Appeal Decision 3254162 (Gravesham Borough Council) — 2021-01-27

Appeal Decision 3254162 (Gravesham Borough Council) — 2021-01-27
Outcome: Split decision
Case type: Enforcement Notice
Development: Householder developments
Appeal type: Written Representations
Location: 11 Wilfred Street, GRAVESEND, Kent, DA12 2HA
Postcode: DA12 2HA
LPA: Gravesham Borough Council
LPA code: E07000109
PINS reference: 3254162

=== FULL INSPECTOR DECISION ===

Appeal Decision
Site visit made on 19 November 2020
by Timothy C King BA (Hons) MRTPI
an Inspector appointed by the Secretary of State for Housing, Communities and Local Government
Decision date: 27 January 2021

Appeal Refs: APP/K2230/C/20/3254162
11 Wilfred Street, Gravesend, Kent DA12 2HA
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The appeal is made under section 174 of the Town and Country Planning Act 1990 as
amended by the Planning and Compensation Act 1991.
The appeal is made by Mr Samson Falola against an enforcement notice issued by
Gravesham Borough Council.
The enforcement notice was issued on 21 May 2020.
The breach of planning control as alleged in the notice is: Without the benefit of
planning permission the installation of two UPVC windows within the front elevation of
the Property.
The requirements of the notice are to:
(i)
Remove the two UPVC windows in their entirety, including their framework from
the front elevation of the Property.
(ii)
Remove all resultant debris and associated materials from the Property.
The period for compliance with the requirements is within nine calendar months from
the date when the notice takes effect.
The appeal is proceeding on the grounds set out in section 174(2)(a) of the Town and
Country Planning Act 1990 as amended. Since an appeal has been brought on ground
(a) and the prescribed fee has been paid, an application for planning permission is
deemed to have been made under Section 177(5) of the Act as amended, and falls to
be considered.

Formal decision
1. The enforcement notice is corrected by the deletion of Requirement (i) and its
replacement with the following:
‘(i) Remove the UPVC window at ground floor level in its entirety, including its
framework from the front elevation of the Property’.
Subject to this correction the notice is upheld.
2. The appeal is allowed and planning permission is granted on the application
deemed to have been made under section 177(5) of the 1990 Act as amended
insofar as it relates to the installation of the UPVC window at first floor level.
3. The appeal is dismissed and the enforcement notice is upheld, and planning
permission is refused in respect of the installation of the UPVC window at
ground floor level.
Preliminary Matter
4. When the appeal was made, an identical appeal was lodged by Miss Clarissa
Reid. However, as this appeal (APP/K2230/C/20/3254162) was also limited
only to submissions under Ground A, reliance has, instead, been placed on Mr
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Appeal Decision APP/K2230/C/20/3254162

Falola’s appeal as this is one for which the requisite fee has been paid.
Accordingly, Miss Reid’s appeal has since lapsed.
Background
5. In January 2019 the Council refused planning permission for the retention of
two oak coloured UPVC windows installed. It is understood that the windows
remained regardless, and this prompted the Council to consider it expedient to
take formal enforcement action requiring for their removal.
The Appeal on Ground (a) and the Deemed Planning Application (DPA)
Main Issue
6. The main issue is the development’s effect on the character and appearance of
the surroundings, with particular regard to the conservation area location.
Reasons
7. The site falls within the King Street Conservation Area, designated in 1980, but
since extended. The conservation area is based around its 19th century urban
character, with Wilfred Street comprising terraces of small dwellings built up to
the back edge of the footway.
8. The development involved the removal of two windows, one at ground and one
at first floor level, and their unauthorised replacement. At ground floor level,
the previous white coloured timber casement has been replaced with a brown
coloured UPVC casement type window whilst, on the first floor, the previous
timber casement has been replaced with a vertical sliding sash window. It is
understood, though, that the windows removed were not those originally
installed, which would have both been timber vertical sliding box-framed
sashes with margin lights.
9. At my site visit I walked along the street and noted, on both sides, that the
windows and doors to virtually all the dwellings had been replaced, with a
significant number, unsympathetically. As a consequence there is a random,
wide variety of window styles, profiles and glazing in evidence along the street.
Having been installed over time in an apparent piecemeal fashion there is little
cohesion or uniformity and, given that the Council has not indicated that any
other such installations in Wilfred Street are currently subject to enforcement
investigation, it is likely that the other properties’ windows have acquired
immunity from enforcement action over the passage of time. Many of these
UPVC replacements are white framed – the colour being one of the Council’s
concerns - although those installed at No 12, one of the immediate
neighbouring dwellings, are a darker shade than that of the appeal property.
10. Notwithstanding that the frame of the first floor sliding sash window is slightly
wider and heavier than would have been the case with the original timber sash,
the fact that it is a vertical slide arrangement means it is more akin to the
original arrangement than many of the replacement windows along the street;
certainly those at Nos 10 and 12.
11. In comparison, the ground floor casement window is something of an anomaly.
Fitting into the arched opening the heavy UPVC frame surrounds three separate
panes; the vertical section, which is split by means of a central divide, and the
overlying hemispherical top section. The central divide is particularly jarring.

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One of the two vertical sections opens outwards and, to allow for this, there is
an notable absence of symmetry between the width of the two sections and
their vertical divides. A single lower pane would have worked better in this
regard. Apart from the light oak shade of the windows’ UPVC frames there is
little in common between the two windows which the enforcement notice
targets; the upper being a sash and the lower, a casement. Further, from my
site visit observations, I did not find any other examples of this type of
casement window along Wilfred Street. In an attempt to support his case the
appellant has provided a photograph of an aluminium window, the lower
section of which opens outwards. However, given its form, type and
appearance, this example does not realistically assist.
12. Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act
1990 requires me to pay special attention to the desirability of preserving or
enhancing the character or appearance of the Conservation Area. It has
previously been held in court judgements that in instances where it can be
considered that the appearance or character has a neutral effect on the
conservation area this is sufficient to ‘preserve’.
13. In the current case I am satisfied that there is a material difference between
the respective visual effects of the two windows installed. Whilst neither
window matches those that would have been in place when the property was
built the upper window, with some common features, is more redolent of the
period age, and certainly more so than is largely evident locally. The window’s
side margins might be missing but, although speculating on the exact profile
and detailing of the original fenestration and specifying the differences, it is
perhaps unrealistic to now expect identical copies. Further, in its context I find
that the presence of this window has a neutral effect on the King Street
Conservation Area, as a whole. In contrast the form, profile and glazing of the
lower window is an uncharacteristic and inappropriate development which is
harmful to the conservation area.
14. In the circumstances, and given the situation as I have described, it would be
somewhat iniquitous to make an example of the appellant and require the
removal of both windows and the frames in their entirety. My findings suggest
that a distinction should be drawn; the upper window can remain but the lower
one should be removed in accordance with the notice’s requirement in this
part. It is then open to the appellant to use the adequate compliance period to
make a formal approach to the Council with a view to arriving at an appropriate
and approved re-installation. Although the Council objects to the colour, as I
have mentioned, No 10’s window frames are darker. If a match cannot be
found with the upper frame then some form of treatment might need to be
applied in this regard.
15. Although I find that the proposal would result in ‘less than substantial harm’ in
the words of paragraph 196 of the National Planning Policy Framework (the
Framework), the degree of harm would not be outweighed by any public
benefits arising. I note the appellant’s representations, especially as to the
financial burden of complying with the enforcement notice’s requirements and
also the energy savings which the unauthorised development has brought
about. The appellant also indicates that the windows were replaced at the time
the house was being renovated but none of these properly justifies having
proceeded with the installation. That said, weighing up all factors, I have been
even-handed in reaching my decision.
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Appeal Decision APP/K2230/C/20/3254162

16. For the above reasons, and having had regard to all matters raised, I have
drawn a distinction between the two windows, and I conclude that the lower
window is harmful to the conservation area and contrary to the design and
heritage objectives of policies CS19 and CS20 of the Gravesham Local Plan
Core Strategy, saved policy TC3 of the Gravesham Local Plan First Review, and
relevant advice in paragraph 192 of the Framework. On balance, I also
conclude that the upper window’s retention in this particular instance does not
unduly compromise the said objectives and advice in this regard.
17. Accordingly, I have corrected the enforcement notice, with the DPA made
under section 177(5) allowed in part. Subject to this correction the
enforcement notice is upheld. The appeal, therefore, succeeds in part.
18. S180 of the 1990 Act says that where, after the service of an enforcement
notice, planning permission is granted for any development carried out before
the grant of that permission, the notice shall cease to have effect so far as is
inconsistent with that permission. That is the case here with the first floor
window.

Timothy C King
INSPECTOR

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