Appeal 6005850

The appeal is allowed and planning permission is granted for enabling existing flat roof areas to be used as private amenity terraces at [site address] in accordance with the terms of the application, Ref 2025/1572, subject to the conditions in the attached schedule.

The application included proposed terrace plans ([name] 1535-P4-1214_A) which contradicted the detailed floor plans submitted with the application. Following consultation with the main parties, I have disregarded this plan.

The appeal was accompanied by a plan showing the impact of a parasol placed on a roof terrace ([name] 1535-P4-1423_C) and verified views (computer-generated images) showing the appearance of the proposal. As the drawing and verified views do not change the proposal, and as parties have had the opportunity to comment on them, no one is disadvantaged and I have therefore determined the appeal on the basis of this additional information. The appeal was also accompanied by a noise impact assessment report.

The main issues in this appeal are the effect of the proposal on:  the character and appearance of the area; and  the living conditions of adjoining properties with particular reference to privacy and noise.

The site comprises a recently-built development of four blocks of three/four storey flats. The flats on the top storey of each block are inset, leaving a flat roofed area on either side. A condition attached to the grant of planning permission1 prevents these areas from being altered or adapted to form a balcony, roof garden or similar amenity area without the grant of permission from the local planning authority. The proposal seeks to utilise part of the flat roofed area on three of the blocks as private terraces. A previous application2 to remove the condition to allow the roofs to be utilised as terraces was refused on similar grounds to the current proposal.

Whilst nearby houses do not possess balconies or terraces, they are common features of flatted developments, and the development already possesses some balconies and terraces, albeit facing the rear and at lower levels. The flat roofed areas are visually suggestive of terraces by reason of their parapet walls and the side windows which face onto them, and so the introduction of roof terraces would not be inherently incongruous. The Council’s concerns relate to the 1.7m high obscured glazing screens proposed on the sides of each terrace, which would project above the parapet walls, and the visual impact of domestic paraphernalia.

One of the two front blocks and both rear blocks are proposed to have roof terraces. 1.1m high glazed screens would be positioned so that the front portion of each terrace could not be actively used. The front edge of the 1.7m high obscure glazed screens on the sides of each terrace would as a consequence be set back from the front of each block. When seen from the front of the site, therefore, the screens would have very limited visual impact.

The 1.7m high obscure glazed screens would however be visible in oblique views of the site. When approaching from the junction of [address] and [address], the side screen on the front block would be visible above the roofline of the adjacent dwelling, [address]. The glazed screen would protrude moderately above the existing parapet wall and would be perceived mainly against the side wall of the adjacent side, which contains a row of windows. Given that the side screen would not protrude significantly above the parapet wall and would be seen against the existing building, it would not be unduly prominent in these views.

When approaching from the other direction, the 1.7m high obscure glazed screen would be masked by the adjacent frontage block in longer views, and would only come into view relatively close to building. It would be seen against the backdrop of the building and so would not significantly alter the existing appearance of the building. The screens proposed on the rear blocks would be mainly seen from the road in glimpsed views and in gaps between buildings, and would not be intrusive.

The terraces would be large enough to potentially accommodate furniture, sunshades, arbours, washing lines, plants and play equipment. Owing to the setback of the terraces from the front of each block, this equipment would not significantly impact on views from in front of the appeal site. When approaching along [address] in either direction, taller equipment would be visible above the 1.7m high obscure glazed screens, and because of the viewing angle would 1 PINS reference 2020/0691 2 LPA reference 2023/0270 potentially be seen against the sky. However, only be the higher parts of the equipment would be visible, which would limit any perception of clutter. Moreover, it is commonplace for equipment on balconies to be visible from the street, and to that extent there would be nothing inherently intrusive about such equipment being visible on the roof terraces. Taking these factors into account, the equipment would not be so apparent as to harmfully impact on the street scene.

The insetting of the 1.7m high obscure glazed screens from the side parapet walls would mean that when looking up at the terraces from the adjacent dwellings at 6 and [address], only the top of the screens and the taller equipment would be visible. The screens and equipment would be visible from other flats within the development, but there are already glazed balconies within the development, and so the appearance of the terraces would not be at odds with these features.

In assessing the visual impact of the screens, I have had regard to the verified views prepared by the appellant, but as these do not illustrate vantage points from further along [address] where the screens are likely to be most visible, they have not been determinative in my reasoning.

The Council has queried whether the screens would be higher than shown on the plans owing to the potential need to insulate the flats below and provide a suitable flooring material on the terraces. However, no indication has been given that this would be the case, and a plans condition would require the screens to be constructed to the height shown on the plans. Although the other frontage block would not have roof terraces, the resulting asymmetry between the two blocks would not harmfully impact on the street scene given my conclusions about the limited visual impact of the screens and equipment.

My attention has been drawn to a recent appeal decision at [address], in which the Inspector rejected a proposal to replace two houses with two apartment buildings, and in doing so commented that the appeal site disrupted the development pattern of the area3. Notwithstanding the Inspector’s findings, however, the appeal site forms part of the area’s character, and the proposal must be assessed on this basis. The subsequent changes to the scheme as a result of minor amendments have not altered its character significantly.

The Council has referred to the [name] 2024 (EDC) but has not drawn my attention to any specific part of the code which would be breached by the proposal. Given my findings, the proposed roof terraces would comply with the requirement of the National Planning Policy Framework (the Framework) that development should be sympathetic to local character.

I conclude that the proposal would not be harmful to the character and appearance of the area and would therefore accord with Policy DM2 of the Elmbridge Local Plan Development Management Plan April 2015 (DMP) and Policy CS17 of the [name] 2011 (CS), which together require high quality design which is based on an understanding of local character and which integrates sensitively with the locally distinctive townscape. 3 PINS reference APP/K3605/W/24/3337473

The appeal site is abutted by [address] on one side and [address] on the other, both of which are detached houses with rear gardens running the full depth of the appeal site. There are dwellings on the opposite side of [address], but no dwellings to the rear of the site.

The 1.7m high obscure glazed screens proposed inside the parapet wall adjacent to these houses would function like a boundary fence, generally preventing people who are standing on the terrace from seeing over them or looking down into the adjacent properties, but like a boundary fence not guaranteeing complete privacy. Overall, they would have the effect of minimising real and perceived overlooking. The 1.7m high obscure glazed screens would likewise protect the privacy of residents with adjacent roof terraces within the development. The Council has argued that the screens should be 1.8m high to maximise privacy, but at 1.7m high they achieve an appropriate balance between protecting privacy and limiting the visual impact of the screens.

At the front and rear of the roof terraces, people on the terraces would be able to see over the 1.1m screens. It is common ground, and I do not disagree, that there is sufficient separation distance to the houses opposite and the flats behind the front block to protect the privacy of occupiers. The Council is concerned that occupiers of flats to the rear would have an increased perception of overlooking. I saw on my site visit that there are already windows at the same level on the flats which face the rear blocks. Whilst a person on one of the roof terraces would be more visible than a person inside a room, activities on a roof terrace are weather-dependent and therefore seasonal and intermittent. As such, any perception of overlooking is likely to be at a low level and not harmful to the living conditions of existing occupiers. For the same reasons, oblique views over neighbouring gardens from the roof terraces would not lead to a perception of overlooking.

The proposed terraces would be large compared to typical balconies, but not dissimilar in size to the patio areas of nearby dwellings and substantially smaller their gardens. There is no reason to suppose that the roof terraces would give rise to a greater level of activity than outdoor spaces on existing properties. Concern has been raised that the elevated position of the roof terraces could nonetheless result in disturbance. The appellant’s acoustic modelling has shown that, based on 2-4 people in a seated position [address] floor, speaking in either a normal or raised voice, predicted evening noise levels for the nearest residents would be below the baseline noise level4.

The Council has queried why other scenarios have not been modelled, such as larger groups, people standing, children and music. It seems to me though that the appellant has modelled a typical scenario, and that by modelling raised voices a worst case scenario has also been considered. The fact that the predicted noise levels would be considerably lower than existing baseline noise levels indicates that, even if noise levels were to be somewhat higher than those modelled, they would not exceed baseline levels. Consequently, there would not be a significant noise impact on nearby residents, and no noise attenuation measures beyond the proposed glazed screens are required. 4

I have noted the guidance in the EDC that apartments should be provided with private amenity space in the form of a balcony or terrace where other amenity space, such as a communal garden, is not available. The Council has argued that because the appeal site benefits from a shared communal garden at the rear, there is no need to provide roof terraces, and that the roof terraces are significantly larger than the minimum space requirements for flats set out in the EDC. The standards are expressed as minimum requirements, however, and therefore exceeding them does not run counter to the EDC. Notwithstanding this, I have afforded limited weight to the benefits of roof terraces since the site appears to function satisfactorily at present with communal outdoor space.

Overall, the proposal accords with the guidance in the Framework that developments should promote health and well-being by providing a high standard of amenity for existing and future residents. I conclude that it would not have an adverse effect on neighbouring properties as a result of overlooking or disturbance, and would protect the living conditions of these properties. The proposal would therefore accord with policies DM2 and DM5 of the DMP, which together seek to provide adequate privacy for adjoining occupiers, particularly when considering proposals for raised terraces and roof gardens and, where development may result in noise, to incorporate appropriate attenuation measures to mitigate the effect on existing residents.

1 and [address] are [name] listed buildings. Designed by [name] and dating from around 1880, the two houses are set back from the road on generous plots. They have been built in an Arts and Crafts style and are nearly identical. The houses are constructed of red brick with fish scale hanging tiles, with a steeply pitched plain tiled roof and multiple chimney stacks. They feature a projecting central bay under a curvilinear gable, and a pitched roof gable above a square bay on the left side.

S66(1) of the Planning (Listed Building and Conservation Areas) Act 1990 places a statutory duty on decision makers to have special regard to preserving the setting of listed buildings. The Framework guides that the particular significance of any heritage asset that may be affected by a proposal, including by development affecting the setting of a heritage asset, should be identified and assessed. The proposal would result in moderate changes to the appearance of the appeal site resulting from the installation of glazing panels and the use of equipment on its flat roofed sections. Such changes would have a neutral impact on the setting of the listed buildings, which are located opposite the appeal site, and would not harm their significance.

In reaching my conclusions on the main issues, the weight I have given to the presence of roof terraces and balconies on sites nearby has been limited by the fact that no two sites share exactly the same characteristics. For the same reason, permitting roof terraces would not necessarily set a precedent for roof terraces elsewhere.

Noise insulation for the flats below would be a matter for the building regulations. Cooking odours would be expected to be comparable with those generated by other patios or gardens locally. The installation of glazing panels would not by their nature result in a loss of daylight or sunlight for existing occupiers. External lighting is capable of being controlled by condition. Potential environmental impacts during the installation of the glazed panels and new window openings would be limited.

I have not been provided with evidence that the proposed glass panels would compromise the structural integrity of the building. Any future unauthorised developments on the roof terraces, such as structures to enclose them, would be a matter for the Council’s enforcement team. The proposal would be unlikely to impact on the number of parking spaces required.

The extensive recent planning history shows that there have been changes to the original planning consent, and that there remain outstanding planning conditions. Whilst recognising the impact this has had on residents, it does not alter the need to have regard to the relevant material planning considerations when determining the appeal. Neither the original condition that required approval for roof terraces, nor the unsuccessful application to vary this condition, indicate that roof terraces are in principle unacceptable. The proposal differs from the previous unsuccessful scheme for roof terraces, and has been assessed on this basis.

The timing of the appellant’s notification to residents about the application does not have a bearing on the appeal. Interested parties have queried whether the appeal was submitted late, but it was submitted within the required timescale, since the shorter timescale only relates to minor residential and commercial applications, of which this is not one.

The fourth block does not form part of the proposal and any future changes to its flat roofed areas would require planning permission. Neither the commercial motivations of the appellant nor the information supplied to occupiers regarding the future use of the flat roofs have a bearing on the appeal. My assessment has had regard to the fact that flats within the development are now occupied. Any impact on property values and service charges does not fall within the scope of this appeal.

The Framework sets out that conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. I have assessed the suggested list of conditions on this basis and made amendments where necessary to meet these tests.

It is necessary to confirm the standard time limit for the development, and to specify the approved plans and drawings, for the avoidance of doubt and in the interest of certainty.

In the interests of privacy, the precise degree of obscurity of the glazing panels should be specified. The main parties consider that the screens could be conditioned to be 1.8m high, but I can only base the decision on the plans before me, which show screens at 1.1m and 1.7m high respectively. I have not attached a materials condition as it would be superfluous.

A sensitive lighting management plan is necessary to ensure that local wildlife, and in particularly bat commuting and foraging routes, is protected from harm. I have combined the Council’s two suggested conditions into one for ease of understanding.

A limitation on amplified music is required to protect the living conditions of residents.

The main parties have suggested a condition limiting the height of equipment, but have proposed different maximum heights. I have given consideration to imposing such a condition, but I am mindful that to satisfy the Framework, conditions must be enforceable and reasonable in all other respects. A condition that limited the practical useability of the roof terraces would not be reasonable, and would be potentially difficult to enforce. Moreover, I have based my assessment on the likelihood that some taller equipment would be placed on the terraces. I have not therefore imposed a condition limiting the height of equipment.

The proposal accords with the development plan, when read as a whole. Material considerations do not indicate that a decision should be taken other than in accordance with the development plan. I therefore conclude that the appeal should be allowed.

The development hereby permitted shall be begun before the expiration of three years from the date of this permission.

The development hereby permitted shall be carried out in accordance with the approved drawings listed below. Drawing Reference Proposed Site Plan 1535-P4-1001_[name] 1535-P4-1211_[name] 1535-P4-1212_[name] 1535-P4-1213_[name] - [name] 1535-P4-1311_[name] - [name] 1535-P4-1312_[name] - [name] 1535-P4-1313_[address] Elevation 1535-P4-1321_B Proposed Site Sections BB/East 1535-P4-1423_[address] Sections – Phases 1-3 1535-P4-1410_[address] Sections – Phases 1-3 1535-P4-1411_A

The glazing screens shown on the approved plans shall have level three obscurity as shown on the Pilkington textured glass privacy levels (or similar). The screens shall be installed prior to first use of the roof terraces and be permanently maintained in that condition thereafter.

No external lighting shall be installed on the roof terraces unless a sensitive lighting management plan has been submitted to and approved by the local planning authority. The sensitive lighting management plan shall accord with the recommendations of the Bat Conservation Trust's document entitled "Bats and Lighting in the UK - Bats and The Built Environment Series". The lighting shall be installed in accordance with the approved details and thereafter maintained as such, and no other external lighting shall be installed.

No amplified music shall be played on the roof terraces at any time. End of schedule