Appeal 3299656

The appeal is allowed and the planning permission Ref 2020/3272 for the erection of a single-storey side extension at lower ground floor; erection of three-storey stair core at ground, first and second floor levels; installation of rooflights; and associated works to elevations to facilitate the use of the site as a school (Use Class F1) at [site address] , Hackney, London [postcode] granted on 18 March 2022 by the Council of the London Borough of Hackney, is varied by deleting all conditions and substituting for them the conditions set out in annex C.

An application for costs was made by Bnos Zion DBobov Ltd against the Council of the London Borough of Hackney. This application is the subject of a separate

The main issue is whether the disputed conditions 3, 4, 5, 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 25, 26, 27 and 28 are necessary, relevant, enforceable, precise and reasonable in light of the nature and scope of the permitted scheme.

The appeal site comprises a former [name]. It is 3 storey in height with stock brick elevations and sandstone dressings, and a slate roof. The site is split level due to the relatively steep topography leading down from road level, towards the rear of the site, which is bounded by residential gardens.

The scheme as approved by the Council includes a number of elements: • Single storey side extension at lower ground floor level with paved entrance passage above at ground floor level, to be used as storage. • The erection of a 3-storey stair core at ground, first and second floor levels. • New external access to eastern elevation at lower ground floor. • Replacement of front doors with modern powder coated aluminium doors. • Installation of conservation style roof lights. • Bricking in windows and doors in the northern elevation. • Installation of a new powder coated aluminium windows in the northern elevation. • Repair and refurbishment of existing windows and roof.

At the time of my site visit, the works had neared completion. In addition, further extensions had been constructed, however these do not fall within the scope of the permission which is subject to this appeal. For the avoidance of doubt, I have dealt with the appeal only on the basis of the submitted plans and conditions before me.

Paragraph 56 of the National Planning Policy Framework (the Framework) states that planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. Agreeing conditions early is beneficial to all parties involved in the process and can speed up decision-making. Conditions that are required to be discharged before development commences should be avoided, unless there is clear justification.

Planning Practice Guidance (PPG) also gives detailed advice on the appropriate use of conditions, stating that clear and precise reasons must be given by the local planning authority for the imposition of every condition.1

The starting point is s55 of the Town and Country Planning Act 1990 (the 1990 Act) which makes clear that uses of the land do not involve development if they are used for a purpose falling within the same class as that for which they are lawfully used.

The description of development given in the application form referenced the development to “facilitate the change of use from a place of worship (formerly Use Class D1 now Use Class F1 (f)) to a school (former Use Class D1 now Use Class F1 (a)).” However, in the Council’s Officer report, they noted that the most recent lawful use was as a synagogue (use class F1(f)) and that the proposed school would fall into use class F1(a). As such, the Council’s position appears to be that planning permission is not required to change the use because a place of worship and a school both fall within the same F1 use class. 1 Paragraph: 023 [name]: 21a-[phone]

It is therefore necessary to establish whether the conditions are reasonable where they relate to the use of the building. This may be the case where there is an intensification of a use so that conditions relating to the use itself can be imposed so as to make a development acceptable.

In this case, the development is fairly narrow in its scope, involving the addition of an enclosed stairway and an extension for use as storage, plus other minor works to doors and windows. In this regard, the intensification of the use arising from these proposals could only be minimal. I therefore consider that while the Council were correct to identify that there was no change of use, they then proceeded to determine the application as if it was so. Many of the conditions imposed are thus unreasonable as they seek to impose restrictions on the use which are not necessary or relevant to this scheme.

Specifically, condition 3 effectively removes permitted development rights for use classes other than F1 use. This is not justified in the context of the scheme of development. PPG is clear that conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. Here, it is unclear why this has been imposed and the reason cited “to retain control over the use of the site and to ensure any effects from change of use can be managed in the future” is vague and unclear.

Condition 4 seeks to restrict the operational hours of the use. This was a condition recommended by the Environmental Health Team and the reason for its imposition is to protect neighbour amenity. However, these extensions are small scale only, giving rise to a limited increase in floor area and the nature of such spaces as a stairwell and store is ancillary. I note that the site is bounded by residential uses, but in light of the nature of the scheme, this does not pass the test of necessity and reasonableness. Conditions 5 and 6 also fail these tests as they seek to limit the numbers of students and staff on site.

Similarly, conditions 14-17 are not related to the development as they seek to impose restrictions relating to the extant use of the site in terms of servicing, cycle and vehicular parking, and refuse.

Conditions 23-27 all relate to noise and the protection of neighbouring amenity. Again, given the scope of the development permitted, such conditions which require an acoustic survey, soundproofing, restriction of use of an amplified PA system, music or a school bell, obscure and non-opening glazing to all windows in the northern and eastern elevations and restriction on use of the rear garden for play and leisure activities go well beyond what is reasonable or necessary in the light of the small scale of the development. Moreover, the Council Officer found there would be no increase in noise and disturbance.

Overall, for the reasons set out above conditions 3-6, 14-17 and 23-27 are not necessary and should be removed.

Conditions 13 and 18 are pre-commencement conditions which require a Demolition and Construction Management Plan and an [name]. There are mature trees at the site, and there are a number of properties in the vicinity. These conditions relate to factors which should be afforded protection in terms of demolition and construction. Such conditions were therefore necessary and due to their nature, it is usually necessary to have these as pre-commencement conditions.

However, the development of the site took place prior to the application being determined by the Council, a factor the Council were clearly unaware of. In any case, the Council should have sought permission from the appellant to impose pre-commencement conditions. This is a statutory requirement under sections 100ZA(4-6) of the Town and Country Planning Act 1990 and had that occurred, the Council would have been made aware that the works had already commenced and could have redrafted the conditions accordingly.

As it stands, the imposition of pre-commencement conditions was not relevant at the time the decision was made and cannot be imposed now. They cannot be enforced. It was also unreasonable of the Council to impose these given they had not had express permission to do so.

While the conditions might have been necessary, due to the near completion of the works, it is not reasonable for me to instead impose a sanction type of condition in order for it to be enforceable.

Condition 19 requires a landscaping scheme to be submitted prior to the commencement of development. The condition further specifies implementation of the approved scheme and maintenance. Again, no permission was sought from the applicant to impose this. While the works have not yet been completed, I do not consider it reasonable or necessary for me to impose a different type of condition as this again goes beyond the scope of the development proposed. Reflecting my previous findings, the proposal does not directly relate to operational development to the front of the site, including hardstanding for cycle parking, refuse and recycling and blue badge parking space as claimed by the Council.

In addition, condition 28 relating to an ecological assessment due to the presence of a protected species (bats), was also imposed as a pre-commencement condition following local concern. Here, however, permission was given for a pre-commencement condition, as evidenced by the email dated 28 February 2022 appended to the Council’s statement of case. The appellant did not highlight at that time that the works had commenced.

However, again it is not reasonable for me to impose a different sanction type condition, as the works are largely complete. Nonetheless, should the Council consider that there was evidence of bats roosting at the site, it is open for them to take action under separate legislative powers related to protected species.

Overall conditions 13, 18, 19 and 28 are not reasonable, necessary or enforceable and should be removed.

While the building is locally listed, it does not benefit from statutory protection afforded to listed buildings under the Planning (Listed Building and Conservation Areas) Act 1990 which controls both internal and external works to historic fabric. Therefore, in seeking to control internal works, condition 11 is not reasonable. While the works have largely been undertaken, they have not been fully completed and as such this condition remains necessary but amended to omit reference to internal works.

Condition 12 seeks to restrict the addition of accretions such as plant, security cameras, grills etc. However, this is for all elevations of the building and thus does not solely relate to the approved extensions. Effectively, this would remove permitted development rights for the whole building. Reference is made for the need to safeguard against potential fixtures that may be required on a site as part of the use as a school however, it is not clear to me how this relates to the extensions proposed. I consider that this condition should not be imposed as it is not reasonable or necessary.

Policy LP47 of the Hackney Local Plan (2020) requires all development schemes involving buildings with an eaves height or roof commencement height of 5 metres and above are required to provide nesting boxes for swifts, sparrows, starlings and/or bats as appropriate to help preserve endangered urban biodiversity in Hackney.

Accordingly, condition 20 requires a minimum of six swift nesting bricks and or boxes to be provided at or close to eaves level of the development hereby approved. Due to the changes is ground levels, the single storey extension to create the store is at lower ground floor level, and as such including any such nesting boxes or bricks would be difficult. These could only realistically be incorporated to the stairwell extension, and given its size, six seems an unusual amount. I am content that the policy is reasonable and necessary but that the amount is excessive for this specific development. I will amend the condition accordingly requiring that the number be agreed between the appellant and Council.

Overall condition 12 is not reasonable and should be removed. Conditions 11 and 20 are reasonable and necessary in an amended form.

Due to the nature of this type of appeal against conditions, I am able to consider the matter afresh and I have the power to vary or add other conditions in addition to the disputed ones.2

Conditions 1-2, 7-10 and 21-22 are set out in [name] and not disputed between parties. However, many of these including timing clauses which have already passed. No evidence has been supplied in respect of whether these were discharged. Therefore, I must deal with them accordingly.

In particular, condition 1 is the standard commencement condition, however this is not necessary to be imposed in light of the development having been begun. Condition 2 relates to the approved plans, however this is not precise as the plans are not specified. I therefore impose this condition with the plans listed, to ensure that the condition is precise and enforceable.

Conditions 8-10 seek to secure additional details, schedule of works and plans in terms of materials, glazing and eastern side fencing. The timing clauses in these conditions have now passed and thus it is not possible to impose it as written. From what I have seen on site, the executed works have been undertaken sympathetically and to a high standard. This means that these conditions are not necessary. The only matter I was able to see that remained outstanding was details of a 1.8m fence to the eastern boundary 2 As set out in s79(1) of the Town and Country Planning Act 1990 which did not appear to have been erected. A sanction condition is thus imposed to address this matter, while the other conditions should be deleted.

Conditions 21-22 relate to flood risk and drainage. These are necessary given that the site is located within a critical drainage area and the extensions could affect drainage at the site. Similar to the above though, the time periods have now passed. I was unable to see what measures were in place at my visit and thus these remain necessary. Again, these can be reimposed with a sanction condition to ensure enforceability.

Sanction conditions referenced above will ensure that the development can be enforced against if the details are not submitted for approval within the period given by the condition, or if the details are not approved by the local planning authority or the Secretary of State on appeal, or if the details are approved but not implemented in accordance with an approved timetable.

Finally, the reason for condition 7 is cited as to protect the special architectural and historic interest of the building. However, as stated above, this building is not statutorily listed. In any case, the plans condition would render this condition which references to any changes in terms of building regulations as unnecessary.

The effect of the above is that all of the conditions imposed should be deleted and I have reimposed conditions, as set out above, as necessary.

For the reasons set out above I therefore conclude that the appeal should be allowed.

The premises shall be used solely as a school and for no other purpose within Use Class F1 of the Schedule to the Town and Country Planning ([name]) Order 1987 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order. REASON: In order for Council to retain control over the use of the site and to ensure any effects from change of use can be managed in the future.

The F1 use as a school may only be carried out between 08:00 hours and 18:00 hours Mondays to Fridays and not at all on Saturdays, Sundays, [name] or [name]. REASON: To protect the amenity of adjoining and neighbouring residents, and as agreed by the applicants.

The number of students on site shall not exceed 150 and 44 staff at any one time. REASON: To ensure adequate space and facilities are provided for students.

The development hereby approved shall be occupied in accordance with the approved [name] and shall provide accommodation for no more than 150 pupils at any one time. REASON: In order to restrict the number of pupils that occupy the site and to ensure that an adequate standard of accommodation is provided.

All new works, and works of making good to the retained fabric, whether internal or external, shall be finished to match the original work with regard to the methods used and to material, dimensions, composition, form, colour, finish and profile, and in the case if brickwork, facebond and pointing. REASON: In order that the works approved are carried out in a satisfactory manner which safeguards the special historic and architectural interest of the building.

No new plumbing, pipes, soil stacks, flues, vents, ductwork, grilles, security alarms, lighting, security or other cameras or other fixtures of plant shall be fixed on the external faces or roof of the building unless as otherwise shown on the drawings hereby approved. REASON: To ensure that the external appearance of the building is satisfactory and does not detract from the character and visual amenity of the area.

No development shall take place until a detailed Demolition and Construction Management Plan covering the matters set out below has been submitted to and approved in writing by the Local Planning Authority. The development shall only be implemented in accordance with the details and measures approved as part of the demolition and construction management plan, which shall be maintained throughout the entire construction period. - A demolition and construction method statement covering all phases of the development to include details of noise control measures and measures to preserve air quality (including a risk assessment of the demolition and construction phase); -A demolition and construction waste management plan setting out how resources will be managed and waste controlled at all stages during a construction project, including, but not limited to, details of dust mitigation measures during site clearance and construction works (including any works of demolition of existing buildings or breaking out or crushing of concrete), the location of any mobile plant machinery, details of measures to be employed to mitigate against noise and vibration arising out of the construction process demonstrating best practical means; - Details of the location where deliveries will be undertaken; the size and number of lorries expected to access the site daily; the access arrangements (including turning provision if applicable); construction traffic routing and trip generation and effects on the highway network; details of parking suspensions (if required) and the duration of construction; - A dust management plan to include details of how dust from construction activity will be controlled / mitigated against following best practice guidance. This should include monitoring of particulate matter at the application site boundary in the direction of sensitive receptors following the [name] of [name] of Dust and Emissions Guidance. REASON: To avoid hazard and obstruction being caused to users of the public highway and in the interest of public safety and amenity. To protect air quality and people’s health by ensuring that the production of air pollutants, such as nitrogen dioxide and particulate matter, are kept to a minimum during the course of building works.

Prior to the occupation of the development a Delivery and Servicing Plan shall be submitted to and approved by the Local Planning Authority, in consultation with Transport for London, setting out: - Frequency of deliveries per day/week - Hours of proposed deliveries - Size of vehicles - How vehicles would be accommodated on the public highway Thereafter deliveries and servicing shall be carried out in accordance with the approved plan. REASON: To ensure that the proposed development does not prejudice the free flow of traffic or public safety along the neighbouring highway(s).

Prior to the commencement of above ground construction, a policy compliant cycle parking plan is required, which shows details of layout, foundation, stand type and spacing, of the 33 cycle parking spaces throughout the development. The storage spaces and stands must be kept in good working condition, in accordance with the above details, in perpetuity. REASON: To ensure that adequate provision for the safe and secure storage of bicycles is made for future occupiers and in the interest of safeguarding highway safety.

Prior to the first use, a [name] and Management Plan shall be submitted to and approved by the Local Planning Authority, setting out how the car parking will be designed and managed, with reference to Transport for London guidance on parking management and parking design. REASON: To ensure that adequate provision of blue badge parking is provided.

Prior to the first use of the development, details of the design and capacity of the refuse store and refuse strategy shall be submitted to and approved in writing by the Local Planning Authority. Refuse collection shall only be carried out in accordance with the details thus approved, unless otherwise agreed in writing by the Local Planning Authority. REASON: To ensure the development is satisfactorily served in terms of refuse collection.

Prior to undertaking any works on site, the tree protection measures specified in the [name], prepared by Arbtech, for all retained trees at the site and adjoining sites shall be installed and maintained for the duration of demolition and construction works on site. REASON: To protect the health of existing trees.

A landscaping scheme, showing the proposals for hard and soft landscape to the front, rear and side areas, shall be submitted to and approved by the Local Planning Authority, in writing, before any work commences on site. This shall specify the materials for hard landscaping and details of the planting of trees and shrubs showing species, type of stock and numbers of trees and shrubs to be included and showing areas to be grass seeded or turfed. All landscaping in accordance with the scheme, when approved, shall be carried out within a period of twelve months from the date on which the development of the site commences or shall be carried out in the first planting (and seeding) season following completion of the development, and shall be maintained to the satisfaction of the Local Planning Authority for a period of ten years. Such maintenance is to include the replacement of any plants that die, or are severely damaged, seriously diseased, or removed. REASON: To accord with the requirements of Section 197(a) of the Town and Country Planning Act 1990 and to provide reasonable environmental standards in the interests of the appearance of the site and area.

Prior to the first occupation of the development hereby approved a minimum of six Swift nesting bricks and/or boxes shall be provided at or close to eaves level of the development hereby approved. The bricks/boxes shall be retained thereafter in perpetuity. REASON: In the interests of biodiversity.

Full particulars of the following shall be submitted to and approved in writing by the Local Planning Authority prior to the first use of the development. The development shall not be carried out otherwise than in accordance with the details thus approved. -An Acoustic Survey which should identify the existing background sound levels; predict the rated sound levels at the nearest residential or noise sensitive premises and determine what level of mitigation (if any) would be required to ensure that noise derived from the use of the proposed development has a marginal impact on noise sensitive receptors. REASON: To ensure that the development does not have an adverse impact upon neighbouring amenity.

Full particulars and details of provisions for soundproofing shall be submitted to, and approved in writing by, the local planning authority. The approved soundproofing shall be installed prior to the commencement of the use hereby permitted and thereby retained as agreed thereafter. REASON: To safeguard the amenity of neighbouring occupiers.

There shall be no use of an amplified PA system, amplified music or a school bell (except in times of emergency) inside or outside the premises. REASON: To ensure that occupiers of neighbouring premises do not suffer a loss of amenity by reason of noise pollution.

All the windows in the northern and eastern elevations shall be obscure-glazed and non-opening and permanently retained as such. REASON: To safeguard the amenities of neighbouring occupiers.

The rear garden shall not be used for play or leisure activities. REASON: To protect the amenity of neighbouring residents.

Prior to the commencement of works, an assessment to determine whether bats are roosting within the site, shall be submitted to and approved in writing by the Local Planning Authority. The assessment should be undertaken between April and September. REASON: To ensure the potential protection of bat nests in line with the London Plan and LP33.

The development hereby permitted must be begun no later than the expiration of three years beginning with the date of this permission. REASON: In order to comply with the provisions of the Town and Country Planning Act 1990 (as amended).

The development hereby permitted shall only be carried out and completed strictly in accordance with the submitted plans hereby approved and any subsequent approval of details. REASON: To ensure that the development hereby permitted is carried out in full accordance with the plans hereby approved.

In the event that a variation is proposed from the works hereby approved, as a result of discussions with Building Control and the requirement to meet Building Regulations, full details of the variations to the works shall be submitted to and approved by the Local Planning Authority, in writing, before the relevant part of the work commences on site. The development shall not be carried out otherwise than in accordance with the details thus approved. REASON: To ensure that special regard is paid to protecting the special architectural and historic interest and integrity of the building.

Full details, with samples, of the materials to be used on the external surfaces of the buildings, including glazing, shall be submitted to and approved by the Local Planning Authority in writing before the relevant work on site is commenced. The development shall not be carried out otherwise than in accordance with the details thus approved. REASON: To ensure that the external appearance of the building is satisfactory and does not detract from the character and visual amenity of the area.

Detailed drawings/full particulars of the proposed development showing the matters set out below must be submitted to and approved by the Local Planning Authority in writing before the relevant work on site is commenced. The development shall not be carried out otherwise than in accordance with the details thus approved which shall be implemented in full prior to the first use of the development a) 1:20 elevations and sections of the front doors b) elevations showing 1.8m high boundary fencing along the eastern boundary. REASON: To ensure that the external appearance of the building is satisfactory and does not detract from the character and visual amenity of the area and to protect the amenity of adjoining occupiers.

Before the start of the relevant part of the works a detailed schedule of works of window repair shall be submitted to and approved in writing by the Local Planning Authority and works shall be carried out accordingly. The Schedule of Works of Repair shall clarify the extent of report to the windows. REASON: in order that the works approved are carried out in a satisfactory manner which safeguards the special historic and architectural interest of the building and that the proposal does not detract from the character and appearance of the area.

A scheme for the provision and implementation of flood resilient and resistant construction details and measures for the site against surface water flood risk shall be submitted to and agreed in writing with the LPA in consultation with the LLFA prior to the construction of the measures. The scheme shall be carried out in its entirety before the extension is occupied and constructed and completed in accordance with the approved plans in line with current best practices. REASON: In the interest of flood mitigation.

Prior to superstructure works, detail specification and a drainage layout of at least one suitable sustainable drainage systems (i.e. water butt, raingarden, bioretention planter box, living roof (substrate depth of 80-150mm excluding vegetative mat), permeable paving etc) shall be submitted to, and approved by the LPA, in consultation with the LLFA. If soakaways i.e. plastic modules and soakaway rings are used, an infiltration test must be carried out to ensure that the capacity of the soil is suitable for infiltration. It must be demonstrated that there will be no increase in surface water flow being discharged offsite and an overall reduction in peak flow rate and volume. REASON: In the interest of sustainable drainage.

The development hereby permitted shall be carried out in accordance with the approved plans listed in schedule: • 3001-101A • 019-028/PEXT009 • 019-028/PEXT010 • 019-028/PEXT011 • 019-028/PEXT012 • 019-028/PEXT013 • E19-028/SEC001 Rev P1 • E19-028/PSIT010 Rev 2 • E19-028/PAGP009 Rev 2 • E19-028/PAGP010 • E19-028/PAGP011 • E19-028/PAGP012 • E19-028/PAGP013 • E19-028/PELV010 Rev 2 • E19-028/PELV011 • E19-028/PELV012 Rev 2 • E19-028/PELV013 Rev 2 • E19-028/PSEC010 • E19-028/PSEC011 • E19-028/PSEC012 • E19-028-PCON030 • E19-028-PCON031

All new external works, and works of making good to the retained fabric, shall be finished to match the original work with regard to the methods used and to material, dimensions, composition, form, colour, finish and profile, and in the case if brickwork, facebond and pointing.

Unless within 3 months of the date of this decision details for the following items i)-iv) below, are submitted in writing to the local planning authority for approval, and unless the approved scheme is implemented within 6 months of the local planning authority’s approval, the occupation of the site shall cease until such time as a scheme is approved and implemented. This shall include the following: i) Details of a boundary fence to the eastern boundary. ii) Details of swift nesting boxes including numbers and locations. iii) Details of flood measures for the site against surface water flood risk. iv) Detailed specification of a sustainable drainage system. It must be demonstrated that there will be no increase in surface water flow being discharged offsite and an overall reduction in peak flow rate and volume. If no details in accordance with this condition are approved within 6 months of the date of this decision, the occupation of the site shall cease until such time as a scheme approved by the local planning authority is implemented. Upon implementation of the approved details specified in this condition, they shall thereafter be maintained/retained/remain in use. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.