Appeal 6007040

The appeal is allowed and planning permission is granted for the provision of raised decking with glass balustrade and access steps, and raised fence height to side boundary at [site address] in accordance with the terms of the application, Ref P25/1282, and the plans submitted with it, subject to the following conditions:

The development hereby permitted shall be carried out in accordance with the following drawings: - Block Plan; - Proposed Rear Section (Edition 1, [name]); - [name] (Edition 2) - Proposed Ground Floor Section (Edition 1, [name]); - Proposed Ground Floor Plan (Edition 1, [name]).

Unless the boundary fence as shown on the submitted drawings (Proposed Rear Section (Edition 1, [name]), [name] (Edition 2), Proposed Ground Floor Section (Edition 1, [name]) and Proposed Ground Floor Plan (Edition 1, [name])) is erected within 3 months of the date of this decision, the use of the raised decking shall cease and all equipment and materials brought onto the land for the purposes of such use shall be removed. The boundary fence once installed shall thereafter be retained for the lifetime of the development. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

The appellant and the Council acknowledge that the proposed raised decking and balustrade have already been erected on site, and this was observed during my site visit. Although the higher fence along the shared boundary with No. [address] has not yet been installed, the development as constructed appears to be consistent with the submitted plans. I have therefore assessed the appeal on this basis.

The main issue in this appeal is the effect of the appeal development on the living conditions of neighbouring residents in regard to privacy.

The appeal property forms one half of a semi-detached pair, the rear elevation of which extends to three storeys, with the ground floor set above the garden level. It is situated amongst a row of properties where the nearest neighbouring dwellings feature raised patio areas to the rear, beneath which are linear, split-level gardens. Beyond the vehicular access to the rear of the property lie the back gardens of properties located on [address], which are enclosed by fencing of a height typical of residential areas. Having regard to these characteristics, there is an established and appreciable degree of mutual overlooking between neighbouring properties along [address] whilst there are also unobstructed views across the gardens of those properties to the rear.

The raised decked area extends across the full width of the appeal property and lies immediately adjacent to the shared boundaries with Nos. 5 and [address] (No. 5 and No. 5b). It is enclosed by a glass balustrade and accessed via patio doors. By virtue of its scale and configuration, the decking provides increased opportunity for the occupants to occupy an elevated space for extended periods.

The close-boarded fence along the common boundary with No. 5b exceeds the height of the glass balustrade by a notable margin and prohibits overlooking of the raised patio to the rear of that property. While some oblique views across the lower section of the adjoining garden are possible, these are largely interrupted by the intervening fence, such that direct views into this space are extremely limited.

Whilst not projecting as far from the rear elevation as the appeal development, the patio area at No.5 is positioned at a broadly similar height. Beneath this is a grassed area, which was in use for outdoor seating at the time of my site visit. An area of hardstanding and domestic outbuilding lies beyond at a slightly lower level again. The fence along the shared boundary sits below the height of the glass balustrade which at present, allows direct and unrestricted views into the adjoining garden. However, the submitted plans indicate that the fence height along the shared boundary would be increased adjacent to the raised decking, with further increases along the middle garden tier. This would result in a boundary fence broadly comparable to that on the opposite side. While the increase in height would be relatively modest, in combination with the existing fence, it would serve to restrict direct overlooking of those parts of the rear garden where occupiers could reasonably expect a greater degree of privacy, whilst also limiting views into the lower sections of the garden such that the privacy enjoyed by neighbouring occupants would not be materially harmed.

Despite the elevated position of the decked area, views into the garden areas of the wider row are extremely limited owing to the intervening distance, boundary treatments and angle of view. For similar reasons, there are no significant views into the rear gardens of the properties on [address].

Accordingly, I find that the appeal development does not harm the living conditions of neighbouring residents in regard to privacy. It therefore accords with Policy L1 of the Dudley Borough Development Strategy (2017) (DBDS) where it seeks to ensure that residential development does not cause unacceptable harm to the amenities of the occupiers of neighbouring dwellings, including harm arising from the loss of privacy.

The Council’s reason for refusal cites conflict with Policies ENV2 and ENV3 of the Black Country Core Strategy (2011) together with Policies S6 and S8 of the DBDS. However, my attention has not been drawn to any wording therein which concerns living conditions and therefore these policies are not determinative to this appeal.

As the development has begun, it is not necessary to impose the standard time condition relating to the commencement of development. However, in the interests of certainty, and as the development has yet to be completed, I have imposed a condition requiring the development to be carried out in accordance with the submitted plans. Condition 2 is imposed to ensure that the boundary fence (increased height) is erected so as to make the development acceptable in planning terms. There is a strict timetable for compliance because permission is being granted retrospectively, and it is not possible to use a negatively worded condition to secure the implementation of the boundary fence before the development takes place. The condition will ensure that the development can be enforced against if the requirements are not met.

For the reasons given above the appeal is allowed.