Appeal 6005733

The appeal is dismissed.

The site address in the banner heading matches that shown on the original decision notice. However, I note that the parties have also referred to the property as [site address] [address].

Planning permission was granted in 1979 (Ref: 19/78/2579) for the erection of a three-storey block comprising a supermarket, storeroom and offices, with car parking at the rear, and a two-storey block comprising six flats and a ‘pop-in’ parlour for elderly persons. The development was constructed and brought into use in the early 1980’s.

The disputed condition was imposed for reasons relating to car parking. The Council is now resisting its removal because it considers the condition to be necessary to ensure that there is sufficient housing available for older persons.

The appellant argues that the Council cannot consider a different reason for keeping the condition other than the reason set out in the decision notice. However, my consideration of this appeal must be based on current circumstances and the evidence provided and is not confined to the original reason given for imposing the condition.

The main issue in this appeal is whether the condition serves a planning purpose and specifically whether it is reasonable and necessary in the interests of maintaining a supply of housing for older persons.

The appeal site is located on the south-western side of [address] and is a purpose built, two-storey development with a vacant unit previously occupied by [name] as an elderly persons day centre on the ground floor, and six flats for residents of pensionable age and above on the first floor.

The site lies within the Chislehurst Conservation Area and forms part of a designated shopping frontage within the local shopping centre. The building is flanked by pedestrian footways and lies adjacent to a supermarket to the southeast and a row of shops to the northwest. The property lies directly opposite a [name]* listed church.

There is vehicular access to the site to the rear and this contains three parking spaces for the residential units. Condition 8 of the permission – not affected by this s73 application – requires that these spaces are reserved for the occupants of the flats. The surrounding area comprises a mix of residential, commercial, retail, leisure and community uses with good access to local amenities and public transport.

The appellant contends the purpose for which the disputed condition was originally imposed is no longer applicable, and that the reason for the condition was not to secure specialist older persons housing but in connection with parking.

No objections were received from the Council Highway department to the removal of the condition, who confirmed that the level of parking provision serving the flats remains acceptable regardless of the age of the occupants. It is common ground between the parties that parking no longer forms a justification for retaining the

Whilst the reasoning behind the imposition of Condition 11 may no longer be relevant in the present planning context, this does not mean the condition should be removed if the condition is still necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects1.

It is noted that the removal of the condition would not change the use class of the flats and that the removal of the condition could align with Policy H9 of the London Plan (Ensuring the Best use of Stock) which seeks to ensure that existing housing stock is used efficiently to avoid unnecessary vacancy. However, the condition restricts the occupancy of the flats to persons of pensionable age and the dwellings therefore fall within the category of specialist accommodation as they cannot be occupied by people who are unable to fulfil the criteria.

Policy H13 of the London Plan 2021 (LP) refers to the provision of specialist older persons housing. Whilst the type of accommodation may be relevant to the proposal, I share the appellant’s view that the policy is intended to promote this type of housing, rather than protect existing stock. 1 These are the tests set out in paragraph 57 of the National Planning Policy Framework and the Planning Practice Guidance

Paragraph 4.13.6 of the LP provides context to LP Policy H13 and gives examples of attributes that should be exhibited for the development to be considered specialist older persons housing. The appeal site allows residents to have a choice as to who provides their personal care and the housing was designed for older people (minimum age of 55 years). These are two of the attributes which meet the requirement for the development to be considered specialist older persons housing.

Policy H12 of the LP supports the delivery, retention and refurbishment of supported and specialised housing which meets an identified need and recognises that the form this takes will vary. Whilst the policy lists some of the types of accommodation that could meet the definition of supported and specialised accommodation, it is not an exhaustive list and I consider age restricted housing could fall within the definition of specialised housing which meets an identified need.

Policy 11 of the London Borough of Bromley Local Plan 2019 (BLP) supports the provision of specialist housing across all tenures, where they are conveniently located for a range of local shops, services and public transport, appropriate to the mobility of the residents, and they provide appropriate parking and suitably landscaped amenity space. Policy 11 resists the loss of sites currently providing specialist accommodation unless it has been demonstrated there is no demand for the existing accommodation and no demand for sites from alternative providers.

The appellant contends the flats do not meet the definition of specialist accommodation, however, Policy 11 refers to specialist and older peoples accommodation (my emphasis). The supporting text to Policy 11 also refers to a shift towards enabling older people to retain their independence and remain living in the community with appropriate support. This support does not need to be on site and furthermore communal facilities and on-site management are not a pre-requisite.

The appellant contends the flats do not meet the modern standards for older persons accommodation, however, there is no requirement for existing older persons accommodation to meet the modern accessibility standards or be upgraded to meet todays standards in order to be retained as such. I have also not been provided with substantive evidence that the properties are unsuitable for people of pensionable age. Whilst there are stairs to access the flats, this alone does not make them unsuitable as not every older person will be physically compromised during their retirement. I am therefore satisfied that the age restricted flats meet the definition of older peoples accommodation in BLP Policy 11 and that reference to specialist housing includes housing for older people (paragraph 2.1.80 of BLP).

The condition is necessary in order to prevent the permanent loss of six older persons housing units. The appellant has not provided supporting evidence to justify this loss such as marketing evidence, an assessment of demand or confirmation of replacement provision as required by BLP Policy 11.

The removal of the condition would not add to the Borough’s housing land supply as the use of the premises would remain the same and general housing pressure would not override specific development plan policies protecting older persons accommodation.

The condition serves a planning purpose and is reasonable and necessary in the interests of maintaining a supply of housing for older persons. It meets the tests for conditions set out in the National Planning Policy Framework. I have not been provided with substantive evidence to demonstrate that the removal of the condition would be justified. The condition functions as the only planning mechanism safeguarding a policy-protected form of accommodation. In conclusion, the removal of the condition would result in the loss of this type of accommodation from the site which has not been justified and would be contrary to Policy H12 of the LP and Policy 11 of the BLP. The Council also referenced Policy H13 of the LP in its decision, but this policy is not engaged as it does not provide protection to existing specialist accommodation.

The appeal site lies within Chislehurst Conservation Area (CCA) and opposite a [name]* listed church. S72(1) of the Planning (Listed Buildings and Conservation Areas) Act (the Act) requires special attention to be paid to the desirability of preserving or enhancing the character or appearance of the CCA and S66(1) of the Act requires me to have special regard to the desirability of preserving the setting of the listed building. [name] have not been directed towards the defining features of the CCA or the [name]* listed church, the proposed development would not involve any physical alterations to the building. In this respect, the proposal would preserve the character of the CCA and the setting of the listed building.

For the reasons given above the appeal should be dismissed.