The site and background
This case concerned a Victorian terraced house on Ormeley Road, in south west London. The property has a two-storey rear outrigger and sits within a mixed urban context, with traditional terraced housing to the west and south and a commercial estate to the east, fronting Cavendish Road.
Planning permission had previously been granted for a loft conversion with rear dormer extensions and a roof terrace. The development was carried out, but not strictly in accordance with the approved drawings. In particular, changes were made to the form of the secondary dormer, the height of parapet walls and the detailed arrangement and screening of the roof terrace.
An application was therefore made under section 73A of the Town and Country Planning Act 1990 to regularise the development as built. That application was refused by the council, and a retrospective planning appeal was lodged.
The reason for refusal
The council’s refusal was based on two alleged harms.
First, it was said that the changes to the approved scheme resulted in excessive bulk and an unsympathetic form of development, harming the character and appearance of the property and the wider area.
Second, the council argued that the roof terrace resulted in harmful overlooking and an unacceptable loss of privacy to neighbouring occupiers.
The refusal did not dispute that a roof terrace had already been approved in principle, but focused on whether the as-built development went materially beyond what had previously been found acceptable.
The appeal case
The appeal case was framed around the correct starting point for decision-making in retrospective appeals of this kind.
It was emphasised that there was an extant planning permission for a closely related scheme, and that the main question was whether the differences between the approved drawings and the development as built resulted in material harm.
In design terms, it was explained that the secondary dormer had been constructed as a conventional box dormer rather than a mansard-style form. While this marginally increased the apparent volume, its overall width, height and depth were unchanged. Box dormers were shown to be a strongly established and dominant feature of the rear streetscape, both along Ormeley Road and in the surrounding area, particularly in views from Cavendish Road.
The appeal submissions also demonstrated that the rear of the property sits within a varied and mixed townscape, with numerous large dormers, parapet walls and roof-level additions visible from the public realm. Against that context, the appeal development was not visually intrusive and did not harm the character or appearance of the area.
In relation to residential amenity, it was accepted that the roof terrace, as built, differed from the approved scheme in terms of the height and transparency of the screening. However, it was made clear that this was a matter capable of being addressed by condition. The appellant confirmed a willingness to install obscure-glazed screening to an increased height, consistent with the earlier permission, if the inspector considered this necessary to protect neighbours’ privacy.
The inspector’s decision
The appeal was allowed and planning permission granted, subject to conditions.
The inspector accepted that the development had been carried out retrospectively and considered the appeal on that basis. He identified the main issues as the effect of the development on the living conditions of neighbouring occupiers and on the character and appearance of the area.
In respect of privacy, the inspector found that the roof terrace, as built, did result in unacceptable overlooking. However, he also concluded that this harm could be satisfactorily resolved by requiring the installation of obscure-glazed screening to a height of 1.7 metres. A condition was imposed to secure this outcome.
In relation to design and visual impact, the inspector accepted that the appeal development was larger than the previously approved scheme, but not substantially so. He noted that the rear elevation is viewed within a context of varied and often bulky roof extensions and that similar dormers and parapet walls are a common feature of the surrounding streetscape. He concluded that the development did not harm the character or appearance of the area and complied with the relevant development plan policies when read as a whole.
Why this case is relevant
This case illustrates an important point for homeowners who have carried out development without fully complying with an approved scheme.
Retrospective planning appeals do not fail simply because development has already taken place. The key questions are whether the differences from the approved plans cause material planning harm, and whether any identified harm can be addressed through conditions.
In this instance, the inspector accepted that modest changes to an approved roof terrace and dormer scheme, set within a varied urban context, did not justify refusal. Where specific amenity concerns arose, they were resolved by appropriately worded conditions rather than by requiring the removal of the development.
For a wider explanation of how roof terraces and balconies are assessed in planning appeals, including common reasons for refusal and how they are addressed, see our article on planning appeals for balconies and roof terraces.
