Bath and North East Somerset Council by nyut545e2

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									                Bath and North East Somerset Council

MEETING: Development Control Committee                      AGENDA

MEETING DATE: 17th March 2010                               ITEM NO:
REPORT OF David Trigwell, Divisional Director of Planning and
Transport Development.

Maggie Horrill, Planning and Environmental Law Manager

REPORT ORIGINATOR: Ms Lisa Bartlett, Development Manager (Tel.
Extension No. 7281).

DATE PREPARED: 22nd February 2010
                            AN OPEN PUBLIC ITEM
BACKGROUND PAPERS: Appeals and Enforcement files.
TITLE: Enforcement Report: 41 Elliston Drive, Southdown, Bath.
WARD : Southdown




1.0 PURPOSE OF REPORT

1.1 To seek delegated authority from the Committee to take any necessary
enforcement action with respect to the unauthorised dormer roof extension
constructed on the property.




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2.0 LOCATION OF PLANNING CONTRAVENTION

2.1 No. 41 Elliston Drive, Southdown, Bath, BA2 1LU (“the Property”), as outlined
in bold on the attached site location plan (Appendix 1).

3.0 OUTLINE OF PLANNING CONTRAVENTION

 3.1 Without the benefit of planning permission the construction of a dormer roof
extension within the rear roof slope. Members should note that this has never
constituted permitted development.

4.0 RELEVANT PLANNING HISTORY

4.1 In response to a number of complaints, the Property was visited on the 12th June
2006. Officers observed that the height of the roof ridge of the Property had been
increased and the unauthorised dormer was under construction. The owner was
advised that planning permission was required.

4.2 A planning application (06/02616/FUL) was submitted on the 24th July 2006 for a
“Loft conversion with rear dormer”. This was subsequently withdrawn by the
applicant/owner on the 9th August 2006.

4.3 A second planning application (06/03135/FUL) was submitted on the 4th October
2006 for a “Loft conversion with rear dormer extension (resubmission). The
application was refused, under delegated authority, on the 7th November 2006 for the
following reason:
       “The dormer window, by virtue of projecting above the existing ridge of the
      roof, is considered to be a poorly designed and incongruous addition to the
      original property, failing to compliment the appearance of the original building,
      and is therefore detrimental to the character of the area and the World Heritage
      Site, contrary to policies C1 and C2 of the Bath Local Plan 1997; and policies
      D.4 and BH.1 of the Bath and North East Somerset Local Plan deposit draft
      2003, as modified.”

4.4 Subsequent site visits established, meanwhile, that the unauthorised construction
works were continuing towards completion.

4.5 A third (retrospective) planning application (07/00427/FUL) was submitted on
the 21st February 2007 for “Alterations to roof slope to alter pitch and raise ridge and
the provision of a rear dormer (Retrospective application)”. The application was
refused under delegated authority, on the 3rd July 2007 for the following reason:
      “The proposed development would have an incongruous appearance in the
      street scene, by virtue of the raising of the roof ridge and changes to the roof
      pitch, which is contrary to the uniform appearance of this group of buildings,
      and is therefore detrimental to the character of the area and the World
      Heritage Site, contrary to policies C1 and C2 of the Bath Local Plan 1997; and
      policies D.2, D.4 and BH.1 of the Bath and North East Somerset Local Plan
      (including minerals and waste policies) as proposed to be amended, 2006.”




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4.6 Subsequently, a report was presented to the Development Control Committee, at
its meeting on the 8th August 2007, which recommended that delegated authority be
granted to pursue appropriate enforcement action in respect of the unauthorised
works. Members resolved to accept the recommendation.

4.7 An Enforcement Notice was issued on the 22nd August 2007, seeking the
reinstatement of the roof to its original pitch; and the removal of the rear dormer
window, both to be undertaken within 4 months from the date on which the Notice
took effect. The Notice was subsequently appealed by the owner, on grounds (a): that
planning permission should be granted, (f): that lesser steps would overcome the
objection and (g): that the period for compliance is too short. The Inspector appointed
to consider the appeal noted that
         “…the ridge had been raised by something like 600mm rather than the
          smaller dimension suggested on behalf of the appellant…”.

He further acknowledged that, with adjustment, the new dormer could fall within the
(then) provisions of the Town and Country Planning (General Permitted
Development) Order 1995 (GPDO), which, with provisos, under Class B permitted
“The enlargement of a dwellinghouse consisting of an addition or alteration to its
roof.”. The Inspector considered however that
        “…in the circumstances of this case, the alteration required for that purpose
          would have to be substantial…”.
He determined, on the 22nd January 2008, to dismiss the appeal and uphold the
Enforcement Notice (subject to an extension of 2 months on the compliance period),
concluding that
        “…the site is sensitive because of the small gardens of the houses on steeply
          sloping ground so that extensions of this nature lead to unacceptable
          intrusion into private areas…”.

Members should note that an amendment to the GPDO came into force on the 1st
October 2008. Significantly, the provisions of Class B no longer apply within the
World Heritage Site (within which the Property is situated).

4.8 On the 6th March 2008 an application for a Certificate of Lawfulness of Proposed
Use or Development was submitted (08/00887/CLPU). A certificate, under Sections
191 and 192 of the Town and Country Planning Act 1990, is a statutory document
certifying either 1) the lawfulness of existing operations on, or use of land; or 2) the
lawfulness of proposed operations on, or use of land. The application sought to
demonstrate that by replacing the original ridge tiles with a lead flashing to
correspond with the flat roof of the dormer, the resulting development would fall
within the provisions of the (then) GPDO. The submitted drawings, which were in
themselves contradictory and ambiguous, nevertheless described an increase in ridge
height of approximately 275mm. Consequently, a Certificate was declined, on the 1st
May 2008, for the reason that it had not been demonstrated that the proposed works to
the roof would cause the roof as altered to be no higher than the original roof.

4.9 On the 25th July 2008 a fourth (retrospective) planning application was submitted
(08/02704/FUL).The application sought to retain the increased ridge height and
dormer extension, but clad the latter with tile-hanging in place of upvc boarding. The



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application was refused under delegated authority, on the 26th September 2008, for the
following reasons:
    1. The development by reason of the raising of the roof pitch, alterations to the
       roof slope and formation of the dormer, has an incongruous and damaging
       effect on the area, to the detriment of the visual amenities of the area which
       forms part of the Bath World Heritage Site, contrary to Policies BH.1, D.2
       and D.4 of the Bath and North East Somerset Local Plan (including minerals
       and waste policies)2007.
    2. The window formed in the rear dormer as part of the development creates a
       perception of overlooking of neighbouring occupiers to the detriment of these
       occupiers, contrary to Policy D.2 of the Bath and North East Somerset Local
       Plan (including minerals and waste policies)2007.

4.10 On the 28th July 2008 a second application for a Certificate of Lawfulness was
submitted (08/02725/CLPU). The application sought to demonstrate that by reducing
the pitch of the front roof slope only, the resulting development would fall within the
provisions of the (then) GPDO. The submitted drawings appeared to be not entirely
representative, but this time described no increase upon the original roof height. Since
no reduction in the height of the dormer roof was proposed, this was also inconsistent
with the previous findings referred to in para. 4.7 above. Consequently, a Certificate
was again declined, on the 22nd September 2008, for the reason that it had not been
demonstrated that the proposed works to the roof would cause the roof as altered to be
no higher than the original roof.

4.11 A fifth planning application (09/00150/FUL) was submitted on the 19th January
2009 for “Installation of a rear dormer (Retrospective) (Resubmission)”. The
application was subsequently refused under delegated authority, on the 25th March
2009, for the following reasons:
      1. The proposed dormer by reason of its size, design and location would
        represent an intrusive and oversized feature which would be damaging to the
        appearance of this house and the area, which forms part of the Bath World
        Heritage Site, contrary to Policies BH.1, D.2 and D.4 of the Bath and North
        East Somerset Local Plan (including minerals and waste policies)2007.
     2.The proposed dormer would be an intrusive and oversized feature which would
        detract from the amenities and outlook of the occupiers of houses to the north
        of the site, contrary to Policy D.2 of the Bath and North East Somerset Local
        Plan (including minerals and waste policies)2007.

However, contrary to previous reports, the Delegated Report indicated that the
increase in the height and pitch of the roof, in isolation, would not cause significant
harm to the street scene.

4.12 Failure on the part of the owner to comply with the requirements of the
Enforcement Notice prompted the Council to consider prosecution proceedings.
However, because the most recent report had concluded (para. 4.11 above) that the
increase in the height of the roof ridge was not, in itself, unacceptable, it was felt that
it would no longer be appropriate to pursue a prosecution on the basis of the current
Enforcement Notice.




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4.13 The owner was advised, by letter dated 17th April 2009, that a planning
application to retain the height of the roof, as built, would be likely to receive officer
support. He was further advised however that the dormer window construction
remained unacceptable.

4.14 In the absence of any further application, an Enforcement Report was presented
to and considered by the Development Control Committee at its meeting on the 9th
September 2009. Members resolved, inter alia, to defer further enforcement action to
allow the owner to submit another, revised, application in an attempt to regularise the
situation.

4.15 As a result of that resolution, the sixth application (no. 09/04029/FUL) was
registered on the 16th November 2009. It proposed the retention of the raised ridge
height and the re-cladding of the dormer roof extension in tile hanging. The
application was considered by the Development Control Committee at its meeting on
the 17th September 2010, where Members resolved to refuse planning permission for
the following reasons:
   1. The proposed dormer roof extension, by reason of its overall scale, bulk and
      design, would continue to appear as a dominant and incongruous feature, to the
      detriment of the character and appearance of the host property and the group
      of which it forms a part. The proposal would therefore be contrary to Policies
      D.2 and D.4 of the Bath and North East Somerset Local Plan (including
      minerals and waste policies) 2007.
  2. The proposed dormer roof extension, by reason of its overall scale, bulk and
      design, would continue to overlook and be overbearing of neighbouring
      properties, to the detriment of the residential amenities thereof. The proposal
      would therefore be contrary to Policy D.2 of the Bath and North East Somerset
      Local Plan (including minerals and waste policies) 2007.

4.16 There have been a considerable amount of meetings and correspondence with
the owner in an attempt to resolve this situation. However, the dormer remains
unacceptable and your officers are therefore seeking authority to serve a new
Enforcement Notice in respect of the dormer alone.

5.0 DEVELOPMENT PLAN

5.1 Of particular relevance to this matter is the Bath and North East Somerset Local
Plan, including minerals and waste policies, adopted October 2007 (the Local Plan).
Policies D.2 and D.4 therein relate to design and townscape objectives.

6.0 CENTRAL GOVERNMENT ADVICE

6.1 Relevant advice is contained in Planning Policy Statement 1 (PPS 1): Delivering
Sustainable Development; PPS 3: Housing; and Planning Policy Guidance 18:
Enforcing Planning Control.
.
7.0 EXPEDIENCY OF ENFORCEMENT ACTION

7.1 It is acknowledged that the dormer roof extension is not visible from the public
highway to the front of the Property. However the dormer has been identified by both


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the Local Planning Authority and the Planning Inspector, as an obtrusive feature
within the context of the relatively intimate area of gardens on sloping ground to the
rear. Furthermore, the close relationship to neighbouring properties exacerbates the
degree of overbearing and perception of a loss of privacy resulting from the
development, notwithstanding the introduction of obscure glazing to the window.

7.2 The recent appeal decision is a material consideration to which significant weight
should be attached. The planning merits of the development have been considered
having regard to adopted policies which reflect current Government advice. The
raising of the roof ridge, resulting in an increase in the pitch, has, in itself,
subsequently been considered to be acceptable because there is no significant
detrimental impact on the appearance of the Property and the surrounding area, nor on
the residential amenity thereof. However, the construction of the dormer roof
extension, continues to cause significant harm because its overall scale, bulk and
design, appears as a dominant and incongruous feature and is detrimental to the
amenity of nearby residents. In the circumstances, enforcement action against the
dormer is therefore considered expedient.

8.0 HUMAN RIGHTS

8.1 It is considered that Article 1 of Protocol 1 (peaceful enjoyment of possessions)
and Article 8 (right to respect for private and family life, home and correspondence)
of the European Convention on Human Rights may apply in this case. However, these
rights must be weighed against the rights of neighbouring occupiers who may be
adversely affected by the unauthorised development. Taking into account the planning
harm identified above, and the previous appeal decision, it is considered that the
public interest weighs in favour of enforcement action.

9.0 RECOMMENDATION

9.1 That delegated authority be granted to the Development Manager, in consultation
with the Planning and Environmental Law Manager, to take any necessary
enforcement action on behalf of the Local Planning Authority in respect of the alleged
planning contravention outlined above, by exercising the powers and duties of the
Authority (as applicable) under Parts VII and VIII of the Town and Country Planning
Act 1990 (including any amendments to or re-enactments of the Act or Regulations or
Orders made under the Act) in respect of the above Property.


General Note

       This specific delegated authority will, in addition to being the subject of
       subsequent report back to Members in the event of Enforcement Action either
       being taken, not being taken or subsequently proving unnecessary as
       appropriate, be subject to:
       (a)    all action being taken on behalf of the Council and in the Council's
              name;
       (b)    all action being subject to statutory requirements and any aspects of
              the Council's strategy and programme;



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(c)   consultation with the appropriate professional or technical officer of
      the Council in respect of matters not within the competence of the
      Head of Planning Services, and
(d)   maintenance of a proper record of action taken.




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