Appeal Against Conditions

Appeal Decision Site visit made on 31 July 2017 by Nicola Davies BA DipTP MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 25th September 2017 Appeal Ref: APP/M3645/D/17/3177293 10 The Heath, Chaldon CR3 5DG  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission under section 73 of the Town and Country Planning Act 1990 for the development of land without complying with conditions subject to which a previous planning permission was granted.  The appeal is made by Mrs S Lyles against the decision of Tandridge District Council.  The application Ref TA/16/2124, dated 14 November 2016, was refused by notice dated 15 March 2017.  The application sought planning permission for the demolition of existing detached garage and erection of part single, part two storey side and rear extensions and steps to rear without complying with a condition attached to planning permission Ref TA/2014/1299, dated 1 October 2014.  The condition in dispute is No 2 which states that: The decision refers to drawings numbered 13346/TP/01, 13346/TP/02, 13346/TP/03, 13346/TP/20 and 13346/TP/21 scanned on 14 August 2014. The development shall be carried out in accordance with these approved drawings. There shall be no variations from these approved drawings.  The reason given for the condition is: To ensure that the scheme proceeds as set out in the planning application and therefore remains in accordance with the Development Plan. Decision 1. The appeal is allowed and planning permission is granted for the demolition of existing detached garage and erection of part single, part two storey side and rear extensions and steps to rear at 10 The Heath, Chaldon CR3 5DG in accordance with the application TA/16/2124 dated 14 November 2016, without compliance with condition number 2 previously imposed on planning permission Ref TA/2014/1299, dated 1 October 2014 and subject to the following conditions: - 1) The development hereby permitted shall be carried out in accordance with the following approved plans: Drawing Nos 13346/TP/01 and 13346/TP/MOD/O04 Rev C. 2) The materials to be used for the external surfaces of the proposed development hereby permitted shall match those used in the existing building. 3) Prior to the completion of the development hereby approved the windows in the eastern elevation shall be permanently fitted with obscure glass and shall be non opening unless the part of the window which can be opened are Appeal Decision APP/M3645/D/17/3177293 2 more than 1.7m above the floor of the room in which the window is installed and shall be maintained as such. Preliminary Matters 2. At the time of my visit building works had taken place to extend the property. I also observed that a terrace to the rear that extends the full width of the property had been constructed. Background and Main Issue 3. The 2014 planning permission allowed a limited depth projection that incorporated a modest terrace with steps leading downward to the rear garden. The plans, the subject of this appeal, propose a deeper terrace to that permitted but it is shown to have a partial step in from a flank wall at the north eastern side. 4. The main issue is whether Condition 2 that stipulates the agreed plans and correspondingly the agreed development and the depth of the rear stepped projection is reasonable or necessary with particular regard to the living conditions of occupiers of the adjoining properties. Reasons 5. The land levels to this part of The Heath decline in gradient from south west to north east. No 8 The Heath (No 8), adjacent, to the north east is therefore positioned at a lower land level to that of the appeal site and its dwelling. The appeal property and its extensions at the rear project to a greater depth than that of this adjoining property. 6. The 2014 permission allowed for a modest full-width terrace. The proposal would increase the depth of the terrace and enable it to be used for the enjoyment of the occupiers. For this reason it would, therefore, be likely to be more intensively used. The Council is concerned that elevated terrace above the ground level of the appeal site and the elevated nature of the appeal site to that of the adjoining property at No 8 has the potential to cause unacceptable observation of the house and garden of No 8. 7. A small part of the proposed terrace would extend up to the north eastern side of the dwelling but this part of the proposal would be the same as that permitted by the 2014 permission. The deeper terrace area would be stepped in from the north eastern side wall of the dwelling and it would have a greater separation to the common boundary with the adjoining neighbours. 8. I observed that in order to gain any clear view of the adjoining dwelling and its garden it would be necessary to stand within very close proximity to the north eastern side of the extended part of the terrace, and looking directly out from, the terrace at that point. However, such observation of the adjoining property and its garden is not readily achievable from further within the terrace. The flank wall has been erected on site and I saw that this restricts downward observation of the adjoining garden. Also, the existing hedge that separates the gardens of the appeal property and No 8 would also restrict downward observation of the deeper part of the adjoining occupiers long garden. I note the proposal includes raising the height of the fence along the common boundary. This would also restrict observation toward the dwelling and the garden of No 8. Appeal Decision APP/M3645/D/17/3177293 3 9. Whilst it is possible that overlooking could take place from time-to-time, such views are not readily available and would need to be actively sought. Therefore I do not consider this will be a regular occurrence during the normal day-to-day use of the terrace. For these reasons the terrace with flank wall would not lead to unacceptable harm to the living conditions of the occupiers of No 8 from overlooking or the perception of being overlooked. 10. The Council comment that a taller fence along the common boundary would have an overbearing impact upon the adjoining occupiers and third party concern has been raised to potential loss of daylight as a result of increasing the height of the fence. Whilst some increase in fence height would be noticeable to the occupiers of No 8, it would not, in my opinion, be so visually prominent or intrusive in outlook when viewed in the context of the extensions that have already taken place to the appeal property. Given the orientation of No 8 to the appeal site it would be unlikely that daylight to the adjoining garden would be significantly altered. 11. I conclude that the proposed development, with a varied condition to allow for a deeper patio at the property, would not cause unacceptable harm to the adjoining occupiers living conditions with regard to overlooking and privacy. As such, the proposal would not materially conflict with Policy CSP18 of the Tandridge District Core Strategy 2008 and Policy DP7 of the Tandridge Local Plan Part 2: Detailed Policies 2014 – 2029 in so far as they seek to prevent such harm. Conditions 12. The guidance in the Planning Practice Guidance makes it clear that decision notices for the grant of planning permission under section 73 should also repeat the relevant conditions from the original planning permission, unless they have already been discharged. As I have no information before me about the status of the other conditions imposed on the original planning permission, I shall impose all those that I consider remain relevant. In the event that some have in fact been discharged or complied with, that is a matter which can be addressed by the parties. 13. As part of the development has been undertaken the need to reattach a start date condition is unnecessary. I have considered the planning conditions previously imposed by the Council in light of paragraph 206 of the National Planning Policy Framework and the advice in the Planning Practice Guidance. In the interests of certainty and to ensure the protection of the living conditions of the adjoining occupiers it is appropriate that there is a condition requiring that the development is carried out in accordance with the new plans. 14. A condition relating to materials is appropriate in the interests of the character and appearance of the area. A condition restricting the windows in the eastern elevation to be obscure glazed and non opening (unless the part of the window which can be opened are more than 1.7m above the floor of the room) is required in the interests of the living conditions of adjoining occupiers. Conclusions 15. For the reasons set out above I conclude that restricting the development to that shown on those plans listed within Condition 2 is not reasonable and necessary in order to protect the interests of the living conditions of adjoining Appeal Decision APP/M3645/D/17/3177293 4 occupiers and therefore the appeal should be allowed. I will grant a new planning permission deleting Condition 2 and substituting it with a new condition, together with the imposition of those previously imposed conditions considered appropriate above. Nicola Davies INSPECTOR