Appeal 6002110

The appeal is dismissed and planning permission is refused.

For the avoidance of doubt, I have used the description from the application form in the banner heading above.

The Council refers to the preparation of the Draft Newham Local Plan, which is understood to be at Regulation 22 stage. I have not been supplied with a copy of the emerging Local Plan. However, the Council’s reasons for refusal do not identify any conflict with the emerging Local Plan and I note it remains at an early stage of preparation. I have therefore based my decision on the adopted Development Plan.

The evidence indicates that during the planning application the scheme was amended to include a replacement flue system for the restaurant within the neighbouring Duke of [address] (DoF building), which is a [name] listed building 1. The replacement flue would be affixed to the DoF building. I am not aware that any associated listed building consent application was made. The DoF building is within the appellant’s control; however, both of the main parties have confirmed that it would be partly located outside of the red line of the appeal site. The replacement of the flue is not included within the description of development either. Consequently, the flue does not form part of the appeal scheme before me. I will return to this matter below. 1 [name]. 1357987

The appellant has submitted two plans with their appeal which show alternative floor plan options for House 2 2 and an alternative design for the restaurant extraction flue 3. As there is no confirmation which House 2 floor plan layout the appellant wishes to advance and a full suite of amended floor and elevation plans have not been submitted with this appeal, I have based my decision on the plans that were submitted with the planning application. Given the replacement flue system is partially outside of the appeal site I have not considered the alternative design advanced for this element either.

The appeal is made against the failure of the Council to reach a decision on the application within the relevant statutory timeframe. Nonetheless, the Council has submitted an appeal statement which sets out that had it issued a decision, it would have refused permission on the grounds that the replacement extraction flue proposed on the DoF building would harm the [name] listed building and its setting, and the substandard gross internal floor area of House 2 would fail to provide acceptable living conditions for future occupiers.

As set out above, I have found that the replacement flue does not form part of the appeal scheme before me. The appeal must therefore be considered on the basis that no alterations would be made to the existing flue which serves the neighbouring restaurant. This effectively addresses the Council’s concerns in relation to the effect of the flue alterations on the listed building. However, the main parties were also given the opportunity to comment on the implications of this matter on the appeal. The Council has set out that in the absence of any alterations to the flue, it would have refused planning permission on the grounds that the development would result in unacceptable living conditions for future occupants due to noise and odour.

The Council also states that the absence of a legal agreement pursuant to Section 106 of the Town and Country Planning Act 1990 (as amended) to secure the development as car-free would warrant a further reason for refusal due to the effect that additional parking would have on the highway network.

Therefore, based on the Council’s evidence and the matters above, the main issues in this appeal are: • whether the proposed development would result in acceptable living conditions for future occupants having particular regard to noise, odour and internal space; and • the effect of the proposal on the safe and efficient operation of the local highway network with regard to parking provision.

The appeal site is located on the north-east side of [address] in a predominately mixed-use area. The site relates to the courtyard of the DoF building which is understood to be in use as an outdoor area associated with a restaurant operating within the ground floor of [address]. 2 House 2 [name]. 10-06-21 F09 3 [name]. 10-06-21 F10

The appeal scheme proposes the construction of two dwellings positioned adjacent to the existing terraced row on [address]. The development would extend over almost all of the courtyard site. However, access to the restaurant and the sub-station would be retained via a narrow dog-legged alleyway around the new building.

The council’s concerns in this respect relate to House 2 which is described in the appellant’s evidence as a 2-bed 3-person unit with a gross internal area (GIA) of 83.[address] metres (sqm) plus storage space.

The dwelling would have an open plan kitchen/dining room/lounge and a separate WC at ground floor, a living room, single bedroom and bathroom at first floor and a double bedroom and external terrace at second floor. I acknowledge that it is not uncommon for living rooms to be positioned at first floor. However, even though labelled as a living room, this first-floor room would have a floor area exceeding the requirements for a two-bedspace double (or twin) bedroom as set out in Policy D6 of the London Plan (2021) and appears almost identical to the room labelled Bed 1 at first floor within House 1. Considering the shape and size of this room, along with the overall floor plan for this unit and extent of living space that would be provided at ground floor, I consider it would in all reasonable likelihood be used as a 3-bedroom unit of accommodation.

The appellant suggests a condition could be imposed to ensure the dwelling is only occupied as a two-bedroom unit. However, no suggested condition is before me, and I have concerns about whether this would meet the tests of enforceability. I have therefore considered this appeal on the basis that House 2 could be occupied as a 3- bedroom dwelling.

Policy H1 of the Newham Local Plan (2018) (the NLP) states that all new homes should meet the internal space standards of the London Plan as a minimum. Policy D6 of the London Plan (2021) sets out minimum GIA space standards for new dwellings and requires a minimum GIA of 90sqm for a 3-bed, 4-person, three-storey dwelling and 99sqm for a 3-bed, 5-person, three-storey dwelling.

House 2 would fall approximately 6.6 - 15.6sqm short of these requirements, depending on whether it was occupied as a four, or five person unit. In either scenario this would not be an insignificant shortfall and is a strong indicator that the dwelling would result in unsatisfactory living conditions. Whilst some furniture has been annotated on the plans, the constrained layout would provide limited space for cooking, dining and relaxing within the unit, resulting in a cramped internal arrangement and substandard living environment.

The evidence indicates that a restaurant operates from part of the DoF building which takes access through the appeal site. A commercial ventilation and extraction system including two external flues affixed to the side of the DoF building are located on top of a flat roof range at the rear of the appeal site. The appellant states that the kitchen within the restaurant is not currently in operation all day and operates as a bookable function space. However, I am not aware of any restrictions on the premises to limit the kitchen operating hours, or use of the restaurant, and note the supporting documents to this appeal state the extraction system operates Monday-to-Sunday from 11:30am to 11:30pm.

The relationship between the proposed dwellings and the DoF building would be close. The dwellings would have windows on their rear elevations and raised external terraces at second floor which would face this commercial apparatus. Notwithstanding the orientation of the flues, given the nature of commercial extraction systems and close interrelationship proposed, there is the potential for noise and odour disturbance.

The appellant contends that the flue outlets sit slightly higher than the level of the proposed external terraces, which would serve as secondary amenity spaces and that the windows on the rear elevations would not serve main habitable rooms. However, irrespective of this, the information before me, including the supporting [name] (OCS) document 4 does not provide any substantive evidence relating to the performance of the restaurant’s current system. Instead, the OCS document concludes that taking into consideration the level of discharge, proximity of receptors, size of the kitchen and cooking type, a high level of odour control is required to comply with EMAQ guidance. A replacement ventilation and extraction system is therefore recommended in the OCS document, but for reasons previously explained, are not proposed as part of this appeal.

No detailed odour assessment of the existing system is before me to demonstrate that odour emissions from the restaurant flues would be within acceptable tolerances. The evidence indicates that the current system would require updating to ensure effective odour abatement in accordance with EMAQ guidance. Therefore, due to the very close interrelationship and evidence before me, I therefore cannot be sufficiently certain that the proposed dwellings would not be exposed to unacceptable odour levels. These effects would be heightened in the summer months if windows are opened and external amenity areas, including the raised terrace areas, are more frequently in use. I note the suggestion that conditions could be imposed requiring mitigation following an air quality assessment, including airtight construction and use of a mechanical ventilation system to prevent windows needing to be opened. However, I have no empirical evidence before me that such measures would be appropriate or effective in this case, and in any event, they would not mitigate the potential effects on the external amenity areas proposed within the site.

The accompanying BS4142 5 Assessment 6 sets out the findings of a background noise assessment undertaken. However, the Assessment does not explain whether the recorded background noise levels or noise levels when the ventilation system was in operation were at an acceptable level for the proximity of the proposed residential use. The Assessment provides noise calculations for a proposed mitigation scheme which would result in a low impact in accordance with BS4142 at the nearest noise sensitive receptor. However, this is predicated on a mitigation scheme which would not be secured as part of this appeal, and it is unclear whether the current system, without any attenuation, would result in acceptable internal and external noise environments for the proximity of the proposed residential units.

In the absence of the necessary technical evidence and given the particular juxtaposition between the existing restaurant and proposed dwellings, I therefore cannot be sufficiently certain that future occupiers would be adequately protected from potential odour and noise. Nor am I satisfied, based on the evidence before me, that any potential internal and external impacts could be adequately mitigated in a 4 [name], dated 21st October 2025 5 BS4142:2014+A1:201938 – Methods for rating and assessing Industrial and [name] 6 By Sound Planning, Ref. J 05859 manner that would be both technically and visually acceptable through the imposition of planning conditions.

The appellant has suggested various options which include removing the existing commercial flues and requiring planning permission to be sought separately for a replacement system or imposing a condition requiring a replacement flue system to be installed within the red line of the appeal site. However, I do not have sufficient certainty that a replacement system could be installed within the appeal site in a way that would preserve the living conditions of future occupiers of these dwellings, or that would not require separate planning permission or listed building consent. I am also mindful that, irrespective of ownership, paragraph 200 of the National Planning Policy Framework (the Framework) states that existing businesses and facilities should not have unreasonable restrictions placed on them because of development permitted after they were established, and any suitable mitigation should be provided by the agent of change. I have insufficient information before me to conclude that this would be the case.

For the above reasons, I therefore conclude that development would fail to provide acceptable living conditions for future occupants having particular regard to noise, odour and internal space. This conflicts with Policies SP3 and H1 of the NLP and Policy D6 of the London Plan insofar as they seek to promote high quality housing design in new developments which meet specified space standards and avoid bad neighbour uses. The Council has referred to Policy SP2 of the NLP; however, as this policy does not specifically relate to living conditions and matters of internal space, noise or odour, it has not been determinative in my consideration of this main issue.

The appeal site is within a controlled residential parking zone, which is indicative of a level of parking stress within the area. During my site visit, I also observed low levels of off-street parking along this section of [address], which further increases the demand for on-street parking.

The site is located within in area with a Public Transport Accessibility Level (PTAL) of 2, which indicates a low level of access to public transport. No on-plot car parking spaces are proposed and the appellant states that the development would be car-free. However, in the absence of any mechanism to secure this, future occupiers could still choose to own and park a vehicle for those journeys that are not possible or practical on public transport. This would exacerbate the level of parking stress in the area and encourage travel by private car, with consequential implications on air quality, personal health, wellbeing and the environment.

With that in mind, Policy T6 of the London Plan sets out that car parking should be restricted in line with levels of existing and future public transport accessibility and connectivity. It further states that car-free development should be the starting point for all development proposals in places that are (or are planned to be) well-connected by public transport.

There is no dispute between the parties that the development should be car-free. While the appellant states they would’ve entered into a legal agreement to secure the development for this purpose had this been raised by the Council, there is no such mechanism before me. In the absence of such a mechanism, the proposal could result in an increased demand for on-street parking which would increase parking stress in the area.

Therefore, the proposal would have a harmful effect on the safe and efficient operation of the local highway network with regard to parking provision. This would conflict with Policy INF2 of the NLP and Policy T6 of the London Plan, insofar as they seek to promote sustainable travel through car-free developments and reduce or minimise congestion and the dominance and environmental impacts of motor-vehicular traffic.

As set out above, the DoF building is a [name] listed building. Mindful of the statutory duty set out in Section 66(1) of the Act, I have had special regard to the desirability of preserving the building and its setting. The listed building is a late 19th century two-storey yellow brick structure with a substantial mansard attic storey. It occupies a prominent corner position in the street scene, and its richly ornamented appearance dominates the street-facing elevations. A flat-roofed rear extension, which appears to be a later addition, stretches along the rear of the adjoining courtyard which forms the appeal site.

It is understood that the appeal site is the former garden that was associated with the pub. It now appears to be in use as an access to a restaurant. However, the historic relationship of this land to the former pub remains legible, and this adds to the understanding of the listed building. The undeveloped nature of the space physically differentiates the pub from the more modest buildings to the south on [address] and contributes positively to the setting of the heritage asset. These attributes, in conjunction with its aesthetic and historic interest, all contribute to the significance of the listed building.

Save for the matter relating to the replacement flue for the restaurant within the DoF building which does not form part of the appeal before me, neither party considers the construction of the two dwellings would be harmful to the setting of this listed building. Based on the evidence before me, I see no reason to come to a different conclusion on this matter.

I acknowledge that the courtyard is regarded locally as a valued community space, and the Council states that it includes a Council-funded commemorative plaque dedicated to Romanian pilots who served in the First World War, which is registered with the [name]. Although the appellant disputes that such a plaque exists within the appeal site, I note that representations from interested parties highlight the social and communal importance of the courtyard as an outdoor space. The area also carries social and historic significance through its associations with the local Romanian community. However, as the courtyard is privately owned, I attribute only limited weight to its communal and social value and the consequential loss that would arise from this appeal scheme.

I note the appellant’s concerns over the Council’s handling of the application, including its responses to requests for pre-application advice. I also note that amendments have been made to the scheme in an effort to address the Council’s concerns. However, this has no bearing on my consideration of this appeal, which I have determined on its planning merits.

The scheme would deliver two dwellings in a location that is relatively close to services, facilities and some public transport. The development would therefore make a small but beneficial contribution to the choice of homes in the area and the supply of housing land; as well as providing social and economic benefits during construction and after occupation. As a small-site, it could also be built-out reasonably quickly.

As the redevelopment of this previously developed land for housing would make an effective use of land in meeting the need for homes, this attracts substantial weight in accordance with the Framework. However, given the scale of the development, any social, economic or environmental benefits associated with the delivery of two dwellings would be relatively limited, even taking account of the objective of significantly boosting the supply of housing in the Framework, and would not outweigh the harm I have identified.

Therefore, for the reasons given above, I conclude that the proposal conflicts with the development plan as a whole and material considerations do not indicate that a decision should be made other than in accordance with the development plan. Accordingly, the appeal should be dismissed and planning permission refused.