Appeal 6002278

The appeal is dismissed.

A draft Planning Obligation in the form of a [name] (UU) has been submitted with this appeal in an attempt to address the Council’s first reason for refusal. I return to this later in my decision.

Advanced with this appeal are correspondences from the consultants that undertook the assessments in respect of noise and daylight/sunlight that supported the planning application. These are supplementary, offering additional clarity and/or suggest mitigation. They do not propose substantive changes to the scheme. The Council and other interested parties have had the opportunity of commenting on them. Therefore, my acceptance of them does not prejudice any party.

As the appeal site is located within the Berkhamsted Conservation Area (CA), I have had regard to the statutory duty set out in Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) that requires me to pay special attention to the desirability of preserving or enhancing the character or appearance of the Conservation Area. Likewise, as the appeal relates to works that would affect the setting of a [name] listed building, I have also had special regard to Section 66(1) of the Act.

The main issues are: • the effect of the development on the character and appearance of the area, including its surrounding heritage context; • the effect of the development on the occupiers of adjacent buildings, with particular regard to light, outlook and privacy, and on the future occupiers of the appeal building in respect of privacy and noise; and • whether the development provides for suitable vehicular access and parking.

The appeal site is located within Berkhamsted town centre, to the rear of the [address] retail frontage and just off the [address]. It is currently accessed from [address] via a ground floor undercroft at [address], a modern three storey building, and from [address] to the north, although the latter access does not form part of the appeal proposal. The site comprises a two‐storey rendered building with a concrete tile roof, occupied as two maisonettes with associated outdoor space, and a single‐storey lock-up.

Development immediately to the west is looser in density and of single and two storey scales, set back from the road frontages behind greenery. Beyond, is an expanse of public car parking at [address]. Land levels in the area gradually descend from the [address] to the north towards the river. Due to its back land position, views of the appeal site are limited from the south and west, but it is clearly visible from [address] to the north. Owing to its modest height and scale, and the positioning of intervening buildings, only glimpses of the appeal site are currently achievable from the east.

The Berkhamsted Conservation Area Character Appraisal and [name] (CAA) sets out that the CA is defined by the linear town settlement of the [address]. Its significance derives from its evolution over time from its medieval past, clustered around the Parish Church, the old marketplace and has been influenced by its landscape, river, canal, castle and railway line. The CAA identifies that the appeal site lies just within the ‘[address] West’ sub-area of the ‘[address] Character Area ‘(Zone 1), albeit immediately adjacent to the ‘[address] Central’ sub-area.

At the heart of the CA, this is a distinctly urban area with regular plots and a high proportion of surviving historic properties with significant local and national heritage value. [address] itself is mostly rows of two and three storey buildings predominantly commercial in nature, the scale and layout of which broadly continues along [address].

With its modest scale, form, simple pitched roof and recessive location, I find that the existing building makes a neutral contribution to the significance of the CA.

The nearest and affected listed building is the [name] listed The Old Town Hall at [address] to the south. Erected in 1859, this prominent and striking Victorian, gothic style building by the architect [name] is constructed in red and yellow brick with blue brick detailing, has an octagonal turret and oriel window, stone dressings, gothic tracery and four pointed arch doorways. Its significance derives from its historical and architectural value including its contribution as a landmark building and community hub.

Although its principal elevation fronts [address], its rear is visible from the public realm to the north, albeit intervening modern development has partly obscured this and diminished how this is experienced. Notwithstanding, the rear of the listed building forms part of the backdrop to the appeal building and thus the appeal site is within its setting. The appeal site makes a neutral contribution to its significance.

On the east side of [address], all buildings1 except Nos. 29–33 are locally listed and therefore classed as non‐designated heritage assets (NDHAs) under the National Planning Policy Framework (the Framework). These late 19th century properties present an active commercial frontage and range from part‐single to three storeys in height. Their significance lies in the way they reflect the industrial and retail evolution of this part of the town.

Located adjacent to the NDHAs at Nos. 21 to 27, the appeal site is within their immediate setting. As a subservient scaled building set against the much altered rear elevations of the NDHAs, the appeal building has a neutral effect on their significance.

Given existing building heights, land levels and the tightly packed nature of the urban grain, I find it unlikely that the appeal building would be appreciated visually from [address]. However, from [address] to the north it would have a backdrop of buildings sat at a higher level and some of the taller buildings in the area, including those on [address] and [address]. It would also be seen as a backdrop to the modern two storey commercial buildings fronting [address]. Additionally, due to its increased height and scale, it would become prominent from the west, protruding above the roofscapes of existing lower scaled buildings.

The appeal building would occupy an increased footprint over the existing. Whilst the sectional drawings show that the height overall is not unduly taller than those adjacent, owing to its almost square footprint, the four-storey block-like building coupled with its flat roof, would starkly contrast with its immediate surroundings which are typically of a finer historical grain and of two or three storeys with pitched roof forms. Therefore, given the combination of its design, height, scale and massing, it would jar and compete with the surrounding heritage context and upset the established hierarchy where buildings fronting the road dominate and back land plots are typically subservient to them.

Set almost directly against the rear of No’s [address], the increased scale and bulk of the building would loom over the NDHAs. Further, the lack of space around the building would exacerbate the competing nature of the buildings, resulting in a disjointed and cramped appearance, contrary to the expectations set out in Appendix 3 of the Saved Dacourm Borough Local Plan 1991-2011 (2004) (sLP).

I find that the development would harm the character and appearance of the CA, thus it would not preserve or enhance it. This brings the scheme into conflict with the Act. In the context of the Framework, the harm would be less than substantial 1 Numbers 13 &15, 21, 23, 25 & 27 and 35 & 43 and moderate on the scale of harm. However, this harm does not equate to less than substantial importance and weight. Indeed, I attach considerable weight and importance to this harm.

Given the separation distance and that the most important architectural features of the listed Old Town Hall front [address], and the proposal interacts with its rear which is already negatively affected by modern development in close proximity, the impact on the setting of the listed building would be at the lower end of less than substantial harm, primarily through its competing scale. As such it would not preserve its setting as required by the Act. However, this harm does not equate to less than substantial importance and weight and I attach considerable weight and importance to it.

With regards to the NDHAs, the impact is tempered in recognition that the interaction is between the appeal site and the rear of these buildings which are less sensitive due to modern additions. Nevertheless, given their close physical relationship there would still be harm to the way in which these buildings would be appreciated in terms of scale and to the contribution they make to the evolution of the town.

My attention has been drawn to other developments said to be of comparable height and scale that have been approved by the Council, reflecting wider regeneration in the area. However, only limited information has been provided about these schemes in the evidence. From what I have read and seen, many are located further afield and not in the immediate vicinity of the appeal site. Their contexts also differ materially, including their positions fronting established street scenes rather than occupying a back land plot.

For example, the waterworks bungalow redevelopment2 for apartments is shown by image to boast a two and three storey building with a gabled roof, which from what I have read would front [address]. As such, in contrast to the scheme before me it would not be a back land form of development and its scale has primacy to reflect this. The redeveloped Police Station3 is a more recessive scale to the taller, more dominant buildings fronting the roadside such that it is not directly comparable either. As expected within the CAA, these distinctions reflect the differing character sub‐areas even within the [address] Character Area. Accordingly, none of the examples highlighted by the appellant alter my conclusions on this appeal.

Drawing the above together, I find that the effect of the development on the character and appearance of the area, including its surrounding heritage context to be demonstrably harmful. It follows that the proposal is contrary to Policies CS10, CS11 and CS12 of the [name] 2006-2031 (2013) (CS). Amongst other things, these policies expect quality design that integrates with the streetscape character, respects typical densities, enhances spaces between buildings and general character, and protects or enhances significant views within character areas. It also runs counter to CS Policy CS27 and sLP Policy 120 and its Appendix 3, which seek to protect the integrity, setting and distinctiveness of designated and undesignated heritage assets by respecting layouts, patterns of development and 2 Planning Ref: 24/00762/FUL 3 Planning Ref: 4/03286/14/MFA being of a scale and proportion which is sympathetic to the scale, form, height and overall character of the surrounding area.

Whilst the Council’s third reason for refusal references Appendix 7 of the sLP, I have not been provided with a copy so have not had regard to it.

In accordance with Paragraph 215 of the Framework, the harm to the CA and listed building should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use.

In this case, a key public benefit would be to boost the supply of homes in a sustainable location where the Council is currently unable to meet the necessary five-year housing land supply (5YHLS) as required by the Framework. It would bring about social and economic benefits including temporary benefits to the building industry during construction. These benefits are important but are tempered by a moderate net gain of just three dwellings. Nevertheless, they weigh considerably in favour of the scheme as a public benefit.

Environmental benefits advanced include the installation of a green roof and 8 swift nest boxes. Although welcomed, these attract a modest level of weight overall, particularly as this development is not the only means of achieving such biodiversity and sustainability improvements. Similarly, it is suggested that the redevelopment would enhance a site that is untidy and of no aesthetic value. Whilst unremarkable, I do not find the site as existing to be harmful to the character and appearance of the area. Thus, it follows that its current neutral effect would not be enhanced by a development that I find to be harmful.

Moreover, in accordance with Paragraph 212 of the Framework, great weight should be given to the conservation of a heritage asset. In this context, whilst the harms would be localised and less than substantial, nevertheless they are of considerable importance. As such I find that the public benefits are not sufficient to outweigh each of the harms to the designated heritage assets identified. Accordingly, I am not persuaded that there is a clear and convincing justification for the harm that would be caused to these designated heritage assets as required by the Framework. The proposal would conflict with the conserving and enhancing requirements of the historic environment policies of the Framework. Effects on occupiers of adjacent buildings and future occupiers of the appeal site

Avoiding visual intrusion, loss of sunlight and daylight, loss of privacy and disturbance to the surrounding properties are some of the expectations of development set out in CS Policy CS12. Similarly, CS Policy CS32 makes clear that development that would cause harm from a significant increase in pollution by virtue of emissions, including noise, will not be permitted.

The Council accept that the levels of light to adjacent dwellings and future occupiers would be acceptable, instead identifying those adversely affected as being the occupants of commercial buildings.

The roof terrace of a neighbouring restaurant lies to the west. The Council indicate the appeal building would be around 1.5 metres (m) away from the terrace enclosure and 7.5m higher than the floor of the dining area, a matter not disputed. A building currently in use as a yoga studio lies a short distance to the north which has windows at both ground and first floor level facing the appeal site.

The application was supported by a Daylight and Sunlight Assessment4 (DSA). I note the Council’s concerns regarding its methodology. However, I am satisfied that it has been prepared to industry standards and notwithstanding some minor errors in identifying the number of units proposed, it still comprises a reasonable basis for decision making purposes. For the purposes of the DSA, the roof terrace was treated as a neighbouring garden, which I find acceptable given residential uses are typically more sensitive to change than commercial premises. I also agree that a yoga studio would not fall in the category of occupants having a reasonable expectation of daylight, in the context of the BRE guidelines5 drawn to my attention.

The Council assert the relationship between the windows of the restaurant and the proposed building would fail the 25-degree test when measured from the middle point of the window. However, I have not been pointed to where this test is set out in either policy or guidance. Moreover, the DSA concludes that all windows, including the commercial premises and roof terrace, facing the site would retain acceptable levels of light, in excess of industry best practice standards. I attach more weight to the findings of a professional assessment that has been undertaken to standard methodology in this case.

Concerns have been raised regarding potential visual intrusion in relation to the adjoining restaurant to the west. The evidence shows that part of the existing two‐storey roof is already visible from the restaurant and terrace. The proposed four‐storey building would increase the massing in proximity to the restaurant and would be more prominent above the terrace. However, restaurant patrons do not typically occupy the space for prolonged periods in the same way residential occupants would. As such, while the scheme would introduce a modest sense of enclosure, the receptors are not highly sensitive, and the resulting effect would not amount to an unacceptable overbearing impact.

Appendix 3 of the sLP sets out a minimum distance of 23m between the main rear wall of a dwelling and the main wall (front or rear) of another should be met to ensure privacy. However, the mutual overlooking of concern here relates to the relationship between the proposal and commercial premises to the north and south. Consequently, the 23m distance expected by the Council does not apply as the need to ensure privacy is not the same when it involves less sensitive commercial uses.

At around 18m between the southern offices and the appeal site, I am satisfied that this distance is sufficient to meet the needs of privacy. Likewise, whilst no party has provided a precise distance from the site to the northern yoga studio, the relationship is not dissimilar to that of the existing building which has residential windows facing north. Moreover, I am satisfied that these uses can coexist without 4 by T16 Design, Issue No. 1, October 2024. 5 Site Layout Planning for Daylight and Sunlight: A Guide to [name] (3rd Edition, 2022) causing any undue loss of privacy to one another, similar to many other relationships elsewhere.

The noise impact assessment report advanced with the application concluded that without mitigation, the receptors at the proposed development would likely experience a significant adverse impact. The predominant sources of noise were identified as being from the mechanical plant associated with the kitchen extraction flues servicing nearby restaurants.

However, correspondence from [name] and Air Quality now includes a means of mitigation through façade insulation and ventilation measures. It is now common ground between the parties that this would reduce predicted internal noise for future occupants to very low levels, meeting best practice guidance. As such, I find that there would be no adverse effect on future occupiers in respect of noise.

Drawing the above together, I find that the effect of the development on the occupiers of adjacent buildings, with particular regard to light, outlook and privacy, and on the future occupiers of the appeal building in respect of privacy and noise, to be acceptable. Accordingly, I find no conflict with CS policies CS12 or CS32, the objectives of which I have outlined above.

Vehicular access would be provided from [address] via an undercroft arrangement that leads to the appeal site through a private parking court managed by a third party. Five parking spaces would be provided. Whilst this is 2 spaces below the parking guidance drawn to my attention, this is not a matter in dispute. From what I have read and seen, I see no reason to disagree with this finding.

Save for the gated opening, the appeal site’s existing outdoor area is contained within an enclosed yard. The proposed car parking would also be contained within this same area, albeit within the footprint and undercroft of the proposed building, utilising a similar access point. The tracking plans submitted with the Transport Assessment indicate that manoeuvring into the parking spaces would be quite tight, and at times may lead to drivers encroaching onto land outside of the red line of the application site. However, access to this area is already via this same route without substantive changes, which the appellant has shown in evidence that they have a right of access over.

[name] note a third party indicates that due to parking demand an additional parking space not currently shown on the plans is being installed, this is a civil matter that is not determinative to my decision. In any event, vehicular access to the north would still be required to enable access to the northern four parking spaces within the courtyard, such that it is unlikely that this additional space would impede access as to do so would reduce parking capacity, contrary to the stated third party’s objective.

Consequently, I am satisfied that there would be suitable access and parking for the development. It follows that the proposal would accord with CS Policy CS8 which requires sufficient, safe and convenient parking based on car parking standards and CS Policy CS12, which amongst other things, expects developments to provide a safe and satisfactory means of access for all users and provide sufficient parking.

The appeal site falls within the zone of influence of the Chilterns Beechwoods Special Area of Conservation (SAC), a European Designated Site afforded protection under the Conservation of Habitats and Species Regulations 2017, as amended (the Habitat Regulations). [name] been minded to allow this appeal, I would have needed to further consider the effect of the proposal on the integrity of the SAC, including whether the draft UU advanced adequately mitigates any likely significant effects. However, as I am dismissing the appeal for other reasons, I have not considered this further, and it has not been necessary for me to undertake an Appropriate Assessment under the Habitat Regulations.

The Council cannot demonstrate a 5YHLS. Accordingly, there is an urgent and pressing need for new housing in the Borough. The proposal would make a small, but important contribution to the supply of new homes. It would also contribute towards the Government's objectives of significantly boosting the supply of homes. Furthermore, as a small site, it is likely that the housing could be delivered quickly. This is a matter that carries considerable weight in favour of the proposal. Paragraph 11(d) of the Framework is engaged for decision-taking purposes given the housing land supply position. This requires that planning permission is granted for the development unless certain circumstances apply and this is assessed further below.

As set out above, the other economic, social and environmental benefits drawn to my attention weigh moderately in favour of the proposal. The absence of harm in relation to the occupiers of adjacent buildings and future occupiers of the appeal building, and in respect of parking are neutral factors because they accord with the expectations of the development plan.

I give limited weight to the examples of other development in the area, drawn to my attention by the appellant, for the reasons I have already outlined above.

The proposal would result in harm to the character and appearance of the area and would result in less than substantial harm, to a moderate degree to the significance of the CA. It would also result in less than substantial harm at the lower end of the scale to the significance of the listed building known as the Old Town Hall. I have found that the public benefits of the proposal do not outweigh the harm that would be caused to the significance of each of the designated assets. The proposal would also result in harm to the NDHAs for the reasons set out above, in conflict with the

The benefits of the scheme are considerable, particularly the delivery of new housing, but in this case, the identified harms to the designated heritage assets provides a strong reason for refusing the development proposed. The proposal does not therefore benefit from the presumption in favour of sustainable development by virtue of Paragraph 11(d)(i) and footnote 7 of the Framework.

The proposal conflicts with the development plan and there are no other material considerations that indicate that the appeal should be decided other than in accordance with it.

For the reasons set out above, the appeal should be dismissed.