Appeal 6002439

The appeal is allowed and planning permission is granted for demolition of existing building and erection of a part three, four and five storey building consisting of ground floor commercial retail and office/workshop floorspace (Class E), with residential units, cycle parking, disabled off-street parking spaces at the rear (accessed via [address]), communal gardens/landscaping and all associated ancillary development at [site address] in accordance with the application 21/03145/RECON1, without compliance with condition number 2 previously imposed on planning permission Ref 21/03145/FULL1 dated 01 June 2022 and subject to the following conditions:

The development hereby permitted shall be carried out in accordance with the details shown on the following plans and documents: 569/23/S73/PL1001 [name]; 569/23/S73/PL10.01 [name]; 569/23/NMA/PL10.02 [name]; 569/23/NMA/PL10.03 [name]; 569/23/NMA/PL10.04 [name]; 569/23/NMA/PL10.05 [name]; 569/23/NMA/PL10.06 [name]; 569/23/S73/PL10.07 [name]; 569/23/NMA/PL10.08 [name]; 569/23/NMA/PL10.09 [name]; 569/23/NMA/PL10.10 [name]; 569/23/NMA/PL10.11 Proposed Section AA; 569/23/NMA/PL10.12 Proposed Section BB; 569/23/S73/PL20.01 Plot 1 Compliance Plan; LL024301 – 15 [name].

A child play strategy including specification of play equipment, maintenance responsibility and management of the communal garden shall be implemented in accordance with the details approved under application reference 21/03145/COND11.

a) Prior to the first occupation of the commercial floorspace hereby permitted, details of the servicing and delivery management plan for the commercial and associated operations shall be submitted to the Local Planning Authority and approved in writing. The approved servicing and delivery management plan shall then become fully operational before that part of the permitted development is first occupied and shall be permanently retained thereafter. b) Prior to the first occupation of the residential floorspace hereby permitted, details of the servicing and delivery management plan for the residential use and associated operations shall be submitted to the Local Planning Authority and approved in writing. The approved servicing and delivery management plan shall then become fully operational before that part of the permitted development is first occupied and shall be permanently retained thereafter.

a) Prior to the first occupation of the commercial floorspace hereby permitted, details of a refuse strategy including responsibility and management of the office shall be submitted to the Local Planning Authority and approved in writing. The refuse strategy shall confirm the date, time and frequency of collections and assistance for the swift collection of waste on collection date for that commercial use. The arrangements approved shall then be completed before that part of the permitted development is first occupied, and permanently retained thereafter. b) Prior to the first occupation of the residential floorspace hereby permitted, details of a refuse strategy including responsibility and management of the residential uses shall be submitted to the Local Planning Authority and approved in writing. The refuse strategy shall confirm the date, time and frequency of collections and assistance for the swift collection of waste on collection date for the residential use. The arrangements approved shall then be completed before that part of the permitted development is first occupied, and permanently retained thereafter.

Prior to the first occupation, details of a 100 percent active electric charging points shall implemented in accordance with the details approved under application reference 21/03145/COND11.

i) The development hereby permitted shall incorporate measures to minimise the risk of crime in accordance with the details approved under application reference 21/03145/CONDT7. ii) The approved measures shall be implemented before the development is occupied and the security measures to be implemented in compliance with this condition shall achieve the Secured by Design accreditation awarded by the [name].

(a) Prior to the occupation of the development, a Travel Plan shall be submitted to and approved in writing by the Local Planning Authority. The Plan should include as a minimum: o Measures to promote and encourage the use of alternative modes of transport to the car; o A timetable for the implementation of the proposed measures and details of the mechanisms for implementation and for annual monitoring and updating. b) The Travel Plan shall be implemented in accordance with the agreed timescale and details.

Prior to occupation, a detailed scheme of biodiversity enhancements including, but not being limited to, provision of swift, sparrow and bat boxes and a long-term site management shall be submitted to and approved in writing by the Local Planning Authority. The enhancements shall be implemented prior to the occupation of the development and shall be retained thereafter.

Details of management plan of common and ancillary spaces, including servicing of the lift shall be submitted to and approved in writing by the Local Planning Authority prior to occupation. The management plan approved shall be implemented before any part of the development hereby permitted is first occupied, and permanently retained thereafter.

a) Details of the proposed privacy screens shall be submitted to and approved in writing by the local planning authority prior to the first occupation of the building hereby permitted. b) The approved screens shall be implemented prior to occupation of the building and maintained thereafter, unless the written consent of the Local Planning Authority is received for any variation.

(i) Prior to commencement of the fitting out of the non-residential unit fronting the [address] as E(b) use (sale of food and drink for consumption (mostly) on the premises) hereby approved details of a scheme showing the specification and performance of the external plant or equipment connected with ventilation or extraction shall be submitted to and approved in writing by the Local Planning Authority. The scheme shall include carbon filters, where applicable, and shall show the arrangements for replacing the air extracted. (ii) The kitchen extract system shall be installed in full accordance with the details approved under Part (i); and on completion a verification report shall be submitted to the Local Planning Authority for written approval. The Report should include photographs and measurements where necessary and shall be produced by a suitably qualified person to confirm that extract system has been installed in accordance with the approved scheme. (iii) The use hereby approved shall not commence until written approval has been granted under Part (ii) of this condition. Thereafter the approved scheme shall be permanently maintained in an efficient working manner and no changes to the installed system shall be made without the prior approval in writing by the Local Planning Authority.

The development shall be carried out in accordance with the Planning Fire Safety Strategy by Solas Realta Ltd (ref. FE1134, Rev. 4) dated 30th June

The relevant measures shall be fully implemented prior to the first occupation of the development and permanently retained thereafter.

The development shall be carried out in accordance with the Air Quality Assessment by IDOM (ref. AQA-22172-20-338 REVD) dated 21st October 2021 and all the measures set out in [name] of the report shall be fully adhered to during the construction phase.

The Drainage Strategy Report carried out by [name] ([name]. A/ACORPINTON.23) to incorporate [name] and permeable paving to restrict surface water run-off to 2l/s hereby permitted shall be implemented in full accordance with the approved details unless otherwise agreed in writing by the Local Planning Authority.

The development shall be carried out in accordance with the [name] v.8 by Hodkinson (v.8) dated 20th October 2021 and fully implemented prior to the first occupation of the development, and permanently retained thereafter.

Prior to the first occupation/use of the development cycle parking shall be carried out in accordance with the approved plans and permanently retained thereafter.

Any gas boilers must meet a dry NOx emission rate of <40mg/kWh as the application site is located within an Air Quality Management Area declared for NOx.

i) The non-residential floor space fronting the [address] hereby approved shall be used as retail or sale of food and drink for consumption (mostly) on the premises under the use class order Class E(a) and E(b) only and for no other purpose (including any other purpose in Class E of the Schedule to the Town and Country Planning ([name]) Order 1987 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification). There shall be no change of use whether allowed by the Town and Country Planning ([name]) Order 1987, the Town and Country Planning (General Permitted Development) (England) Order 2015 or any Order amending, revoking and re-enacting these Orders. ii) The use shall not operate before 08.00 hours or after 24.00 hours on Mondays to Fridays, nor before 09.00 hours or after 01.00 hours on Saturdays, nor before 09.00 hours or after 22.00 hours on Sundays and [name].

The office floor space hereby approved shall be used as office under the use class order Class E(g)(i and ii) only and for no other purpose (including any other purpose in Class E of the Schedule to the Town and Country Planning ([name]) Order 1987 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification). There shall be no change of use whether allowed by the Town and Country Planning ([name]) Order 1987, the Town and Country Planning (General Permitted Development) (England) Order 2015 or any Order amending, revoking and re-enacting these Orders.

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (or any order amending, revolving and re-enacting this order) no upward extension shall be erected or made within the curtilage(s) of the dwelling(s) hereby permitted without the prior approval in writing of the Local Planning Authority.

Prior to installation of any fixed noise generating plant an acoustic assessment shall be submitted to and approved by the Local Planning Authority to prevent adverse effects from plant noise, providing mitigation and calculated evidence that meets the noise limit criteria set out in the Noise Assessment v.2 by Mayer Brown Ltd dated June 2021. Once approved the plant shall be installed as approved and permanently maintained thereafter other than by the prior written approval of the Local Planning Authority.

Surface water from private land shall not discharge on to the highway.

Before the development hereby permitted is occupied arrangements shall be agreed in writing with the Local Planning Authority and be put in place to ensure that, with the exception of disabled persons, no resident of the development shall obtain a resident's parking permit within any controlled parking zone which may be in force in the vicinity of the site at any time.

In the banner heading above, I have utilised the site address from the decision notice rather than the application form, as this appears to be accurate. Planning permission was granted in June 2022 for a replacement building to provide 40 residential units, commercial and office floorspace and associated works.

The planning permission description in the banner heading is however taken from a non-material amendment1 approved by the Council in January 2024, as this amended the originally approved description of development. Following this, I am satisfied that the appeal scheme presents no conflict with the relevant caselaw in respect of how s73 applications relate to the description of development.

The appeal submission includes an additional proposed landscape plan2 to show in more detail the external arrangement immediately outside the proposed new residential unit. A Daylight Technical Note dated 13 November 2025 is also provided. I do not regard the above as involving a substantial difference or fundamental change to the application. Nor do I consider that accepting the above for consideration would lead to procedural unfairness to interested parties. I have therefore determined the appeal on this basis.

During my site visit, I noted that the approved building appeared to already have been substantially constructed, although the internal space subject of the appeal proposal was not occupied, and was not fully completed. The appeal development is therefore part-retrospective in nature. I must however determine the proposal based on the proposed plans rather than what has been built and laid out on site.

Having regard to the evidence before me, the main issue is the effect of the proposed development on the living conditions of future occupiers, with particular regard to internal and external recreational space, daylight, privacy and outlook.

A notable number of the 2022 approved two-bedroom units do not have any private amenity space, and these units could be occupied by families. I am told that this is offset by the approved provision of shared indoor spaces and facilities, and that there is also a wider local shortage of or demand for community spaces. 1 Council Ref: 21/03145/AMD2 2 [name] LL024301 – 15 (dated November 2025)

The approved room now sought to be utilised by the appeal proposal was designed as a lounge area, and to provide parents and children an area of retreat from the outdoor play space during inclement weather, whilst enabling surveillance over the outdoor space. However, I have no evidence before me to suggest that the provision in perpetuity of this approved indoor space, and resident access to it, is enforceable through mechanisms such as a planning condition or legal agreement.

Lack of an enforceable mechanism to introduce and secure a residential lounge and indoor play area use in perpetuity significantly and fundamentally limits the function and value of the proposal site as an indoor recreational space. This is because the lack of enforceable mechanism to secure such a facility in perpetuity leads to a real possibility of this indoor space becoming disused. It appears that there is no legal or planning mechanism that would reverse such disuse, which could lead to permanent cessation of the internal recreational use.

It is therefore not appropriate to resist the principle of on alternative use of the approved internal recreational space subject of the appeal proposal. Bearing in mind that this is a small internal space in comparison to the surrounding approved development of 40 residential units, which includes its own communal open space, the appeal proposal would not represent a cramped or over-intensive development. In the above respects, I have thus found no conflict with Policy 37 of the Council’s Local Plan (LP) (adopted 2019), or Policies D3 and D6 of the London Plan.

I have not been directed to any policies within the LP that govern external recreational space. Therefore, [name] of London Plan Policy D6 applies to the proposal in this regard. This sets out that where there are no higher local standards in the borough Development Plan Documents, a minimum of 5 sq. m of private outdoor space should be provided for 1-2 person dwellings. An extra 1 sq. m should be provided for each additional occupant, and the space must achieve a minimum depth and width of 1.5m.

The proposed additional residential unit would have two bedrooms, and the main parties agree that its internal floorspace is sufficient to be occupied by up to four persons. The additional proposed landscape plan demonstrates that the proposed unit would be provided with private outside space amounting to approximately 21.5 sq. m, with a maximum depth of 2.04m. In quantitative terms, this would exceed the requirements of London Plan Policy D6. I have thus found no conflict with Policy D6 in this respect and in turn, there would be no conflict with the Housing Design Standards London Plan Guidance (HDSLPG) (published 2023).

During my site visit, I noted that the area within the proposed residential unit furthest away from its windows was notably darker. However, this area would house the kitchen area, hallway, storage room and bathroom. Although these areas may at times require artificial lighting during the day, this is not uncommon for flatted layouts. This can arise from long single-aspect open plan living spaces such as that proposed.

Most of the proposed open-plan living and dining area would however be provided with sufficient daylight when having regard to the illuminance and spatial daylight autonomy analyses as depicted on [name]+S/1/5013. This is on account of 3 Provided as [name] to the Daylight and [name] (Consil Limited, 12 December 2024) the positioning of this area alongside the unit’s full height glazed doors facing the approved communal open space area.

The appellant’s technical assessment assumes that habitable rooms will be painted white, with light coloured floor coverings. [name] accept that such an arrangement could not be reliably enforced in perpetuity by means of planning condition, it is not an unrealistic or unfeasible option for future occupiers to retain or enact.

For the above reasons, and adopting a flexible approach on account of the site’s town centre location, whilst the additional unit would be of single aspect layout, it would allow for adequate receipt of daylight. The proposal would thus comply with LP Policy 37, London Plan Policy D6 and the HDSLPG in this regard.

The proposed additional unit would be adjacent to two communal access routes (Lobby 2 and Lobby 3). The route from [address] through the approved communal open space area to Lobby 3 would run parallel to the windows and private outside space of the proposed additional residential unit. However, I envisage that Lobby 2 would be the more well-used route, as it is more direct and serves the main stair core and lift for the approved development.

Placement of raised planters and 1500mm metal railings or equivalent along the boundary of the private outside space, as indicated on the additional proposed landscape plan, would sufficiently filter views from the approved communal open space and along the path to Lobby 3. Longer views from further towards [address] would be naturally restricted by the rising site topography. An acceptable level of privacy would therefore be provided, whilst also providing sufficient outlook for future occupiers of the proposed additional unit, despite its single aspect layout.

I therefore conclude that future occupiers of the proposed additional residential unit would be provided with acceptable living conditions in terms of privacy and outlook. In these respects, the scheme would comply with LP Policy 37 and London Plan Policies D3 and D6, insofar as it would provide a healthy environment by ensuring no harm in respect of inadequate privacy, whilst also delivering appropriate outlook.

[name] of London Plan Policy D6 sets out that housing development should normally avoid the provision of single aspect dwellings. This should only be provided where it is considered a more appropriate design solution to meet the requirements of [name] in Policy D3 than a dual aspect dwelling, and it can be demonstrated that it will have adequate daylight and privacy, amongst other things.

The appeal site is within a town centre location and is thus well connected to jobs, services, infrastructure and amenities by public transport, walking and cycling. As already set out above, I have found that the proposal would deliver appropriate external recreational space, outlook, privacy and daylight for future occupiers. I have thus found no conflict with London Plan Policy D6 in these respects.

One additional refuse storage area within the building is also proposed, along with some elevational changes at ground floor level facing [address]. The Council’s evidence does not indicate objection to these elements of the appeal scheme and following my site visit, I have no reason to raise such objection. The proposal does not include any vehicular access requirements via [address]. The waste collection area would be located to the rear of the building, with access via [address], as indicated on the proposed site plan4.

It is put to me that the appeal proposal is a pre-planned cynical ploy to get another sale and maximise income. I have however assessed the proposal based on the relevant planning legislation, policies and guidance, and the site-specific physical circumstances. In this context, the precise motives of the appellant have had no bearing on my determination of this appeal.

I have considered the Council’s suggested conditions provided without prejudice in the event that I allow the appeal, and the appellant’s comments in response. Condition 1 is necessary to clarify the approved plans, and I have added the additional proposed landscape plan to this approved plans condition.

Condition 2 is necessary in the interests of living conditions. Condition 3 is necessary in the interests of highway safety. Condition 4 is necessary in the interests of living conditions and the character and appearance of the area. Condition 5 is necessary in the interests of local air quality and to assist with climate change mitigation. Condition 6 is necessary to minimise the risk of crime. Condition 7 is necessary to manage the transport implications of the development. Condition 8 is necessary in the interests of biodiversity. Condition 9 is necessary in the interests of living conditions.

Condition 10 is necessary in the interests of living conditions and the character and appearance of the area. I have however deleted reference to “prior to construction of the above ground works”, as the approved works already undertaken have gone beyond that point. Instead, the trigger point is therefore prior to the first occupation of the building hereby permitted.

Condition 11 is necessary in the interests of living conditions. Condition 12 is necessary in the interests of managing fire risk. Condition 13 is necessary in the interests of living conditions. Condition 14 is necessary in the interests of managing flood risk. Condition 15 is necessary in the interests of sustainability. Condition 16 is necessary to ensure adequate cycling facilities. Condition 17 is necessary in the interests of local air quality. Condition 18 is necessary in the interests of Orpington as a Major Town Centre.

Condition 19 is necessary in the interests of living conditions. Condition 20 is necessary in the interests of living conditions and the character and appearance of the area. Condition 21 is necessary in the interests of living conditions. Condition 22 is necessary in the interests of managing flood risk. Condition 23 is necessary to ensure suitable arrangements for car parking.

For the above reasons, the appeal is allowed.