for contextual purposes.

The appellant refers to the fencing as being lawfully installed. However, it is not for me under this s78 appeal to determine whether that is the case. This can only be formally determined by a lawful certificate application.

The main issues are: • the effect of the proposal on the character and appearance of the area; • whether the proposal would provide suitable living conditions for future occupants in terms of privacy in the rear garden area and whether the proposed dwelling would offer satisfactory internal accommodation; • the effect of the proposal on the living conditions of the occupants of 131 and 133 Westfields in terms of outlook, daylight and sunlight; • the effect on protected trees; and • the effect on highway safety.

The site comprises a rectangular area of grass with three trees present towards the rear of the site which are protected by a Tree Preservation Order. The site is directly adjacent to the two storey side elevation and boundary fence of [address]. There was no boundary treatment along the front boundary at the time of my site visit. The site is separated from the front elevations and gardens of a row of terraced properties, 131 - 137 Westfields and the pavement that connects [address] with [address], by a close boarded fence which runs along the side boundary of the site. A close boarded fence is also located along the rear boundary of the site.

The site is located within a residential area which appears as a planned estate development. The estate is defined by the consistent scale of built form being two storey and a mixture of terraced and detached dwellings set back from the road. Open spaces of varying sizes, green verges, trees and a network of pavements away from the roads are significant features of the area which provide visual relief and connectivity. This cohesive arrangement of built form and open spaces makes a significant positive contribution to the verdant and spacious character and appearance of the area.

Whilst the appellant states that the site has been historically enclosed and managed as private land following its transfer in 1967, the Council and interested parties suggest that the site was previously open, without boundary treatments and in use as a communal open space. As stated above, the appellant has confirmed that the fence does not form part of the proposal. Nevertheless, whilst the fence encloses the site along two sides which does impede the openness of the site, it still appears as an undeveloped area of land.

The appellant asserts that the site is not designated as public open space, recreational land, green infrastructure or protected amenity land within the development plan and has never been used for recreational purposes by the public. However, even if the site is privately owned and not subject to a specific designation, I witnessed during my site visit that it appears to be the end section of a distinct corridor of open greenspace that runs alongside the pavement in front of the properties along Westfields and [address], providing important separation between dwellings. I therefore find that the site contributes positively to the network of open spaces across the planned estate providing an important element of visual amenity for the area.

I therefore find that the loss of the open space in this location through the development proposed would harmfully erode the prevailing sense of spaciousness. This erosion of open space would be clearly discernible in views from [address], from the dwellings adjacent on Westfields and from the pavement that runs alongside the site.

I accept that the proposed dwelling has been designed to reflect the scale, design and materials of development in the surrounding area and that existing pedestrian connections would not be disrupted as a result of the scheme. Nevertheless, these considerations do not overcome my concerns set out above.

The description of the site location identified on the land registry documents and the rights of transferors and transferees referred to do not lead me to a different view on this matter. The reference to a covenant requiring the transferee to construct or procure the construction of a boundary fence between the property and retained land is also a private matter and does not alter my view in terms of the contribution the site makes to the character and appearance of the area currently.

I am provided with an appeal decision at land between [name] and Harkaway in Kinsbourne Green. However, that decision relates to a site within the Green Belt and does not refer to Policy 75 which sets out the approach to green space within settlements in the City and District of [site address] District Local Plan Review Adopted 30 November 1994 (LPR), which is identified as being the relevant policy by the Council in this case. I therefore do not consider the two cases are comparable.

Consequently, I find that the proposal would result in harm to the character and appearance of the area. It would therefore be contrary to Policy 75 of the LPR. This policy seeks, amongst other things, to ensure the adequacy of open space and to protect the character of urban green space and the environment of the surrounding area. The policy does not suggest an alternative approach should be taken where open spaces are in private ownership nor does it require that a deficiency in open space must be evidenced.

I find that the proposed rear garden would provide an adequate size of private garden space. However, there would be limited separation between the first floor windows of 135 and 137 Westfields and the proposed private garden space. The Council suggest that the separation distance is less than 10 metres and the appellant has not refuted this measurement.

Due to this limited separation, and the elevated position of the first floor windows at Nos 135 and 137, sustained opportunities for overlooking could occur from those windows. Therefore, I find that the proposal would result in a substandard level of privacy for future occupants using the rear garden space. Whilst the presence of a boundary treatment would protect views into the proposed rear garden from those using the pavement or from ground floor level windows, it would not alter the opportunity for overlooking from the first floor level.

I therefore find that the level of privacy afforded to future occupants of the proposed dwelling in terms of the use of the private rear garden space, would be insufficient.

The Council refer to the Technical housing standards – nationally described space standards (NDSS) which set out minimum space standards to ensure that room sizes provide convenient and efficient room layouts. The Council confirms that it does not have a local policy that refers to the NDSS or any local standards, consequently, the NDSS is guidance only in this case.

The Council state that a three storey, three bedroom, four occupant dwelling should have a minimum Gross Internal Area (GIA) of [address] metres and that the proposed dwelling falls short of this figure by [address] metres. The Council also states that bedrooms two and three would have a floor area of less than [address] metres which is less than the 7.[address] metres standard set out in the NDSS for a single room.

[name] accept the overall GIA along with the floor areas of the two smaller bedrooms would be deficient compared with NDSS standards, they are only slightly below those standards. The open plan living space on the ground floor, along with the outside space proposed and the provision of three bedrooms and two bathrooms across two other floors means that on balance, I do not find that the proposed internal space arrangement would result in unacceptable living conditions. Therefore, whilst the development may not fully comply with the NDSS, I do not believe in this instance that it is indicative of a poor quality development in this respect.

Therefore, whilst I find that the proposed dwelling would provide satisfactory accommodation in terms of the internal layout, I do not find that an adequate level of privacy would be provided in the rear garden area. Consequently, the proposal would be contrary to Policies 69 and 70 of the LPR. These policies seek, amongst other things, that development shall have an adequately high standard of design and that a tolerable level of privacy should be provided. Living conditions – occupants of 131 and 133 Westfields

The front gardens and front elevations of 131 and 133 Westfields would face directly towards the blank two storey side elevation of the proposed dwelling. The side elevation would be situated in very close proximity to the side boundary of the site and would be significantly higher than the boundary fence currently in situ. Whilst there is a pavement situated in the intervening space, the separation distance is limited.

Therefore, due to the overall height and massing of the side elevation of the proposed dwelling and the limited separation distance, I find that it would result in outlooks from the front of Nos 131 and 133 being dominated by built form that would be overbearing. It would create a sense of enclosure that would result in harmful effects on the living conditions of the neighbouring occupants.

There is no detailed evidence before me that identifies the effects of the proposal on the amount of daylight and sunlight that would reach the front of Nos 131 and

Given the height of the proposal and the close proximity to the front elevations of those dwellings, there may be some reduction in light levels reaching the windows in the front elevations, particularly at the ground floor level. Without any compelling evidence to the contrary, I cannot be satisfied that there would not be an unacceptable effect in this respect.

The scheme has been designed so that there are no windows located in the side elevation facing the properties on Westfields, which means there would be no issues of overlooking of these properties in views from the proposed dwelling. I accept that the front gardens and front elevations of Nos 135 and 137 would align with the rear garden space of the proposed scheme and not the proposed dwelling which would limit the effect on the outlooks from those dwellings, nonetheless, these considerations do not alter my findings on the harm I have found above.

I therefore find that the proposal would have an unacceptable effect on the living conditions of the neighbouring occupiers of Nos 131 and 133 with regard to outlook. I am also not satisfied, based on the evidence before me, that there would not be an unacceptable effect on light reaching the windows in the front elevation of those neighbouring dwellings. The proposal is therefore contrary to Policies 69 and 70 of the LPR. These policies seek, amongst other things, that development shall have an adequately high standard of design and that adequate sunlight and daylight requirements shall normally be achieved.

The proposed dwelling would be located in close proximity to the three protected trees. The submitted Arboricultural Impact Assessment by ROAVR Group (AIA) identifies that these trees are of either high or moderate quality and all have an estimated life expectancy of more than 20 years. These trees are visible from all public views surrounding the site and from neighbouring properties and I find that they contribute positively to the character and appearance of the area.

I recognise that the AIA identifies that the three protected trees would be retained and that further detailed information including an arboricultural method statement and tree protection plan could be secured by planning condition. Nevertheless, given the proximity of the proposed dwelling to the protected trees, I consider that information would be required prior to determination, in order to ensure that the trees can be adequately protected during construction.

Whilst the built form of the proposed dwelling would not encroach into the root protection area of tree T1 it would be very close to the crown of the tree. The AIA identifies that to ease the encroachment of the canopy of T1 over the proposed dwelling, reduction works would be required along with cyclical pruning to maintain suitable clearance between the tree and the proposal.

Without the reduction or pruning works to T1, the windows located in the rear elevation of the dwelling would be shaded significantly by T1, when in leaf. In combination, the three trees would cover a significant proportion of the rear garden space which would lead to excessive shading or nuisance. [name] note that future occupants would be aware of the trees and may accept both the advantages and disadvantages of living in such close proximity to them, in my view there is a high risk that the trees would cause nuisance to future occupiers which would be likely to lead to pressure on the Council to agree works to the trees.

Whilst the protected status of the trees means the Council can retain control over works, if T1 or the other trees are identified as harming the living conditions of the occupiers at the time, the work may be difficult to resist. Whilst the appellant regards the pressure I have identified to be speculative, in the absence of substantive evidence to the contrary, I find that adequate consideration of the impact on protected trees has not been demonstrated.

Consequently, I find that the proposal would result in an unacceptable impact on protected trees. It would therefore be contrary to Policy 74 of the LPR. This policy seeks, amongst other things, that trees should normally be retained and that buildings should not be located where they are likely to justify future requests for tree felling or surgery.

Whilst no concerns are raised about the effect of the additional traffic generated by one additional dwelling in this quiet residential cul-de-sac location or wider highway safety implications, the objection raised by the Council relates to the access arrangements for the site and how it may result in conflict between the occupiers of No 24 and the future occupants of the proposed dwelling. The proposal seeks to use the existing dropped kerb which serves No 24 to provide a vehicular access to the driveway of the proposed dwelling.

During my site visit I witnessed that the dropped kerb to the front of No 24 was limited in width to accommodate a single vehicle and is located directly in front of the driveway to the front of the garage at No 24. [name] consider that vehicles could access the site in line with the submitted [name], this does not take into account that the occupants of No 24 might need to use the access point at the same time, or that vehicles may park on the hardstanding directly adjacent to the dropped kerb, blocking the access to one of the properties. I noted during my site visit that the majority of dwellings benefit from their own dropped kerb and access and I did not witness any shared arrangements such as that proposed along this part of [address].

Whilst the appellant may have a right of way along roads and footpaths across the estate, there is no dropped kerb or vehicular access directly in front of the site currently. I do not find that this matter could be resolved by condition, as it would be necessary to ensure that a suitable and safe access for the site could be achieved prior to determining the application.

I am referred to the National Planning Policy Framework (the Framework) in terms of considering whether the impact on highway safety would be considered severe. Nevertheless, paragraph 115 b) of the Framework states that it should be ensured that safe and suitable access to the site can be achieved for all users. I therefore find that a suitable vehicular access has not been demonstrated and as such the proposal would enable conflict to arise between drivers accessing No 24 and the proposed dwelling, leading to a harmful effect on highway safety. The proposal is therefore contrary to Policy 34 of the LPR. This policy seeks, amongst other things, that road safety is taken into consideration in assessing developments.

The appellant asserts that the site has been subject to vandalism since the fencing was erected and that the site has been accessed by unauthorised people, leading to CCTV being installed in order to prevent criminal behaviour. [name] understand this is frustrating this does not lead me to take a different view to that I have set out above.

The LPR dates from 1994 and is therefore of some age, however, paragraph 232 of the Framework states that existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of the Framework and due weight should be given to them, according to their degree of consistency with the Framework.

Paragraph 135 of the Framework identifies that decisions should ensure that developments are visually attractive as a result of good layout and appropriate and effective landscaping, that they maintain a strong sense of place using the arrangement of spaces and that they create a high standard of amenity. Paragraph 136 recognises the important contribution that trees make to the character and quality of the urban realm and that they should be retained wherever possible. Paragraph 115 b) of the Framework identifies that safe and suitable access should be achieved for all users.

In these respects, the relevant parts of the LPR policies referred to above are in general consistency with the Framework. Therefore, the conflict between the proposal and [name] 34, 69, 70, 74 and 75 should be given significant weight in this appeal and as the development is contrary to these policies, there is a conflict with the development plan as a whole.

The Council accept that the delivery of an additional dwelling would contribute to the housing land supply requirement, although I have very limited information before me on what the current housing land supply position is. The appellant asserts that the proposal would accord with paragraph 11 of the Framework.

Consequently, without further detailed information from either party, I will consider the proposal against paragraph 11 d) of the Framework which states that permission should be granted, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having regard to key policies, including securing well-designed places.

The appeal scheme would provide one additional dwelling in an existing residential area which could be built out quickly. The site is located where there would be easy access to services, facilities and public transport options. There would be economic benefits during the construction phase and after with future occupants supporting local services and facilities. The appellant asserts that it would result in the effective and efficient use of land. Even if there is a significant shortfall in housing land supply or housing delivery, I find that these benefits would be limited given the small scale of the development proposed.

In terms of disadvantages, the proposal would result in harm to the character and appearance of the area and a harmful effect on the living conditions of neighbouring occupiers. The proposal would also fail to provide a rear garden space for future occupiers that would have a sufficient level of privacy. I do not find that the important contribution that the protected trees make to the local environment has been recognised based on the submitted evidence. It has also not been demonstrated how the scheme would provide suitable and safe access for all. The proposal would conflict with the Framework in these respects. Due to the nature of these disadvantages and the long lasting effects that would result, I attach significant weight to them.

I have found that the proposal would provide adequate internal accommodation for the future occupants of the proposed dwelling. A lack of harm in this respect is a neutral consideration that weighs neither for nor against the proposal.

Consequently, I find that the adverse impacts in this case significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having particular regard to securing well-designed places. As a result, the presumption in favour of sustainable development does not apply in this case.

The proposal conflicts with the development plan and the material considerations, including the Framework, do not indicate that the appeal should be decided other than in accordance with it. Therefore, the appeal is dismissed.