Appeal 6002409

The appeal is dismissed.

The description of the proposed development in the banner heading above is taken from that used on the planning application form, though I have made minor alterations for clarity, including omitting the site address as it is not in itself descriptive of development.

The appeal relates to the ground floor of a property on the eastern side of [address], just outside [name] district centre. Planning permission was granted in May 2020 for the building1, which was described as “a mixed-use part single/ part 2-/part 4-storey development, comprising 8 residential flats with office space at ground floor level, private and communal amenity space and associated works”. The proposal before me is for the change of use of the ground floor office space, along with various works to facilitate that change.

An application for a similar development, described as “the change of use of ground floor office unit (Class E) to residential use (Class C3) to provide a 1- bedroom residential unit, along with associated ground floor amendments to create a further additional bedroom within consented ground floor unit, and other associated amendments” was submitted to the Council in September 2022 and refused planning permission in March 2023 2. An appeal against that refusal was dismissed in January 2024 (“the 2024 appeal”)3, and I have had regard to that decision as a material consideration carrying significant weight; I refer to it at relevant points of my reasons below. 1 [name]: 20/01944/FUL 2 [name]: 22/03364/FUL 3 [name]: APP/N5660/W/23/3322320

The main issues are: • Whether it has been adequately demonstrated that there is no demand for the existing office floorspace; • The effect of the proposed front boundary treatment on the character and appearance of the area; • Whether the proposed dwelling would provide acceptable living conditions for future occupiers, with particular regard to daylight and sunlight, outlook, privacy, and natural ventilation; and • Whether the development would adequately promote sustainable means of travel, and mitigate its effects on the surrounding highway and transport networks.

Policy ED1 of the 2021 Lambeth Local Plan (“the LLP”) states that proposals involving a complete loss of office floorspace will not be permitted unless certain tests are met. Of greatest relevance here is the first criterion of [name].i. which sets out the need to demonstrate that there is no demand for the office floorspace, supported by evidence that the floorspace has been vacant and continuously marketed for a period of at least two years. The supporting text to Policy ED1, and the Council’s 2023 Marketing of [name] and Sites Guidance Note (“the MCP guidance”), both provide further information as to the type of marketing evidence needed to comply with the policy.

I understand that the ground floor unit has been vacant since it was constructed. The appellant has set out a timeline of the marketing, carried out in two distinct periods by different agents, and I have been provided with reports for both. The first4, dealing with December 2020 to April 2023, covers some 27 months leading up to the 2024 appeal. The second5, dealing with the period from April 2024 to January 2025, covers 10 months between the 2024 appeal decision being issued and the preparation of the planning application which is the subject of this appeal.

The marketing evidence covering the first period was considered in the 2024 appeal. Among other things, the Inspector noted that “no signs were placed at or near the premises and no marketing was undertaken within any physical paper publications”, that “the asking price for the office floorspace was not competitive”, and that “marketing efforts in relation to the unit were largely at the beginning of the marketing campaign”. They concluded that there had been a number of shortfalls with the marketing exercise, that it was not “possible to know if the lack of offers for the office floorspace accurately reflect[ed] a true lack of demand”, and that the requirement of [name].i. of Policy ED1 had not therefore been met.

The second marketing report states that although there were initially some viewings carried out, “there was very little serious interest”. The appellant’s agent 4 Prepared by [name] & Hayward, dated 2 April 2023 5 Prepared by Field & Sons, dated 29 January 2025 reported that although they had had a “reasonable level of interest and demand for commercial E class in the general [name] area”, overall the location and form of the appeal premises – in particular the low footfall on [address] and the site’s detachment from established commercial locations – meant that it was seen as “unappealing to possible commercial property occupiers”.

During the second campaign the premises were offered at an annual rent of £26.[address] foot, compared to £31.[address] foot during the first campaign. As the Council has acknowledged, that price matches the average rent for the area identified in its November [address] Business Space Demand Study. However, although the marketing agent’s report indicates that the price sought was “in line with the other similar commercial E class premises being marketed in the local area”, no further information has been provided to demonstrate this. It appears that no sign was placed at or near the site, with marketing being carried out entirely online, and there is no information as to how the marketing was refreshed or otherwise adapted in the 10 months it was active in response to the apparent limited interest in the premises.

Clearly, the extent of marketing activity carried out in the first campaign cannot have altered retrospectively, and nothing has been put before me which indicates that I should disagree with the conclusions in respect of it in the 2024 appeal decision. Having regard to that earlier decision, the first marketing report carries very limited weight in support of this appeal scheme.

The appellant has described the one-year gap between the first and second marketing campaigns as “an administrative pause” due to the planning application and subsequent 2024 appeal process. While the overall period of marketing over the two campaigns amounted to more than 37 months, the LLP seeks continuous marketing for two years. I note the appellant’s comment that “it is commercially standard practice to pause marketing for a specific use class [...] while a planning appeal seeking to change that use [...] is under determination”, and that to continue to market the property for long-term office occupation whilst simultaneously seeking consent for conversion would be to act in bad faith towards prospective tenants”. However, marketing of the premises continued during and a short while after the planning application in the 2024 appeal was being determined, so I am not persuaded that the two paths of marketing and seeking planning permission (including through an appeal) for an alternative development could not in fact run concurrently.

The second campaign covered only 10 months and so fell well short of the two years sought by the development plan. As the Inspector noted in the 2024 appeal decision, failing to meet all of the requirements of the MCP guidance6 is not in itself evidence that a marketing exercise is inadequate. However, as I have set out above, the second marketing campaign repeated many of the flaws of the first. In particular, it has not been demonstrated that the price was set at an appropriate level given the premises’ layout and location. [name] acknowledge that an online campaign may well reach a wide audience, in the light of my predecessor’s comments in the previous appeal decision the failure once again to use an on-site advertising board is also notable. 6 The 2024 appeal decision in fact referred to an earlier (2015) version of the guidance note.

Overall, I conclude that it has not been adequately demonstrated that there is no demand for the existing office floorspace, and its loss has not therefore been justified. As such, the proposed development would conflict with Policy ED1 of the LLP, the principal relevant requirement of which I have set out in paragraph 6 above.

The area to the east of the appeal site is predominantly residential, but [address] also serves a range of commercial uses, mainly via rear entrances to the premises within the district centre on the western side of the street. This gives it a mixed character which appears quite distinct from that of other nearby streets. There is a very wide range of boundary treatments; these include open or close-boarded timber fences, brick walls, and open railings, all in a variety of heights. On the western side of the street, many properties have garage door type openings directly onto the street; in several other cases boundaries are entirely open.

The appeal property has a shallow covered colonnaded forecourt area between the ground floor windows and the footway on [address]. At present, this is bounded to the front by low open steel railings. The proposed development would include the installation of a 1.8m high laser-cut bronze privacy screen along the boundary, as well as a low-level hedge.

While Policy Q15 of the LLP says that front boundaries in residential areas should not exceed 1.2m in height (and 2m in non-residential areas), it also provides for exceptions where this is justified by either the character of the locality or the “specialist function” of the development. “Specialist function” is not defined further but, while I am not convinced that general residential use of the type proposed would of itself fall into that category, in view of the fact that the scheme involves the conversion of an existing non-residential unit, some flexibility of interpretation may be appropriate. I also recognise that the proposed privacy screen would be of a type which may be found reasonably frequently in higher-density parts of London, but which is not common within the local area. However, subject to finalising details of appearance and finish (which, were the proposal acceptable in all other respects I am satisfied could be addressed by condition), such a screen would not be at odds with the modern appearance of the appeal property itself, nor with the diverse character of [address] more generally.

I conclude that, subject to the use of an appropriate condition, the development would not cause unacceptable harm to the character or appearance of the area. There would therefore be no conflict with Policy Q15 of the LLP which addresses boundary treatments, and the principal relevant requirements of which I have just set out. I address matters relating to the screen’s impact on daylight, outlook and privacy – which formed a considerable part of the Council’s objections to it – below.

The planning application included a daylight and sunlight report7 which did not show the internal layout of the development as proposed. Accordingly, the Council was not satisfied that the living accommodation would receive adequate daylight or sunlight. 7 [name], July 2023, Ref: 2088/F

A second daylight and sunlight report was submitted during the appeal8. The report was prepared in accordance with the 2022 BRE Guidance Site Layout Planning for Daylight and Sunlight: A Guide to [name] (“the BRE guidance”). It included two scenarios, one with the front privacy screen (described in the preceding section) present, one without it. This showed that there would be something of a shortfall in the area meeting the BRE Guidance Target Daylight Factor standard in the combined kitchen/living room/dining room with the privacy screen present. The standard would be met without the screen, though of course the screen forms part of the proposed development. For both scenarios, however, the assessment was based on another internal layout – an “as built” ground floor plan submitted by the appellant9 – which is not that which was applied for. I also therefore cannot be satisfied that the flat would receive adequate daylight and sunlight.

The windows serving the ground floor unit are all on the [address] frontage, and look out onto the front forecourt which is only around 1.3m deep. The combination of the shallowness of the forecourt and the presence of the front privacy screen means that there would be a very limited outlook from the living area of the large combined main room, and from the bedroom within the flat; the dwelling would be likely to feel very enclosed as a consequence. The privacy screen would, on the other hand, limit direct overlooking of and into the rooms within the flat, so occupiers would be likely to have acceptable privacy.

The scheme which was the subject of the 2024 appeal decision did not include a privacy screen. In respect of privacy, the Inspector then found that the lack of a screen would be likely to lead to unacceptable living conditions. I note the appellant has subsequently described the Council’s stance in respect of outlook and privacy as “circular”, but that seems to me to reflect the compromises arising from the alternatives (screen or no screen) put forward by the appellant. I am considering the proposal on the basis that it would include the privacy screen; I have therefore found that privacy would be acceptable, but that there would be a lack of adequate daylight and outlook.

As all windows and doors would be on the same elevation, the property would also be single aspect. Policy D6 of the London Plan 2021 says that the provision of single aspect dwellings should normally be avoided, and only used where it is considered an appropriate design solution to optimising site capacity. It is of relevance here that the proposal is for the conversion to residential use of an existing unit within an otherwise residential building so, as for my assessment of matters relating to the proposed boundary treatment, some flexibility may again be appropriate. The unit would have a mechanical ventilation and heat recovery system and, while such a system would be less favoured in the development plan’s terms than natural through ventilation, it would be capable of providing sufficient air changes and adequate air quality within the flat. Approval of the specification of a mechanical ventilation system could be secured by condition were the scheme otherwise acceptable. However, the lack of natural ventilation in a single aspect dwelling would represent just one several shortcomings in respect of living conditions. 8 T16 Design, 8 December 2025, Ref: 6771/SW/sw 9 [name], June 2022 (revised November 2022), Rev: C30

Considered in the round, I conclude that the proposed dwelling would not provide acceptable living conditions for future occupiers. The development would therefore conflict with Policies H5 and Q2 of the LLP, and Policy D6 of the London Plan

Together and among other things, these policies seek to ensure that development provides comfortable and functional layouts which are fit for purpose, with sufficient daylight and sunlight, and that single aspect dwellings are normally avoided. For the same reasons there would be conflict with the provisions of Chapter 12 of the National Planning Policy Framework (“the Framework”) which aim to achieve well-designed places, in particular Paragraph 135 which seeks to ensure that developments function well, and provide a high standard of amenity for all users.

The appeal site has a Public Transport Accessibility Level (“PTAL”) of 6a, representing excellent public transport connectivity. Policy T6 of the LLP says that development should be parking permit-free in such locations; Policy T6 of the London Plan 2021 also seeks to ensure that car-free development is the starting point for all development in places which are well-connected by public transport. There is no off-street parking within the appeal site at present, nor is any proposed to be created as part of this development; it is intended to be car-free. While the site is not currently within a controlled parking zone (“CPZ”), securing the development as car-free for the long term would require a mechanism to prevent occupiers of the proposed dwelling securing parking permits for any future CPZ.

Policy T6 of the LLP also seeks car club membership for three years for occupiers of new residential development, so as to discourage reliance on the private car. Policy T3 of the LLP requires the provision of three years membership of the [name] for occupiers of new residential development, in order to encourage and support the use of sustainable means of travel. Having regard to the relevant development plan policies, I am satisfied that the measures described are required to mitigate the impact of the development. The appellant has not disputed the need for these measures, and during the appeal provided an obligation under Section 106 of the Act intended to secure them.

The obligation has several shortcomings. It is described on the cover as a unilateral undertaking, but much of the language and layout – for example, the statement at the top of page 2 that the deed is made between the Council and AMCL New Homes Limited, and the attestation and execution sections on pages 8 and 9 – are indicative of a bilateral deed; clause 10.3 also seeks to impose an obligation on the Council, which a unilateral undertaking cannot do. The deed refers to two [name] title numbers, but does not include a plan identifying the site. Clause 2.4 provides that the obligations shall not be enforceable against owner occupiers or tenants of the proposed dwelling, but they would need to be in order that the permit-free obligation could operate effectively. This is not intended to be an exhaustive list, but as a consequence of these issues there is significant doubt as to whether the obligation could be relied on to secure the necessary measures.

As such, I conclude that the development would not adequately promote sustainable means of travel, or mitigate its effects on the surrounding highway and transport networks. It would therefore conflict with Policies T3 and T6 of the LLP and Policy T6 of the London Plan 2021, the principal relevant requirements of which I have set out above. There would also be conflict with the provisions of Chapter 9 of the Framework which seek to promote sustainable transport, notably Paragraph 115 which seeks to prioritise sustainable transport modes.

Paragraph 11 d) and Footnote 8 of the Framework state that, where the policies which are most important for determining the application are out-of-date (including where the Local Planning Authority cannot demonstrate a five year supply of housing land, or where the [name] (“HDT”) indicates that the delivery of housing was substantially below the housing requirement over the previous three years) 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 Council does not dispute that its HDT results mean that this “presumption in favour of sustainable development” applies here.

The Framework seeks to significantly boost the supply of housing. The appeal proposal would provide one self-contained dwelling, in a location which is well-connected by public transport, and which has a good range of services nearby. In view of the housing delivery picture in the borough, even one additional dwelling would be a useful addition to the housing supply. However, the occupiers of a single additional dwelling could make only a small contribution to supporting and sustaining local businesses and services. Overall, I consider that the social and economic benefits arising from the development would be limited.

I have found that the proposed development would not be harmful to the character or appearance of the area, although the loss of an office unit has not been adequately justified. It has not been demonstrated that the proposed dwelling would provide satisfactory living conditions for its occupiers, nor would the development make adequate provision in respect of sustainable transport; on these last two matters there would be conflict with specific provisions of the Framework, as I have set out in addressing the main issues above. I therefore consider that the harm which would arise from the development would significantly and demonstrably outweigh the benefits when assessed against the Framework taken as a whole, and the proposal would not amount to sustainable development in the terms set out in the Framework.

Section 38(6) of the Planning & Compulsory Purchase Act 1990 and the Framework state that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. The proposed development conflicts with the development plan, taken as a whole. There are no material considerations, including those of the Framework, that indicate the proposal should be determined other than in accordance with the development plan. I therefore conclude that the appeal should be dismissed.