Appeal 6000399

The appeal is allowed, and planning permission is granted for the erection of a three-storey building to provide 4no. self-contained flats with undercroft parking at [site address] in accordance with the terms of the application, Ref 25/1762/FUL, subject to the conditions set out in the schedule below.

These are the effect of the development upon, firstly, the character and appearance of the area and, secondly, the living conditions of future occupiers.

The appeal site is located to the rear of [site address] , a two storey, end-terrace property with a commercial unit at ground floor level and residential accommodation above. There is currently a partly constructed single storey commercial building on the site which is used for car parking and is enclosed by brick walls to the rear and side perimeter of the site. [name] understand it, the building was approved on appeal1 but remains uncompleted due to a business downturn. Overall, the area to the rear of [name] has an unplanned and unsightly appearance something which is exacerbated by the unfinished building on the appeal site.

As the officer’s report (OR) notes the surrounding area has a mixed urban character with a wide range of building styles present. There are also no listed buildings or conservation areas close to the site. [name] saw when I visited the site, the surrounding townscape has a robustness which is not particularly notable or sensitive in architectural or streetscape terms. While buildings tend to be two or three storeys in height, taller buildings are visible in views up and down [address]. The parties have also referred to a recent grant of planning permission for a 1 PINS ref: APP/N5090/W/20/3254800 ‘high-rise residential development on the Lexus car dealership opposite the appeal site.

The proposal seeks to extend the unfinished commercial building upwards to provide four self-contained flats on two upper floors. Car parking, cycle and refuse storage would be provided in an undercroft area accessed from the rear service road. The building would be seen primarily in the context of [address], a residential street with commercial uses at its western end close to the [address] junction. Given its set-back, views from [address] would be limited and not ‘highly visible’ as claimed by the Council. One would in effect need to know where to look and even then, the building would only be briefly visible in transitory views.

The Council’s concerns are centred primarily on the size and height of the proposed building which would be 8.4m measured from the corner of [address] and the unnamed service road. That is an increase of approximately 3.5 metres, roughly one storey. According to the Appellant the height of the adjacent semi-detached houses at 1 and [address] is 8.2 meters. Both the first and second floors of the building would be set-back from [address] and the rear boundary helping to reduce its mass and resulting impact on both the street scene and neighbouring occupiers.

In terms of height, the streetscene elevation2 provided by the Appellant shows that the building would sit comfortably below a line drawn from the ridge of No. 19 to No. 1. On that basis alone I struggle to see how it can be said the building would be disproportionate. While the mass of unbroken brickwork to the north-east elevation is a disappointment, the more prominent front elevation to [address] would be well articulated with gables, dormers and a symmetrical pattern of fenestration. In my view, the façade of the building would assimilate well with its varied surroundings and improve the overall appearance appeal site.

Consequently, and notwithstanding the schemes shortcomings, the proposed development would not cause unacceptable harm to the character and appearance of the area. Accordingly, there would be no conflict with Policy D3 of the London Plan (LP), Policy CDH01 of the Barnet Local Plan (BLP), the [name] and [name] (2016) and the Residential Design Guidance SPD (2016). These policies, among other matters, seek development that would protect the borough’s character, create high-quality places and respect the pattern of surrounding built form.

The Council allege that the balconies to flats 1 and 2, by reason of their siting, would be overlooked from the existing upper floor rear windows of properties above [name], resulting in an undue loss of privacy and sub-standard form of accommodation. The Council’s SPD states that there should be a distance of 10.5m between facing windows and a neighbouring garden, or in this case, balcony. The SPD goes on to say that shorter distances may be acceptable between new build properties where there are material justifications.

The appellant states that the balcony to flat 1 would be approximately 10m away from the nearest windows and 17m in respect of flat 2. Such distances are not 2 [name]. 24/3674/05 unusual in the context of a built-up area like this where a degree of mutual overlooking is tolerated and indeed expected. In my view, this is exactly the kind of ‘material justification’ referred to in the SPD.

Another ‘material justification’ would be the degree of shortfall, in this case just 50cms. It difficult to see, and indeed the Council has not explained, how a 50cm shortfall would cause unacceptable harm to future occupiers who would in any event be able to exercise consumer choice if they felt otherwise. I also concur with the appellant that privacy screens could be installed to the balconies to eliminate any possibility of overlooking.

Based on the foregoing I am satisfied that future residents of the development would not be subject to unacceptable living conditions. Accordingly, there would be no conflict with LP Policy D3, BLP Policy CDH01 or the SPD insofar as they seek to provide an adequate standard of accommodation.

The Council states that it has not been provided with swept paths showing how vehicles can enter and exit the site in a forward gear. However, a layout plan has been provided, and I would have thought it rather straight-forward and indeed standard practice for a highway officer to have access to a set of overlays which could be used to quickly judge acceptability of a layout.

The plans show that the access to the parking area would be some 4.5m wide which is sufficient to allow two cars to pass. The plans also show that there would be sufficient room to turn vehicles within the parking area and to exit the site in a forward gear, something which is clearly an improvement over the current situation. Any competent highway assessment also needs to acknowledge; 1) the lightly trafficked/low speed nature of the rear service road meaning that reversing out, even if it did occur, is unlikely to cause a problem in practice, and 2) that the proposed development is likely to lead to a net reduction in vehicular trips to/from the appeal site. Based on the above I consider the third reason for refusal to be completely without merit.

The Council’s fourth reason for refusal concerns flood risk. [name] appreciate a separate Flood Risk Assessment (FRA) has not been submitted, one has to question what sensible purpose would have been served by an FRA given the Design and [name] contains a [name]. This highlights that the proposed building would be built on the same footprint as the existing commercial building and the residential accommodation would approximately 3 meters above ground level (i.e. an area of lowest flood risk). It is therefore almost inconceivable that the proposed development would not be safe for its lifetime or increase flood risk elsewhere. Accordingly, I consider the information provided by the applicant is proportionate to the nature of the scheme and there would be no conflict with the NPPF or BLP Policy ECC03 in respect of flood risk.

Even if I had found in the Council’s favour on the substantive merits of this appeal, this would not necessarily have led me to dismissing the appeal. Section 38(6) of the 2004 Planning and Compulsory Purchase Act 2004 (the Act) requires planning applications to be determined in accordance with the development plan unless material considerations indicate otherwise. One such material consideration is the National Planning Policy Framework (NPPF), which can override development plan policy if it is not consistent with the NPPF’s provisions.

While the OR refers to the NPPF, it does not mention paragraph 125c). This states “[s]substantial weight should be given to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved unless substantial harm would be caused” (my emphasis). In setting the bar at ‘substantial’ the government clearly recognises that some harm maybe acceptable if the country’s housing needs are going to be met. As the Council has not alleged any ‘substantial’ harm, even on its own case the appeal scheme accords with NPPF para 125c). This is a significant material consideration capable of outweighing conflict with the Development Plan.

I have imposed a time limit and plans conditions to provide certainty. Materials and levels conditions are necessary to ensure the satisfactory appearance of the development. Suitable bin storage and cycle/car parking areas are shown on the layout plan and are thus captured by the plans condition. Separate conditions are therefore unnecessary.

Given the modest scale of the development, I am not persuaded that a Demolition and [name] and Logistics Plan is reasonably necessary to make the development acceptable. I have however imposed a condition in relation to construction hours to protect the amenity of local residents. A condition to ensure the bin and parking areas are provided prior to first occupation is necessary in the interests of pedestrian safety.

Compliance or otherwise with [name] of the Building Regulations is covered under a separate statutory regime. The suggested condition does not therefore meet the tests for planning conditions. Given my conclusions on the second main issue, I am not persuaded that a condition regarding privacy screens is necessary to make the development acceptable. Even in the alternative, the matter is captured by the materials condition.

The Council has suggested a condition regarding the specification of boilers, something that would ordinarily be covered under the Building Regulations. There is no specific mention of boilers within policies ECC02, GG3, SI1 or SI2 which are referred to in the justification. Without clear reasoning I cannot be sure this condition meets the legal tests. Finally, and as referred to in paragraph 15 above, I am satisfied that the level of information submitted in relation to flood risk is commensurate to the scale and nature of the development and that no actual harm would be caused to future occupiers or other locations. No further flood risk information is therefore required to make the development acceptable.

For the reasons given above the appeal should be allowed.

The development hereby permitted shall begin not later than three years from the date of this decision.

The development hereby permitted shall be carried out in accordance with drawing nos: Site Location Plan, 24/3674/04 [name], 24/3674/05 [name], 24/3674/05 [name], 24/3674/06 [name], Design and [name] and Flood Risk Assessment (Dated 23 April 2025).

Notwithstanding the approved plans, no development other than demolition works shall take place until details of all external materials including boundary treatments have been submitted to and approved in writing by the Local Planning Authority. The development shall thereafter be implemented in accordance with the approved details.

No development shall take place until details of the levels of the building in relation to the adjoining land and highways and any other changes proposed in the levels of the site have been submitted to and approved in writing by the Local Planning Authority. The development shall thereafter be implemented in accordance with the details as approved under this condition and retained as such thereafter.

No construction work resulting from the planning permission shall be carried out on the premises at any time on Sundays, Bank or Public Holidays, before 8.00 am or after 1.00 pm on Saturdays, or before 8.00 am or after 6.00pm pm on other days.

The areas shown for car and cycle parking and bin storage on [name]. 24/3674/04 [name] shall be provided prior to first occupation of any flat and thereafter retained.