Appeal 3319607

The appeal is allowed and the planning permission Ref 2023/0136 for the erection of a first-floor rear extension at [site address] , Hackney, London [postcode] granted on 22 March 2023 by London Borough of Hackney, is varied by deleting condition Nos 4, 5 and 6 and substituting condition No 1 for the following condition:

The development hereby permitted shall be carried out in accordance with the following approved plans: • OR.50.PR.101. [name] ([name] - Ground & [name]) • OR.50.PR.102. [name] ([name] and [name]) • OR.50.PR.103. [name] ([name] (1 & 2) and Section A-A)

An application for costs was made by EALINGRYDAL LTD against the Council of the London Borough of Hackney. This application is the subject of a separate

The site has some recent planning history, including a planning permission1 and lawful development certificate2 which have been granted for alterations and extensions to the property. The approved works include a single storey rear extension and dormer extension. During my site visit it was apparent that building works to the property have commenced.

Planning permission was granted for the erection of a first-floor rear extension, which includes condition No.4 requiring a nesting box and bee brick to be provided prior to the use of the roof extension. The permission also includes condition No.5 which requires a drainage; layout, management, and maintenance plan to be submitted and approved by the Council prior to substructure works taking place and condition No.6 which requires the submission and approval of scheme for the provision of and implementation of flood resilient and resistant construction details and measures for the site.

The Council considers that the conditions are reasonable and necessary to enhance local biodiversity and to ensure a sustainable drainage system is provided and incorporated into the design of the development. However, the appellant objects to the imposition of these conditions as they consider that they are not necessary, reasonable, or relevant to the development permitted.

Therefore, the main issue of this appeal is whether conditions Nos. 4, 5 and 6 are reasonable, necessary, and relevant to the development in permitted in the interests of enhancing local biodiversity and to achieve satisfactory sustainable drainage arrangements.

Policy LP47 of the Hackney Local Plan 2020 (HLP) states that 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. This policy seeks to enhance biodiversity by making provision for nesting of endangered wildlife species within the Borough.

The eaves height of the appeal property is disputed between the parties with the appellant stating that falls below the 5 metre threshold, measuring just 4.7 metres in height. The Council states that the eaves height of the building ranges from 4.7 metres at its lowest point to 5.47 metres at its highest. The ‘eaves height’ height is usually measured from ground level at the base of the outside wall to the point where that wall would meet the upper surface of the roof slope. The development permitted involves a first-floor extension above 1 Application Ref: 2023/0141 2 Application Ref: 2023/0133 and existing outrigger, which would have a mono-pitched roof. The eaves height of the extended part of the extended building, which measures approximately 4.7 metres, would be below the 5 metre threshold set out in Policy LP47. I have not been presented with any compelling evidence to demonstrate that there are special circumstances to justify this requirement. Therefore, the provision of nesting box and bee brick would not be required.

Consequently, I find that due to the eaves height of the extended part of the building being below 5 metres in height, Policy LP47 of the HLP is not applicable in this particular case. Therefore, condition No.4 is not necessary or reasonable. It is also not relevant to the development, in so far as, the eaves height of the proposed extension falls below the height stated in Policy LP47. Conditions No.5 and 6

Policy 53 of the HLP states that all development must have regard to reducing flood risk, both to, and from the site over its expected lifetime. It also states that development should decrease vulnerability to flooding and achieve greenfield run off rates by attenuating water on site, utilising SuDs and in accordance with the London Plan drainage hierarchy. The Council’s Drainage Team recommended imposition of condition nos. 5 and 6 on the grounds that they were necessary to prevent increased flooding from surface water run-off.

It is acknowledged that the appeal site is located in an area with a high risk of surface water flooding. However, as the first-floor extension would extend and alter an existing outrigger and its roof there would be no increase in the footprint of the property as a result in this application.

I acknowledge that the planning history of the appeal site indicates that some further extensions and alterations which are not part of this application, and these may increase the overall footprint and size of the dwelling, including additional non-permeable areas. However, the proposed extension to which this application relates is a minor addition to the first floor of the property, above an existing ground-floor extension and does not increase the overall roof area nor areas of non-permeable surfaces.

As such, the development permitted would not be likely to result in increased surface water run-off or flood risk. Therefore, I find that condition Nos 5 and 6 which require drainage and flood risk measures to be agreed and implemented are not reasonable or necessary in the context of this application. These conditions are also not relevant to the development permitted.

My attention has been drawn to a recent grant of planning permission3 at the property for a part two, part single storey rear extension to No. 48 and [site address] . The appellant states that two of the disputed conditions (No.4 and No.6) were not imposed on this application. The Council have stated that condition No.4 was not imposed due to the eave’s height of the proposed extension and the suitability of a location for a bat/bird box. A condition requiring sustainable drainage, is included, and incorporates the same wording as the disputed condition No.5 which is the subject of this appeal. Nevertheless, the inclusion of this condition on a separate grant of planning permission does not alter my findings above. 3 Planning Application Ref: 2022/0433

For the above reasons, I find that condition Nos 4, 5 and 6 are not reasonable, necessary, or relevant to the development permitted.

It came to light during the appeals process that an error had been made in relation to the approved plans list on the original decision notice. Therefore, for the avoidance of doubt I have substituted condition No. 1 for a condition which lists the approved plans. This condition is necessary to ensure that the development is carried out in accordance with the correct set of plans.

For the reasons given above, I conclude that the planning permission should be varied as set out in the formal decision.