QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF WESTMINSTER CITY COUNCIL||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P BROWN appeared on behalf of the DEFENDANT
Crown Copyright ©
"The installation of timber decking, planters, fencing, seating, roof access housing, storage facilities and water tank housing at roof level on land at 13 Ryders Terrace, St John's Wood, London NW8 referred to in the notice, subject to no conditions".
"You are advised that the City Council do not consider the lawful use of the roof of the property to be as a terrace area, where planning permission would be required for this proposed use. Given the proximity of this property to adjoining premises you are further advised that it is unlikely that planning permission would be granted for this use".
"The erection of the timber fencing and decking facilitate the use of the roof as a terrace. It is considered that the use of this roof for such purposes will be detrimental to the amenity of neighbouring residents in that they will experience material loss of privacy and increased disturbance through high level activity".
"The method of access on to the roof was also in situ and was via a hatch. The roof at 13 Ryders Terrace is flat, and when it was acquired by me the roof had already been covered with decking, which had rotted in certain areas. I from time to time to make the roof area aesthetically attractive had placed plants on the roof.
During the summer months if the weather was good I would often use the roof to socialise or sunbathe on, and I recollect both Jeni and Ian Langdon being entertained on numerous occasions on the roof area by me prior to my selling the property to Jeni Langdon".
"I removed all the rotten elements which were kept and stored on the roof alongside with the decking which I also removed as I considered it to be extremely dangerous . . .
Since the property was acquired by Mr and Mrs Langdon and indeed prior to that time as seen by me and evidenced by the existence of the water tank housing, roof hatch and roof decking it can be established that for the past 12 years the flat roof has been used as an area to sit on, sunbathe on and for recreational purposes ...
Between 1992 to date I have met with Mr and Mrs Langdon on numerous occasions on their roof for both social and business purposes".
"4. At all times the property has had an exit from the upstairs landing on to the flat roof of the property. The water tank has also been in situ on the roof at all times. Roof decking and screening was also in situ when we first had access to the roof as an invitee, but it was in a severely dilapidated condition. Having acquired the property it was then decided that where original elements had become rotten, they needed to be replaced or repaired. The rotten elements were kept and stored on the roof until April 2001.
5. Both before the property was acquired as an invitee, and having acquired 13 Ryders Terrace my wife and I used the flat roof to sit on, sunbathe on and for recreational purposes without any complaint ever having been received".
"7. It can be established that for the past 12 years the flat roof has been used as an area to sit on, sunbathe on and for recreational purposes without any complaint".
"Evidence put forward by the appellant, supported by affidavits, asserts that:
a) The roof has been used as a roof terrace since 1984
b) The original decking, water tank housing, screening and railings were all in place by 1984
c) Repairs to replace rotten elements of the above items have been carried out at various times between 1993 and 2001 ...
It is contended that the use of the roof terrace and installation of the timber decking, planters, fencing, seating, roof access housing, storage facilities and water tank housing were substantially completed more than four years ago".
"A number of statutory declarations were submitted with the appeal but these relate, for the most part, to the use of the flat roof of this dwellinghouse being used as a sitting out space and for sunbathing for many years. However, that is not the matter that is alleged in the notice, which confines itself solely to operational development. Nevertheless, in his sworn statement dated 23rd October 2002, Mr John Croft, a builder confirms, that in May 1999 he carried out a complete renovation of the house, including attention to the water tank housing on the roof, renovating the roof hatch and replacement of the roof decking, which had been removed some years earlier. I am satisfied that these are the works that are subject in part to the allegations contained in the enforcement notice, the subject of this appeal".
"Whether the installation of timber decking ... at the appeal premises preserves or enhances the character or appearance of the St John's Wood conservation area".
"One of the main concerns of the Council arises out of overlooking of habitable accommodation in adjoining residential property from the use of the flat roof of this single family dwelling as a sitting out area. Windows in the rear elevations of 32-34 Blenheim Terrace are especially close and it is possible to look down into adjoining rear yards. However, use of this roof for these purposes would be an activity incidental to the enjoyment of a dwellinghouse as such, which is not development of land under the provisions of section 55(2)(d) of the 1990 Act. The Council places considerable reliance upon an earlier appeal decision dated 7th November 1994 where the Inspector was presented with a specific refusal of planning permission for a roof terrace. The bulk of the reasoning for dismissing the appeal was based upon the scope that this terrace would afford to overlook adjoining housing and sitting out areas. However, to my mind the Inspector should also have taken into account the ability of residents of 13 Ryders Terrace and any visitors to the dwelling to use the flat roof of this dwelling as a sitting out area without the need for planning permission. There seems to me no good reason why this roof area cannot be used as private sitting out space, with any attendant problems of loss of privacy to neighbours, as it has been in the past, whether or not the operational development the subject of the enforcement notice were in place or otherwise. Consequently, the unauthorised development will be assessed solely upon its visual impact upon the St John's Wood Conservation Area".
"The flat roof area is adjoined on three sides by a pronounced parapet wall so that much of the unauthorised development is below the top of that wall. In those circumstances, it is arguable that much of the development below the top of these parapets, the decking, the planters and the storage facilities, does not require planning permission as it is below the highest part of the roof. Moreover, the seating is not fixed to the roof so that it cannot be considered development but merely a chattel associated with an incidental residential use".
"There seems to me no good reason why this roof area cannot be used as private sitting out space, with any attendant problem of loss of privacy to neighbours, as it has been in the past, whether or not the operational development the subject of the enforcement notice were in place or otherwise".
"To my mind, the  Inspector should also have taken into account the ability of residents the 13 Ryders Terrace and any visitors to the dealing to use the flat roof of this dwelling as a sitting out area without the need for planning permission".
"Should a similar approach be followed on other planning applications relating to works proposed for a roof, the claimant will have limited ability to control in planning terms these serious adverse impacts resulting from such works. Residents directly adjacent to the roof terrace of the property in question and throughout the City of Westminster will suffer from these serious adverse impacts".