Appeal 6003174

The appeal is dismissed.

The description in the heading above is taken from the decision notice. This differs from the application form, but more accurately describes the proposal.

As part of their case, the appellant submitted amended plans showing an additional window to the proposed basement flat and new plans showing cycle and waste storage. In addition, an updated [name] has been submitted which proposes the installation of solar photovoltaic panels and an air source heat pump, which were not part of the original proposal. However, I am mindful that the appeal process should not be used to evolve a scheme to overcome the Council’s reasons for refusal and instead a fresh planning application should usually be made.

In certain circumstances, a proposal can be amended through revised plans during an appeal, in line with the Wheatcroft principles1. However, in this case, it is my view that the combination of the proposed amendments, set out above, would result in substantial differences to the appeal scheme from that originally submitted.

I have also considered whether the proposed amendments would cause unlawful procedural unfairness to anyone involved in the appeal, in line with the [name] judgement2. Whilst interested parties have been invited to comment on the appeal, they would not necessarily recognise that the proposal has changed from that originally submitted, based on the description of development. As such, it would not have been clear to those interested parties that there were substantial differences proposed as part of the appeal. 1 Bernard Wheatcroft Ltd v Secretary of State for the Environment [JPL, 1982, P37] 2 Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin)

I have therefore determined the appeal on the basis of the plans as originally submitted to the Council and upon which it based its decision. To do otherwise would prejudice the interests of interested parties, who may have observations to make. The merits of the revised scheme would, if necessary, be a matter for the main parties to consider as part of a fresh proposal away from this appeal.

During the course of the appeal a signed, completed [name] (UU) was provided. This proposes a contribution towards carbon off-setting. I return to this later in my decision.

The appellant has raised concerns regarding the way in which reason for refusal number 2 is drafted. This reason refers to cycle and waste storage as well as the effect of the proposed rear ground floor window on the Inner Windsor Conservation Area (CA), in which the site is located. However, the Council’s concern regarding the proposed window is reflected in its delegated officer report and its appeal submissions. The appellant has also referred to this matter in their appeal submissions. In any event, the statutory duty set out in Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires me to pay special attention to the desirability of preserving or enhancing the character or appearance of a CA and so I have considered this matter accordingly.

Having regard to the above, the main issues are: • whether the proposal would provide satisfactory living conditions for future occupiers with particular regard to internal space, the provision of external amenity space, outlook, daylight and sunlight; • whether the proposal would preserve or enhance the character or appearance of the [name]. • whether the proposal makes adequate provision for cycle and waste storage; and, • whether the proposal incorporates adequate measures to adapt to and mitigate climate change.

Policies in the Royal Borough of Windsor and Maidenhead Local Plan 2022 (the LP) require development to provide satisfactory levels of residential amenity for future occupiers. LP policies are supported by the Borough Wide Design Guide Supplementary Planning Document 2020 (the [name]). This document provides an overarching borough wide framework for detailed guidance on design related matters. The document has been prepared in accordance with part 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012 and as such it will have been the subject of public consultation. The Design Guide is an important material consideration to which I attach significant weight.

In respect of internal space, Principle 7.8 of the [name] sets the expectation for all new housing development to comply with the national internal space standards. The Nationally Described Space Standards (NDSS) sets, amongst other things, the requirements for the gross internal floor area of new dwellings at a defined level of occupancy.

The submitted floorplans for the proposed three bedroom dwelling show two double bedrooms and one single bedroom. The NDSS requires a three bedroom, five person, three storey dwelling to have a minimum gross internal floorspace of 99sqm and 2.5sqm built-in storage. The submitted evidence indicates the dwelling would have an internal floor area of approximately 94sqm, falling below the NDSS requirements in this regard. This would result in cramped accommodation for future occupiers.

It is suggested that the dwelling could alternatively be designated as a three bedroom, four person, three storey dwelling for which the NDSS requires an internal floorspace of 90sqm and 2.5sqm built-in storage. However, the submitted plans show bedrooms with space for five bedspaces and there is no mechanism before me to limit the occupancy of the proposed dwelling.

I note the appellant’s assertion that the Council has no control over the occupancy levels of existing dwellings at the application site. However, the NDSS requirements are applied to proposals for new dwellings, which is the case before me now. On the evidence before me, the proposed three bedroom dwelling would fail to meet the minimum internal space standards set out in the NDSS.

With respect to external amenity space, the proposed basement flat would have a small patio area located between the proposed kitchen and living room areas of the flat. It would be located below ground level and surrounded by tall walls. The amount of useable space would be compromised by the fire escape staircase which runs from the patio to the garden area above. There would therefore be little space available for sitting out and/or drying laundry. Given its small size and location below ground level and the sense of enclosure from the surrounding tall walls, I do not find the proposed patio would be a high quality and useable amenity space.

Furthermore, the patio would be overlooked from the rear windows of the upper dwelling and from the garden area above, therefore compromising the privacy of future occupiers. It is suggested that screens or barriers could be used to overcome this. However, I have not been provided with any details of such features. In the absence of this detail, it is unclear whether this would provide adequate privacy nor whether screening would restrict light levels in the proposed basement flat.

I appreciate that the preference for a garden is not universal, and that there are public open spaces within a reasonable walking distance of the site. Nevertheless, this consideration does not satisfy the requirements of the development plan for new developments to provide high quality and useable private amenity space.

With respect to outlook, Principle 8.2 of the [name] seeks that all habitable rooms in new residential development maintain at least one main window with an adequate outlook to external spaces. In order to maintain visual interest and light, Principle 8.2 also seeks that the outlook should be attractive and not dominated by overbearing or visually intrusive man-made features such as blank walls.

The outlook from the bedroom of the proposed basement flat would be to a blank wall and stairway positioned in close proximity to the window. Similarly, the outlook from the kitchen would also be to a wall and staircase across the small patio area, offering little visual interest or appreciation of external space. The limited separation distance and the height and solidity of these features would unacceptably dominate the outlook from these rooms.

Furthermore, the living area would have no outlook as it is proposed this room would be lit only by roof lights. As a result, the living area would fail to meet the [name] expectation for habitable rooms to have at least one main window with an adequate outlook to external spaces.

Taken together, the constrained and overbearing outlook from the bedroom and kitchen and the absence of outlook from the living area, means that the proposal would not provide adequate outlook for future occupiers of the basement flat.

Turning to daylight and sunlight, the appellant has submitted an Internal Daylight Assessment for the proposed basement flat. This concludes that the flat would receive sufficient daylight to meet minimum standards.

However, the Assessment is based on the proposed living room of the basement flat being lit by rooflights which are located in the outdoor amenity area associated with the upper dwelling. There is no certainty that these rooflights would remain unobstructed or capable of ongoing maintenance, as they would be reliant on land not necessarily within the control of the basement flat occupiers. Whilst the appellant suggests that any potential obstructions could be resolved through a discussion between the occupiers of the two proposed properties, there is no reasonable assurance that this would be case. As such, I am not satisfied that the proposed rooflights would provide a reliable source of daylight to this habitable room.

Principle 8.3 of the [name] expects occupants of new dwellings to be provided with good quality daylight and sun access levels to habitable internal rooms and external spaces. The Internal Daylight Assessment does not consider sunlight access to the proposed basement flat. As set out above, the outlook from the bedroom and dining room would be constrained by brick walls at close proximity to the windows. Given that the habitable room windows would be positioned below ground level and close to these enclosing walls, it is likely that sun access levels to those rooms would also be limited.

Thus, in the absence of robust technical evidence, I cannot be satisfied that the habitable rooms of the proposed basement flat would be provided with good quality sun access levels.

Taking all of the above into account, I find that the proposal would not provide satisfactory living conditions for future occupiers with particular regard to internal space, the provision of private amenity space, outlook, daylight or sunlight. As such it would conflict with [name] 5 and QP 3 and Policy RES 01 of the Windsor Neighbourhood Plan 2021 (the NP). Taken together, these policies require, amongst other things, for development to provide satisfactory levels of residential amenity for future occupiers and a quality internal and external environment with usable outdoor amenity space, which respects privacy. The proposal would also conflict with the provisions of the [name] in respect of these matters, as set out above.

The Inner Windsor CA is formed primarily of residential properties that were developed in the 19th Century to accommodate Windsor’s growing population. The significance and special interest of the CA is derived, in part, from its architectural character, including Georgian and Victorian terraced properties. The appeal property is part of a terrace of residential properties located on the south side of [address]. The buildings have a typical Victorian appearance, finished in yellow stock brick, with red brick dressing, slate tiled roofs and timber framed sash and bay windows.

The terrace as a whole makes a positive contribution to the conservation area due to its uniform and traditional appearance. In particular, during my site visit I observed that the appeal property, and those immediately adjoining it, maintain a uniform appearance through the fenestration arrangements to both their front and rear elevations. The properties all have light-coloured timber framed windows of a similar size which are arranged in a consistent pattern.

The proposal includes the replacement of the existing ground floor timber framed window opening on the rear of the appeal property with a floor to ceiling window with a charcoal grey aluminium frame.

By reason of its increased scale, the proposed window would appear visually dominant within the rear elevation of the appeal property and would disrupt the established proportions of the existing fenestration. Furthermore, the use of a dark-coloured aluminium frame would introduce a discordant and more contemporary material and finish that would be at odds with the prevailing light-coloured timber windows that define the uniform appearance of the terrace. The proposed window would be visible both from within the appeal site as well as the rear gardens and upper floor windows of neighbouring properties.

Taken together, the size of the proposed window, the contrasting colour and materials, and the failure to maintain the consistent fenestration pattern would erode the cohesive and traditional character of the property and the adjoining terrace. As such, the proposed window would neither preserve nor enhance the character or appearance of the conservation area, resulting in harm to its significance.

As such, the proposal would conflict with LP Policy HE 1 and NP Policy HER.01. Taken together, these policies require development to demonstrate how they preserve or enhance the character, appearance and function of the CA.

No details of cycle or waste storage were submitted with the planning application. Principle 9.2 of the [name] requires all new development to be provided with on-plot space for bin and cycle storage which is high quality and functions well.

The appeal building is set back only a short distance from [address]. This means there is limited space to the front of the appeal building to accommodate storage for both cycles and bins for both proposed dwellings. I am not satisfied that storage provision in the rear garden of the house would represent a realistic alternative solution. This is because cycles and bins would have to be taken through the property to [address], as there is no other access to the rear garden.

With regards to the basement flat, it is suggested a ramp could be provided to aid storage of bikes, and an understairs external cupboard could be provided to store waste bags. However, there is minimal space, at the bottom of the staircase to the lower ground floor in which to manoeuvre and store cycles. Furthermore, access to the understairs area is restricted due to the proximity of the staircase to the front elevation of the building. As such, I do not find this to be a satisfactory solution for cycle and waste storage for the basement flat.

It is suggested that details of cycle and waste storage could be secured by planning conditions. However, given the uncertainty regarding whether a suitable solution could be achieved at the site, it would not be reasonable to require this detail by condition. Moreover, in the absence of plans showing the detailed design and appearance of the proposed storage, I cannot be certain that it would not harm the character and appearance of the [name].

I am aware that there is an extant planning permission (Planning Application Ref: 24/0043/FULL) at the appeal site for alterations which are similar to those now proposed. The appellant states that cycle and waste storage were not required as part of that proposal. However, that previous proposal did not include the sub-division of the property and the creation of a new residential unit. Therefore, the two proposals are not the same and so different development plan policies and considerations apply.

Taking into account all of the above, I find that the proposal would not make adequate provision for cycle and waste storage. As such, it would be contrary to [name] 5 and QP 3 and NP Policy RES.01 which together require suitable space for refuse and recycling storage, in a manner which minimises visual impact. It would also conflict with LP Policy IF 2 which seeks the provision of cycle parking in new developments. Furthermore, the proposal would fail to meet the requirements of Principle 9.2 of the [name], as set out above. Finally, I am not satisfied that the proposal would not conflict with LP Policy HE 1 and NP Policy HER.01 which require development to demonstrate how they preserve or enhance the character or appearance of the CA.

Policy SP 2 of the LP requires all developments to demonstrate how they have been designed to incorporate measures to adapt to and mitigate climate change. Allied to this, the Sustainability Supplementary Planning Document 2024 (SPD) requires all development proposals to achieve carbon net-zero unless this is demonstrably unfeasible. Where the required reduction of emissions cannot be achieved on-site, the remainder of carbon emissions should be met via a carbon off-set payment.

The application was refused due to insufficient information to demonstrate that the development would achieve carbon net-zero nor, in the absence of such information, was a legal agreement provided to secure an adequate carbon off-set payment.

The appellant has submitted a signed UU for a carbon off-set payment sum of £1,075, based on the updated [name] submitted with this appeal. The Council has identified some uncertainty about the relationship between the appellant ‘Ross Group’ and the landowner named in the UU ‘Ross Rentals Limited’. The submitted land registry title documents state the landowner is the latter.

Nevertheless, even if I were to accept the UU is legally sound, the financial contribution offered, would not, on its own, address the requirements of the [name]. This is because the total carbon emission reductions proposed by the appellant also require the provision of on-site renewable energy measures including air source heat pumps and solar photovoltaic panels. However, these are not shown on the submitted plans and there is no detail provided of their operation, including any potential noise generation. As such, I cannot be satisfied that the proposed measures can satisfactorily be accommodated within the site without adverse effect on the character or appearance of the area nor the CA, or to the living conditions of future occupiers of the appeal property or neighbouring occupiers.

It has been put to me that the installation of solar panels in CAs is normally permitted development. However, there is no evidence before me, such as a certificate of lawfulness, to confirm this is the case for the appeal property. Accordingly, this consideration does not alter my conclusion on this matter.

I therefore find that the proposal would not incorporate adequate measures to adapt to and mitigate climate change. As such, it conflicts with LP Policy SP 2, as set out above. The proposal would also conflict with LP Policy EP 1 which seeks development that does not have an unacceptable effect on environmental quality.

In view of the limited scale of the proposal, I find the harm to the CA to be less than substantial, but nevertheless of considerable importance and weight. Paragraph 215 of the National Planning Policy Framework (the Framework) states that less than substantial harm to the significance of a designated heritage asset should be weighed against the public benefits of the proposed development.

The proposal would deliver a new dwelling in a location with good access to services and facilities and provide some economic uplift in the local economy during the construction process and from the future spending of occupiers. I appreciate that the appeal building would also be modernised as part of the appeal proposals. However, whilst the general improvement of the housing stock is a benefit, it has not been demonstrated that the current proposal is the only viable way in which to achieve this.

The provision of housing is a clear public benefit that carries considerable weight. However, the weight I give to this is lessened by the fact that the proposal would not provide adequate living conditions for future occupiers and it would not meet development plan requirements in respect of cycle and waste storage and carbon emissions. Therefore, these benefits do not outweigh the great weight that should be given to the heritage asset’s conservation, as required by the Framework.

The Council has confirmed that it cannot demonstrate a five year supply of deliverable housing sites. In these circumstances, footnote 8 of the Framework establishes paragraph 11 d) of the Framework is engaged. This states that planning permission should be granted unless the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed. Footnote 7 confirms the policies referred to are those in the Framework relating to, amongst others, designated

As described above, the benefits of a single dwelling would be limited, even taking into account the Framework’s objective of significantly boosting housing land supply. For the reasons set out above, I find that the application of policies in the Framework that protect designated heritage assets provides a strong reason for refusing the proposal. As a result, the presumption in favour of sustainable development does not apply in this instance.

For the reasons given above, I conclude that the proposal would conflict with the development plan as a whole and there are no material considerations, including the Framework, that would outweigh that conflict. Therefore, the appeal is dismissed.