Appeal 6007284

The appeal is dismissed insofar as it relates to the timber closed boarded boundary fence.

The appeal is allowed insofar as it relates to the decking at the side of the property; and planning permission is granted for the decking at the side of the property; at [name], [site address] , [address], Whitby, [name] [postcode] in accordance with application Ref: 26/00242/FUL and the following conditions:

Upon implementation of the approved decking specified in this condition, that scheme shall thereafter be maintained in accordance with the following approved plans, unless subsequent planning consent is given: • ‘DWG-005 [name],’ [name], Dated 14/01/2026; • ‘DWG-004 [name],’ [name], Dated 14/01/2026

Both parties have confirmed that the proposal has already been constructed with the Application Form stating that the development was completed in February

I too witnessed the proposal upon my site visit as having already been constructed. As such the application is retrospective and I have made my determination on this basis.

The application description as detailed on the Application Form does not detail that permission is sought for the erection of a close boarded timber boundary fence. It would also not appear that the Council have sought to liaise with the Appellant in order to change the application description to include the fence as the Decision Notice description only refers to the retrospective decking. However, the Council have assessed the boundary fence as part of the planning application and have also mentioned the boundary fence in all three Reasons for Refusal. As the fence Appeal Decision: 6007284 appears to be a critical topic for discussion within the application and has been assessed by the Council, I will also consider this as part of this appeal determination along with the decking.

I note that Reason for [name].1 notes that the timber boundary fence would be contrary to Policy DEC1 because it “would be visually inconspicuous and visually dominant.” I believe this to be an error as something which is ‘visually inconspicuous’ (not visible) cannot typically also be ‘visually dominant.’ I believe this to be a typo and that the Officer meant instead that the scheme is “Visually conspicuous and visually dominant” which would be in line with the wording of Reason for [name].2. I shall make my judgement based upon this.

I note discussion in the [name] of Case (SoC) with regards to whether the boundary fence comes under the provisions of the General Permitted Development Order (GPDO) which would determine whether the development requires planning permission. It is not for me under a Section 78 appeal to determine the current correct and legal development of the existing building or to define the legal opinion of the application of the GPDO. I have therefore made my decision on this basis of the existing conditions and to the development plan and relevant material considerations. To that end it is open to the Council to pursue enforcement action, or for the Appellant to apply for a determination under sections 191/192 of the Town and Country Planning Act 1990 if they believe the lawful development is different. My determination of this appeal under s78 does not affect the issuing of a determination under s191/192 regardless of the outcome of this appeal.

Whilst there are three Reasons for Refusal on the Council’s Decision Notice, Reasons for [name].s 1 and 2 both apply to the boundary fence and its effect upon character and appearance of the area, including Conservation Area considerations. The Council Officer’s Report does not show concerns for the decking in relation to character and appearance, or the Conservation Area, and I have no reason to dispute this opinion. Condition 3 specifically focusses upon living conditions in relation to the decking. For brevity and the avoidance of doubt, I will only look at the matters in dispute between the parties where there are two matters at play. As such I will deal with Conditions 1 and 2 together, and Condition 3 on its own.

Taking the above into account, the main issues are: • The effect of the boundary fence upon the existing building and the surrounding locality, with special attention as to whether the scheme preserves or enhances the character and appearance of the Whitby Conservation Area (CA); and • The effect of the decking upon the living conditions of the surrounding area, with particular regard given to privacy.

Section 72 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires a decision maker to give special attention to the desirability of preserving Appeal Decision: 6007284 or enhancing the character or appearance of a conservation area in the determination of a planning application.

With regards to undertaking alterations, relevant policies of the Scarborough Borough Local Plan (LP) includes Policy DE1 which sets a number of design principles, where applications are expected to reflect the local environment and create a sense of place with distinctive character, respond to the local context in terms of scale, form, height, materials, fenestration, reducing carbon emissions, amongst others. Additionally, LP Policy DE5 is related to the historic environment, and seeks that development should conserve and where possible, enhance the significance of a heritage asset, and ensuring that proposals conserve elements which contribute to significance, amongst others. The policies are also supported by the [name] (RDG) which has specific guidance around how proposals should reflect the context of the area and the host property.

The significance of the CA has been discussed by the Appellant in their Heritage Statement as well as the [name] and Management Plan. The significance of the CA derives from its historic position and associated development as a prominent fishing village at the mouth of the [name]. The CA has been split into eleven character areas where the appeal site is located within Character Area 3 – [address] South from [address]. This area consists of land between [address] (which is a main road running along the harbour edge) and the Ropery which runs almost parallel to [address].

The built form within these streets is influenced by the very steep topography that falls from the Ropery towards [address]. Alongside the street hierarchy, [address] contains a mix of the main residential and commercial premises overlooking the harbour which once would have hosted a number of wharf buildings and associated uses, whilst lower hierarchy streets like The Ropery facilitated accommodation of the workers and associated storage/maintenance facilities in rear yards which appear to have taken the appearance of burgage plots. This is shown in this location with a number of small terraced fisherman’s cottages towards The Ropery with intertwining narrow passageways from The Ropery, some of the names of the historic yards are still in place.

There are deliberate small gaps between buildings along [address] which lead to the series of passageways and steep steps to inter-connecting walkways that run parallel with [address] at different levels. The series of connecting passageways are lined in stone sets with low stone and brick walls with metal handrails and low railings which allows views to the harbour. There are areas of terraces along the walkways which allow glimpses across the harbour as well as the topography, red brick dwellings and associated roofscapes of red clay pantiles. Whilst it would appear that there have been a number of demolitions and reconstructions of the building fabric and yards along these passageways, the series of relatively authentic passageways and associated boundary demarcations themselves are unique surviving elements which allow the legibility of the historic fishing industry. These elements, amongst others emphasise the fishing village experience that reinforces some of the positive qualities within the locality that contributes towards local character and distinctiveness.

[name] appreciate comments from the Appellant that they don’t believe boundary walls do not make a large contribution to the significance of the CA, the Appraisal focusses upon boundary walls to residential properties such as along The Ropery, Appeal Decision: 6007284 rather than specifically speaking of the boundary treatment that lines the passageways, which are inherent to their formation and which the passageways are referenced as an important contributory element to the significance of this particular area. Views from the passageways are also not restricted to those specific important views mentioned in the appraisal, whereby glimpses across the harbour from these passageways are important positive characteristics of the experience and significance of the CA.

The appeal site is located roughly in the centre of the land between [address] and the Ropery and has its entrance located along one of the parallel walkways which is accessed from [name] which is a tall stairway down to [address]. Whilst the building as viewed from the walkway is two storeys, given the steepness of the terrain, the building is actually four storeys tall. As one walks along the inter-connected walkways, they are narrow but low walls and railings together with the width in places allow the passageways not to feel too enclosed with glimpses between buildings towards the harbour allowing an experience of the historic narrative of the area and the relationship with the harbour. In this particular location along the walkway, the fence as installed does have a very defensive appearance, and restricts views and the historic experience from the walkway towards the harbour which is one of the positive aspects of this particular location and the experience of travelling along the laneways. [name] appreciate that timber is an appropriate historic material, it does appear awkward in this specific context where predominant materials are brick, stone and metal. Whilst some form of timber fence may be appropriate, it is the overall height of the fence which causes the most conflict with the significance of the CA, which does not encourage the views or experiences through the backland area towards the harbour.

I can appreciate that the specific boundary treatment was chosen in that it provides privacy for the occupants of the appeal site, however this is at the expense of the positive characteristics which contribute to the significance of the CA. Other forms of boundary treatment, and those at a lower height would also enable privacy whilst demarcating the private and public spaces alongside the passageways, like found along the majority of the passageways.

Consequently, I disagree that the fence as installed would maintain the significance and experience of the positive elements that contribute to the character, appearance and local distinctiveness of the CA. In conclusion of this matter, it is clear to me that the fence unacceptably harms the appearance of the appeal building and the character and appearance of the locality, being contrary to [name] DE1 and DE5 and the RDG as described previously.

Although serious, the harm to the CA would be ‘less than substantial,’ within the meaning of the term in paragraph 215 of the Framework. Paragraph 213 of the Framework states that any harm to, or loss of, the significance of a designated heritage asset requires clear and convincing justification. Paragraph 215 of the Framework requires that, where a proposal would lead to less than substantial harm, the harm should be weighed against the public benefits of the proposal.

The Appellant has not suggested any public benefits resulting from the proposal, other than private benefits of the increased privacy to the occupiers of the property. Additionally, the installation of the fence would have had economic benefits in the short term employment of labourers. However, these benefits are not unique to this particular scheme or to this particular fence, and as discussed, there may be other, Appeal Decision: 6007284 more acceptable ways in which these same public and private benefits could be achieved which are more appropriate to the policies of the development plan.

I therefore find that the public benefits arising from the proposed development would not outweigh the harm I have identified. The scheme therefore conflicts with the Framework, which directs, at paragraph 212, ‘that great weight should be given to the asset’s conservation ... irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to their significance.’

In conclusion of this matter the scheme fails to preserve the character and appearance of the wider CA and the duty under s72 of the PLBCA. The proposed scheme would therefore conflict with Paragraphs 212 and 216 of the Framework, and additionally would be contrary to [name] DE1 and DE5 and the RDG as described previously.

The main concerns regarding privacy according to the Decision Notice are properties along [name], however which particular properties are not specified. Whilst the existing plans submitted with the application do not show the existing situation prior to the installation of the terrace, photographs in the [name] illustrate that it was on two levels and smaller in area than the current installed decking.

As there was already decking in place at a similar height there was some perception of overlooking, which is also amplified due to the topography of the land which does not replicate typical conditions which are usually found in guidance SPDs around extensions and living conditions. In this case considerations are more site specific as to their appropriateness. On my site visit I noted dwellings along [address] have small inset gardens where whilst there is a degree of overlooking, the topography does assist in restricting completely the views from dwellings further towards the [name]. Currently the walkways, inset rear gardens and the amount of vegetation does assist in mitigating the perception of overlooking to an acceptable degree. I can also appreciate the Council’s concerns around the extension of the terrace, which may mean that more persons are able to congregate on the terrace, have BBQs etc. However, this would likely be within the confines of typical residential behaviour, with the extension of the terrace not causing a great material change to existing conditions. Whilst there is some change to the existing conditions in terms of the floor area of the terrace, the amount of noise, disturbance and overlooking would not be at a level that would cause material detriment to the surrounding occupiers.

Consequently, and in conclusion of this matter, I am not convinced that the extension of the decking would cause material detriment to surrounding occupiers as a result of overlooking, or disturbance. The scheme would therefore be in conformity with LP Policy DEC4 which seeks that proposals do not give rise to unacceptable impacts towards living conditions.

Within the Reason for [name].3 on Council’s Decision Notice, I note that there is concern around the safety of highway users, however it is unclear what this means in this context given that no transport policies are referred to, or whether this is with regards to living conditions. Despite this, the pathway to the front of the Appeal Decision: 6007284 property is utilised infrequently by pedestrians, of which there are appropriate sight lines along the walkways. The height of the boundary fence does enclose a small length of the passageway and increases the enclosure, however to me this is not to the extent where it would cause safety concerns to other users of the passageways. As such I have not found any detriment from the scheme relating to highway safety.

For these reasons, and having considered all matters raised in evidence and from what I saw during my site visit, I conclude that the appeal should be allowed and planning permission granted insofar as it relates to elements described in Paragraph 2 above, subject to the conditions as detailed in this letter.

As the terrace is both physically and functionally severable to the boundary fence, I consider a split decision would be a logical outcome. I refer to the suggested conditions specified by the Council, if the appeal was to be allowed and have considered them in accordance with the Planning Practice Guidance (PPG).

As the development is retrospective there is no need for a condition seeking the development to commence. There is however a need to make reference to the approved plans which is the only condition required.