Appeal 6003435

The appeal is dismissed.

Some construction works relating to a single storey extension have already been carried out at the appeal site. There are though several key differences between the submitted proposed plans forming the appeal and the extension that has been built. For the avoidance of doubt, I have determined the appeal on the basis of the plans before me.

The main issue is the effect of the proposed development on the living conditions of 171 [name], with particular regard to outlook and light.

The appeal site comprises a two storey mid-terraced property. The proposed single storey rear extension would cover the full width of the host dwelling going up to the boundary with the neighbouring terraced properties on either side.

The outlook from the nearest ground floor window of No.[address] boarded fence along the boundary line for the length of the garden. There is also a small outbuilding outside of No.171’s nearest window, though this is not of significant construction. Considering the existing boundary treatment, the proposal would not significantly impact the outlook from No.171’s rear windows, and consequently I only find limited harm with respect to it.

It is not disputed between the parties that the proposal would breach the ’45- degree code’ as outlined in the [name]: [name] and Working Places City Manual 2022 (the [name]). The Design SPD does not form part of the development plan though it is a material consideration. The principles are however also reflected within Policy DM10 of the Development Management in Birmingham – Development Plan Document 2021 (the LP2), which does form part of the development plan.

Considering the orientation of the proposed extension, combined with its depth and total height above the existing fenceline, the development would lead to a loss of sunlight to the rear of No. 171, particularly the nearest window. This would result in the room served by this window to receive less sunlight during the latter half of the day, making the room appear gloomier and causing harm to the occupiers living conditions. Due to the orientation of the terraced dwelling, its only ground floor habitable rooms that benefit from a notable amount of sunlight are on the rear elevation. Therefore, the increase in overshadowing the windows on that elevation would experience would result in an unacceptable adverse impact on the occupiers’ living conditions.

I conclude the development would be harmful to the living conditions of No 171. This would be in conflict with Policy DM10 and Policy DM2 both of the LP2, which amongst other things seek to protect the living conditions of neighbouring properties. The proposal would also conflict with Policy PG3 of the Birmingham Development Plan 2017, which seeks that development has a high design quality, including responding to site conditions.

In support of the appeal, I have been referred to a potential fallback position under The Town and Country Planning (General Permitted Development) (England) Order 2015 (PD). For a fallback position to be a material consideration it should have a real prospect of being implemented and that the prospect of implementing the fallback position does not have to be probable or even have a high chance of occurring, it only has to be a more than a merely theoretical prospect to make the position a material consideration. Weight is however a matter for the decision maker.

In this instance, whilst PD rights are available, I have been provided with no details as to what could be built under PD, whether that may need prior approval, or how it compares to the development proposed. As such, this is not a specific position, and whilst options may be available, I give it limited weight in my decision.

I have also been referred to several other developments for rear extensions in the local area by the appellant. I have though not been provided the full details of these cases, so I am unaware whether they would be directly comparable to the current appeal. In any event I have determined the appeal on its own merits.

The appellant has highlighted that the Council does not raise any objections to the proposal in terms of character and appearance, highways and the historic environment, however an absence of harm in relation to these matters is a neutral factor. The appellant has also highlighted the National Planning Policy Framework (the Framework) with respect to positive decision making. However, the Framework also seeks to protect a high standard of living conditions for existing and future users, and I have found harm in this regard.

The proposal conflicts with the development plan taken as a whole and there are no raised material considerations that outweigh that conflict. For these reasons the appeal should be dismissed.