Character and appearance of the streetscene

Just what is the “streetscene” and the “character and appearance of an area”? Roderick Morton examines a recent Court of Appeal ruling.

In Kazalbash v SSLUHC and Hillingdon [2023] EWCA Civ 904 a developer proposed conversion of an existing dwelling with side extension into two dwellings. No external changes were proposed other than a fence in the rear garden. The council refused permission because the sub-division was vertical (ie the side extension) and would lead to two small plots which would have a different width to those of the remainder of the street which were fairly uniform. The council said this would be harmful to the character and appearance of the streetscene.

The refusal was challenged and upheld on appeal. The inspector found that the plot widths were locally uniform creating a strong front building line and pleasant rhythm in the street scene, contributing positively to the character and appearance of the area. The inspector accepted that there were no external changes beyond a rear fence. But he found that the sub-division would be apparent because of the location of the property and also found that, as the extension sat well back from the building line, it would be incongruous as a separate dwelling. And he found that the rear fence was not PD, being installed as part of a subdivision. The refusal was upheld.

The developer appealed. At the High Court, the judge found that the inspector had erred by taking into account immaterial considerations and reaching an irrational conclusion; how could the inspector find that character and appearance of the area was affected if no external changes were identified?

Not surprisingly, this aspect was appealed by PINS.

The Court of Appeal found that the inspector’s decision was logical, coherent, reasoned and “legally impeccable”. He was required to consider the effect of the development on the “character and appearance” of the area, not just the appearance. This isn’t a defined term in the local plan policies. There is no need to consider character and appearance separately but it is clear that, together, the words go beyond mere appearance.  It certainly includes matters of building lines, plot widths, plot sizes and the composition of buildings on the street.

The court considered how the inspector had approached this task.  While the inspector gave fair consideration to the unaltered visual impact, nevertheless his consideration went further. He found that the plot widths would appear narrower than other plots, that this would “appear contrived” and would “highlight the incongruity in the street scene”. He found that the fact that the separated dwelling would set well back from the building line would be contrary to the prevailing pattern of development. And that, in combination, these caused harm to the character and appearance of the street scene. This was a lawful exercise of his planning judgement.

Further, there was in fact clearly a visual impact caused by the fence and the building line. This was fully understood by the inspector, and these were factors which the inspector was entitled to consider.

“Streetscene” is, said the court, undefined in law and concentrating on its meaning is unhelpful. It is not used in relevant policy and its only relevance was in understanding the impact of the development on character and appearance.  The court did, however, note that the inspector’s approach was in line with the use of “streetscene” in the National Design Guide as including “the appearance of all elements of a street, including the buildings along its edge and the composition of buildings on each side of the street.”   

Comment

It is common in enforcement notices to bandy about words such as “character and appearance” and “streetscene” when giving reasons for the notice. The High Court decision was a warning that we must remember to think about what these words mean and carefully demonstrate that there is an impact, particularly when visual impact is small. The Court of Appeal decision is a welcome confirmation that “character” is as important as “appearance” and that there are a number of other factors within “character” which can be drawn to justify enforcement upon when visual impact is lacking.

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.

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