Appeal 6003827

The appeal is allowed and planning permission is granted for a detached annexe in the rear garden at [site address] , [postcode] in accordance with the terms of the application, Ref 25/01474/HFUL, subject to the following conditions:

The development hereby permitted shall begin not later than 3 years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following approved plans: Site location plan ref. 01, site survey ref. CHS 25-180-01, proposed floor plan, site plan, section and elevations ref. 02A.

The building hereby permitted shall not be occupied at any time other than for purposes ancillary to the residential use of the dwelling known as [site address] , Rothwell, [postcode] .

The materials to be used in the construction of the external surfaces of the development hereby permitted shall match those shown on approved plan ref. 02A.

Before the first occupation of the building hereby permitted, the fence that divides the appeal site shall be removed and the plot shall thereafter remain undivided.

The post code on the application form, [postcode] , does not match that on the decision notice or the appeal documents ( [postcode] ) and appears to be incorrect. I have therefore used the correct post code, [postcode] , in my decision. Appeal Decision Ref: 6003827

There are two main issues. Firstly, whether the proposed development would constitute a separate dwelling; and secondly, the effect of the proposed development on the character and appearance of the appeal site and the surrounding area.

The appeal site comprises an end of terrace house with a gated side vehicular access. The dwelling sits on a significantly larger plot than others in the terrace since it has not only the side access but also a noticeably longer garden which falls away to the rear. The proposed building would be sited on the lower, end section of garden, between a gas compound and the blank end wall of a two storey, flatted development to the south-east and a very large residential garden to the north-west. The land to the rear is open with modern housing beyond.

The proposed development comprises the construction of a single storey ancillary residential annexe comprising a kitchen, bathroom, one bedroom and a living/dining room. The front of the building would be at a floor level a little below the first section of garden, with the rear section built up above the falling ground level to create a level internal floor. The Council estimates the internal floor area of the building to be about 38.2 sqm.

The Council has alleged that the proposal would be tantamount to a separate dwelling, would be excessive in scale and would therefore be incompatible with the character of the area. Its conclusion is based on the size of the building, the facilities provided, which would allow for independent living, and the siting of the building at the end of the garden, separated from the main dwelling and garden by a close boarded fence.

However, the description of development applied for is an annexe and the householder application form was submitted. Both of these were accepted by the Council. Moreover, the appellant confirmed in writing to the Council during the determination of the application that the proposed development was an annexe to No 1.

Notwithstanding the size of the outbuilding, based on the plans and the evidence before me, including my site visit, it is clear that the building could only be accessed from [address] via No 1 and its curtilage. Moreover, the proposed building is shown on the site location plan as being within the same planning unit as the main dwelling and the distance between the two buildings would be limited. Finally, to avoid any doubt and to ensure easy accessibility between the dwelling and the annexe, the appellant has agreed to remove the fence currently dividing the plot and this could be required by a planning condition.

The Council does not provide any substantive evidence to support its view that the building would be a separate dwelling but suggests that the vehicular access could be made independent of the host dwelling and could therefore provide independent access, that the curtilage could be split and that the building’s internal facilities would provide for independent living.

Conversely, the appellant refers to well established case law and in particular [name] v SSE & White [1992] which established that, regardless of whether Appeal Decision Ref: 6003827 a separate self-contained unit could be used for independent occupation, whether or not it did create a separate dwelling was a matter of fact and degree to be decided on the facts of the case.

In this case the appellant states that the annexe would be occupied by his son, that it would be reliant on the main dwelling for electricity and sewage connections and would share the same access, parking and rear garden. Overall, in the absence of any independent access or service connections, he suggests that the building would be subservient to the host dwelling and would have a direct functional link with it. I agree.

Having regard to the fact that decisions must be made on what is actually proposed and not what could happen in the future, I find that the proposed development would be an annexe, not a separate residential unit. As suggested by the appellant, a planning condition could be used to secure the ancillary residential nature of the development. This would mean that a future planning application would be required before the annexe could be used as a separate dwelling and any breach of the condition could be enforced against by the Council.

It is concluded on the first main issue that the proposed development would not constitute a separate dwelling but would be a residential annexe to [site address] .

Turning to the effect on character and appearance the Council considers that the scale of the proposed annexe in terms of volume and height would be excessive and result in an overdevelopment of the site. Moreover, it is argued that it would be uncharacteristic in the proposed location.

The submitted plans show the building with a maximum height of a little over 3m. The Council on the other hand suggests it would be up to 3.75m high. Either way, the survey plan shows that it would be set on land between around 0.5m and 1.5m lower than the main garden area and that it would have an almost flat roof. In terms of footprint, whilst it would be a large outbuilding, it would be set in by around 1m from the three external boundaries.

In view of the closest building being the two storey flatted development which has a pitched roof and the back wing of which has a similar building line to the proposed annexe, and the presence of a large outbuilding in the garden to the north-west, I do not consider that it would be excessively high, particularly given its set down location. Neither would it be in an uncharacteristic location for an outbuilding. In addition, the set in from the boundaries and position of the building on an underused area at the far end of the plot would ensure it did not appear cramped on the site, with ample garden and parking space remaining to serve the dwelling. The Council does not object to the appearance of the proposed development, including the use of contemporary materials which would not match the host dwelling. I agree these would be acceptable.

It is concluded on the second main issue that the proposed development would have no materially detrimental effect on the character or appearance of the appeal site or the surrounding area. In consequence, it would comply with Policy 8 of the [site address] [name] 2011-2031, adopted 2016. This expects, amongst other things, that new development will create a distinctive local character by responding to the site’s immediate and wider context and local character, to create new buildings which draw on the best of that local character Appeal Decision Ref: 6003827 without stifling innovation, and respond to local topography and the overall form, character and landscape setting of the area.

Third parties, including Rothwell Town Council, raise a number of concerns. Some of these would only apply to the development if it comprised a new dwelling which, as reasoned above it would not. In addition, a neighbour is concerned about loss of privacy and overlooking but I am satisfied that the position of the annexe and its single storey nature, together with the existing and proposed boundary treatments would ensure privacy was maintained. Neither would the annexe take material levels of light from any third party land or buildings. I am also satisfied that sufficient information has been submitted to assess the finished levels of the building and their effect on the surrounding area. Finally, the need for a party wall agreement is raised. However, if this is required it would in any case be a civil matter between the parties.

Turning to conditions, as set out above, I shall impose an occupancy condition to ensure the annexe remains ancillary to the main dwelling and I will require the fence on the site to be removed before the first occupation of the annexe in order to ensure the single planning unit is clearly demonstrated. In addition, the statutory commencement condition is required, together with conditions requiring the development to be carried out in accordance with the approved plans and in the approved materials. These are necessary for the avoidance of doubt and to protect the character and appearance of the area.

For the reasons set out above and having regard to all other matters raised, I conclude that the appeal should be allowed.