Appeal 6004678

The appeal is dismissed.

Under Article 3(1) and Schedule 2, Part 20, Class A of the Town and Country Planning (General Permitted Development)(England) Order 2015 (as amended) (hereafter “the GPDO”), the construction of up to two additional storeys of new dwellinghouses immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats, is permitted development. This is together with any or all associated: (a) engineering operations reasonably necessary to construct the additional storeys and new dwellinghouses; (b) works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new dwellinghouses; (c) works for the construction of appropriate and safe access to and egress from the new and existing dwellinghouses, including means of escape from fire, via additional external doors or external staircases; (d) works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new dwellinghouses.

Permission is subject to the limitations set out in paragraph A.1., and is also contingent upon compliance with conditions in paragraph A.2., as well as the grant of prior approval for a specific proposal. The matters for which prior approval must be sought are set out in sub-paragraphs A.2.(1)(a) to (j); among them, (a) relates to transport and highways impacts, (e) to the external appearance of the building, and (g) to impacts on amenity of the existing building and neighbouring premises.

The decision notice issued by the Council gave four reasons for refusal. The first related to the nature of the development, and the Council’s view that it would go beyond the scope of that permitted by Schedule 2, Part 20, Class A. The other reasons related to the three prior approval matters which I have summarised in the preceding paragraph. These four reasons form the basis of the main issues in this appeal.

Having regard to the above, the main issues are: • Whether the proposed development would be permitted development as provided for by Schedule 2, Part 20, Class A of the GPDO; and, if so • Whether prior approval should be granted, having regard to the matters set out in [name].2 (1) of Part 20, Class A of the GPDO; in particular:  The external appearance of the buildings;  Impacts on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light; and  The transport and highways impacts of the development.

The appeal relates to nine purpose-built, four-storey blocks of flats, dating from the mid-1970s, together referred to by the appellant as the [address] and [address] Estate. They are on a broadly L-shaped site which slopes down from south-east to north-west; Blocks 1 to 6 are at the eastern end of the site, grouped around [address], Blocks 7 to [address] at the western end. At present there are 220 flats in total in the nine blocks.

The proposed development is the addition of new fourth-floor rooftop extensions to all nine blocks. 15 new flats would be created: two on each of Blocks 1, 2, 5, 6, 7, 8 and 9, and one on Block 4. Where blocks would have two new flats, the pair would be connected (to each other and to two access stairwells) by walkways covered with canopies; a similar canopy-covered walkway on Block 4 would link the single flat proposed for that block to two access stairwells. [name] 3 (which would not have any new flats added), 4 and 7, “rooftop pavilions” would make up considerable parts of the new additional storey.

The Council’s decision was that these canopies and pavilions would not fall within the definition of development permitted by Part 20, Class A1. The appellant disagrees with that assessment, arguing that the canopies and pavilions would be “either engineering operations reasonably necessary to support the new dwellings or ancillary facilities that serve them”.

The appellant has suggested that engineering operations “relate to ancillary forms of development distinct from the building of the additional storey of living accommodation”. I do not think that is a persuasive definition. [name] have set out in paragraph 3 above, Part 20, Class A allows at [name].(a) those engineering operations reasonably necessary to construct the additional storeys and new 1 While the Council’s officer report might, on my reading, perhaps be considered somewhat ambiguous as far as the canopies are concerned, its appeal statement is not; I therefore address both elements here. dwellinghouses. Neither the canopies nor pavilions would, as far as I am aware, have any structural or other physical supporting role as far as the buildings (existing or extended) are concerned, nor is there anything to suggest that erecting them would be a necessary step on the way to constructing the additional storeys and flats. Even applying a generously broad interpretation of the term, there is nothing before me which in any way convincingly supports the argument that the canopies or pavilions would be “engineering operations” in the sense required b the GPDO here.

I am more comfortable with the appellants’ suggested interpretation of ancillary facilities as relating “to features of the development that support the proposal”, though I might put a stronger emphasis on the subsidiary role implied by the term. The proposed canopies would be found on all of the blocks apart from Block 3. These would cover the walkways from the new flats on the proposed fourth floor to the extended stairwells and, as the appellant put it, it would “avoid residents and visitors being impacted by inclement weather and providing a pleasant access and egress environment”.

Whether it would be reasonably necessary for the canopies to be as extensive as proposed here is perhaps debatable. For example, Blocks 2, 5 and 7 would have very long covered walkways, and I have not been made aware of any particular reason why each pair of flats would need to be connected in that way. Broadly speaking, however, I do not think it would be inherently unreasonable to provide, or for future residents to expect, covered routes to and from their flats. I am therefore of the view that canopies and covered walkways could, at least in some form, be considered reasonably necessary ancillary facilities.

I do not, however, think that the same could be said of the proposed rooftop pavilions. These were described in the submitted Design and [name] as having been a response to the constraint existing rooflights on Blocks 3, 4 and 7 would put on potential development, and having been proposed “to maintain a unified architectural language across the estate”. The pavilions would incorporate landscaped rooftop gardens, but these would be accessible only for maintenance purposes – they would not provide any amenity space (whether private or communal) for the new flats, nor would they appear to have any other practical purpose in relation to them.

The pavilions and rooftop gardens would not be minimal or incidental elements of the appeal proposal. For the reasons I have set out in the preceding paragraph, I cannot sensibly find that they would be ancillary facilities reasonably necessary to support the new dwellinghouses. As such, I conclude that the proposal would not be permitted development.

I have found that the proposal would not be development permitted by Schedule 2, Part 20, Class A of the GPDO. It is not therefore necessary for me to consider the detailed prior approval matters set out in [name].2., as any findings on those issues could not change my overall decision.

Among the site’s planning history are three other appeal decisions to which both main parties referred. These are: • A February 2020 decision relating to a development described as the “erection of part 1, part 2 storey rooftop extensions to seven existing blocks to create 19no. self-contained flats, with private amenity space and ancillary gym within Block 7 and external lift shafts to each block. Provision of 21 additional parking spaces, 50 cycle spaces, external children’s play space, photovoltaic (PV) panels and upgrading of existing refuse and recycling stores and new landscaping and access arrangements” 2; • A September 2021 decision relating to a development described as “a single storey rooftop extension to provide 48 additional residential dwellings” 3; and • An October 2022 decision relating to a development described as “the erection of single storey rooftop extension across all blocks to create 48no. self-contained flats with provision of 16 additional car parking spaces and 50 cycle spaces” 4. The first of those appeals related to a refusal to grant planning permission, the second and third to applications for prior approval under Schedule 2, Part 20, Class A of the GPDO.

The appellant considered that this proposal has addressed the reasons for which those previous appeals were dismissed. [name] have found that the current appeal scheme would not be permitted development, it has not been necessary for me to consider the prior approval matters – indeed, to do so could unreasonably fetter a decision maker dealing with any future proposal which might come forward. My conclusion in this appeal would not have any bearing on any subsequent similar application for planning permission which might be made.

For the reasons given above, I conclude that the proposal would not be permitted development under Schedule 2, Part 20, Class A of the GPDO. The appeal is therefore dismissed.