Appeal 6003627

The appeal is dismissed.

In the banner above, I have used the description of development specified on the notice of decision, as it removes reference to Use Class A1, to reflect the changes made to the Use Classes Order 1987 (as amended).

I saw on my site inspection that construction works had commenced on the proposed development, including at basement level. I have determined the appeal on this basis.

Reference has been made by both main parties to a planning permission1 granted in 2019 (the 2019 permission) for 3 no. flats at ground floor level at the appeal site. The appellant says that permission is extant. Although the Council has said the 2019 permission has expired, it has also said that the application has not been fully implemented, but works, including excavation works, have been carried out on site as established by a planning enforcement visit in February 2025. Against this background, I have considered it likely that works have commenced on that 2019 permission, and I have assessed the appeal on this basis. Although this should not be taken as a decision on the lawfulness of the 2019 permission, which is not in any case, before me for determination as part of this appeal.

Taking into account the reasons for refusal and the submitted documentation, the main issue is whether future occupiers would have satisfactory living conditions, 1 Ref. 19/0598 with particular regard to outlook, private amenity space provision, layout, and sunlight.

The appeal site relates to the ground floor and basement level of two adjoining mid-terraced properties, which are said to have residential accommodation on their upper floors. This proposal seeks 2 no. larger flats (flats B and D) that would have accommodation across ground floor and basement level, along with 2 no. flats wholly at ground floor (flats A and C).

The properties within this same terrace are mostly two storeys, with two-storey rear projections, and some have accommodation in their roof spaces. I did not observe any other basement level accommodation on properties in the same terrace or in the immediate area during my site inspection.

[name] and D are a handed version of one another; they each have 3 no. bedrooms located at basement level, including front bedroom windows facing into a narrow lightwell (said to be some 1.45 metres or so deep). Whilst these windows would be large and would receive adequate daylight and notwithstanding the support in principle for basement accommodation within Brent’s Basement Supplementary Planning Document, adopted June 2017 (BSPD), the outlook from these rooms would be wholly inadequate with limited views of the sky, and instead facing storage areas in a very tight arrangement at a low level. As a direct consequence of this, there would be harm to the living conditions of future occupiers.

To the rear side, each flat would have 2 no. large openings serving their other bedrooms, said to be floor to ceiling height, they would face into an inner and narrow courtyard. Including the basement level, there would be three storey high outriggers to either side of this narrow courtyard. A central tall boundary fence is also proposed to separate this courtyard between flats B and [name] arrangement at such a low level, even considering the large size of the openings would be very enclosing and oppressive for the living conditions of future occupiers and create a harmful outlook from within these rooms. Although the proposed sun tunnels will no doubt add to light entering these rooms, they would not offset the poor outlook from within the rooms themselves.

Whilst it is acknowledged that these basement level bedrooms would likely be used principally for sleeping and that they exceed minimum sizes, and would to an extent be insulated from road noise, these points do not justify the poor outlook for future occupiers from within them. It is noted that basement level accommodation is supported in principle by the Council where it is appropriate, but this should not be at the expense of the outlook for its future occupiers from habitable rooms. Furthermore, this basement arrangement with flat accommodation at such a low level and so close to tall rear projections is distinctly different to terraced housing at two storey level. This arrangement of bedrooms would be significantly enclosing for future occupiers, giving no meaningful outlook, with little opportunity to see beyond the existing structures. Whether or not other primary living spaces within flats B and D would have an acceptable outlook, this is not sufficient to offset the identified harm in this case. The basement level accommodation also makes this proposed development significantly different to the ground floor only flats, that are part of the 2019 permission, so that fallback position does not alter my findings in this regard.

[name] and C would each have a kitchen window on their rear sides, along with a roof light. Whilst the outlook to the rear side would be between the rear projections, the openings serving these rooms would be large for these 1 person flats. Given that they would be serving a kitchen space and not a bedroom, and these flats being dual aspect, I am content that they would provide a satisfactory outlook for their future occupiers, looking directly towards what would be the rear of the appeal site and courtyard garden areas of flats B and D at ground floor level.

[name] and D are each said to have [address] metres of external private amenity space to the rear side, and [address] metres of external amenity space in the front lightwells. [name] and C would have no external private amenity space.

Policy D6 of The London Plan, The Spatial Development Strategy for [site address] , dated March 2021 (LP) says where there are no higher local standards in a borough’s Development Plan Documents, a minimum of [address] metres of private outdoor space should be provided for 1-2 person dwellings along with [address] metre for each additional occupant.

Policy BH13 of the Brent Local Plan 2019-2041, adopted February 2022 (BLP) requires all new development to have external amenity space of a sufficient size and type to satisfy proposed resident’s needs. This is normally expected to be [address] metres for family housing (said to be accommodation with 3 bedrooms or more), and [address] metres for all other housing. These same requirements are repeated in [name] & [name], Supplementary Planning Document, dated December 2024 (SPD). Although the SPD says that where external private amenity space cannot be provided, it may be mitigated by the provision and quality of communal amenity or a higher provision and quality of internal space. Additional internal space is (usually expected to be equivalent to London Plan private amenity area requirements). The Brent Design Guide, SPD1 dated November 2018 (SPD1), also says new development should provide adequate amenity for new residents, including private outdoor space. Finally, BLP Policy DMP1 requires new development provides a high level of internal and external amenity.

In terms of flats B and D, even accepting that the space to their front sides would offer limited practical use, and taking into account the levels changes to the rear side, each flat would be provided with usable and functional open space, such as for drying clothes, and for its occupiers, including families, to sit and relax outside. However, it is accepted that this is below the [address] metres required by BLP BH13 and the SPD. Nevertheless, in this case it would represent the optimum space available for both flats at the appeal site, and provide future occupiers of flats B and D, with satisfactory living conditions in respect of private outdoor amenity space provision.

Regarding flats A and C, the lack of any private amenity space would not comply with BLP Policy BH13 and the SPD. The nearest public outdoor space, Roundwood Park, is said to be some 0.7 miles away and be a 15-minute walk. The separation distance to that public space, would mean it is not a convenient and easily accessible area. Therefore, future occupiers would not have any private amenity space, or any easily accessible nearby public space. This would create harmful living conditions for future occupiers by having no such private amenity space.

The 2 no. larger flats within the 2019 permission were shown on the extract within the appellant’s statement to have [address] metres and [address] metres respectively in terms of outdoor private amenity space. The 1-person flat within the 2019 permission had no external amenity space. As this proposed development relates to 2 no. 1-person flats it is different to the 1-person flat within the 2019 permission, and this lack of private amenity space with no alternative internal or communal space would affect an additional flat and its occupier in this case. Moreover, the development plan has changed in the intervening period, and it is unclear whether the current requirements were applicable when the 2019 permission was determined. As a result, the fall-back position would not be sufficient justification to warrant flats A and C, both having no private amenity space, or to justify the harmful effects and conflict with the policy outlined above.

The condition suggested by the appellant regarding the creation of communal outdoor amenity space would not address the lack of outdoor amenity space for flats A and C, as it would take some of the space intended for the occupiers of flats B and D (which is already below the minimum size). Furthermore, the proposed layout would not allow occupiers of these flats to access to the rear side of the appeal site. I also note the appellant’s comments about accommodation nearby that is said to have been granted planning permission without access to private amenity space, although there is inadequate specific information provided for me to properly take that into account in my decision.

LP Policy D6 states housing development should be of a high quality design, and provide adequately sized rooms with comfortable and functional layouts, that are fit for purpose.

The layout of flats B and D ensures windows to each habitable room, but it would result in a long corridor at basement level, along with the main living areas to the rear side of the flats, also being in a long and narrow form. Whilst this may not be the most efficient layout, it provides adequately sized rooms, including their communal living spaces. Whether or not such spaces would be smaller than those permitted in the 2019 permission, they are of a satisfactory size and allow for reasonable circulation space and distance between rooms. Furthermore, the use of two-storey accommodation for the proposed basement flats, is said to be consistent with the Council’s objectives for such accommodation.

[name] and C are accessed at ground floor level via communal entrances, they each have an open plan living area with a large front facing window, along with a single bed space, and an eating area, which could be separated by privacy screens. The proposed kitchens would each have a rear facing window, which is not annotated on the plans or shown on the elevations to be high level only, along with a roof light serving this space. The proposed flats are narrower than the extant 1-person flat (2019 permission) and some of the communal living space is away from their front facing windows. Nevertheless, they are broadly comparable in terms of their layouts to the 1-person flat within the extant permission. The proposed openings would provide a dual aspect, along with their large front windows, which would provide a functional and usable layout for the future occupiers of these 1 person flats, and not be a cramped form of accommodation.

LP Policy D6 requires that the design of development provides sufficient sunlight. A Daylight and [name], prepared by Right of [name], dated October 2025 [name] 4 units (DSR), has been submitted by the appellant, based on Building Research Establishment (BRE) guide ‘Site Layout Planning for Daylight and Sunlight: a good practice guide, 3rd Edition, 2022. It says that in general a dwelling will appear reasonably sunlit provided; at least one main window wall faces within 90 degrees of due south, and a habitable room, preferably a main living room, can receive a total of at least 1.5 hours of sunlight on 21 March. The DSR states the proposed development (for all 4 no. flats) would meet these requirements and concludes that it would provide adequate levels of natural light.

It is noted that not all rooms within each flat would meet the sunlight requirement, and some would have no, or very little sunlight. Nevertheless, at least one room would have adequate sunlight in accordance with the BRE guide, and considering this alongside the DSR’s other conclusions that all of the proposed windows would meet the minimum daylight levels, I am content that there would be adequate sunlight to each of the flats, to ensure their future occupiers would have satisfactory living conditions in this respect.

I therefore conclude that although the proposed development would provide satisfactory layouts, and levels of sunlight, and in these respects comply with BLP Policy DMP1 and LP Policy D6, in terms of those requirements set out above. There would, however, be harmful effects to future occupier’s living conditions in respect to the outlook within flats B and D, and due to the lack of private amenity space for flats A and C, and the proposed development would conflict with the relevant requirements of BLP policies DMP1 and BH13 and LP Policy D6, insofar as they require new housing to be high quality, fit for purpose, and have high levels of internal and external amenity, including [address] metres of external private amenity space for housing with less than 3 no. bedrooms, as set out above. In addition, the proposal would also conflict with paragraph 135 of the National Planning Policy Framework (the Framework) insofar as it requires a high standard of amenity for new and existing users, and it would not be consistent with requirements of SPD1 in terms of requiring a good outlook and adequate amenity for new residents (as set out above). Whilst there would be conflict with BLP Policy BH13 and the SPD in terms of private outdoor amenity space provision for flats B and D, the proposed development for the reasons outlined above would be consistent with their objective of ensuring future occupiers have access to high quality, functional and usable private outdoor space and would not be unacceptable or harmful to the living conditions of the future occupiers of flats B and D.

The Council referred to conflict with the BSPD, which seeks to ensure adequate amenity for basement accommodation, which should not solely be at basement level, provide adequate daylight, ventilation and access. In terms of this main issue, I did not find any conflict with the BSPD in this case.

The appellant referred me to [name] & [name] 2 Jan 2018; however this relates to extensions to houses, and I did not find it to be directly determinative on this main issue.

It is acknowledged that pre-application consultation with the Council and others has taken place, along with amendments to the proposed development having been made, and it is regrettable that no acceptable solution was found. Nevertheless, I have assessed the planning merits of the proposed development before me. The appellant has referred to policy support for the proposed development, including to parts of the Framework, relating to basement accommodation; the development of this small, vacant and underutilised brownfield site; the contribution the proposed development would make towards boosting housing supply in what is a well-connected and sustainable location; and that the proposal would improve the current appearance of the appeal site. These points in favour of the proposed development are noted, but they do not, even when taken collectively outweigh the above identified harmful effects for future occupiers in this case.

It is noted that there is a range of supporting documents demonstrating no unacceptable effects; that there is no objection in principle to residential use at the appeal site; that there are no unacceptable effects on neighbouring living conditions; that the proposed accommodation would meet, and in some cases exceed minimum space sizes and requirements; that sympathetic external materials would be used, including environmentally friendly design features; that there are no unacceptable highway safety impacts, accessibility issues, contamination risks, or flood risks; that it would provide family sized accommodation in two of the proposed flats, and that it complies with other policies of the development plan, including bin storage arrangements. However, these are mostly requirements for any such well-designed development, and they are neutral factors that neither weigh in favour or against the proposed development.

The presumption in favour of sustainable development, contained within paragraph 11 of the Framework, has been raised. I am not aware that the Council does not have an adequate supply of housing, and it is noted that the BLP was adopted in February 2022. I therefore have no substantive evidence to indicate to me that the presumption set out within paragraph 11 d) of the Framework would apply in this case.

I note the comments raised by a local resident, including but not limited to; the design of the proposed development and the effect on the character and appearance of the area; the accuracy of plans; the effect on living conditions of neighbouring occupiers; whether previous excavations at basement level were undertaken safely and lawfully; highway safety; ground stability; drainage; future management of properties; and whether it could be used as a House in [name] in the future, concerns regarding the wider living environment, and party wall matters. [name] can understand the concerns, subject to planning conditions as appropriate, there is no compelling evidence before me that would lead me to come to a different conclusion to the Council on these matters, I am also content that the plans were sufficient in order to understand and assess the effects of the proposed development.

I therefore conclude that the proposed development conflicts with the development plan taken as a whole, and there are no other considerations, including those raised by the appellant and the Framework, which outweigh that conflict. For the reasons outlined above, the appeal should be dismissed.