Agenda item

(Councillor Hilary Cole declared a personal interest in Agenda Item (4)3 by virtue of the fact that she was a member of Chieveley Parish Council. As her interest was personal and not prejudicial or a disclosable pecuniary interest, she determined to remain to take part in the debate and vote on the matter.)

The Committee considered a report (Agenda Item 4(3)) concerning Planning Application 20/01924/HOUSE in respect of a Section 73A: Variation of Condition 1 (Rooflight windows) of previously approved application 10/02895/HOUSE: Retrospective – Velux rooflights to the east and west elevations (to comply with Condition 3 of approved permission 09/02148/HOUSE.

1.     Mr Simon Till, Principal Planning Officer, introduced the report to Members, which took account of all the relevant policy considerations and other material planning considerations. In conclusion the report detailed that the proposal was acceptable in planning terms and officers recommended that the Head of Planning and Development be authorised to grant planning permission, subject to the conditions outlined in the main and update reports/for the reasons listed in the main and update reports.

Removal of speaking rights

2.     As resolved at the Extraordinary Council meeting held on 29 April 2020, public speaking rights had been removed for virtual Council meetings. This right had replaced with the ability to make written submissions. This decision was made in accordance with The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panels Meetings) (England and Wales) Regulations 2020.

3.     The above changes to speaking rights were subsequently amended at the Council meeting on 10 September 2020. It was agreed that parties making written submissions in relation to a planning application would be invited to attend the remote meeting of the Planning Committee to answer any questions that Members of the Committee might wish to ask in order to seek clarification on any part of their statement.

4.     In accordance with the Extraordinary Council resolution, written submissions relating to this application were received Ms Tania Chamberlain, objector, who was also able to attend the remote meeting.

5.     Individual written submissions were published online along with the agenda: http://decisionmaking.westberks.gov.uk/ieListDocuments.aspx?CId=155&MId=5735&Ver=4

Objector’s Submission

6.     The Clerk read out the representation. Members questioned the attendees as follows:

7.     Councillor Tony Vickers queried whether Ms Chamberlain was objecting to the window being opened a small amount at the bottom, towards her bathroom window, or to it being fully open. Ms Chamberlain explained that the existing condition had been that the window should be completely fixed shut. When the window has been fully opened, she was able to see directly into her neighbour’s room and assumed that they could see directly into her bathroom.

8.     The situation had been ongoing for over two years. There had been some exemplary tenants renting the house, however the tenant before last had removed the obscuring film from the window and opened the window completely. The latest tenant had done the same until recently. The condition had therefore not been enforced.

9.     There was only one family bathroom in her house, with one window that had to be opened for ventilation to reduce mould, and she was worried that the family could be observed getting in and out of the bath and going to the toilet.

10.  Councillor Vickers sought clarification as to whether she would object to the window being fixed so that it could only be opened a small amount. Ms Chamberlain explained that as it was a tenanted property she was not confident that tenants would all abide by the rules, as experience had shown the opposite.

11.  Councillor Hilary Cole noted that the objector had written that, ‘this had cast a shadow on her lives’ and asked whether this situation had affected the mental health of the family. Ms Chamberlain confirmed that it had, as it had been a constant worry. She was not accusing any tenant of being a voyeur, but it was a constant worry as the conditions of a fixed, obscured window, had been broken. She was especially concerned for her child and her child’s friends that came and stayed.

Ward Member Representation

12.  Councillor Hilary Cole in representing the Committee as Ward Member made the following points:

·         She expected that Members were wondering why she had brought such a seemingly minor application to committee.

·         It was a tenanted property that had been rented by many different tenants over the years. She wanted to make it clear that her issue was not with the former or current tenants, but rather with the owner of the property because of their persistent failure to comply with the planning permission.

·         On this occasion the condition was that a velux window on the west side of the property be fixed, un-openable and obscure glazed. Members should note that this roof-light itself had retrospective permission granted in 2010, as it was in breach of a consent granted in 2009. Over this time this condition had been ignored, to the distress of the residents of the neighbouring property whose privacy was affected. This condition was imposed originally to protect the neighbours who had lived in their property for over twenty years. The current case officer was recommending approval, whereas the previous case officer recommended refusal, therefore this was a subjective recommendation, rather than an objective one, as nothing had changed in the interim.

·         She asked the Committee to also take into account the planning enforcement action taken in the intervening years, as Ms Chamberlain had contacted enforcement during this period.

·         Councillor Hilary Coles’ view was that if a breach of condition was sufficient enough for enforcement action to be undertaken, then this action should be seriously considered by the Committee when reaching their decision.

·         She firmly believed that there was an obligation on Members to send a strong message to developers, large or small, that planning conditions were set for a reason and should not be changed at a whim for their convenience, it made a mockery of the planning process and treated the local planning authority with contempt. She reminded Members that this was the second retrospective application they had considered at this meeting.

·         For this reason she could not support the application and asked the Committee to refuse it, as to do so would not compromise any of their planning policies.

Member Questions to Officers

13.  Councillor Dennis Benneyworth noted that Mr Till had mentioned what he felt the Planning Inspectorate’s view might be, he remarked that they might also expect the original conditions to be adhered to. Mr Till replied that the Planning Inspectorate would certainly take the previous case officer’s reason for applying the condition into consideration. However, the report was scant on detail. Other than the desire to maintain neighbouring amenity, little detail had been given. There was no concern that the neighbouring amenity would be compromised. His understanding from reading through the details, was that the reason the condition had been applied, was that the window was shown on the plans as being fixed shut and obscured, rather than the case officer having given the detailed consideration that would be expected, as to whether the neighbouring amenity would be compromised.

14.  In this case, the case officer who considered this amendment to the condition had given due consideration to the neighbouring amenity and her conclusion was that as this was a non-habitable room, a bathroom, was in planning policy terms given limited weight. Traditionally, one would expect the bathroom window to be closed most of the time except when the bathroom was in use, and obscured glaze, and that the user would be paying some attention to their own privacy. The 19 metre separation distance was considerably larger than many side-by-side window relationships, where one of those windows was of a non-habitable room. He could not therefore disagree with the case officer’s conclusion.

15.  Councillor Adrian Abbs remarked that he thought that there was a rule that there should be 20 metres between views of this nature. He could not agree with the case officer’s conclusion. Mr Till explained that 21 metres was the separation distance specified between rear-facing properties of windows, of habitable rooms that faced each other directly to maintain privacy. However that does not exist in policy for side by side relationships and non-habitable rooms.

16.  Councillor Cant was puzzled as to why, when the first planning officer had considered it appropriate to impose a condition to keep the window closed and obscured, had a subsequent officer felt that this was now not a requirement. He agreed with Councillor Hilary Cole that agreed conditions should be enforced. Mr Till reiterated that typically and in accordance with guidance to planning officers, he would expect the rationale for the condition would have been detailed in the case officer’s report and to be given in the reason for the condition, however in this case the reason for the condition was quite vague and the report had little detail. It would appear that the case officer had been presented with a plan that had shown this window as fixed and obscured, and the officer had therefore applied this condition without giving due consideration as to whether it was necessary in this case.

17.  Councillor Vickers queried as to what weight enforcement action would have on the Planning Inspectorate’s decision, should the Committee be minded to refuse this application, and the decision be taken to appeal. Mr Till explained that as he understood it, this was not a case where enforcement action had been undertaken, but where an enforcement investigation had been made, following a report that a condition was being breached. The Council had not taken formal action against the breach of condition, given that there was an application before the Committee to regularise it. Should the application be refused, the Council would need to consider whether it was expedient to either: follow the refusal with enforcement action; to wait until an appeal and its determination, or set aside enforcement action as there was not enough harm to justify it. He suggested that the Members decision at this meeting would have significant input into the officer’s considerations and if Members were minded to refuse the application, the reasons for refusal would be taken into consideration by officers as to whether enforcement action should be taken.

18.  The Chairman asked for confirmation that the original application was made with the window fixed and obscured, and that the application before the Committee this evening was retrospective to propose that the window that had been opened, be kept open. Mr Till confirmed that this was correct and quoted from the original application.

19.  In accordance with the Council’s Constitution point 7.13.5, the Committee supported the Chairman’s motion that the remaining business could be concluded by 10.30pm, and therefore continued with Agenda Item 4(3).

Debate

20.  Councillor Hilary Cole opened the debate by noting that there had been no submission from the applicant/agent and therefore Members had no idea why they wished to change the window. She found this odd and that if the applicant was keen to do this, in light of the fact that they had ignored the condition, they should have made a good reason to the Committee for the change. Therefore, she proposed to reject Officer’s recommendation and refuse planning permission. This was seconded by Councillor Abbs.

21.  Councillor Abbs remarked that there had been a slight mistake by an officer not detailing a condition correctly, there was also a small issue with the Council’s policy in that it could be tightened up further to protect privacy. He could see definite harm to the neighbours and potential benefit for the applicant, however without the applicant’s submission there was no more information. He saw no reason to change the existing condition.

22.  Councillor Cant concurred with Councillor Hilary Cole’s observation that the Committee had considered two fairly open breaches of granted conditions, secondly he noted that the reason for the original condition was to preserve the privacy of the neighbouring property. He would therefore be voting in favour of refusal.

23.  Councillor Howard Woollaston expressed the opinion that although his daughter was now grown-up, he would have had the same view as Ms Chamberlain and was going to vote against officer’s recommendation.

24.  Councillor Phil Barnett noted that when he visited the site his view was that there was a long distance between properties and he had not understood the neighbour’s concern. However, having heard the representations he had changed his mind and would be voting against officer’s recommendation.

25.  Councillor Benneyworth commented that he could go along with officer’s recommendation, as long as conditions were applied that the velux window was nailed shut and obscure glazed, however he would be voting in favour of Councillor Hilary Cole’s proposal.

26.  The Chairman asked Members for their reasons for refusal. Councillor Hilary Cole stated that her reasons were that the proposal affected the privacy and amenity of the neighbouring property. The condition was attached to the original permission and nothing had changed in the interim. The adverse effect on the neighbour had to be taken into account, and that as a rental property there was no certainty that this condition would not be breached in the future. The decision would not compromise any of our planning policies. Mr Till suggested that the reason for refusal was contained in policy CS14, in terms of quality of life in West Berkshire and design, along with our supplementary planning guidance, which required such works to consider the privacy and amenity of neighbouring properties.

27.  The Chairman invited Members of the Committee to vote on the proposal by Councillor Hilary Cole, seconded by Councillor Abbs to refuse planning permission. At the vote the motion was carried.

RESOLVED that the Head of Development and Planning be authorised to refuse planning permission for the following reasons:

Reasons:

The proposal to vary a restrictive condition to allow a roof light to be opening and clear glazed would result in an unacceptable level of overlooking between 'The Bungalow' and a first floor bathroom window at 'Sunhill Cottage'. The removal of the condition would allow for an increase in the opportunities for actual overlooking and result in a greater sense of perceived overlooking for the neighbouring property. This would be to the detriment of the amenities of current and future occupiers of both properties. The proposal therefore fails to secure a good standard of amenity for existing and future occupants of neighbouring properties as required in the provisions of the National Planning Policy Framework 2019, Policy CS14, of the West Berkshire Core Strategy (2006-2026), the Quality Design West Berkshire SPD (Part 2: Residential Development), and the House Extensions SPG