Appeal 6000217

The appeal is dismissed.

I have considered the appeal based on the plans listed on the Council’s decision notice.

The evidence before me indicates that the building could possess features suitable for roosting bats, and the site is located within close proximity to suitable commuting corridors. Although not forming part of the Council’s reason for refusal, it is incumbent upon me as competent authority to consider whether the development would harm protected species (bats) and their habitats. It is therefore necessary to consider this as a main issue. Both parties have had the opportunity to comment on this matter, and I have taken their comments into account in my

The main issues are: • whether the proposed development would provide adequate living conditions for future occupiers, with regard to privacy in respect of the occupiers of unit 1, the provision of internal living space in unit 5, and the provision of communal amenity space including its accessibility for wheelchair users; and • the effect of the proposed development on protected species (bats) and their habitats.

The appeal site relates to a two-storey detached property in Romford. It is situated on a corner plot at the junction of [site address] and [address]. The evidence before me states that the property is currently being used as a House in [name], and this is the subject of an enforcement case. There is parking to the front of the site and a garden to the rear. Unit 1- Privacy

To access the communal garden area to the rear of the site, occupiers of units 3-5 would need to exit the front of the building and walk down the path adjacent to the ground floor flank windows of unit 1.

This would involve occupiers of units 3-5 walking past the only window to bedroom 2 and a window serving the living/kitchen/dining area at unit 1. This could be at any time of the day, and also numerous times a day, given multiple units would utilise it to access the communal area. The access path is also relatively narrow, therefore anyone walking past the windows would be doing so at close quarters, enabling them to have clear views into these windows. This would result in a significant lack of privacy afforded to the residents of unit 1.

The appellant stipulates that the reference to unit 1 appears to be an error, as the side path runs past unit 2. It is however evident from the submitted plans that the side path would run past unit 1. Furthermore, it is clear from the plans, and from my site visit that there is no side path which would run alongside unit 2. I do not agree that it would be unlikely that there would be any use of the side access. From the submitted plans, this would be the only access to the rear garden area for the occupiers of units 3-5.

Whilst the existing wall would screen the ground floor side elevation windows from public view, there would still be a lack of privacy as a result of the use of the side path for garden access. The residents would be part of the same flat complex. This would however not outweigh the harm I have identified. I accept that in urban areas a degree of mutual overlooking is often not uncommon, however I consider that the scheme would result in unacceptable harm by way of lack of privacy to the occupiers of unit 1.

The rear garden area of unit 1 would also abut the communal garden area, however rails and soft landscaping are shown on the boundary of the rear garden area of unit 1, to provide some screening. I am satisfied that this would ensure adequate privacy for the occupiers of unit 1, when they are using their garden area.

My attention has been drawn to an approval at 3 [site address] . A side path provides access to the communal rear garden area under this scheme. However, the plans show an area of soft landscaping at the side elevation windows. This would provide some screening to the windows, reducing any loss of privacy. Furthermore, the side access path is much wider than that proposed under the appeal before me. This increased width would provide a greater degree of privacy to the occupiers of the impacted flats. I am therefore not satisfied that the schemes are directly comparable.

For the reasons given above, I conclude that the proposed development would fail to provide adequate privacy to the future occupiers of unit 1. This would be contrary to Policy 7 of the Havering Local Plan 2016-2031 (2021) (HLP) and Policy D6 of the London Plan 2021 (LP). Collectively, amongst other matters, these policies seek to ensure acceptable living conditions for occupiers. Unit 5- Internal living space

Concerns are raised regarding insufficient floor to ceiling height in unit 5. At appeal stage the appellant has submitted an additional floor plan to clarify the overall floor area in unit 5. They have indicated that [address] metres (sqm), of a total internal floor area of 57sqm, would be above 2.5 metres in height. Following this, the Council have advised in their Statement of Case that the total internal floor area would be calculated at 57sqm and provided their calculations are correct, this would overcome the first refusal reason.

In light of a lack of evidence to dispute these figures, I see no reason to disagree with the Council’s position in their Statement of Case. Based on the evidence before me, unit 5 would therefore provide an acceptable standard of accommodation for future occupiers, with regard to the provision of internal living space. This would be in accordance with Policy 7 of the HLP and Policy D6 of the LP. Collectively, amongst other matters, these policies seek to ensure that developments provide adequate floor to ceiling heights.

Each unit would provide private outdoor space in accordance with Policy D6 of the LP. Additional communal amenity space would be provided to the rear of the property, between the private garden area of unit 2 and the car parking area. The Council raise concerns regarding its limited depth, poor access arrangements, layout and siting. They also explain that it would be utilised by potentially 14 people, which would exacerbate these issues.

However, it is highly unlikely that it would be used at the same time, by all occupants of the properties, unless this was an arranged gathering. Furthermore, this outdoor space is in addition to each unit’s private amenity space.

Future occupiers of units 3-5 would have to exit the front door of the building and go down the side path of the property to the communal garden. Notwithstanding my concerns regarding the effect of this on privacy, this arrangement would be acceptable. Furthermore, such arrangements are not uncommon in flatted developments. Although the communal garden would be somewhat of an irregular shape, it would still be useable.

The submitted design and access statement outlines how units 1 and 2 would be accessible to wheelchair users and ambulant disabled occupiers. The Council raise concerns regarding the lack of ramps or level access to the communal amenity space for these units. However, these units would be provided with private amenity space which exceeds the requirements set out in the LP. As such, their access to outdoor space would be acceptable and any deficiencies in terms of their access to the communal garden would not weight against the proposal.

Whilst Policy 7 of the HLP states that the Council will support developments that provide both balconies and communal amenity space in flatted schemes, the wording does not preclude schemes from only providing one or the other.

Overall, the scheme would provide an acceptable standard of communal amenity space. This would be in accordance with Policies 7 and 9 of the HLP and Policy D6 of the LP. Collectively, these policies seek to ensure adequate external amenity space in residential developments.

Although there would be some conflict with Policy D5 of the LP due to the lack of ramp or level access to the communal garden area for disabled users in flats 1 and 2, they would be provided with good quality private outdoor space.

To conclude on the main issue, unit 5 would provide an acceptable standard of accommodation for future occupiers, with regard to the provision of internal living space. The scheme would also ensure an acceptable standard of communal amenity space. However, the living conditions of occupiers of unit [address] of lack of privacy. Therefore, overall, the scheme would fail to comply with Policy 7 and 26 of the HLP and Policy D6 of the LP, which seeks to ensure acceptable amenity for occupiers and high architectural quality and design.

The appellant advises that the NBN atlas confirms there are no records of bats in the area and [name] advises there are no habitat designations in the area. The Council’s Ecology Officer however outlines how the building could possess features suitable for roosting bats, and an absence of records does not indicate an absence of species. In addition, bats are a mobile species, and the site is located within close proximity to suitable commuting corridors, such as the trainline. The evidence before me outlines how extending the search of records to a 2-kilometre radius, returns several records for bats in the wider area.

The Ecology Officer recommends a Preliminary Roost Assessment (PRA) is undertaken. The Council however advise in their case officer report that it is not considered reasonable to impose a condition requiring a PRA as the proposal involves extensions to an occupied building in a suburban area. Instead, it recommends an informative to advise the applicant that it is an offence to harm a protected species. At appeal stage, it has advised that a condition which requires the submission of a PRA could be considered if the scheme is allowed.

Owing to the age and poorly maintained condition of the property, and the presence of bats in the wider area, it is however essential that the presence or otherwise of protected species, and the extent that they may be affected by a proposed development is established before planning permission is granted. This could not be dealt with by way of a condition or informative. Whilst the building is occupied and in an urban area, this would not preclude it from potentially providing features suitable for roosting bats.

Therefore, the absence of sufficient information means I cannot rule out harm to bats which are a protected species. This would be contrary to the provisions of the National Planning Policy Framework (the Framework) which sets out that if significant harm to biodiversity cannot be avoided, adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused.

The appellant has suggested that the communal garden area could be removed to address a number of refusal reasons by using a ‘Wheatcroft amendment,’ ensured through a planning condition. This would however result in a substantial difference to the scheme that would no longer be in line with the description of development, which makes specific reference to the communal amenity area. This would therefore prejudice the interests of the Council, interested parties and consultees, who were consulted on the scheme which included the communal amenity space.

The appellant outlines how the HLP was found sound on the basis of an imminent review and a great deal of housing will come from larger strategic sites that are not capable of being delivered in the first five-year period. They also outline that an imminent review has not taken place and there is no suggestion that one may happen soon. The HLP however forms the adopted development plan. The Council also accept that it has failed to satisfy the [name] (HDT) and cannot currently demonstrate a five-year housing land supply and therefore the ’titled balance’ as set out in the Framework is engaged. I have considered this point further below.

The site would provide parking in line with highway policy requirements; it would also provide cycle parking and may ensure neighbouring amenity. The site is not within a Conservation area or within the vicinity of listed buildings. It also has no Tree Preservation Orders. These are however considered to be neutral factors and would not weigh in favour of, nor against, the appeal.

There is limited evidence to demonstrate that the scheme would enhance the street scene. I have afforded this consideration limited weight.

The Council concedes that it has a failed to satisfy the [name] (HDT). The HDT result for 2023, as published in December 2024, was 61%. The Council accepts that it cannot currently demonstrate a five-year housing land supply. The appellant also suggests that the Council has never had a five-year housing land supply. Neither party has provided specific details of the housing land supply position. Nevertheless, I shall assume for the purposes of this appeal that it is a significant shortfall.

There is nothing before me to suggest that there are any policies in the Framework that protect areas or assets of particular importance that provide a strong reason for refusing the development under paragraph 11d)(i). Therefore, the balance in paragraph 11d(ii) applies such that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole.

The scheme would provide housing in an accessible location. It would also make effective use of brownfield land, delivering housing on a smaller site. The dwellings may provide high quality accommodation with dual aspect and acceptable outlook, however as previously outlined, I am not satisfied that unit 1 would provide an acceptable standard of privacy. Traditional materials would be used to match the existing building, respecting local character and context. The dwellings may provide a number of accessible units, in accordance with building regulations, however as outlined previously there would be issues with communal space access for the ground floor properties. The limited scale of the development means that I afford the provision of new housing, along with the other benefits listed above, moderate weight in favour of the proposed development.

Accordingly, I find that the adverse impacts arising from the development in terms its effect on the living conditions of the future occupiers of unit 1 and the potential harm to a protected species would significantly and demonstrably outweigh the moderate weight attributed to the benefits when assessed against the policies in the Framework taken as a whole. The presumption in favour of sustainable development does not apply in these circumstances.

My attention has been drawn to a number of other appeals whereby harm was found, however the Inspectors found that the adverse impacts of granting planning permission would not significantly and demonstrably outweigh the benefits and therefore allowed the appeals. The appellant accepts that the circumstances are not relevant to this appeal and the cases are cited to demonstrate the weight to be attributed to housing provision. [name] acknowledge these cases, each appeal is determined on its own merits. I have carried out my own balancing exercise.

The proposal would conflict with the development plan as a whole and there are no other considerations, including the provisions of the Framework, which outweigh this finding. Therefore, for the reasons given above, I conclude that the appeal should be dismissed.