Appeal 6002438

Appeal A is dismissed.

No further action is taken in respect of Appeal B. The appeal is not determined on the basis of listed building consent not being required for any of the works.

The appeals follow the refusal of both planning permission and listed building consent. I have sought and received comments from both main parties on the need for listed building consent. From the evidence before me and my inspection at the site visit, it does not appear that listed building consent is required for any of the proposed works, given that the proposals would not lead to an alteration of or extension to a listed building in a way that would affect its special architectural or historic interest. Further there is no evidence to suggest that the existing shed that would be removed was constructed before 1 July 1948, on which basis it does not form part of the listing.

I have therefore taken no further action in relation to the section 20 appeal (Appeal B) but have continued to determine the s78 appeal (Appeal A) against the refusal of planning permission. Appeal Decisions 6002436 & 6002438

The Council’s reasons for refusal include the absence of a legal agreement to secure a car free development, carbon offset contributions, self-build dwelling (to exempt it from the biodiversity net gain requirement) and an affordable housing financial contribution. The appellant has subsequently submitted a unilateral undertaking as part of the appeal. I go on to consider this under ‘other matters’ below.

As the appeal relates to the setting of a listed building and is in a conservation area, I have had special regard to sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (‘the Act’).

The main issues are (i) whether the proposal would preserve the setting of the [name] listed building, ‘153, [address] N1, 155 and [address] N1, 121-151, [address] N1’ (Ref:1193012) (‘the listed building’) and (ii) whether the proposal would preserve or enhance the character and appearance of the De Beauvoir Conservation Area (‘the Conservation Area’).

The proposal would be located within the existing long and narrow rear curtilage and garden of [address], with [address] to the rear. [address] forms part of the [name] listed building which comprises an early 19th century symmetrical terrace ([address]) of three storey properties with basements. Its special interest includes its age, handsome architectural design and uniformity.

The Conservation Area is predominantly residential in character including late Georgian planned and early Victorian speculative estate development of exceptional quality. [address] is the principal east-west route at the northern edge of the Conservation Area. The south side of [address] including the listed building at 121-151 is of high architectural quality though is different to the other streets within the Conservation Area, pre-dating the residential development of the remainder.

[address] to the rear of the site originally comprised stables for carriages and horses which faced onto the mews. It has been subject to continual infill development and now contains a variety of, predominantly single and two storey, though some larger, warehouses, studios and garages along with some residential properties, including those on either side of the appeal site. Historic mapping indicates that whilst several of the properties forming the listed building had buildings to the rear, the majority of their rear garden areas were predominantly free of development. By the mid-20th century, however, there had been a greater expansion and evolution of such buildings.

Taking account of the above, the significance of the Conservation Area, insofar as it relates to this appeal, is primarily associated with the evidence of the historic residential development of the area, including the architectural and historic significance of the buildings within it.

The appeal property is unusual as the only property within the terrace which has a full length garden which, along with the rear gardens of the other properties within the terrace, forms part of the setting of the listed building. The rearmost part of the Appeal Decisions 6002436 & 6002438 garden is flanked by blockwork walls with roller shutter at the far end. However, the garden area of the appeal property, along with the other remaining garden areas contribute to the special interest of the listed building through their contribution to the legibility of the original site planning and historic patterns of use of the building with its enclosed private outdoor spaces and presence of outbuildings. Although the existing trees limit to a certain degree the visibility of the garden of the appeal property from the rear of the listed building, this does not materially diminish its contribution to the setting and significance of the listed building.

Whilst of three storeys along with basement, the height of the proposed building would be similar, though slightly higher than the heights of the neighbouring buildings at 8C and [address]. The proposed basement would extend considerably beyond the building line of the upper floors. The proposed design would include a light well of considerable size to the rear within an enclosed and sunken outdoor area. This would project further into the existing rear garden of the host property and significantly beyond the rear of both adjacent properties at 8 and [address]. As a result of the subdivision, the rear garden area of the host property would see a substantial reduction in size with permanent fencing proposed on what would be the new rear boundary of the host property. Whilst there is, for example, an existing lightwell to the rear of [address], this relates to the host property and not the building to the rear.

There are several other notable examples where development has more substantially reduced the rear gardens to the listed properties. Nevertheless, the immediate neighbouring properties have gardens that have not been subdivided to such an extent, and as such they contribute to an understanding of the historic layout, use and design intentions of these properties and the overall listed building.

Whilst there has previously been a building occupying part of the garden of No.151, from the evidence there is no indication that it would have extended as far into the rear garden as the building and sub-division now proposed. Also, the previous extension to the building shown on historic mapping did not wholly infill the garden space at the rear of the building and did not involve a subdivision of the garden.

Despite the retained space of approximately 20.5m between the rear elevation of the existing house and the rear elevation of the proposed house, the subdivision within this ‘space’, including light well, sunken outdoor area and new fence would not preserve the setting of the listed building. It would undermine the historic relationship of the garden with the listed building, eroding the legibility of the historic site planning and creating what would appear as a rather incoherent subdivision of the existing rear garden. A fence has been recently erected across the garden, but as noted in figure 10 of the appellant’s Heritage Statement, this is a temporary feature pending successful completion of the proposed building.

The application drawings show the landscaping of the remainder of the existing garden to the host property. However, this would not negate the heritage harm arising from the extent of the subdivision of the existing garden and associated development as set out above. Whilst these elements of the development would not be visible from public vantage points, with only some visibility from the existing properties, this is not a determining factor of such importance to justify the harm to the setting of a nationally important listed building. Appeal Decisions 6002436 & 6002438

Unlike listed buildings, the significance of a Conservation Area is dependent upon how it is experienced and proposals must be judged according to their effect on it as a whole and therefore must have a moderate degree of prominence from these domains. The effect of the proposed light well and subdivided garden area at the rear would only have limited visibility from the private domain, from the rear windows of the neighbouring properties. Therefore, notwithstanding the harm to the setting of the listed building, given their limited visibility and prominence, these elements of the proposal would preserve the character and appearance of the Conservation Area.

The proposal would transform the frontage to [address] which currently comprises a rather unsightly brick wall and roller gate. The proposed frontage would replace this. However, as the proposed height of the building would be higher than the adjacent [address] and slightly higher than Nos. 8C and 8A, and as head of the large second floor window would be higher than those adjacent, the building would have a stronger visual presence than the adjacent buildings in views along [address] resulting in some, albeit limited, tension with the historic mews type urban form and character of the street. Given that there is some variation in the existing frontages along [address] the staggered façade design would not be harmful in this streetscene. The overall effect on the Conservation Area would therefore be neutral. It would preserve but not enhance its character and appearance.

I also note the previous permission granted by the Council for residential development on the site including a similar subdivision of the rear garden of No.151. However, from the evidence, that permission is no longer extant and it remains for me to consider the current appeal proposal on its merits against the relevant planning policy and the requirements of the Act.

Given all the above, the proposed development, including its effects on the rear garden area of the host property, would be harmful to the setting and significance of the listed building. I have given the harm to the setting of the designated heritage asset considerable importance and weight.

The appellant has submitted a unilateral undertaking with the appeal as referred to above. I have taken account of the affordable housing contribution in the planning balance below. Notwithstanding this, given my overall conclusion in the determining of the appeal it has not been necessary to consider the undertaking in any greater detail.

Paragraph 212 of the National Planning Policy Framework (‘the Framework’) says that when considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation and the more important the asset, the greater the weight should be. Paragraph 213 goes onto say that any harm to, or loss of, the significance of a designated heritage asset from its alteration or destruction, or from development within its setting, should require clear and convincing justification.

For the reasons set out above, the proposed development would be harmful to the setting and significance of the [name] listed building. Taking into consideration Appeal Decisions 6002436 & 6002438 existing built development on [address] which extends to the rear of the listed building, I find the harm to be less than substantial and between the lower end and middle of the scale of less than substantial harm. Nonetheless, this harm is of considerable importance and weight.

Paragraph 215 of the Framework advises that this harm should be weighed against the public benefits of the proposal. It would provide for a new dwelling in an accessible location seeking to make best use of the site, making a small contribution to the supply of housing within the Borough. This carries moderate weight in favour of the proposal. The benefits arising from a self-build proposal, increased local spending and council tax revenue, contribution of £50,000 towards affordable housing, enhancement to the community from additional residents and energy efficiency would, in each case, be modest and each only carries little positive weight. I have not ascribed any beneficial weight to an improved street façade as the effect on the overall streetscene and Conservation Area would be no more than neutral as set out above.

The appellants have suggested a condition regarding the making good and repair of the highway on [address], including of pre-existing damage. This relates to land outside of the appeal site in what would appear to amount to a ‘Grampian’ style of condition. In the event that it is reasonably achievable (there is little evidence to demonstrate this), it would amount to a modest benefit to the Conservation Area that carries little weight in favour of the proposals.

Overall, on balance I find that whilst there would be several public benefits including but not limited to the provision of a new dwelling, these would be outweighed by the heritage harm. I do not consider there to be clear and convincing justification for the harm that would result to the setting and significance of the Grade II Listed Building. The proposal would be contrary to the heritage and design aims of Policies D1, D3 and HC1 of the London Plan 2021 (‘the London Plan’), Policies LP1 and LP3 of the Hackney Local Plan 2033 [name] 2020 and the Act.

Policy D4 of the London Plan is rather strategic in nature relating to the delivery of good design along with the scrutiny and review of design. Whilst included in the Council’s reasons for refusal, I do not find there to be direct conflict with it. However, this does not affect my overall conclusions, including that the proposal conflicts with the development plan when considered as a whole.

For the above reasons and having regard to all other matters raised I conclude that Appeal A should be dismissed. No further action is taken on Appeal B as set out above.