Appeal 6003229

For the reasons that follow, the appeal is dismissed.

The development the subject of this appeal has already been carried out.

The appellant erected the structure in the belief that it constituted permitted development. Whether it does or not is not a matter for me as part of this appeal - a planning application has been submitted which falls to be determined on its own particular planning merits. It is, however, open to the appellant to submit an application for a Lawful Development Certificate for a formal determination as to whether the development does constitute permitted development or not.

The main issues in this case relate to the effect of the development on the living conditions of adjoining residents having particular regard to privacy and outlook, and its effect on the character and appearance of the area.

The effect of a development on character and appearance of an area, referred to in the first of the reasons for refusal, is quite different from considerations relating to any effect on matters relating to living conditions, such as outlook. The pergola structure is sited at the far end of the rear garden to the appeal property. Whilst its elevated position means that it can be seen between some of the houses from the adjacent streets ([address] and [address]) the views that there are, are occasional and glimpsed. The structure does not impose itself on any street scene and causes no material harm to the residential character or appearance of the surrounding area. I find no conflict in this regard, with Policy CP3 of the Cannock Chase Local Plan or Paragraph 135 of the National Planning Policy Framework, which together and among other things seek to protect such interests.

The appeal property comprises a two-storey detached dwelling on a modern residential estate, adjoined by, and backing onto the rear gardens of similar properties. Ground levels within the tapered back garden rise up away from the house, with the garden set over three levels. The highest level, at the end of the garden, originally sloped down towards the house and was retained by a 0.8 metre wall that ran across the width of the garden at the middle level. That wall has been reconstructed to a height of 1.6 metres, with the land behind now levelled off to accommodate the decking area on which the pergola structure is sited.

The 1.6 metre high wall has been fitted out as a climbing wall, with ladder access on one side to the decking area. A slide on the other side links the decking to the middle garden level. The Ninja pergola structure comprises a timber frame some 2.1 x 2.1 metres, with a shallow felted roof over, approximately 2.5 metres in height. The structure is open to the front and sides, with a boarded timber wall across the rear. Internally, it is fitted out with monkey bars and wooden beams to attach obstacle equipment to.

With a height of 1.6 metres above the middle garden level, the decking sits just below the top of the close boarded fencing that defines the property boundaries to either side, with the overall height from the base of the climbing wall to the top of the pergola being just over 4 metres. The rear gardens to the properties to either side (Nos 19 and 23) slope down from the respective rear boundaries towards the back of the properties and are lower than the decking and pergola.

I appreciate that the rear garden at the appeal property was tiered previously, which could potentially have allowed for a degree of overlooking when standing at the bottom of the garden. Whether or not that space served any function as useable garden space, the decking and the pergola have clearly extended the very highest part of the garden further into the site, introducing activity onto that part of the garden at an elevated level in relation to the adjoining properties.

[name] saw during my site visit, anyone using the decking area has direct, elevated views into the adjacent gardens and rear facing windows at both ground and first floor levels, with a consequent significant loss of privacy for occupiers. The close boarded fencing between the rear gardens provides no meaningful screening from the elevated position of the decking and pergola. Furthermore, the introduction of this substantial feature, at height and in close proximity to the adjacent properties means that it is seen as an intrusive feature that dominates the outlook from the rear of the adjoining dwellings and their gardens. All told, there is unacceptable harm to the living conditions of adjoining occupiers in these regards, bringing the development into conflict with policy CP3 of the Cannock Chase Local Plan (2014), with the design principles of the Council’s Design SPD (2016) and with paragraph 135 of the National Planning Policy Framework, which together and among other things, seek to protect the amenities of residents in terms of their living conditions.

I am advised that the development was constructed as training/play space, described as being essential for the mental health and emotional well-being of someone within the household, providing a place for them to regulate behaviours that occur due to their complex needs and disabilities. Disability is a relevant protected characteristic under the Equality Act 2010 to which the Public Sector Equality Duty (PSED) applies. I have, therefore, had due regard to the PSED, along with the family’s right to the peaceful enjoyment of their possessions and to a private and family life and home, under Article 1 of the [name] and Article 8 as set out under the Human Rights Act 1998.

I recognise that the particular special needs of a member of the household, which require support, are met in part by the Ninja pergola and decking, the benefits to the dependant’s and family’s quality of life in this regard being a personal circumstance which carries positive weight in favour of the appeal. However, that needs to be weighed against the unacceptable harm that I have identified to the living conditions of adjoining occupiers. Balancing that effect with the appellant’s need for the development, I am satisfied that dismissing the appeal would be a proportionate and justified response in this case.

For the reasons given above, I conclude on balance that the appeal should not succeed.