A couple of interesting appeal decisions about UPVC windows in a conservation area. Both decisions are about the same site; the summaries are below.
Appeal Ref: APP/C4235/C/14/2214760
-The breach of planning control alleged in the notice is “the removal of timber window frames and windows with original coloured leaded glass to the front elevation of the dwelling house and their replacement with UPVC windows with new, coloured film glass”.
-An appeal was made under S.174(2) TCPA 1990 on grounds (a) and (c).
-The basis of a ground (a) appeal is “that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged”.
-The basis of a ground (c) appeal is “that those matters (if they occurred) do not constitute a breach of planning control”.
-The steps required for compliance were seven-fold and included the removal of the UPVC windows, the replacement of wooden flush closing casement windows, the painting of wooden surfaces, making good damage and removing resultant debris and the period for compliance was 12 months.
-The Appellant accepted that the removal of the windows was not done under permitted development as such rights had been removed in 2005 by way of an Article 4(2) Direction.
-The main point of the appeal therefore was whether the removal of the windows a) constituted “development” under S.55 TCPA and b) whether this action had materially affected the external appearance of the dwelling.
-There is a copper beech tree outside the property which obscures some of the front elevation. However the three windows in question remain the principle feature of the dwelling and the presence of the tree does nothing to change this.
-The new opening lights on the replacement windows are not uniform in appearance like the previous windows, nor are they subtle and attractive in their detailing.
-The replacement frames are dull and are less intricate that their predecessors.
-The replacement of the windows in question HAS affected the external appearance of the dwelling.
-Development HAS occurred in accordance with S. 55(2) (a) TCPA and planning permission is required.
-Planning permission is NOT granted in this case and the ground (c) appeal fails (on the basis of the judgement in Burroughs Day v Bristol City Council)
-In respect of the ground (a) appeal the Appellant argued that many houses in the Conservation Area had UPVC windows and that the original timber windows were rotten and draughty. They claim the UPVC replacements to be more energy efficient.
-The Inspector dismissed this argument. Unlike the case of Waveney the Appellant could not show that the presence of UPVC windows was commonplace and it was not stated that replacement windows had to be UPVC to be energy efficient.
-The Inspector held that the UPVC windows were an unacceptable replacement which had a significant adverse effect on the character and appearance of the conservation area. The appeal failed on ground (a) also.
Appeal Ref: APP/C4235/X/13/2209170
-An appeal was brought against a decision not to grant an LDC for the replacement of UPVC windows to the front of a dwelling.
-The original case reference was APP/C4235/C/14/2214760.
-An appeal was brought under S. 191 (1) (b) which states “if anyone wishes to ascertain whether any operations which have been carried out in, on, over or under land are lawful he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter”.
-The same points of fact were considered in this appeal case as the first.
-The Appellant had accepted that the act of replacing the windows was not permitted development as such rights had been removed by an Article 4(2) Direction in 2005.
-The Inspector considered whether this act constituted development in accordance with S. 55(2) (a) TCPA which took into consideration whether the replacement of the windows had affected the external appearance of the dwelling.
-The Inspector again held that the replacement windows were not uniform in appearance nor had the subtle and attractive detailing of the previous timber framed windows. He further held that the framing was dull and flat.
-The Inspector concluded that the replacement of the windows with UPVC windows HAD materially affected the external appearance of the dwelling and that development HAD occurred in accordance with S. 55(2) (a) TCPA.
-The Inspector held that planning permission would be necessary for the work undertaken.
-In respect of the process, the Inspector held that the original reasons given in the Inspector’s refusal to grant an LDC were well-founded and the appeal therefore failed.
-He added that the Inspector’s powers transferred under S. 195(3) of the TCPA had been exercised accordingly.
“Where an application is made to a local planning authority for [a certificate under section 191 or 192] and—
(a)the application is refused or is refused in part, or
(b)the authority do not give notice to the applicant of their decision on the application within such period as may be prescribed by a development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority,
the applicant may by notice appeal to the Secretary of State.
-S. 195(3) TCPA goes on to state “If and so far as the Secretary of State is satisfied that the authority’s refusal is or, as the case may be, would have been well-founded, he shall dismiss the appeal”.
-As the Inspector had established that the authority’s refusal was well-founded he was within his power to dismiss the appeal, which is what he did.