[2023] UKUT 00196 (LC)

S.84(1B) requires the Tribunal, when determining whether s.84(1A) applies, to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area. I received evidence on this in Mr Roberts’ report, in which he noted 10 other planning permissions granted within the estate since the year 2000 for single storey extensions similar to the one proposed in this application. Some of the permissions, like the one obtained by the applicants, were certificates of lawfulness for proposals within the national definition of permitted development. Only one other permission had been granted for a loft conversion, which has not yet been implemented. Although satellite views show that skylights have been added to a handful of houses, in only two instances are they placed in the front elevation of the roof. However, whilst single storey extensions are not exceptional on the estate, and the proposed form of loft conversion is novel, both elements of the proposals have been screened by the Council and are confirmed to fall within the definition of permitted development.

The Tribunal is also required to take into account the period at which and context in which the restrictions were created or imposed and any other material circumstances. When the restriction was imposed, in the 1984 transfer, it was for the benefit of all properties on the Selbourne Estate. From my inspection, and from evidence provided by the applicants, it appears that the restriction has been relatively effective in maintaining the integrity of the original building layout and appearance on the street facing elevations. There are two exceptions where side extensions have been built, with planning permission, two instances where low picket fences have been erected around front gardens, and two instances of front facing roof lights. By contrast, the restriction has been significantly breached to the rear of the properties by the provision of conservatories and extensions under modern permitted development policy. Implementation of the applicants’ proposals would follow this general pattern and have only a minor impact on the street facing elevation by the installation of two roof lights.