Appeal 6003643

The appeal is dismissed.

The appellant submitted a revised floorplan (amendments to drawing no DN 03 – [name]) and an updated Design and [name] (DAS) during the appeal process. The revised drawing shows the insertion of a rooflight and a storage area to the living room, the insertion of wardrobes and patio doors to the bedroom, and the removal of a side door. I note the Council have had the opportunity to comment on these plans during the course of the appeal and consider that the amendments have materially changed the proposal and should thus be rejected.

I have carefully considered the implications of the proposed revisions in light of the principles of the judgement in Bernard Wheatcroft Ltd v SSE [JPL 1982 P37]. The ‘[name] is essentially premised upon whether a development is so changed that to grant it would deprive those who should have been consulted on the changed development of the opportunity of such consultation.

I have also had regard to the advice set out in the ‘Procedural Guide – Planning Appeals – England’. The Procedural Guide advises that if an amendment to an application proposal would be likely to overcome a reason for refusal, then this should normally be made by a fresh application. The appeal process should not be used to evolve a scheme and what is considered at the appeal should essentially be what was considered at the application stage.

In this instance, I find that the amendments are not merely clarificatory. The changes to the roofscape through the insertion of a large rooflight, changes to fenestration and external elevations, and the insertion of internal storage, taken together, do indeed materially alter the proposal and cannot be regarded as minor amendments to the scheme.

The proposed revisions clearly seek to address the issues of dispute upon which the Council based its decision at the application stage, and specifically the concerns identified regarding the overall quality of the proposed accommodation, including access to natural light and ventilation, outlook, and storage provision. The scheme would therefore differ from that which neighbouring residents understood as the proposal and if allowed, the effect of the revision would be that the appeal process would have been used as a means to amend the scheme so as to overcome a reason for refusal.

Moreover, whilst the amended floorplan refers to the insertion of French patio doors and a substantial rooflight as well as the removal of a door to the living room, no corresponding amended elevation plans or revised drawings were submitted. Consequently, the amended scheme has not been presented through a complete and consistent drawing package. This creates uncertainty as to the precise form of development proposed and the implications arising from the amendments.

On this basis, I am satisfied that it would be prejudicial to the Council and neighbouring residents to include amended plan no DN 03 in my decision-making, and it is therefore my conclusion that the proposed revisions shown on drawing no DN 03 and the updated DAS should not be accepted. The revised plan and DAS have not therefore formed any part of my assessment of the appeal scheme.

The main issues are: • the effect of the proposed development on the character and appearance of the area; • whether the proposed development would provide adequate living conditions for the future occupiers with particular regard to internal space, access to light, ventilation levels and external amenity space; and • the effect of the proposed development on the living conditions of the neighbouring occupiers with particular regard to outlook and privacy.

The appeal site occupies an unusual and constrained parcel of land between [address] and the rear gardens of properties on [address]. The surrounding area is somewhat varied in character. [address] contains a mix of building forms and architectural approaches, including terraced properties with strong vertical proportions on the southern side of the street and more varied semi-detached and detached dwellings on the northern side. [address] and the surrounding area is still mostly characterised by rendered Victorian buildings, there are also many post-war dwellings finished with brick, including the neighbouring properties at nos 3 and 5. I therefore agree with the appellant that the area does not display a singular or highly uniform character and that there is scope for contemporary or innovative design approaches within this context.

The site itself is visually contained to a degree by existing boundary walls, fencing and changes in land levels. Consequently, the proposal would not appear prominently within wider public views and its overall height and scale would remain modest. I therefore do not share the Council’s concern that the development would appear harmful principally by virtue of its low-rise form or because it departs from the height of surrounding buildings. Likewise, I have no substantive objection to the proposed use of brick for the principal dwelling or the use of timber cladding to the summerhouse. In principle, a contemporary single-storey form could be accommodated on the site without necessarily causing unacceptable harm to the character or appearance of the area.

However, the acceptability of the proposal turns not simply on its height or visibility, but on the quality and coherence of its overall design approach. In this respect, I find the proposal would appear awkward and incongruous within its context. The development would fragment built form across the site through the provision of two detached structures separated by an area of garden space, with the summerhouse positioned prominently at the front of the site adjacent to [address] and the principal dwelling located deeper within the plot. This arrangement would appear contrived and poorly resolved. It would not reflect the prevailing pattern of development in the surrounding area, where buildings generally present a more coherent and legible relationship with the street and plot structure.

The appellant argues that unconventional sites should not necessarily be expected to conform rigidly to the grain of development and that the proposal responds to the particular characteristics of the appeal site. [name] accept that the site presents unusual physical constraints and opportunities, this does not remove the requirement for development to achieve a coherent and contextually responsive design solution. In this case, the proposed arrangement would read more as a dispersed collection of detached ancillary structures than as a well-composed residential development.

I have also considered the appellant’s reliance on contemporary architectural references and the material inspiration shown within the Design and [name], including the use of brick and concrete detailing with a faceted parapet arrangement. Whilst modern architecture can successfully coexist within historic and mixed urban environments, the proposed detailing here would not sit comfortably within the immediate context. In particular, the concrete façade detailing and faceted parapet feature beneath the roofline would appear visually discordant and uncharacteristic of the surrounding built form. Rather than providing a high quality contemporary contrast, these elements would appear somewhat arbitrary and would jar with the more restrained and conventional character of surrounding buildings.

Furthermore, although parts of the proposal would be filtered or partially screened from public vantage points, the development would nevertheless remain visible from [address] and from surrounding residential properties, particularly those on [address] which overlook the site from elevated positions. The proposal would therefore form part of the visual townscape and would not be concealed to the extent suggested by the appellant.

Overall, whilst the proposal would be modest in scale and would not cause severe visual harm, I conclude that its confused layout, fragmented form and incongruous design detailing would fail to achieve a coherent or well-integrated form of development. Consequently, the proposal would conflict with Policy HB1 of the Council’s Places and Policies Local Plan (LP)1, which seeks to ensure new development is well-designed, makes a positive contribution to its surroundings, particularly with regard to layout, scale, form and materiality.

The submitted plans show the principal dwelling would provide approximately 38.21sqm of accommodation, with the detached ‘summerhouse’ providing additional floorspace elsewhere within the site. I agree with the Council that the summerhouse should not reasonably be treated as forming part of the primary living accommodation. It would be physically detached from the main dwelling and the submitted documentation indicates that it is intended for ancillary and occasional recreational use rather than permanent residential occupation. Consequently, I am not satisfied with the appellant’s suggestion that the ‘summerhouse’ meaningfully compensates for any shortfall in internal living accommodation within the main dwelling itself.

Whilst the bedroom measures 11.5sqm and could physically accommodate a double bed, the proposal and submitted plans do not expressly indicate dual occupation. In purely quantitative terms, the accommodation would fall below the standard expected for a one-bedroom two-person dwelling. However, were the dwelling occupied by a single person, the level of internal floorspace would not appear wholly unreasonable. I therefore do not place determinative weight on the floorspace shortfall alone.

The more significant concern relates to the overall quality of the internal living environment. The proposed dwelling would occupy a constrained position tightly bounded by neighbouring development and boundary treatments. The side clerestory windows would be obscure glazed and positioned immediately adjacent to the site boundaries. Whilst these windows would assist in admitting some natural light, they would provide very limited outlook and only restricted visual connection to the outside environment. The main living accommodation would therefore rely heavily upon the southern-facing openings alone despite the elongated internal arrangement of the kitchen/living/dining room area of the dwelling.

Consequently, significant parts of the internal accommodation would likely feel enclosed and dark with limited outward outlook. The constrained nature of the openings would also give rise to concerns regarding the effectiveness of natural ventilation within the deeper sections of the dwelling. Taken together, the proposal would not provide a sufficiently high-quality living environment for future occupiers.

Turning to external amenity space, I note the Council’s concerns regarding overlooking from neighbouring properties, particularly No [address] and the properties along [address]. However, the proposed garden area would be of a reasonable size for a modest dwelling of this nature, and some degree of overlooking is inevitable within a dense urban context such as this. Furthermore, the evidence before me suggests that the first floor side elevation openings at No 3 serve secondary spaces including a bathroom and a hallway, reducing the significance of any overlooking relationship. I therefore do not find the external amenity arrangements to be unacceptable. 1 Folkestone & Hythe District Council, Places and Policies Local Plan, adopted September 2020

Overall, however, I conclude that the constrained internal environment, limited outlook and poor access to light and ventilation would result in substandard and inadequate living conditions for future occupiers. The proposal would therefore conflict with Policies HB1 and HB3 of the LP insofar as they seek to ensure that new development is well-designed, meets nationally described technical housing space standards, and does not lead to an adverse impact on the amenity of future occupiers.

The proposed dwelling would be positioned close to the shared boundary with No [address], and the appeal site sits at a somewhat higher land level. However, the proposed structure itself would remain modest in height and scale. It would be single storey in form with a maximum height comparable to that commonly associated with domestic outbuildings or garden annexes.

Although the building would extend for a notable length adjacent to the shared boundary with No 3, its modest height would limit its perceived visual mass. Given this, I do not consider the proposal would appear unduly dominant or oppressive when experienced from neighbouring garden areas. Whilst the development would inevitably alter the existing relationship between the properties, the resulting sense of enclosure would not exceed what could reasonably be expected within this dense urban context. The proposal would therefore not result in unacceptable harm to neighbouring outlook or create an overbearing relationship.

With regard to overlooking and privacy, the proposed side clerestory windows would be obscure glazed and positioned at high level, thereby significantly limiting opportunities for direct overlooking between properties. The principal living accommodation would instead be oriented primarily towards the southern-facing garden area. Although some intervisibility between neighbouring garden spaces would inevitably occur, including towards the rear garden of No [address], this is a common characteristic of compact urban environments such as this. Any perception of overlooking arising from use of the external amenity space could reasonably be mitigated through landscaping and boundary screening.

For these reasons, the proposal would not harm the living conditions of neighbouring occupiers. It would therefore not conflict with Policy HB1 which seeks to ensure that proposals do not lead to an adverse impact on the amenity of neighbouring occupiers.

A number of interested parties support the proposal on the basis that it would bring an underutilised and overgrown site back into active use, improve the appearance of the plot and make efficient use of land within a sustainable urban location close to services and public transport. I have taken these considerations into account and afford them moderate weight in favour of the proposal. I also acknowledge that Folkestone Town Council raised no objection to the scheme and that no objections were raised by the Highway Authority or Environmental Health in relation to technical matters.

Supporters of the scheme also refer to the mixed and varied character of the surrounding area and contend that the proposal would sit comfortably within this context. Reference is made to other examples of infill development and ancillary structures nearby. However, each proposal must be considered on its own merits having regard to its specific site context, layout and design. For the reasons set out above, I do not consider the particular form of development proposed in this case to represent a well-resolved or contextually appropriate addition to the site.

I have also had regard to concerns raised by interested parties regarding parking pressure, construction disturbance, drainage, the removal of vegetation, the potential use of the property as a holiday let and references to previous pre-application discussions relating to the site. However, these matters do not alter my overall findings on the main issues. In particular, there is insufficient evidence before me to conclude that the proposal would result in severe highway impacts.

The Council acknowledge that they cannot demonstrate a 5-year supply of deliverable housing land. The substantive evidence before me is that in 2024 the level of supply was 3.1 years. Consequently, because of the provisions of footnote 7, paragraph 11(d) of the National Planning Policy Framework (the ‘Framework’) is engaged. As such, it is necessary for me to determine whether the adverse impacts of the proposal would significantly and demonstrably outweigh the benefits inherent in providing an additional dwelling to assist the Council in addressing its undersupply.

I have found that the proposal would result in an incongruous form of development that would fail to respond appropriately to the prevailing pattern of development and the character and appearance of the surrounding area. I have also found that the proposal would not provide adequate living conditions for future occupiers. I have found conflict with Policies HB1 and HB3 of the LP which are consistent with the Framework.

Set against this harm, the proposal would make a modest contribution towards housing supply through the provision of a new dwelling within the built-up area of Folkestone, in a location with good access to services, facilities and public transport. The redevelopment of a currently underutilised parcel of land would also represent an efficient use of urban land consistent with the Framework’s objective of making effective use of land where appropriate. However, the provision of a single additional dwelling would make a relatively minimal difference to the overall supply of housing and so I give this moderate weight in favour of the proposal.

There would also be some minimal economic benefits during construction and from future occupants’ contributions to the local economy through the use of services and facilities. I have attached limited weight to this consideration.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 states that applications for planning permission, and therefore appeals, must be determined in accordance with the Development Plan, unless material considerations indicate otherwise. The harm I have identified would significantly and demonstrably outweigh the moderate benefits of the appeal scheme, when assessed against the policies in the Framework taken as a whole.

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

For the reasons given above the appeal should be dismissed.