Application to vary Condition 2 of planning permission 171067.
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The Committee considered a planning application to vary Condition 2 of planning permission 171067 at 4 Park Road, Colchester. The application had been referred to the Committee because it has been called in by Councillor Barber. The Committee had before it a report in which all information was set out. The Committee made a site visit in order to assess the impact of the proposals upon the locality and the suitability of the proposals for the site.
Chris Harden, Senior Planning Officer, presented the report and, together with Simon Cairns, Development Manager, assisted the Committee in its deliberations. The Senior Planning Officer explained that the differences between the approved scheme and the revised scheme which was the subject of this application related to an additional first floor side window, two wider rear facing first floor windows, one wider rear facing ground floor window, the omission of one set of ground floor French windows and the enlargement of the front porch. He also explained that revised drawings had been submitted which reflected the actual size of the side window constructed and, as a consequence, one of the conditions would need to be amended to reflect the change in drawing numbers.
Jennifer Green addressed the Committee pursuant to the provisions of Planning Committee Procedure Rule 8 in opposition to the application. She lived in a neighbouring property and had made no objection to the original application which had been approved with twelve conditions which she understood would be adhered to. She had been unaware that retrospective permission could be sought to amend conditions and that this could take place after the changes had been implemented. After careful consideration, she had submitted an objection to the application to vary condition 2 in respect of the additional side window on the south elevation. The window looked into the en-suite bathroom window attached to the bedroom of her property and she was of the view that she should constitute a material consideration in relation to the determination of the application in terms of the protection of neighbouring residents’ amenity. She referred to the report on the application and its conclusion that, subject to conditions, there would be no significant impact on neighbouring residential amenity. She was of the view that the additional window did represent a significant impact on her privacy. The proposed conditions relating to the window provided for it to be non-opening and of level 4 obscurity, however she did not feel this was sufficient. She felt overlooked when using the bathroom and all of the south facing windows were not non-opening and had been open throughout the summer. She was concerned that this condition would not be complied with or would be subject to a subsequent application to amend it.
Peter Johnson addressed the Committee pursuant to the provisions of Planning Committee Procedure Rule 8 in support of the application. He explained that the principle of a replacement dwelling in this location had already been agreed, the Planning Officer had concluded that the changes were visually acceptable and that there was no detriment to neighbours. As such the amendments had been recommended for approval. Furthermore there would be no negative impact on neighbouring residential amenity from overlooking compared to the previous application. He considered there was no reason to object to the application and he requested acceptance of the officer recommendation.
Councillor Barber attended and, with the consent of the Chairman, addressed the Committee. His primary concern was in relation to the precedent it could set and how it contrasted with the principles included in the new National Planning Policy Framework (NPPF). The new NPPF stated that enforcement is important to maintain public confidence in the planning system. He was therefore concerned regarding how the non-compliance with the original conditions had been treated. He was worried that various conditions had not been adhered to but had nevertheless been discharged. As such he had little confidence that the conditions currently being proposed would be adhered to and maintained if subsequently breached. He was of the view that the window was currently able to be opened. He considered that the potential benefits of the window to the applicant had outweighed the potential harm caused to the neighbour. The new NPPF also stated that changes to conditions had to be justified and he did not consider clear justification had been provided. He stated that four of the original 12 conditions had been discharged despite being breached or varied. He also considered there was potential to provide for additional planting, contrary to the information contained in the report. He considered there were relevant material considerations to reject the application and was concerned about the enforcement practice of the council following breaches of conditions.
In response, the Senior Planning Officer explained that enforcement measures taken in relation to breaches of condition on the site had been effective. He was of the view that the conditions had been adhered to and, following the submission of details about materials, had subsequently been discharged. This had provided for the inclusion of planting and obscure glazing and he was confident that the enforcement system would be able to ensure that the windows were non-opening. In addition, the level of obscurity provided to the windows and the non-opening provision was such that no overlooking would be possible. He considered that the risk of the conditions being breached were very minimal. He further commented that the vegetation in the garden previously could have been completely removed at any time without permission. He was also of the view that the new planting was very comprehensive and the Arboricultural Officer had considered it would not be appropriate to require any additional planting.
In discussion, members of the Committee, whilst regretting the retrospective nature of the application, acknowledged that the concerns expressed by the neighbour regarding overlooking would be adequately addressed by adherence to the proposed conditions. However concern was expressed that the side facing window was currently able to be opened and clarification was sought regarding the potential for the window to be one which was not possible to be opened to avoid the need for the condition to be actively monitored.
Reference was made to the need for windows generally to be able to be opened for ventilation purposes.
The Development Manager acknowledged the view of the neighbouring resident and explained that the proposed condition could be amended to provide for an approved scheme, such as with mechanical fixings, to ensure that the window is permanently shut and un-openable at all times.
The Senior Planning Officer also explained the merits of applying this amended condition to all three of the side facing windows as this would prevent overlooking of the neighbouring rear garden.
RESOLVED (NINE voted FOR and ONE AGAINST) that, subject to amendment of condition 1 to reflect the revised drawing number and the variation of condition 3 to require the submission and approval of a scheme to provide for the three first floor side windows to be permanently un-openable and for that condition to be implemented prior to occupation and maintained thereafter, the application be approved subject to the conditions set out in the report.