Retrospective planning application for raised patio, plus new section of trellis on top of existing fence
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Residential Amenity
Fallback Position
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Inspector’s Reasoning
Appeal Decision
Site visit made on 6 October 2020
by C Coyne BA (Hons) DipTP MRTPI
an Inspector appointed by the Secretary of State
Decision date: 13 November 2020
Appeal Ref: APP/U4610/D/20/3257452
936 Broad Lane, Coventry CV5 7FG
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission.
• The appeal is made by Ms A Foster and Mr M McDaide against the decision of Coventry
City Council.
• The application Ref HH/2020/0732, dated 18 March 2020, was refused by notice dated
19 May 2020.
• The development proposed is retrospective planning application for raised patio, plus
new section of trellis on top of existing fence.
Decision
1. The appeal is allowed and planning permission is granted for retrospective
planning application for raised patio, plus new section of trellis on top of
existing fence at 936 Broad Lane, Coventry CV5 7FG in accordance with the
terms of the application Ref HH/2020/0732, dated 18 March 2020, and the
plans submitted with it, subject to the following conditions:
1) The proposed trellis fencing hereby permitted shall be carried out in
accordance with the following approved plans: Drawing 2000-SK-001;
Drawing 2000-SK-002.
2) The proposed trellis fencing hereby permitted shall begin not later than 1
year from the date of this decision.
Application for costs
2. An application for costs was made by Ms A Foster and Mr M McDaide against
Coventry City Council. This application is the subject of a separate Decision.
Procedural Matters
3. The application form indicates that the proposed development has already
taken place. On my site visit I saw that this was partially the case with the
proposed raised patio/decking area being in place with the proposed trellis
fencing not being in place. I have therefore determined the appeal on this
basis.
4. While on site I also observed that there is also a garden shed/playhouse on this
raised patio/decking area which the Council have referred to in their officer
report. However, notwithstanding this shed/outbuilding being in place, it does
not form part of the scheme before me and I have therefore determined the
appeal on this basis.
Appeal Decision APP/U4610/D/20/3257452
2
Main Issue
5. The main issue is the effect of the proposed development on the living
conditions of the occupiers of no. 938 Broad Lane having particular regard to
matters of privacy.
Reasons
6. The appeal property is a two-storey semi-detached dwelling with a long and
narrow rear garden with a sloping topography that lowers as it moves
backwards. The neighbouring property no. 938 has a similar back garden with
an outbuilding within it. There is also what appears to be a covered storage
area immediately to the rear of no. 938 in front of one of the ground floor
windows and shrubbery close to the shared boundary with no. 936. The
surrounding area is predominately residential with most properties on this side
of Broad Lane being of a similar style with comparable back gardens some of
which have outbuildings and/or raised patios/decking.
7. The proposed raised patio/decking area extends the existing one to the rear of
the dwelling by approximately 9 metres with a set of steps leading down to the
rest of the grassed garden area. It is also proposed to place a new section of
close woven lattice trellis on top of a lower section of the existing boundary
fence. As a result, the height of the fence would be approximately 1.8 metres
from the decking surface running from its nearest point to the dwelling to
where the steps are located. In effect this would mean that the height of the
fencing on the shared boundary would be the same in the area where the
raised patio/decking is located as it is in the rest of the garden.
8. I acknowledge that the proposal would result in some overlooking of the rear
garden area and ground floor rear windows of no 938. However, I consider that
the proposed trellis would raise the height of the existing fence so that it would
adequately mitigate this impact. Consequently, this in combination with the
presence of the covered storage area and boundary shrubbery means that, I
consider that the proposal would not cause an unacceptable visual intrusion or
loss of privacy to the occupiers of no. 938.
9. The appellants have also cited a fallback position consisting of the removal and
re-installation of the proposed raised patio/decking under permitted
development rights which would not include the proposed trellis. They have
also submitted substantive evidence to support this showing that a lawful
development certificate has been granted for such a development.
Consequently, there is a reasonable likelihood of it being implemented without
the mitigation of harm provided by the proposed trellis fencing and I have
therefore afforded this fallback position significant weight.
10. I therefore conclude that the proposed development would not materially harm
the living conditions of the occupiers of no. 938 Broad Lane having particular
regard to matters of privacy. As a result, the proposal would accord with policy
DE1 of the adopted Coventry City Local Plan 2017 and paragraph 130 of the
National Planning Policy Framework which aim to seek high quality design
amongst other considerations.
Appeal Decision APP/U4610/D/20/3257452
3
Conditions
11. As the proposal is partially retrospective the Council has not requested that any
planning conditions be imposed. However, I have imposed a necessary
condition to ensure that the proposed trellis fencing is carried out in accordance
with the approved plans, for the avoidance of doubt.
12. In the interests of the living conditions of neighbouring occupiers I have also
imposed a necessary implementation condition to ensure that the proposed
trellis fencing is installed within a reasonably quick period of time.
13. As the retrospective part of the proposal has already been granted a certificate
of lawful development, I have not imposed the standard retrospective
permission condition requiring details to be submitted in writing to the local
planning authority for approval.
Conclusion
14. For the reasons set out above I conclude that the appeal should be allowed.
C Coyne
INSPECTOR
£
Costs decision section
Costs Decision
Site visit made on 6 October 2020
by C Coyne BA (Hons) DipTP MRTPI
an Inspector appointed by the Secretary of State
Decision date: 13 November 2020
Costs application in relation to Appeal Ref: APP/U4610/D/20/3257452
936 Broad Lane, Coventry CV5 7FG
• The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Ms A Foster and Mr M McDaide for a full award of costs
against Coventry City Council.
• The appeal was against the refusal of planning permission for retrospective planning
application for raised patio, plus new section of trellis on top of existing fence.
Decision
1. The application for an award of costs is permitted in the terms set out below.
Reasons
2. The Planning Practice Guidance (the Guidance) advises that costs may be
awarded where a party has behaved unreasonably, and the unreasonable
behaviour has directly caused another party to incur unnecessary or wasted
expense in the appeal process. It also states that examples of unreasonable
behaviour by local planning authorities include preventing or delaying
development which should clearly be permitted, having regard to its
accordance with the development plan, national policy and any other material
considerations. Unreasonable behaviour in the context of an application for an
award of costs may be either procedural (relating to the process) or
substantive (relating to the issues arising from the merits of the appeal).
3. The applicant considers that the Council has behaved unreasonably by:
incorrectly interpreting its own development plan policy; placing excessive
weight on an out of date SPG; grossly misinterpreting permitted development
regulations; failing to consider an important material consideration i.e. the fall
back position of implementing permitted development rights; and introducing
an irrelevant and non-material issue into the consideration of the original
application.
4. The reason for refusal relates to the impact of the proposal on the living
conditions of the occupiers of no. 938 Broad Lane having particular regard to
matters of privacy. The reason for refusal also states that the proposal is
contrary to Policy DE1 of the adopted Coventry Local Plan as well as paragraph
130 of the National Planning Policy Framework (the Framework) both of which
would appear to relate primarily to the character and appearance of an area.
5. However, these policies do also relate to good quality design which according
to the National Design Guide should promote quality of life for the occupants
and users of buildings. The Framework also acknowledges that there is overlap
Costs Decision APP/U4610/D/20/3257452
2
between design and its role in creating better places in which to live and work
(paragraph 124) and creating places with a high standard of amenity for
existing and future users (paragraph 127 f)). Consequently, I am not satisfied
that this constitutes unreasonable behaviour by the Council.
6. Similarly, whilst the SPG may be old, this does not necessarily mean that it is
out of date. In any event I do not have sight of this SPG and so I do not have
sufficient evidence before me to be able to reach a conclusion as to whether or
not the Council behaved unreasonably in this regard.
7. I also acknowledge that the Council misinterpreted permitted development
regulations. However, I am not convinced that this was anything other than an
error in planning judgement and so I do not consider that this amounts to
unreasonable behaviour either.
8. Finally, in relation to the Council’s failure to consider the fallback position that
would allow the removal and replacement of the proposed raised patio/decking
under permitted development rights, given that the Council continued to refuse
permission for it even after it granted a lawful development certificate leads me
to conclude that this left the appellant with no option other than to lodge the
appeal. Consequently, I find that the Council behaved unreasonably with
respect to the substance of the matter under appeal.
9. Accordingly, in the overall planning judgement, it appears to me that having
regard to the provisions of the development plan, national planning policy and
other material considerations, the development proposed should reasonably
have been permitted. The refusal of planning permission therefore constitutes
unreasonable behaviour contrary the Guidance and the appellant has been
faced with the unnecessary expense of lodging the appeal.
10. As a result, I find the Council has behaved unreasonably by preventing or
delaying development which should clearly be permitted, having regard to its
accordance with the development plan, national policy and any other material
considerations.
11. I therefore conclude that substantive unreasonable behaviour resulting in
unnecessary or wasted expense, as described in the Guidance, has been
demonstrated and that an award of costs is justified.
Costs Order
12. In exercise of the powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other enabling powers in that behalf, IT IS HEREBY ORDERED that East
Coventry City Council shall pay to Ms A Foster and Mr M McDaide, the full costs
of the appeal proceedings described in the heading of this decision, such costs
to be assessed in the Senior Courts Costs Office if not agreed.
13. The applicant is now invited to submit to Coventry City Council, to whom a
copy of this decision has been sent, details of those costs with a view to
reaching agreement as to the amount.
C Coyne
INSPECTOR
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