Appeal 6002323

The appeal is dismissed.

The main issues are: i) Whether the proposal would provide acceptable living conditions for occupants of the new development as well as occupants of no. [site address] , with particular regard to privacy, and; ii) The effect of the proposal on the Luton Town Centre Conservation Area.

In considering this appeal I have had regard to the appeal decision of 7 March 2025, which considered a similar proposal on the site1 (‘the earlier appeal scheme’). It is relevant that the main issues here are the same as those considered by the Inspector under the earlier appeal scheme.

The rear elevation of [site address] contains a number of windows serving the flats on the upper levels. Based on the submitted floor plans and the findings of my site visit, I understand these windows serve a mix of habitable and non-habitable rooms. The proposal would include new habitable room windows, serving bedrooms and living spaces, facing towards the rear elevation of no.35-37.

Based on the Council’s figure, the distance of separation between the windows of the appeal scheme and no.35-37 would be approximately 13m. This is just 1m further away than the earlier scheme, which the Inspector found to be inadequate and unacceptable. While distances between buildings, and expectations of privacy, may be considered less in a town centre location, the distances involved 1 APP/B0230/W/24/3347867 here would cause significant mutual overlooking between the proposed units and those in no.35-37.

The plans annotate the large roof level windows of no.35-37 to be blanked out, and I observed that a partially opaque film had been applied to parts of the windows. The appellant would also be willing to obscure further windows and move bedrooms to the front of the building. However, some habitable spaces would continue to exist at the back of the building and to obscure all the habitable room windows in the rear of no.35-37 would cause unacceptable harm to the living conditions of those units. Even if not obscured entirely, in order to prevent overlooking, a substantial portion of those windows would need to be obscured, up to eye level. These alterations would effectively make those units single aspect and would cause a severe deterioration of the living conditions they provide. The same would occur if all the windows of the proposed development facing towards no.35-37 were obscured. Overall the amendments to this scheme have not overcome the earlier Inspector’s concerns and would not provide acceptable levels of privacy.

With regard to security, based on the evidence, the site would be accessed via the undercroft on [address] and via a roller shutter which separates the site from the adjacent car park. While this may prevent unwanted access, the access to the site would remain unpleasant and unattractive for future occupiers on foot, who would need to traverse the undercroft and private car park, and wait behind the roller shutter, in an enclosed space with no natural surveillance, until it opened. I am not satisfied that relying on CCTV to monitor the area would satisfactorily resolve these concerns in perpetuity, particularly as it would need to monitor land outside the appellant’s control. Due to the combination of these factors, the proposal would not provide safe or attractive access for future occupants.

In conclusion on this main issue, the proposal would create unacceptable living conditions for future occupiers as well as occupiers of the no. [site address] . The effects on occupants would be significant and long lasting, and the proposal would conflict with policies LLP1 and LLP25 of the Luton Local Plan 2017 (the LLP) insofar as they relate to high quality and safe spaces, avoiding averse amenity.

As the site is in the Town Centre Conservation Area (CA) the provisions of Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 are applicable, which require special attention to be paid to the desirability of preserving or enhancing the character or appearance of that area. Based on the earlier appeal decision and the findings of my site visit, the significance of the CA is derived from its long commercial streets, where buildings of traditional character tightly enclose the roads. I observed a dense pattern of development behind the main frontages, including buildings and extensions of varying scale but generally encompassing simple designs, giving a degree of visual subordination to the main frontage buildings.

Like the earlier appeal scheme, the proposal would span the full width of the plot, which that Inspector found would exacerbate the already cramped space. As the ground floor area would be enclosed and used for parking, it would do little to lessen the cramped appearance. While the design has been amended and the roof level bulk reduced, the proposal would include a series of dormer windows, including double doors set behind balustrades at the roof level, adding visual clutter and features at odds with the surrounding backland buildings. I do not have details of why the modern dormers to the rear of no.35-37 were accepted, nonetheless, they form part of the main frontage building rather than the more visually subordinate backland development. In combination, the design and width of the building would be at odds with the surrounding area. It would neither preserve nor enhance the character or appearance of this part of the CA, and would cause harm to its significance.

Evidence has been provided that a two storey building previously existed on the site. However, based on the aerial photograph, this did not occupy the full width of the site and incorporated a simple roof form. Its effects on the CA would therefore have been different to this appeal scheme.

The harm to the CA would be less than substantial for the purposes of assessment against the National Planning Policy Framework (the Framework), and I consider the degree of harm to the asset’s significance would be at the lower end of the scale, given the site’s heavy enclosure and limited visibility. [name] am required to give that harm considerable importance and weight given the statutory duties. Paragraph 215 of the Framework requires this harm to be weighed against the public benefits of the proposal.

The proposal would provide two new homes, potentially suitable for families as starter homes, which would have excellent accessibility to services and facilities in Luton town centre, as well as associated public transport and sustainable travel options. To this benefit I give moderate weight, given the quantum of homes involved, and this would not outweigh the harm to the CA.

Accordingly, the proposal would neither preserve nor enhance the character or appearance of the CA, and would conflict with policies LLP1, LLP25 and LLP30 of the LLP which include that development should protect, conserve and enhance heritage assets and local distinctiveness.

The Council accept that it does not have a five year land supply for housing and the provisions of paragraph 11d) of the Framework apply to the appeal. However, the application of policies in the Framework which protect designated heritage assets provide a strong reason for refusing the development proposed. The proposal does not therefore benefit from the presumption in favour of sustainable development in the Framework.

The proposal would conflict with the development plan and there are not material considerations of sufficient weight which indicate that a decision should be made other than in accordance with it. The appeal is therefore dismissed.