R Judith Watt v London Borough of Hackney Zoe Chan (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Gilbart J |
| Judgment Date | 09 September 2016 |
| Neutral Citation | [2016] EWHC 1978 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5017/2015 |
| Date | 09 September 2016 |
[2016] EWHC 1978 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Gilbart
Case No: CO/5017/2015
and
Christopher Jacobs (instructed by Dowse and Co, Solicitors of Dalston) for the Claimant
Giles Atkinson (instructed by Director of Legal and Democratic Services, London Borough of Hackney) for the Defendant
The Interested party did not appear and was not represented
Hearing dates: 27 th April 2016, 23 rd June 2016
Approved Judgment
This is an application to quash the resolution of the London Borough of Hackney ("LBH") of 2 nd September 2015 to grant planning permission for the erection of a three storey building comprising a café (Class A3) use at basement and ground floor level, and two one bedroom flats (Class C3) at first and second floor, with associated cycle parking. It is to be noted that the original application for permission had included another residential unit, and was for a building of four storeys.
As will become apparent, this challenge by the Claimant has been on wide ranging grounds, and at times has adopted approaches at odds with the practice of this Court. In the event the critical issue was a narrow but important one.
I shall deal with the matter under the following heads
(a) the site and the adjoining school
(b) the proposed development
(c) relevant objections, the officer's report and the consideration of the application
(d) the sunlight issue after the resolution
(e) the history of the proceedings
(f) the Claimant's grounds
(g) the case for LBH
(h) discussion and conclusions.
(a) The site and the adjoining school
The site is a vacant triangular parcel of land forming the apex of the junction of Birkbeck Road and Colvestone Crescent, Dalston. To its west lies a building used for retail and restaurant purposes. To its north lies Colvestone Primary School. The areas to south east and west are akin to a town centre location, with many retail or restaurant uses. To the north lie predominantly residential and community uses.
Both the site and the school lie within the St Mark's Conservation Area. The school is a Grade II Listed Building. The application site had been occupied by buildings in the past, with a two or three storey building closer to the school building than the currently proposed development. The site was described by the planning officer in his report to committee thus:
"the vacant site currently has a negative impact on the character and appearance of the Conservation Area due to its leftover and under-utilised appearance………………the scheme….represents an enhancement of an under-utilised site and will enhance the character and appearance of the conservation area."
Between the school building and the northern edge of the appeal site lies an open area which forms part of the school's curtilage. It is bounded by walls. Although I do not accept some of the claims of the Claimant about its role (calling it an "outdoor classroom" for example) I accept that children use it from time to time during the day, including for some organised activities, including some classes. I also have no doubt that that is of benefit to the pupils. I accept also that it is desirable if those activities can take place in sunlight, rather than in a shaded playground, and perhaps especially so in winter months. In accepting that argument I make it plain that I consider that some of the Claimant's asserted fears about adverse medical effects of the loss of direct sunlight were exaggerated.
Plainly, as the school lies north of the application site, the effect of the proposal on daylight within that playground was a matter which would have to be considered. It is that issue which, as will become apparent, is the one of critical importance.
(b) The proposed development
The uses proposed are described above, as is the general nature of the development. The architectural style and detailing proposed in the application were welcomed by the planning officer in the report.
As noted already, the question of overshadowing was an important issue. The Applicant for planning permission had commissioned a "Sunlight and Shadow Assessment" which had been submitted to LBH before it determined the application. It was prepared by a firm called Twenty16 Design, which stated that the assessment had been commissioned to consider the impacts on the change in sunlight at the neighbouring school, and any increase in overshadowing. It was described as being based on the methodology of the BRE (Building Research Establishment) guidance, taken from "Site Layout Planning for Daylight and Sunlight" which the assessment report described as "the authoritative work in the field on sunlight and overshadowing."
It calculated sunlight hours for the 21 st day of each month of the year at 10.45 am, 12.45 pm and 14.45 pm. Patently, months between the vernal and autumnal equinox will see less overshadowing as they reach midsummer day, because of the angle of the sun in the sky, and then after increasing back to the equinoctial level, the overshadowing will increase as the sun's angle in the sky above the horizon reduces until December 21 st, before increasing again to the next vernal equinox. The assessment showed that external spaces should receive 2 hours of direct sunlight on 21st March over at least 50% of the area in question (the precise assessment is set out below). It regarded that as amounting to a modest increase in overshadowing. That assessment also assumed the existence of the fourth storey, albeit a glass one. It concluded that "the scheme can be considered acceptable in planning terms."
The reference to the percentage receiving direct sunlight is a reference to Section 3 of the BRE Publication, which deals with parks and gardens, which includes a list of amenity areas likely to be covered, including "children's playgrounds." It recommends as a check that at least half of the amenity area listed should receive at least two hours of sunlight on 21 st March. (see BRE document [3.3.1] [3.3.3] [3.3.7] and [3.3.17].)
As subsequently transpired, that report had made an erroneous assumption that the boundaries of the playground area to east and west were fenced, and in such a way that they admitted light. I shall say more on this point in due course.
(c) Relevant objections, the officer's report and the consideration of the application
There were a number of objections, including those relating to the loss of daylight to the school and the degree of overshadowing. At the Committee Meeting concerns were expressed by a number of people (including the Claimant and the school's headmistress) that the development would block out the sunlight from the school's external area. Doubts were expressed about the accuracy of the assessment.
An independent daylight/sunlight assessment was sought by objectors. It was also pointed out that there had been a previous refusal of listed building consent for a 2 storey development on the application site in 2005 because it would adversely affect the setting of the Listed School building, and adversely affect the appearance of the area. It is claimed by the Claimant that, after this matter had been pointed out to the Committee, it was advised that it was not relevant. That is denied in the evidence for LBH. As I shall set out below, I do not regard the Claimant's case as giving rise to a ground for quashing the permission.
The Report, and the officer's responses at Committee, described the scheme as contributing to the vitality and viability of Dalston centre, while providing apparently desirable natural surveillance to Ridley Road by day and evening, as advocated in the Dalston Area Action Plan. It considered that the design and massing were visually interesting, consistent with the history of the site and the area, respected the scale of the adjoining school, and would enhance the character and appearance of the Conservation Area. The development was thought to be of high quality, and complied with the pertinent policies in the relevant Development Plans (Hackney Local Development Framework Core Strategy, Development management Local Plan and the London Plan.
In the responses to the objections at Committee, the officer when dealing with the objections relating to daylight and sunlight relied on the Twenty16 Design report, which he referred to as relating to the larger 4 storey development. He cited the report saying that there was compliance with the BRE Digest recommendations. He also cited the assessment's conclusions that 87.6% of the playground currently received sunlight, which would only fall to 76.6 % which "comfortably met" BRE guidance.
The resolution to approve was passed on the casting vote of the Chair.
(d) The sunlight issue after the resolution
A subsequent report from a Consultant (Anstey Horne) was obtained by the objector in December 2015. While it was critical of some aspects of the Twenty16 assessment, it did not criticise its view that the area of amenity space it described would receive at least 2 hours of sun on March 21 st. However, after this claim had been made, and permission granted to apply for judicial review, a report came to light commissioned by the Hackney Learning Trust from a firm called Daylight Planning Limited. That report was dated 1 st April 2016 and was sent to the Defendant LBH by the Claimant on 6 th April 2016. Its report suggested that there...
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