Appeal 6007499

The appeal is allowed and planning permission is granted for a first-floor extension - new flat at [site address] in accordance with the terms of the application, [name]/25/71175, subject to the following conditions:

The development hereby permitted shall begin not later than three years from the date of this decision.

The development hereby permitted shall be carried out in accordance with drawing no ANS/310/01 dated 5 November 2025.

The external materials of the extension hereby permitted shall match those used in the existing building.

Before the development is first occupied, details of facilities for the storage of refuse shall be submitted to and approved in writing by the local planning authority. The approved refuse storage facilities shall then be provided prior to first occupation of the development and thereafter retained as such.

The main issues for this appeal are: • The proposal’s effect on the character and appearance of the host property; and, • The effect of the proposal on the living conditions of the occupiers of 6a & 6b [site address] and [address] with regard to privacy, outlook, natural light and sunlight.

[site address] is a busy and vibrant street with a variety of retail and commercial premises along its south-western side. The appeal site is a two-storey terraced property containing a jewellers’ shop at ground floor and a residential flat above. [address], to the north-west of the appeal site, is a residential street formed of two-storey terraced properties of similar design and uniform frontage.

The proposal would extend to the rear at first floor and create an additional residential flat, incorporating a partially flat and partially mono-pitched roof. Views of the south-eastern side of the extension would be limited to those from a small section of a rear accessway serving the premises and from within neighbouring properties. The roof pitch, ridge and eaves lines would reflect those of the existing property whilst the flat roofed section would be minor and subservient. Given these features and the inclusion of fenestration to visually break up the side wall of the extension, the proposal would not cause an inappropriate tunnelling effect or unacceptable harm to the character or appearance of the host property.

Taking all of the above into account, I conclude that the proposal would meet the objectives of Policies ENV3 and CSP4 of the Black Country Core Strategy (2011) (BCCS) and Policy SAD EOS 9 of the Site Allocations and Delivery Development Plan Document (2012) (DPD) which promote high standards of design in new development appropriate for its context and its relationship with the public realm.

The extension’s siting to the north-west of the adjacent ground floor flat at 6a and its associated small external amenity area, would prevent occupiers of that flat experiencing a harmful loss of sunlight. Outlook from the rear of 6a is already constrained by its part-subterranean ground level and existing flanking walls and would not be significantly worsened by the proposal.

The adjacent first floor flat at 6b includes a bedroom window on the rear elevation of the main property. The proposed extension would be visible from this window and outlook would be affected, but mitigated by the intervening distance of several metres, the retention of the recessed section of the existing first floor flat and the partial flat roofed design of the proposal. These mitigating factors would ensure outlook from, and natural light to the bedroom window were not substantially harmed. Due to its orientation, sunlight reaching this window could only be affected late in the day as the sun was low in the sky, and when overshadowing would already be likely from existing surrounding properties. As such, the proposal would not significantly affect the sunlight reaching this bedroom window.

The appeal site is faced to the south-west by the windowless two-storey side gable of [address]. To its rear, this property has a part single, part two-storey outrigger with several windows facing north-east towards the appeal site, and a yard beyond. Views towards the rear yard from the appeal proposal would be at an oblique angle and the limited overlooking of rear gardens/yards such as this is not uncommon in close-knit urban residential environments.

The proposed extension includes a rear facing lounge/bedroom window and a smaller vertical window alongside. Direct views from the lounge/bedroom window would be towards the blank side gable wall of no 1 and outlook from the smaller window would be restricted due to its positioning over a stairwell. Whilst more oblique views towards the outrigger of no 1 would be possible, its first-floor window is small, high-level and appears to serve a bathroom, protecting occupiers of that property from a significant loss of privacy.

Views from the proposal towards a ground floor window in the two-storey part of the outrigger are, however, likely to result in harm to the occupiers of no 1 through overlooking and an associated loss of privacy. I have considered whether this harm could be mitigated by a planning condition requiring the extension’s lounge/bedroom window to be fitted with obscure glazing and fixed shut, but conclude this would cause unacceptable living conditions for occupiers of the proposed development.

The harm through loss of privacy is mitigated to some extent by existing boundary walling and the vertical separation of the existing and proposed windows. However, some loss of privacy would still occur. Whilst this loss would be minor, the proposal would nonetheless conflict with Policy HOU2 of the BCCS which seeks to ensure new residential development minimises amenity impacts.

The appeal site is located within the Smethwick [site address] CA. Given its siting at the rear of the property, the proposal would not affect the character or appearance of the [site address] frontage of the CA. [address], the north-western flank elevation of the extension would be visible from limited viewpoints, though set back from the road, reducing its impact. Given the variety of architectural styles around the junction of [address] and [site address] , the proposal would appear as a complimentary structure in this part of the CA. With reference to the duty in Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act), the proposal would preserve the character and appearance of the CA. Therefore, publicity under s73(1) of the Act was not required.

Planning permission for an identical development to that now proposed (ref DC/21/66222) was approved by the council in December 2021 (the 2021 permission). This permission was not implemented and has since lapsed.

I accept that the council is not bound by a previous grant of planning permission. However, the evidence indicates that there have been no material changes in circumstances since the 2021 permission in either the policies of the development plan or site circumstances. Whilst the National Planning Policy Framework (the Framework) has been revised in the intervening period, the council does not draw my attention to any material changes relevant to this proposal. I conclude that the 2021 permission is a significant material consideration in favour of the appeal. In support of the proposal, the appellant advances that it would deliver an additional dwelling in an area of significant need, making efficient use of a brownfield site in a sustainable location, takes the opportunity to use airspace above commercial premises for a new home in accordance with paragraph 125 e) of the Framework, and would provide short-term economic benefits during construction and long-term support to the vitality of local services. I give these factors positive weight in my decision. Achieving minimum floorspace standards and the absence of objections from nearby residents are neutral factors in my

I have found that the proposal would conflict with Policy HOU2 of the BCCS. This policy is consistent with the Framework in so far as it seeks development which provides a high standard of amenity. Therefore, the conflict with Policy HOU2 should be given significant weight in this appeal.

The council cannot currently demonstrate a five-year supply of deliverable housing sites. The appellant suggests only a 1.63-year supply can be evidenced and this is not challenged by the council. The council’s policies for the delivery of housing are therefore deemed to be out of date and the provisions of paragraph 11 d) of the Framework are applicable. There are no policies listed in footnote 7 that provide a strong reason for refusing the development. The proposal is therefore considered under the provisions of paragraph 11 d) ii).

The benefits of the scheme referred to above attract substantial weight in its favour given the significant shortfall in the council’s housing land supply. Furthermore, the 2021 permission provides a strong reason to allow the appeal in the absence of any changed circumstances.

My finding is therefore that the minor adverse impact to living conditions caused by a loss of privacy to one ground floor window in the side elevation of the rear outrigger to [address] does not significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole. Consequently, the presumption in favour of sustainable development applies. This is a material consideration of significant weight in favour of the proposal, and sufficient to outweigh the limited harm identified.

I have considered the planning conditions suggested by the council against the tests in the Framework and the advice in the Planning Practice Guidance. I have also had regard to the conditions attached to the 2021 permission and find it appropriate to apply similar conditions in this case. In addition to the standard time limit condition, I therefore apply conditions specifying the approved plans with which the development should accord in the interests of certainty, requiring the use of matching materials in the interests of the appearance of the development, and requiring details of refuse storage in the interests of the living conditions of occupiers. I have amended the conditions in the 2021 permission for precision, to remove any unnecessary details, and to ensure they meet the relevant tests set out in the Framework.

I have not included the council’s suggested conditions requiring a noise assessment, a construction management plan and restricted hours of construction. The council did not deem these conditions necessary in 2021 and given the scale and nature of the development, I consider them unnecessary now.

The proposed development would conflict with the development plan, but material considerations indicate that a decision should be made other than in accordance with it. Accordingly, the appeal is allowed.