This has arisen partly because of Central Government’s introduction of their National Planning Policy Framework, a document which is GUIDANCE not LAW, but which is a document that Bray Parish Council and RBWM is apparently afraid to treat as guidance, being more inclined to slavishly follow it.
Further, although anyone applying for planning permission, who has had such permission refused, has a right of appeal to the Central Government Planning Inspectorate based in Bristol; a resident badly affected by new building approved by a bad planning approval decision has no right of appeal, neither to the Planning Inspectorate, nor to the Local Authority.
In these modern days where Central Government has set the Planning Appraisal System to be biased in favour of development I consider that there is a need for an appeal system for those badly affected by impositions approved by a Local Authority.
I would be interested to hear from any residents who have had problems with Bray Parish Council and / or RBWM on Planning matters, whether these are problems due to planning permission being refused, or bad feelings about Planning Permission being given, resulting in the building of unsightly structures or impositions of any nature.
A resident who we shall refer to as “Resident A” has a problem; firstly in that a neighbour “Resident B” wishing to have a ground floor rear extension to replace an existing conservatory has included in their plan - side windows from which they could look into a rear patio door window on Resident A’s house.
The second problem is that when Resident A commented to Bray Parish Council and to RBWM Planning that the side windows could be acceptable but only if they would be glazed in densely occluded glass, neither BPC nor RBWM agreed with that, and gave permission to build and install the windows with plain glass.
Note at this point that when RBWM made their site visit they only visited the applicant (Resident B). RBWM Planning did not visit resident A, or set foot on Resident A’s property, so there is no way that they could fully appreciate the problem that will arise.
I consider that the fact that the site visit did not include a visit to Resident A's property makes this Planning Assessment null and void.
At this point I include the button below that will download a PDF of the North Somerset Council’s Supplementary Planning Document - Residential Design Guide – section 1 - Protecting living conditions of neighbours.
This document clearly recommends the use of densely occluded glass for windows that would impose such effects as will pertain in this case. Why has RBWM not included such wording in their Local Plan?
RBWM Planning explained as follows as to why they gave permission without requiring occluded glass;
“Applications for domestic extensions are assessed against the requirements of Policy H14 and sub-paragraph (2) requires that extensions should not cause an unacceptable loss of light of privacy to adjacent properties or significantly affect their amenities. The application proposes the replacement of the existing extension with one of a slightly larger footprint, due to the squaring-off of the south-west corner. Turning to how the Planning Authority assess whether development would cause an unacceptable loss of privacy we would take into consideration matters such as the following:-
- The existing development has side-facing windows; shown on plan as having an uppermost height of 2m above internal finished floor level.
- The proposed development would only extend closer to the adjacent dwelling for the rearmost 2m.
- The proposed development has side-facing windows; shown on plan as having an uppermost height 2.05m above internal finished floor level.
- Planning permission is not required for the insertion of any ground floor windows.
Turning to the matter of imposing conditions. The National Planning Policy Framework (2012) requires under paragraph 206 that “Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.” As planning permission is not required for the insertion of any ground floor windows under any circumstances, the Local Planning Authority would be acting unreasonably to impose conditions relating to such.
I’m sorry that, in this instance, your concern regarding the impact of the proposed windows in the development can be afforded little-weight as a material consideration.”
Resident A responded to RBWM Planning as follows (paraphrased slightly to make anonymous);
"Applications for domestic extensions are assessed against the requirements of Policy H14 and sub-paragraph (2) requires that extensions should not cause an unacceptable loss of light of (IT IS CLEAR TO ME THAT THE PREVIOUS WORD SHOULD BE "OR") privacy to adjacent properties or significantly affect their amenities."
I already sent you by email an electronic copy of a plan hand drawn by me on top of an extract from Resident B's plans. That plan clearly demonstrates the UNACCEPTABLE LOSS OF PRIVACY that will arise from the inclusion of side windows without occluded glass. It is clear that such an imposition will SIGNIFICANTLY AFFECT MY AMENITIES.
Any reasonable person would understand this, and I would expect someone who is a professional planner to be able to recognise this as an UNACCEPTABLE IMPOSITION.
What is more, any person who might otherwise buy my house will clearly be made less likely to do so because his neighbour would be able to look into his rear patio door windows and onto his rear patio. Alternatively the buyer will use the fact as justification for reducing the price he is willing to pay.
NEXT YOU SAY;
"The application proposes the replacement of the existing extension with one of a SLIGHTLY LARGER FOOTPRINT, due to the squaring-off of the south-west corner."
This is a GROSSLY INCORRECT SIMPLIFICATION - the application not only squares off the corner, it extends the plot by a further 940 mm (almost 1 metre). When the existing conservatory was installed many years ago the then owner had the courtesy to include the angled corner and not extend so far, (he mentioned it to me at the time) so that there would be firstly no imposition of overlooking of the nature that the current proposals will facilitate, and secondly - the inclusion of the 45 degree angled part reduced the amount by which the view from our windows was affected by the close wall of the conservatory.
NEXT YOU SAY;
Turning to how the Planning Authority assess whether development would cause an unacceptable loss of privacy we would take into consideration matters such as the following:-
The existing development has side-facing windows; shown on plan as having an uppermost height of 2m above internal finished floor level.
The proposed development would only extend closer to the adjacent dwelling for the rearmost 2m.
The proposed development has side-facing windows; shown on plan as having an uppermost height 2.05m above internal finished floor level.
Planning permission is not required for the insertion of any ground floor windows.
This is inaccurate as follows;
The existing development in the conservatory has side facing windows, BUT they are closer to the main house and so the angle of view onto my property is less direct. Note also that the current owner keeps these covered by closed venetian blinds. When the conservatory was originally built, a shrub on my side of the fence hid my house from those windows. From the plan I attach you will see how the new windows, especially the outer one, will facilitate a much more extensive and direct view into my home.
You say that the proposed development will only extend closer for the rearmost 2 metres, but it is that same 2 metres with associated window that makes the imposition that much greater.
You say that the new windows will be higher than the existing ones by 50 mm as if this is acceptable, but why should ANY increase in height be acceptable? In my plan attached I state that the window height above the fence will be 310 mm (1 foot). More than ample as a view point; and it now seems that as you say the new ones will be higher by 50 mm than the existing, this will actually mean about 457 mm (1.5 ft) of window above the fence top
You state that planning permission is not required for the insertion of any ground floor windows, but the word "window" does not define the nature of the window. I maintain that it remains open to you the planning authority to decide whether the glass in that window be occluded or not. I have a dictionary that defines a window as "Opening in wall to admit air and light, usually covered with glass." A window fitted with occluded glass meets that definition perfectly well.
NEXT YOU SAY;
Turning to the matter of imposing conditions. The National Planning Policy Framework (2012) requires under paragraph 206 that “Planning conditions SHOULD only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.” As planning permission is not required for the insertion of any ground floor windows under any circumstances, the Local Planning Authority would be acting unreasonably to impose conditions relating to such.
Firstly the NPPF in its Introduction Paragraph 13 states "The National Planning Policy Framework constitutes GUIDANCE for local planning authorities and decision-takers both in drawing up plans and as a material consideration in determining applications."
Secondly you must note the use of the word "should". "Should" is not mandatory; it allows you to use your common sense and gives you the freedom to make good decisions.
Further the full text of the NPPF section to which you refer is shown below;
“Planning conditions and obligations
203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.
204. Planning obligations should only be sought where they meet all of the following tests:
● necessary to make the development acceptable in planning terms;
● directly related to the development; and
● fairly and reasonably related in scale and kind to the development.
205. Where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled.
206. Planning conditions should only be imposed where they are necessary,
relevant to planning and to the development to be permitted, enforceable,
precise and reasonable in all other respects.”
So I refer to paragraph 203 where you are advised to consider whether otherwise unacceptable development could be made more acceptable through the use of planning conditions.
I consider that the planning condition I request IS MOST DEFINITELY NECESSARY as otherwise the resulting new ability of my neighbour or future unknown neighbours to look into my home is UNREASONABLE, AN IMPOSITION, A TORT UPON ME.
I say that you must consider whether planning permission is reasonable for the persons affected by the new works, NOT consider whether reasonable for the applicant who wishes to impose the tort.
Why, I ask myself should anyone wish to install a window that can facilitate a view into a neighbour’s house, and why is planning law not written to prevent that happening?
By copy of this to the Councillor responsible for Planning I ask him for his support.
I continue in my request that a condition be applied that the two proposed side windows in the extension be glazed in densely occluded glass, and I ask you what possible reason can there be for anyone to wish to have clear glazed windows on the side of their house through the upper 457 mm (1.5 ft) of which they can look into their neighbour's house and onto their patio. And I may add, through the lower part of which they can see only their own fence just over 1.1 metres distant.
I consider that my criticism of your statements has revealed many errors, and that you have failed in your duty of care to residents to ensure that plans you approve do not inflict unnecessary problems for those whom the proposals will affect. Further, these errors formed the basis of your persuasion of Cllr Walters to withdraw his call for this application to be considered by Development Control Panel, and I believe that you have incorrectly persuaded him to withdraw that application. Further I wonder if there is actually any established procedural basis within RBWM for a request for panel to be stopped.
I consider that my logic above is sufficient to support my request for densely occluded glass in the side windows proposed for the new extension. If you will not make that a condition of approval, then please advise me what is open to me by way of appeal against your decision.
RBWM responded by classing Resident A’s request as a complaint. But subsequently RBWM responded as shown below in red, with Resident A's comments in green;
I refer to your email dated 15th January. This email has been forwarded to me in order to try and address your concerns.
As detailed in the officers delegated report the planning officer carried out an assessment and did not consider that the proposal resulted in an unacceptable loss of privacy. The assessment took into account a site visit, development plan policies and knowledge of planning law.
The site visit was incomplete as it did not include a visit to my property.
The decision that the proposal would not result in an unacceptable level of overlooking was based upon the position and size of the proposed windows and account taken of the glazed side elevation of the existing conservatory.
This does not take account of the fact that the most offending of the new windows is further out from the existing windows and so gives a more extensive view into my home.
The case officer’s recommendation was checked by a Team Manager of considerable experience who agreed with the case officer’s assessment and their interpretation of policy.
Secondly, I can confirm that any loss of value in the property is I am afraid not a material planning consideration.
The increase in length of the extension by 94mm over the existing conservatory was assessed and was found not to harm your amenities through overbearing impact or loss of light and I do not consider that the matter has been over simplified.
The increase is 940mm not 94mm.
Officers cannot take into account whether existing windows are covered by blinds as it would be unreasonable to condition this and unenforceable. Any loss of privacy from the side windows was not considered so harmful to warrant refusal of the application.
It is subjective as to whether a loss of privacy is harmful. I consider it is harmful and I am best placed to judge especially as your planners in their site visit did not view the matter from my property.
The increase in height of the windows does not render the scheme unacceptable. Furthermore, it would have been unreasonable to have required the windows to have been obscured glazed as the level of overlooking was not considered unacceptable.
As mentioned above, your planners cannot judge whether or not the level of overlooking will be unacceptable because they did not view the matter from my property.
The imposition of a condition would not have been necessary or reasonable and would be considered ultra vires.
"Ultra vires" meaning "beyond your powers" is a nonsensical statement. Clearly the North Somerset Council does not consider it beyond their powers to require occluded glass and neither should RBWM.
The decision has now been issued and for the above reasons and the reasons contained within the officer’s report it is not considered necessary or reasonable to condition that the side windows are obscure glazed.
The decision has been wrongly issued and RBWM should recognise this and change their decision.
In assessing the case I do not agree with your statement that errors were made or that the local planning authority has failed in its duty of care to residents. Your concerns were professionally assessed in the determination of the application.
The lack of a proper site visit proves your assertion that the case was professionally assessed to be nonsense.
I can confirm that there is no procedure in place to prevent a Councillor changing their mind regarding the call in of an application to panel.
You have not addressed my complaint that you incorrectly persuaded Councillor Walters to "change his mind" and withdraw his call in of the application to panel. He was incorrectly persuaded through RBWM use of NPPF wording selectively favourable to RBWM cause; whereas as I have pointed out - other NPPF wording requires that in cases of unacceptable loss of privacy conditions are to be applied.
Lastly, I can confirm that there is no right of appeal for third parties. If you feel that you still have outstanding issues then you need to pursue these under the Council’s complaint procedure.
Details of the Councils complaint procedure can be found on our Web Site using the following link
http://www3.rbwm.gov.uk/info/200407/complaints_procedure/898/complaints_policy_and_procedure. However, I believe you have already embarked upon this procedure.
Resident A has now made a formal complaint against both RBWM and Bray Parish Council.
I conclude as follows;
The Localism Act and the NPPF combine to make Local Authorities more likely approve Planning Applications. This is because to disallow or to impose conditions sets the scene for the applicant to appeal, causing more expense for the Local Authority. Conversely, the neighbour who is inconvenienced by the new works has no right of appeal, so to always approve is the cheaper option for the Local Authority. Further, a Planning Officer who has a record of no appeals against their decisions, saving money for the Local Authority, becomes (incorrectly) a good employee, and enables the writing of a seemingly good CV.
I have asked Theresa May to press for a change in the Planning process so that anyone affected by a development approved by a Local Authority may appeal against it.
I consider that RBWM’s failure to perform a site visit to the neighbours property to properly assess the effect of the proposed extension’s windows is a sufficient omission to make RBWM’s approval invalid.
RBWM have incorrectly treated the NPPF as law not guidance.
RBWM have selectively quoted from the NPPF in an attempt to justify their wish to approve with no conditions.
RBWM used the selective quotes from the NPPF to gull the Councillor who had agreed to call in the application for consideration by panel, into withdrawing his application.
This blog is open to comments from anyone.
Subsequent to this post, a gentleman who has been similarly affected added a post below.
To make it easier to see the situation into which RBWM have placed him I make a PDF of the description available through clicking the button "Former Bricklayers Arms".
The link below gives an interesting insight into the behaviour of RBWM Councillors.