Appeal 6005437

The appeal is dismissed.

[name] 2025, planning permission ([name]: DM/24/02991/FPA) was granted for extension of the lower ground floor to provide a living room, together with internal alterations, an extension to the rear balcony, and revised openings to the entrance door and front windows at No. [site address] (No 8), the appeal site.

The appeal relates to the Council’s refusal of an August 2025 application made seeking to vary condition 2 of that permission. The variation was intended to regularise a number of alterations undertaken during construction which departed from the approved plans, most notably the further enlargement of the rear balcony (terrace) and changes to the external wall finishes of the rear living room/lounge extension.

The application was determined by the Council’s Planning Committee, which resolved to refuse permission contrary to the officer’s recommendation for approval.

It is evident that some of the main elements of the January 2025 scheme were implemented prior to submission of the variation application and therefore the proposal is predominantly retrospective in nature. As such, I have considered the appeal under Section 73A of the Town and Country Planning Act 1990 (as amended) (s73A) and for the avoidance of doubt, my consideration has been based on the submitted drawings.

A s73A application cannot be used to vary the operative part of a planning permission, including the description of development to which the original permission relates. I have therefore applied the description of development contained in the planning permission issued in January 2025 in the appeal header.

The appellants have submitted [name]. 100 Rev P2 ([name] to Terrace) in support of the appeal. While this constitutes new information and addresses a minor discrepancy within the application drawings, it does not significantly alter or advance the nature of the development. The drawing also usefully illustrates a comparison between the permitted scheme and the variation scheme. Given that the Council and interested parties have had the opportunity to consider and comment on this drawing during the course of the appeal, I am satisfied that its acceptance would not give rise to procedural unfairness or prejudice. I have therefore taken it into account in my determination.

The main issues in determination of the appeal are the effect the development has on: • the living conditions of neighbouring residents at 7 and [address] (No 7 and No 9), with particular reference to overbearing and privacy; and • the character and appearance of the surrounding area.

With its lower and narrower projection from the rear extension, measuring approximately 1.75 metres (m), together with reduced end widths, stepped separation, and more contained side upper terrace and landing arrangements, the January 2025 scheme would have created a series of discrete and well-defined external spaces. The configuration of the terrace would have constrained its functional use, likely focusing activity towards the central front portion, but more realistically directing it to the side terrace and landing, thereby keeping use closer to the rear of the host dwelling. The provision of steps to the lower garden would have further limited the extent of the side landing adjacent to No 7. Taken together, these features would have moderated both the opportunity for overlooking and the proposal’s overbearing effects. The proposed boundary treatments would have provided additional mitigation and, given the scale of the terrace, would not have appeared unduly dominant.

By contrast, the terrace as built forms a near full-width, level platform extending approximately 2.7m from the rear extension. Its increased scale enables users to occupy positions much closer to neighbouring boundaries. The flat form and direct access from the lounge create a highly usable and attractive space, which is likely to encourage more frequent and prolonged use, particularly at its edges. This is significantly different from the position anticipated in the Officer Report1 for the January 2025 scheme, where the design was considered likely to limit both seating and the time spent in these areas. That constraint no longer applies. The greater depth permits a more forward position on the terrace, resulting in a more prominent and visually intrusive presence when experienced from adjoining properties and, by reason of its width and openness, substantially greater opportunities for overlooking.

In relation to No 7, although the stepped arrangement to the lower garden provides some separation, the effects are clearly greater than those arising from the approved scheme. The terrace creates an unacceptably overbearing presence and significantly increases overlooking, eroding privacy. It unacceptably affects the use and enjoyment of No 7’s garden. The privacy screen adds to the bulk and reinforces the dominance of the structure. Moreover, as it is no higher than the glazed balustrade at the front, it fails to fully prevent views from the front over the garden. It does not therefore overcome the harm identified.

Similar effects arise in relation to No 9. However, as this garden is appreciably larger, it affords opportunities to use areas beyond the principal influence of the terrace. Consequently, whilst there is harm, it is not of such a degree as to render the use and enjoyment of No 9’s garden unacceptable.

In addition to effects on garden areas, the enlarged terrace increases the potential for overlooking of neighbouring properties’ rear windows, beyond that which would have occurred under the approved scheme.

[name] 7, views towards the rear windows would be oblique and directed at relatively small openings. As such, direct overlooking of internal spaces would be limited and not unacceptably harmful. However, this position differs for No 9, where a large rear window is clearly visible from the terrace. Depending on where users stand or sit, views into the room are readily achievable. The development has created a significant worsening of the risk of harmful overlooking and an unacceptable loss of privacy.

The Council’s Residential Amenity Standards SPD (2023) accepts that terraces and balconies can be appropriate but highlights the risks where they are close to boundaries and allow views into neighbouring property. This development falls squarely within those concerns. The mitigation provided is insufficient, and the terrace is therefore not supported by the guidance. 1

I fully acknowledge that the site and its surroundings are characterised by a high degree of mutual overlooking and intervisibility, arising from the sloping topography, the proximity of the dwellings and the presence of features such as windows, balconies, a sun lounge and French doors. In particular, No 8 benefits from an upper level balcony and an enclosed sun lounge, which afford views across adjoining gardens. However, these structures are more limited in scale, are set further back from shared boundaries, and, in the case of the sun lounge, are enclosed. As a result, their influence on privacy is appreciably less pronounced than that of the terrace. While the existing context is an extremely important consideration, it does not justify the significant additional worsening to overlooking, overbearing effect and loss of privacy caused by the development.

The appellants state that the additional fencing and privacy screens were installed following Council advice and at considerable expense, and that attempts to engage with neighbours were unsuccessful. However, the Council had advised that works should cease pending determination, and the appellants proceeded at their own risk. Moreover, neighbouring occupiers are under no obligation to engage or accept mitigation where concerns arise. These matters do not outweigh or justify the identified harm.

It is stated that a substantial hedge along the boundary with No 9 previously provided a degree of screening. However, notwithstanding the disputed circumstances of its removal, the hedge was not within the appellants’ control. The acceptability of the development must therefore be assessed as it currently exists, and it should secure an adequate standard of protection to neighbours in its own right. In this case, it fails to do so.

Drawing the above together, in comparison with the approved scheme and considering it on its own merits, the development has unacceptably affected the living conditions of the neighbouring occupiers at No 7 and No 9, by reason of its overbearing presence and loss of privacy. It therefore conflicts with Policies 29 and 31 of the County Durham Plan 2020 (CDP) and Section 12 of the National Planning Policy Framework 2024 (the Framework). These provisions seek, amongst other matters, to secure development that achieves a high standard of amenity for existing users and avoids unacceptable impacts, including overlooking, visual dominance and loss of privacy to the occupants of nearby properties.

The appeal site lies within an Area of [name]. To the rear, the land falls steeply towards a well‐wooded valley with an attractive aspect. The immediate slope is characterised predominantly by open grassland, contained by tree‐lined boundaries with intermittent trees and vegetation, beyond which the landscape consolidates into denser woodland. A public right of way (PROW) runs along the base of the slope and affords clear and open views towards the [address] properties and the nearby Church of [name] and its churchyard.

When assessed against the form and finishes of the January 2025 scheme and the prevailing stone-built rear character of the properties, the predominantly cream-coloured render to the rear extension appears unduly prominent and incongruous in views from the valley and the PROW. Owing to the large glazed doors, use of reclaimed stone and timber, and its separation from the PROW, the enlarged terrace and glazed balustrade are not readily discernible and do not appear visually dominant. However, this does not overcome the harm arising from the rendered finish.

The Church of [name], a [name] listed building, lies near the appeal site. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires that special regard is had to the desirability of preserving a listed building or its setting. In views from the valley, there would remain a clear and appreciable spatial separation between the appeal property and the church. This separation, together with intervening built form of No 7, limits the visibility of the development such that it does not intrude upon, or detract from, the special architectural or historic interest of the listed building or its setting. The development therefore preserves the setting of the church.

Accordingly, while the enlarged terrace and glazed balustrade would not, in themselves, give rise to harm within the wider landscape, and the setting of the listed church would be preserved, the rendered finish of the rear extension would be unduly prominent and unsympathetic. It would appear at odds with the established materials palette and would consequently harm the character and appearance of the area. The proposal therefore conflicts with Policies 29 and 39 of the CDP and Sections 12 and 15 of the Framework, which seek to secure high quality design that is visually attractive and responsive to local character, identity, townscape and landscape.

The appellants have sought to regularise the development through engagement with the Council, and the [name] recommended approval. I have taken these matters into account. Nevertheless, having assessed the proposal’s effects against the January 2025 scheme, the development plan and other material considerations, I have found the development causes unacceptable harm.

It has been suggested that some Committee members were influenced by the appellants’ continuation of unauthorised works and a desire to avoid setting a precedent. However, the Committee Report and decision notice make clear that the refusal was based on the planning merits, notably harm to neighbouring living conditions and to the character and appearance of the area. There is therefore little to indicate the decision was based on incorrect considerations.

I have had regard to the appellants’ personal circumstances and their intentions in seeking to integrate within the local community. While these matters are noted, they do not alter my conclusion on the planning merits of the proposal.

It is explained that the unauthorised alterations arose from an initial error by the builder in the appellants’ absence, and that works nevertheless continued after the issue was identified. However, these circumstances do not lessen the harm arising from the development. Responsibility for, and rectification of, the error is a private matter and does not justify the development.

The Officer Report finds no unacceptable loss of light or overshadowing. While the boundary treatments have been increased in an attempt to mitigate the effects of the development, I see no substantive reason to find that these changes would unacceptably worsen these aspects. Nevertheless, the avoidance of such harm is an expectation of new development. As such, compliance in this regard does not outweigh the harm I have identified.

For the reasons given above, the proposal would conflict with the development plan and the material considerations, including the Framework, do not indicate that the appeal should be decided other than in accordance with it. Therefore, the appeal should be dismissed.