Case Reference: 3257010

Appeal Decision
Inquiry Held on 15 December 2020
Site visit made on 16 March 2021
by Paul Singleton BSc MA MRTPI
an Inspector appointed by the Secretary of State for Housing, Communities and Local Government
Decision date: 29 March 2021
Appeal Ref: APP/G5180/W/20/3257010
Footzie Social Club, Station Approach, Lower Sydenham SE26 5BQ
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for planning permission.
• The appeal is made by [APPELLANT] against the Council of the London Borough of
Bromley.
• The application, Ref DC/20/00781/FULL1, is dated 28 February 2020.
• The development proposed is demolition of existing buildings and redevelopment of the
site by the erection of a four to eleven storey development comprising 254 residential
units (130 one-bedroom; 107 two-bedroom; and 17 three-bedroom).
Decision
1. The appeal is allowed and planning permission is granted for demolition of
existing buildings and redevelopment of the site by the erection of a four to
eleven storey development comprising 254 residential units (130 one-
bedroom; 107 two-bedroom; and 17 three-bedroom) at Footzie Social Club,
Station Approach, Lower Sydenham SE26 5BQ in accordance with the
application Ref DC/20/00781/FULL1, dated 28 February 2020, and the
conditions in the schedule at Annex 1 to this decision.
Applications for Costs
2. Two applications for costs were made. One by [APPELLANT] against the
Council of the London Borough of Bromley and one by the Council against
[APPELLANT]. These applications are the subject of a separate Decision.
Preliminary Matters
3. A list of Core Documents is included at Annex 2. Those referred in this decision
are referenced as they appear in that list; e.g. CD1.5. A list of Inquiry
Documents is at Annex 3; these are referred to as ID1, ID2 etc.
4. The appeal is against the failure of the Council of the London Borough of
Bromley (the Council) to determine the application within the statutory period.
On 20 September 2020, the Council resolved to resist the appeal for three
reasons as set out in the officer report at Appendix 1 to its Statement of Case
[CD1.9]. The putative Reasons for Refusal (RfR) alleged conflict with the
London Plan (March 2016), the Intend to Publish London Plan (issued by the
Mayor of London in December 2019), the London Borough of Bromley Local
Plan (January 2019) (BLP), the National Planning Policy Framework
(Framework) and supplementary planning documents and guidance issued by
the Mayor’s office.
5. Whilst the inquiry was sitting a further version of the new, replacement London
Plan in the form of the intended ‘Publication Plan’ was issued on 21 December.
On 29 January 2021 the Secretary of State (SoS) wrote to the Mayor to
confirm, in accordance with section 337(8) of the Greater London Authority Act
1999, that the version of the London Plan issued on 21 December contains all
the modifications necessary to conform with the Directions previously issued by
the SoS. This enabled the Mayor formally to publish the new London Plan which
he did on 2 March 2021. As of that date, this new London Plan became part of
the development plan for the purposes of the appeal. It replaces all previous
versions of the London Plan. All subsequent references to the London Plan
(LonP) in this decision are to this newly published Plan which sets out the
development strategy for Greater London for the next 20-25 years.
6. References were made during the course of the inquiry to the Publication
Version of the London Plan issued on 21 December. However, the SoS letter
made it likely that the new Plan would formally be published before my decision
was issued. Accordingly, the parties were given the opportunity to comment on
what implications, if any, they considered this change in circumstances had in
relation to the issues in the appeal, and to clarify which policies in the new
London Plan they considered to be relevant (some policy numbers having
changed from the earlier Intend to Publish version referred to in the Council’s
putative reasons for refusal). I have taken the comments received from the
parties on this matter into account in my consideration of the appeal.
7. Signed Statements of Common Ground (SoCG) in respect of general planning
matters, 5 Year Housing Land Supply (HLS), and Affordable Housing (AH)1were
submitted before the start of the inquiry. Further SoCG in relation to Viability2
and the Building Cost Plan3 were submitted during the inquiry. A Unilateral
Undertaking (UU), prepared under s106 of the Town and Country Planning Act
1990, was submitted by the appellant. This includes planning obligations
relating to: affordable housing; wheelchair housing; the provision and
maintenance of open space; the introduction of car club services; the
implementation of a travel plan; the provision of electrical vehicle charging
points; and the payment of financial contributions in respect of education,
health, highway and traffic works, carbon offsetting and an obligation
monitoring fee. I have been provided with a certified copy of the signed
document.
8. An application made by the Council for a partial adjournment of the inquiry,
such that evidence on building costs and viability should be heard at a later
time, was resisted by the appellant. I ruled against a partial adjournment and
requested that the parties prepare an additional SoCG in respect of building
costs and the construction period. The deadline that I set for this was not met
but the Building Costs SoCG was finally submitted on 22 January 2021.
1 Respectively: CD1.5(i), 1.5(ii) and 1.5(iii)
2 CD1.5(v)
3 ID 20
9. Following a flurry of emails early in the New Year I issued a Note re Additional
Evidence on 20 January.4 This set out a ruling on what further evidence would
be accepted and clarified the deadlines for receipt of this evidence and closing
submissions. Following receipt of the parties’ comments on the implications of
the SoS letter to the Mayor of London dated 29 January the inquiry was closed
in writing on 15 February 2021.
10. With the agreement of the main parties my site inspection was carried out on
an unaccompanied basis. I inspected the site and surrounding area on 16
March 2021.
Main Issues
11. The site is designated in the development plan as Metropolitan Open Land
(MOL) which enjoys the same general protection as the Green Belt. The built
component of the proposal comprises inappropriate development having regard
to the Green Belt policies in the Framework and LonP Policy G3. Such
development is harmful to the MOL and should be permitted only if there are
very special circumstances to justify a grant of planning permission. The open
space component of the proposal is agreed not to constitute inappropriate
development in the MOL.
12. The Council does not have a 5 year HLS as required under the Framework. The
tilted balance in favour of sustainable development, set out in paragraph 11 d)
of the Framework, is triggered for this reason. The parties agree that MOL
policies are not included in the list of policies referred to in Footnote 6 of the
Framework and that sub-paragraph ii of paragraph 11 d) is, therefore,
engaged. As a result the most important policies for determination of the
appeal are deemed to be out of date. Table 3 of the main SoCG lists the BLP
policies which are agreed to be the most relevant to the proposal. Having
regard to the parties’ submissions, I have identified the most important policies
in the new LonP as being D3, D9, G3, H4, H5 and H6.
13. The Council’s putative RfR alleged a lack of agreement on the planning
obligations needed to mitigate impacts of the proposal in terms of education,
health and children’s play provision. Agreement has subsequently been reached
on these matters and on the related obligations within the UU, other than those
relating to the provision of AH.
14. In that context the main issues in the appeal are:
a) The effect on the character and appearance of the site and its
surroundings, with particular reference to the density, height, scale and
massing of the proposal;
b) The effect on the openness and visual amenity of the MOL;
c) The effect on the living conditions of: (a) the occupiers of apartments in
the adjacent residential development with regard to outlook and sense of
enclosure, and (b) the future occupiers of the proposed apartments
having regard to natural lighting levels and the quality of communal
entrances;
4 ID 15
d) Whether the proposal would made adequate provision for affordable
housing in line with national and local planning policy;
e) Whether the harm by reason of inappropriateness, and any other harm,
would clearly be outweighed by other considerations so as to amount to
the very special circumstances required to justify a grant of planning
permission in the MOL.
Reasons
15. The site was previously a sports ground for employees of Dylon International.
It is broadly triangular and bounded to the west by the Hayes to London
Charing Cross railway line and to the east by the Pool river. It contains a
number of buildings and hardstandings associated with the former use and
some 37.98% of the total site is previously developed land. To the north, it
abuts the site of the former Dylon International premises, now redeveloped for
residential use, and the former Maybrey Works.
16. The site is within the New Beckenham area of MOL, most of which comprises
private sports grounds to the east of the river. To the west of the railway is an
industrial estate and the area to the east of the MOL, around Copers Cope Road
and Worsley Bridge Road, is predominantly in residential use. The site is within
a few minutes’ walk of Lower Sydenham Station and in a sustainable location in
terms of its accessibility to public transport and local services.
Planning history
17. Five planning applications have been submitted for the redevelopment of the
appeal site since 2015. The full details of these are set out in the SoCG but
much of the evidence relates to two of these schemes which I subsequently
refer to as follows:
The 2016 Appeal Scheme: relating to planning application reference
15/04759/FULL1 for a 253 dwelling scheme and the subsequent appeal5 which
was dismissed by Inspector Peerless on 2 August 2016.
The 2019 Appeal Scheme: relating to application reference 18/01319/FULL1 for
151 apartments and the subsequent appeal6which was allowed by Inspector
Baird on 26 June 2019.
18. It is common ground that the 2019 planning permission is a material
consideration and that the pre-commencement conditions have been
discharged. That permission could now be implemented subject to compliance
with other conditions and the terms of the S106 agreement attached to it.
Adjacent Sites
19. Planning permission was secured on appeal7 in April 2010 for redevelopment of
the former Dylon premises, immediately to the north of the appeal site (the
Dylon 1 scheme), for 149 residential units, with B1 office accommodation, café
and creche in buildings rising to 8 storeys above basement level. A subsequent
5 APP/G5180/W/16/3144248 [CD6.4]
6 APP/G5180/W/18/3206569 [CD6.5]
7 APP/G5180/A/09/2114194 [CD6.1]
appeal decision,8 in 2015, allowed the replacement of the office space with 74
apartments. The site has been developed under that revised permission.
20. Permission was granted on appeal in July 20189 for the redevelopment of the
adjacent Maybrey Works site for 159 residential apartments, together with
commercial space and a residents’ gym, in buildings of between 5 and 9
storeys in height. At the time of my site visit, this development was at an
advanced stage of construction with the main structure of the various blocks
having been completed to parapet level.
21. Neither the Dylon 1 nor the Maybrey Works sites are within the MOL.
Housing Land Supply
22. The most recent position is set out in the 5 year HLS paper produced in
September 2020 which covers the period from 1 April 2020 to 31 March 2025.
This forms the basis of the agreement within the SoCG that the Council is
unable to demonstrate a 5 year HLS.
23. In view of the stage that the new London Plan had reached when preparing
their evidence, the parties agreed that the 5 year requirement should be
calculated on the basis of the targets in the new London Plan rather than those
in the then adopted London Plan. The new LonP has now been published and
forms part of the development plan for the area. This sets a target of 7,740 net
housing completions in Bromley over the 10 year period to 2028/29, giving an
annual average target of 774. With the 5% buffer that is agreed to be
appropriate, this provides for an annual average of 813 dpa and a 5 year target
of 4,064.
24. The Council assesses the land supply as providing for 2,661 units, equating to
a supply of 3.27 years. It acknowledges that this amounts to a significant
undersupply against the 4,064 target for the 5 year period. The appellant’s
assessment is that the supply provides only for 2,409 units, equating to 2.96
years. The areas of difference concern the level of the small sites/windfall
assumption and the inclusion of a large site in Bromley as a deliverable site
within the 5 year period.
25. The housing target in the LonP is a constrained target, reflecting the capacity
within the London Boroughs for accommodating new development, and does
not equate to the objectively assessed need for new housing in Greater
London. The new Standard Method for assessing housing need10, issued
alongside the Ministerial Statement on 16 December 2020, sets an indicative
housing need figure for Bromley of 1,211 dwellings per annum (dpa). This
confirms that the level of need going forwards is significantly greater than
would be met even if the LonP 10-year target level of housing delivery in the
Borough is achieved.
26. This situation is confirmed in the January 2021 SoS letter to the Mayor which
states that, notwithstanding the publication of the replacement LonP, “you still
have a very long way to go to meet London’s full housing need… I will be
seeking to work with those ambitious London Boroughs who want to deliver
over and above the housing targets you have set them.” Whereas the current
8 APP/G5180/A/14/2219910 & A/13/2206836 [CD6.3]
9 APP/G5180/W/17/3181977 [CD5C.2]
10 CD7A.27(ii)
shortfall amounts to approximately 2 years against the 10-year target in the
LonP, the actual level of unmet need for new housing in Bromley is
substantially greater than that figure suggests.
27. Mr Butterworth’s evidence, that some 53% of the dwellings in the large sites
category and 16% of those in the small sites category of the Council’s claimed
supply were granted permission on appeal, was not challenged by the Council.
This high proportion suggests that the Council has been far from pro-active in
ensuring the provision of a 5 year HLS. Part 4 of Mr Butterworth’s proof also
provides convincing, and again largely unchallenged, evidence that the future
supply for Years 6-10 in the most recent housing trajectory is relatively weak.
This evidence shows little prospect of a step change in the annual rate of
housing delivery in the Borough in the short to medium term.
28. Without needing to undertake a detailed review of all of the areas of dispute in
that appeal, Inspector Baird found, in his 2019 decision, that the housing
supply then available amounted to 4.25 years at best, and that this fell
materially below the level that the Council acknowledged to be significant. He
accordingly attributed very substantial weight to the contribution that the 151
dwellings proposed in that scheme would make to meeting housing need.
29. At either end of the range agreed by the parties (of 2.96 to 3.27 years supply),
the shortfall in the housing supply is now significantly greater than that found
by Inspector Baird. It is, therefore, unnecessary for me to reach my own
finding as to the exact extent of the shortfall. By any measure, the shortfall in
supply is very significant. This has to be considered in the context both of an
increasing level of housing need and the limited prospect of development
coming forward to make up that shortfall. I agree with the appellant that
nothing less than very substantial weight should be given to the contribution
that the 254 dwellings proposed in the appeal scheme would make to meeting
housing need in Bromley.
Character and appearance
30. The Council accepts that the 2019 appeal decision established the principle of
the site’s use for dense residential development in the form of two apartment
buildings. However, RfR 2 alleges that, by reason of its excessive height, scale
and massing, and its relationship the neighbouring development, the proposal
would have an adverse impact on the skyline and be over dominant. As the two
schemes have an almost identical footprint the additional scale and massing of
the proposal derives primarily from its increased height. The officer report of
September 2020 states that the proposed north block would tower over the
neighbouring developments.
31. Much of the evidence focused on the differences between the 2019 appeal
scheme and the current proposal. The Council also argued that the proposal
would have similar effects on character and appearance as the 2016 appeal
scheme which Inspector Peerless found to be unacceptable. In advancing those
arguments the Council has not, in my view, given adequate weight to the
important changes in the site’s context and the significant design differences
between the current proposal and the 2016 appeal scheme.
32. In 2016 Dylon 1 was still under construction and there was no planning
permission or application on the Maybrey Works site. The industrial buildings
on the Maybrey site were part of the ‘relatively small scale development’ that
Inspector Peerless referred to as forming part of the site’s development
context. That context has changed very significantly with the construction of
buildings of up to 10 storeys on the Maybrey site and the completion of the
Dylon 1 scheme. I accept that these two developments are not on MOL.
However, my observations on my site visit support Mr Miele’s evidence that
these schemes have resulted in the formation of a new cluster of dense
development and comparatively tall buildings close to the station.
33. Also since 2016, the Council has granted planning permission for a covered
football pitch as part of the use by Crystal Palace FC (CPFC) of the former
National Westminster Bank sports ground to the east of the river. The officer
report on that application stated that this building would not significantly harm
the character and appearance of the area,11 but noted that it would obstruct
views across the MOL.
34. At the time of my visit, the steelwork for that new building had been completed
and the roof had been covered in a light coloured cladding. Works to fill in the
ends of the building were ongoing but I was able to gain a clear appreciation of
the full size and height of the finished structure. My observations are that this
new building is a very large structure of solid appearance. It is a prominent
feature in the various views available from Worsley Bridge Road and Copers
Cope Road. Having regard to the photograph of the site at Figure 4 of the
Officer report on that planning application,12 I find that the new covered pitch
has had a significant adverse effect on the openness of this part of the MOL. It
has also impacted upon potential views of the appeal scheme from public
vantage points. Together these factors constitute a significant change in the
context of the appeal site compared to that assessed by Inspector Baird in
2019.
35. The 2016 appeal scheme was for a similar number of apartments but was of a
materially different built form to that now proposed. The long elevation of that
scheme would have extended some 150m from north to south, forming what
Inspector Peerless described as a “solid wall of development with little variation
along its length to relieve its somewhat monumental character.”13 She found
that this would create a hard and dominant edge to the proposed area of open
space and would be overly dominant when seen from that space.
36. The design of the current proposal overcomes these concerns. This is achieved
by various means including: the subdivision of the proposal into two distinct
blocks separated by a substantial open gap; variations in the roof height and
the setting back of the top levels; the folded building plan; strong vertical
elements and articulation to the building elevations; and the varied use of
glass, steel and brick cladding that would introduce light and shade into the
elevations. These design elements would significantly reduce the visual impact
of the proposal, such that it could not sensibly be described as forming a solid
or an uninterrupted wall of development.
37. The substantial gap (of 29m minimum width) between the two blocks and the
proposed alignment of these blocks would create significant areas of open
space between and around each of these. These would provide a physical and
11 Officer Report [CD7B.1]
12 CD7B (ii)
13 CD 6.4(i) paragraph 55
visual relationship with the proposed public open space to the east. As a result,
the current proposal would not create a hard edge to the proposed open space.
38. A comparison of the site plan and elevational drawings for the two schemes
confirms the substantial differences in their design. The appeal proposal is so
different, in form and design, from the 2016 appeal scheme as to render that
appeal decision of limited assistance as a benchmark against which its visual
effects should be measured. The current proposal would be taller, and have a
greater scale and massing, than the 2019 appeal scheme. Those differences do
not, however, render the proposal objectionable if its visual and townscape
effects are not unacceptable.
39. The new buildings would not be of a uniform height. The north block would rise
to 11 storeys above basement at the northern end and step down to 8 storeys
above basement at its southern end. The northern part of the south block
would be 7 storeys above basement, stepping down to 4 storeys above
basement at its southern end. This means that the highest part of the northern
block would be 3 storeys higher than that in the 2019 appeal scheme (agreed
to be a difference of +8.3m) and the highest part of the southern block would
be 2 storeys higher than in the 2019 scheme (a difference of +5.3m).
40. Due to the building plan, the highest part of the north block would not be sited
in a face-to-face relationship with the nearest part (the western block) of the
Dylon 1 development. Instead, it would be aligned with the eastern block of
that development which would be some 30m from the nearest part of the
appeal scheme. Because of the folded building plan, the site section drawings
do not give an accurate impression of the relationship between the two
developments. This can best be seen in the perspective images included as
DS4-01 to DS-15 in the DAS and the aerial view in Mr Ritchie’s proof.
41. The stepped parapet height is a notable feature of the proposal, adding variety
and interest to its external appearance. This is particularly the case in respect
of the north block, where the stepped height would be markedly different to
the largely uniform height of buildings within each of the Dylon 1 and Maybrey
schemes. The angled footprint, the stepping back of the upper floors, and use
of lighter materials to these upper floors would all combine to soften the visual
impact of the additional storeys. Overall, the proposed design would provide for
a comfortable relationship with the Dylon 1 and Maybrey developments,
notwithstanding the increased height compared with the 2019 appeal scheme.
42. No part of the proposal comprises a free-standing tower. The tallest part of the
north block would be 3 storeys higher than the nearest existing buildings and
only 4.75m higher than the tallest block within the Maybrey development. The
remainder of the block would be no taller than the nearest part of the Maybrey
development. Given those relationships, I do not accept the Council’s assertion
that the appeal proposal would tower over or dominate these neighbouring
buildings. It would, rather, be seen as a localised extension of an existing
cluster of taller buildings close to the station.
43. It is appropriate that the tallest element should be located next to the existing
cluster of taller buildings and that the scheme should reduce in height towards
the south, where it adjoins the wider area of MOL. I agree that there is no
design virtue in making all of the buildings within a cluster the same height. I
do not accept that, as a matter of principle, the proposal should be no higher
than the Dylon 1 development. That is unnecessary both in townscape terms
and in respect of the development’s effect on the MOL. I also consider that the
Council’s contention, that a 8.4m increase in height compared to Dylon 1 would
undermine that development’s role in helping to define the entrance to the
station, is flawed.
44. In townscape legibility terms, the cluster of taller buildings would help people
walking along Worsley Bridge Road from the north or east to identify the
general location of the station. However, as they come to the junction with
Station Approach, other visual signals, including street signage, would guide
them to the station entrance on this side of the railway. I do not consider that,
having reached this point, they would be dependent on views of the adjacent
buildings for this purpose. They would, in any event, be less able to read the
relative heights of the nearby buildings in these closer views.
45. The Council’s argument also ignores the fact that the lowest buildings within
the Dylon 1 scheme front on to Worsley Bridge Road and Station Approach,
with that development then stepping up in height from north to south. The
scheme has been designed so that the tallest elements do not become over
dominant in the street scene on these roads. I saw that this approach has been
successful in allowing the Dylon 1 development to have a comfortable visual
relationship with the 2-storey commercial buildings on Station Approach and
the Montana Gardens development on Worsley Bridge Road.
46. In that context, and given my conclusions (as set out in the following section)
about the effect on the openness of the MOL within the appeal site than the
2019 appeal scheme, I see no reason why the northern component of the north
block should not form the tallest element in the extended cluster of taller
buildings. This would not cause harm in visual and townscape terms and would
have no discernible effect on the role which that cluster plays in providing
legibility within the townscape. Any redistribution of apartments from the north
block to the south block, as suggested in the Greater London Authority’s (GLA)
Stage 1 report, would undermine the design strategy for the scheme.
47. Having regard to the shadow testing drawings, I am satisfied that the proposal
would not cause an unacceptable degree of shadowing to the proposed area of
open space. The increased height, compared with the 2019 appeal scheme,
would not result in the open space being dominated or adversely enclosed by
the proposed buildings. The size and quality of this open space would be
unchanged from the 2019 appeal scheme and would provide the same benefits
as in that proposal.
48. As part of my site visit, I viewed the site from the agreed key viewing points,14
and, in view of the concerns expressed by the Council, sought to identify from
where else along the Worsley Bridge and Copers Cope Road corridors the
proposal might also be seen. I also viewed the site from the train on the
section of line between New Beckenham and Lower Sydenham Stations and
from the bridge at Lower Sydenham Station. Although my visit was carried out
in mid-March, very few of the trees within the various views were in leaf and I
observed only limited new growth on most of the boundary vegetation to the
CPFC site.
49. Viewpoint 1 on Worsley Bridge Road is the nearest to the site and that which
would provide the most direct view of the proposal. When seen from this
14 As shown on the plans and images within Dr Miele’s Appendix 5.0
viewpoint, the development would be more noticeable than the 2019 appeal
scheme. Comparison of the image on page 10 of Dr Miele’s Appendix 5.0 with
Image G in his Appendix 4 shows that the visual impact would be substantially
less harmful than that of the 2016 proposal. This again confirms the significant
differences between that scheme and the current proposal. Comparison of the
two images also demonstrates how significant a change there has been, since
2016, in the site’s visual and design context as a result of the redevelopment of
the Maybrey site. The ‘solid wall’ of development that Inspector Peerless may
have perceived in this key view is not repeated in the current proposal.
50. In this view, the tallest part of the north block would project by a fairly modest
extent above the Maybrey buildings. The lower parts of the north block would
extend to the west of the Maybrey development but would be of a similar
height to those existing buildings. The upper floors of the south block would
form a new element in that view but the viewer would also be aware of the
substantial gap between the two blocks. The upper floors would protrude above
the trees on the skyline but the sky would be visible through the gap.
51. The separation of the two blocks and their stepped height would contrast with
the more uniform height and solid appearance of the Maybrey development
when seen from this vantage point. In my judgement, those design details
would combine successfully to break up the scale and massing of the proposal
so that its additional height would not be readily apparent in this view. Due to
their closer proximity and more solid form, the Maybrey buildings would
continue to be the dominant feature in the view available from Viewpoint 1.
52. Although the upper part of the south block would be visible from where the
photograph was taken, the development would largely be seen in transient
views by people as they move along Worsley Bridge Road. Having walked along
Worsley Bridge Road, between its junctions with Copers Cope Road and Station
Approach I did not identify any alternative viewpoints that would give a clearer
view of the proposed development. As confirmed by the animation presented
by Dr Miele, the width and clarity of the view that is available from Viewpoint 1
is reduced as one moves north from this point. In my assessment, it would be
the Maybrey development that is dominant in most of the transient views along
this corridor. The overall impact of the proposal on views available from this
direction is likely to be slight.
53. The boundary treatments submitted under conditions attached to the CPFC
permission have not yet been approved and final details of these are not yet
clear. I observed that some sections of the proposed ‘ball-stop’ netting have
now been erected and that these neither prevent nor obscure the views
available across the open parts of the CPFC site. However, as the images in Dr
Miele’s Appendix 6.0 show, it is common practice for major football clubs to
screen their training and coaching facilities from public view. Any future fencing
erected in accordance with the planning conditions or landscaping not requiring
planning permission, is likely to further restrict rather than open up views
across their land.
54. Viewpoint 2, from Copers Cope Road is across a heavily vegetated site which
provides only for glimpsed views across that land, even at the time of my site
visit. These views are available through only a short section of the boundary to
the CPFC site close to the junction of Copers Cope Road with Worsley Bridge
Road. None of the views available at the time of my visit were as open as is
suggested by the image at Figure 3 in the GLA’s report [CD 3.1]. I can only
assume that this is based on an old photograph that does not reflect the
current level of vegetation to this boundary.
55. In the limited views available from this section of Copers Cope Road it is
possible to pick out the location of the appeal site by reference to the industrial
buildings behind it, to the west of the railway. Other buildings can also be seen
on the higher ground that forms the backdrop to the view as this rises towards
the ridge. In my assessment some filtered views of the proposal would be
possible if one stopped on the opposite pavement and looked in the direction of
the site. The proposal would not be significantly more prominent in those views
than the 2019 appeal scheme would have been. It would be seen in the context
of the nearer and more solid form of the Maybrey Works scheme and would not
have a significant adverse impact on views from this public vantage point. The
views most likely to be experienced from this direction would be transient ones
and are likely to be heavily filtered for much of the year.
56. Viewpoint 4 was assessed in relation to the 2019 appeal proposal. However, as
evidenced by the images in Dr Miele’s appendix, and as I saw on my site visit,
any potential views from this section of Copers Cope Road have now been
blocked by the construction of the covered football pitch. This viewpoint does
not, therefore, require further consideration.
57. Viewpoint 6 is from further along Worsley Bridge Road near Overbrae. Because
of its location adjacent to the road junction, people may experience this view
when waiting at the junction or crossing the road but most views would be
transient ones. As shown in the existing photograph on page 29 of Dr Miele’s
Appendix 4, a person standing at this location would have a view extending
beyond the appeal site to the Sydenham Ridge and Crystal Palace transmitter
tower. Although the effect is not quite as marked as is suggested in Dr Miele’s
‘Cumulative’ image, the available view has been severely compromised by the
erection of the CPFC covered pitch. It is possible still to see the upper part of
the transmitter tower but much of the ridge that would previously have been
seen is now obscured. Even in winter, these views are filtered by the boundary
vegetation and trees within the adjacent sports ground.
58. In my assessment it would be possible to see parts of the appeal scheme from
this location. I do not consider that it would have a greater visual impact when
seen from here than the 2019 appeal scheme would have had. At this distance
from the site, the additional height of the two blocks would not have a
significant additional impact. Although part of the north block would break the
horizon line, the new buildings would mostly be seen against the background of
existing buildings on the higher ground to the west. The physical gap between
the two blocks and their stepped height would serve to reduce their impact.
The Maybrey scheme buildings would continue to stand out more because of
their more uniform height and more solid form. Given that these would be
transient and, for much of the year filtered, views the effect of the appeal
proposal would be slight.
59. I consider the design of the current proposal to be of the same exceptional
quality that was noted by Mr Baird in his 2019 appeal decision. The proposal
would result in the creation of a generous area of publicly accessible open
space of a very high standard of design and utility. Together with the
landscaping to the podium and gap between the buildings, this would
significantly enhance the landscape quality of the site itself and the visual
amenity of this part of the MOL.
60. Taking all of these considerations together, I find that the appeal proposal
would not have an unacceptable effect on the character and appearance of the
site or its wider surroundings. The proposal complies with BLP Policy 4, that
requires a high standard of design in new housing developments, and with
Policy 37, relating to the general design of new development. Although parts of
the proposal would be seen on the skyline, the development would not
adversely affect views of the ridge at Crystal Palace or any of the other
important views or landmarks listed in Policy 50. The proposal therefore
complies with that policy.
61. Having considered the evidence submitted on this matter, I find that the
proposal does not constitute a tall building for the purposes of BLP Policy 47.
The north block would include a taller element but, taken as a whole, the two
blocks would neither be substantially taller than their surroundings nor cause a
significant change to the skyline. Even if I had found otherwise, I would still
conclude that the proposal complies with Policy 47 because it is of the highest
architectural design quality and materials and would make a positive
contribution to the townscape in this part of Bromley.
62. I note the Council’s reliance on Policy D9 of the LonP which states that local
authorities should define what a ‘tall building’ is for specific localities. This
definition should be not less than 6 storeys or 18m measured from the ground
to the floor level of the uppermost storey. Where a local definition of a tall
building has not yet been adopted, these parameters should be used as the
default definition. Policy D9 does not impose a ban on tall buildings but
requires an assessment of factors such as their effect on the skyline, their
architectural quality, and whether they would stand in isolation or as part of a
group. For the reasons set out above, I find no conflict with Policy D9.
63. A number of London Plan policies were cited in Putative RfR 2. Not all of these
are directly concerned with the adequacy of the design or absence of harm to
character and appearance. Having regard to those matters, I find that the
proposal is consistent with LonP Policy D4 which is concerned with delivering
good design. The design strategy adopted seeks to make best use of the
previously developed part of the appeal site. The proposal is, therefore,
consistent with the ambitions set out in LonP Policy D3 for optimising site
capacity through a design-led approach. Policy D3 also states that higher
density development should be promoted in locations that are well connected
including by public transport. The proposal complies with and derives support
from Policy D3.
Effect on Openness
64. The 2019 appeal decision established the acceptability in principle of the
development of the brownfield portion of the site for residential use. The
developed area of that proposal (including buildings, the access road, surface
parking and private amenity areas) covered 37% of the total site area, all
contained within the brownfield portion of the site. The current scheme
proposes new buildings only within the previously developed part of the site,
with the developed area accounting for 37% of the total site area and the
remaining 63% being laid out as open space for public use. The proposal
would, therefore, have no greater impact on the spatial dimension of openness,
either than the existing buildings and hardstandings or the scheme with extant
permission.
65. The proposed footprint of the two blocks and the width of the gap between
them are largely unchanged from the 2019 scheme. Users of the public open
space, or anyone passing through it, would have the same views from that
space that they would have had in the 2019 scheme. I saw on my site visit
that, in combination, the Dylon 1 and Maybrey Works buildings form a
continuous wall of buildings immediately to the north of the site. Seen from
within the site, this forms a hard built edge to the open land and curtails any
views beyond that built edge. That hard edge to the northern boundary of the
appeal site would not be altered by the proposal.
66. If constructed, the 2019 appeal scheme would have resulted in the new
buildings being sited along the western boundary with a substantial gap
between the north and south blocks. Views from within the site to the railway,
and to the industrial estate to the west, would have been possible through the
gap but would have been closed off along the rest of the western boundary.
That partial enclosure of the western boundary would, undoubtedly, have
resulted in a reduction in the visual dimension of the openness of the site.
Although the gap in the current appeal scheme is in a slightly different position,
the proportion of open gap to built edge would be unchanged and would
provide the same degree of visual enclosure to that boundary.
67. A person looking towards the development from the south-eastern edge of the
site, next to the river, might comfortably have a view of the full height of the
proposed development. But, as noted in Dr Miele’s evidence, most people
walking or passing through the area of open space are unlikely to be looking
upwards. As they get closer to the development, their gaze would increasingly
be directed to the lower floors of the two blocks. The additional storeys would
be visible from certain positions within the proposed open space but would
make very little difference to how the visual dimension of the openness of the
site is perceived or experienced by users of this area. For these reasons, I do
not find the that effect on the openness of the site itself would be materially
different from that which would have resulted from the 2019 appeal scheme.
68. For the same reasons, I do not consider that there would be a material
difference in the way in which those passing the site on a train would perceive
the openness of the wider MOL. They would have the same width of view
through the gap between the blocks and their perception of the depth and
width of the MOL is unlikely to be affected by their increased height. Indeed,
the position and size of the carriage windows are such as to cut off the upwards
view of any passenger sitting on a passing train. The effect on the visual
dimension of openness of the MOL, as experienced from the railway bridge,
would also be largely unchanged compared with that resulting from the 2019
appeal scheme.
69. It is only in medium to longer distance views from the north east and east that
the increased height of the proposal could, potentially, alter the way in which a
viewer experiences the openness of the MOL. However, those public vantage
points are few in number and are at some distance from the site.
70. When comparing images of the 2019 scheme with those of the current proposal
the eye is obviously drawn to the differences between the two. In reality, when
seen from the main viewpoints, the new buildings will be read in the context of
the existing tall buildings on the Dylon 1 and Maybrey sites. In most cases,
they will also be viewed across an expanse of undeveloped land in the
foreground, with the new buildings towards the back of the available view. The
construction of the CPFC covered pitch has reduced the extent of open land in
some of those views. However, the appreciation of openness is derived largely
from the depth and width of undeveloped land in the foreground. There is
currently no direct view of the open land within the site from any of these
public vantage points. This would not be changed by the development.
71. From a very small number of viewpoints, the upper parts of the two blocks
would break the horizon or skyline. However, I do not consider this particularly
significant in terms of the effect on openness. In my judgement, the effect on
the viewer’s perception of openness is informed more by the position of
buildings within their view rather than by the height of those buildings. In
reaching his conclusion that there would be a limited effect on openness,
Inspector Baird made reference to the fact that, in most views, the south block
would be materially below the skyline and the north block would barely break
the skyline. However, he also took account of the gap between the buildings
and the level of existing screening. I have also had regard to these factors.
72. When viewed from Viewpoint 1, the north block would project slightly above
the Maybrey buildings and would be partially visible to the west of that
development. Its scale would be more apparent than that of the northern block
in the 2019 scheme. In that scheme, the south block would have been seen
above the trees in that same view. In the current proposal, it would appear as
slightly taller but its position within the view would be unchanged. Overall, a
viewer would see slightly more built development and a narrower gap between
the appeal scheme and the Maybrey buildings. This would result in a marginally
greater impact on the visual dimension of openness as experienced from this
viewpoint. However, most views from this direction are transient. The new
buildings would generally not appear as prominent features in the view that
people have as they are moving along Worsley Bridge Road.
73. In the other viewpoints discussed, the overall perception of the openness of the
New Beckenham MOL would largely be unchanged from that which would have
resulted from the 2019 appeal scheme. I therefore, conclude that the appeal
scheme would have broadly the same limited effect on the openness of the
MOL as Inspector Baird found when assessing the 2019 scheme.
74. As established in the 2016 appeal decision, the appeal site is visually separated
from the main body of the New Beckenham MOL to the east of the river.
Although some limited views across the river are available in winter, I agree
with Inspector Peerless that it is only really in aerial photographs that the site
can clearly be linked with the open land to the east. Its character, use and
current condition are quite different to the maintained, private sports grounds
that make up most of the MOL. The site makes a limited contribution to the
openness of that main area of MOL. Given that relationship, I do not agree that
the value of the appeal site as MOL has increased as a consequence of the
Maybrey development and the CPFC permission. In my view, the contribution it
makes is the same as assessed in the previous appeals. The contribution it
makes to the openness of the wider MOL would not be further reduced because
of the additional height of the proposed buildings.
75. Inspector Peerless found that the appeal site does not fulfil two of the three
MOL designation criteria as there is no public access to it and it does not
contain features or landscapes of national or metropolitan value. I agree with
that conclusion. Although annotated as forming part of a green chain in the
BLP, the site does not in practice perform this function. Accordingly, the site
does not fulfil the fourth MOL designation criterion in LonP Policy G3 and BLP
Policy 50.
76. By creating an attractively landscaped area of open space the proposal would
significantly enhance the visual amenity of the retained open MOL within the
site. These proposed works, and the granting of public access to that land,
would also have the benefits of addressing the missing gap in the South East
London Green Chain, in line with BLP Policy 54, and enabling the site to fulfil
three of the four designation criteria. The proposal would, therefore, provide
some material benefit to the MOL within the site itself.
Living Conditions
77. The northern component of the north block would be aligned with the eastern
building of the Dylon 1 scheme, rather than with the part of that development
which is closest to the site. This layout has been planned so as to protect long
views from the apartments in the Dylon 1 scheme and not to block sunlight
from reaching those apartments or the courtyard within that development. This
is supported by the appellant’s shadowing assessment. The concerns raised by
interested parties about the effect on sunlight reaching the courtyard and their
apartments are not borne out by that evidence.
78. The physical relationship between the north block and nearest Dylon 1 building
is unchanged from that in the 2019 appeal scheme; the only difference is the
additional height of the current proposal. The various perspective images in the
DAS show the significant gap between the north block and the nearest part of
Dylon 1. The figures included at page 50 of Mr Ritchie’s proof also show that
views from the apartments within Dylon 1 would not be adversely affected by
the proposal. Based on the evidence presented on this matter, and the
observations made on my site inspection, I find that the proposal would neither
have an unacceptable effect on the outlook of apartments within Dylon 1 nor
result in an increased sense of enclosure for the occupiers of that development.
79. In paragraph 28 of his decision, Inspector Baird dismissed the Council’s
objection that a significant number of the apartments proposed in that scheme
would be single aspect. He noted that, although the Mayor’s Supplementary
Planning Guidance (SPG) on Housing (March 2016) advised that developments
should seek to minimise the number of single aspect dwellings, it does not
specify a level at which the number or proportion of units should be regarded
as being unacceptable. I agree with him that the incorporation of single aspect
units is not unusual in apartment buildings in this type of area.
80. The single aspect units would amount to 45.3% of the total number of
apartments compared with a ratio of 42.28% in the 2019 appeal scheme. That
small increase is not sufficient, on its own, to justify a refusal of permission. In
any event, Standard 29 of the SPG seeks only that the number of single aspect
units within the scheme should be minimised. This can only be assessed in
respect the scheme under consideration and does not require comparison with
the proportion achieved in a previous planning permission on the same site.
81. The Housing SPG requires that, where single aspect units are provided, the
design should address issues such as noise, insulation, ventilation and daylight.
No concerns have been raised about noise, insulation or ventilation. I am
satisfied that the scheme has been designed so as to maximise the levels of
sunlight and daylight into each of the apartments as demonstrated in the
sunlight and daylight assessments. The extensive use of glazing, balconies and
winter gardens would maximise the levels of daylight into each of the
apartments. This design approach meets the objectives of Standard 29
although it may not be in accordance with the letter of that guidance. As noted
by Mr Finch, the avoidance of single aspect units does not guarantee that all
occupiers will have an attractive view.
82. All the apartments would have a private balcony or wintergarden. All single
aspect units are one bed apartments and all of those facing west (towards the
railway) would have wintergardens, providing occupiers with the opportunity to
enjoy views in more than one direction. All units facing east would have
attractive views to the east and south over the MOL. I do not accept that the 8
units, where the recessed flank wall and glazed window would be positioned
close to the flank wall of the adjacent apartment, should be treated as single
aspect units. The illustrations in Mr Ritchie’s proof and in the DAS show that
these units would enjoy good views in more than one direction.
83. Putative RfR 2 sets out a concern that the communal entrances and corridors
would be unwelcoming and would fail to demonstrate a good quality living
environment. This part of the RfR was not expanded upon in the Council’s
Statement of Case and not addressed in Mr Bord’s proof of evidence. Mr
Ritchie’s evidence (paragraph 12.9) indicates how these concerns might be
addressed through minor amendments. However, the Council has not proposed
a condition requiring the submission and approval of those details. I therefore
find that these concerns are of minor significance and do not warrant a refusal
of permission.
84. Accordingly, I find that the effects on living conditions would not be unduly
adverse and that the proposal complies with BLP Policies 4 (relating to the
standard of housing design) and 37 (with regard to the relationship between
buildings and safeguarding the amenity of neighbouring buildings). The
proposal also complies with LonP Policies H6 (housing quality and standards)
and H10 (housing size and mix) and complies with the Housing SPG in this
regard.
Affordable Housing
85. The most up-to-date assessment of AH needs in Bromley15 identified a need for
1,404 net affordable homes per annum in the Borough between 2011 and
2031. This equates to 28,080 affordable dwellings over the 20 year period.16
The AH SoCG confirms that, on average, only 104 net new affordable homes
have been delivered in each of the last 5 monitoring years (2015/16 to
2019/20), with only 1,475 having been delivered since 2011. Total delivery
over that 9 year period is only marginally greater than the annual average
requirement. There is a cumulative shortfall of 12,636 affordable units against
what should have been delivered over that same period. By any measure that
performance can fairly be described as woeful.
15 South East London Strategic Housing Market Assessment (SHMA) (2014)
16 AH SoCG AH [CD1.5(iii)] paragraph 2.7
86. The largest number of units delivered in any one year (357) equates to 25% of
the annual average need. Given that performance and the scale of the shortfall,
there is little prospect that the rate of delivery of AH will improve significantly
in the short to medium term. Alongside that poor level of delivery, affordability
in the Borough has been getting worse. Lower quartile private rental rates have
increased to almost double the national average,17 average house prices are 12
times average incomes, and the median house price ratio to incomes has
increased by 59% since 2011. This evidence provides a strong indication that
the provision of decent housing for all members of the community is not being
given the highest priority as is claimed in the forward to the Council’s
Sustainable Community Strategy.
87. This demonstrates that the Council is consistently failing to provide for the
needs of large numbers of people residing or wishing to reside in the Borough.
Various documents in Mr Stacey’s appendices and the core documents indicate
the priority placed by the Government on fixing the “broken housing market”18
and helping “more people onto the housing ladder.” 19 It is in this context that
the proposal for the provision of 49 affordable homes needs to be considered.
88. The 49 AH units would be offered, both on first purchase and subsequent
resale, at 30% below full market price as assessed by an independent
surveyor. The units would comprise Discount Market Sales Housing (DMSH)
consistent with part c) of the definition of AH in the glossary to the Framework.
As low cost homes with a sales price of at least 20% below market value, the
proposed units also fall within part d) of that definition. In the AH SoCG the
parties have agreed that the units would be DMSH. On behalf of the Council, Mr
Johnson agreed during the Round Table session that First Homes (FH) would be
an ‘intermediate housing’ product.
89. Paragraph 62 of the Framework states that, where a need for AH is identified,
planning policies should specify the type of AH required applying the definition
in the glossary.20 Paragraph 62 devolves to local planning authorities the
identification of the type of AH required in its area and FH is not listed in BLP
Policy 2 as one of the Council’s preferred AH types. That is unsurprising given
that the Plan was adopted before the FH consultation was carried out. The 60%
social rented/affordable rented and 40% intermediate provision set out in
Policy 2 is the preferred mix that the Council will seek when negotiating AH
provision. The policy allows for a scheme with less than 35% affordable homes
and for an alternative tenure mix if justified following consideration of the
developer’s Financial Viability Assessment (FVA).
90. Paragraph 2.1.34 of the BLP states that AH includes intermediate housing,
which is sub-market housing available to people on moderate incomes who
cannot afford to rent or buy in the open market, and that it may take the form
of low cost home ownership. The provision of DMHS with a discount of more
than 20% against full market value is, in my view, within the scope of Policy 2.
The LonP adopts the Framework definition of AH.21 The units proposed would
fall within the ‘other affordable housing products’ category of AH referred in the
explanatory text to Policy H6.
17 Mr Stacey’s Table 5.7
18 Housing White Paper [CD7A.10]
19 Former Prime Minister’s speech to National Housing Federation, September 2018 (Appendix JS6)
20 Footnote 27
21 Footnote 53 on page 190 of the LonP Written Statement
91. The Government’s consultation on FH indicates that, if and when national policy
is amended such that development plans will need to require FH units as part
of AH provision in their areas, local planning authorities may seek a discount of
more than 30% if justified by local circumstances. London and the South East
are listed as areas where affordability levels may warrant such an approach.
However, as DMHS with a 20% discount is acceptable under Policy 2 in its
current form, subject to a viability justification, I see no reason why DMHS with
a larger discount of 30% should be considered unacceptable in principle. The
Council has produced no evidence that a discount of 30% would render the AH
units unaffordable having regard to the housing income and upper limit
thresholds set out in the BLP.
92. I find that the proposed DMHS would deliver AH in accordance with the
definitions set out in the Framework and the development plan. BLP paragraph
2.1.34 recognises that, although not a priority need, low cost market housing
may assist households unable to access market housing who the Council has a
duty to assist. Under the terms of the UU, key workers and those with a local
connection or need to reside in Bromley would be given priority for the
affordable units .The 49 DMSH units would, therefore, help to meet part of the
need for affordable homes in accordance with the objectives of Policy 2.
93. The FH consultation, and the work that has been carried out with regard to the
proposed introduction of FH, demonstrate the Government’s intention that this
should be a key component of its strategy for improving access to the housing
market22. The planning system is intended to be the key tool for delivering FH.
Although options for legislation to ensure delivery are being considered, the
Government’s position is that this is not required for the implementation of FH.
94. The Government intends to run a pilot scheme to ensure that FH achieve the
stated objectives and for this to be done before requiring local authorities to
impose a policy requirement for FH in their development plans. The evidence
on these matters does not, however, lead me to conclude that the Government
intends that developers and local authorities should not make use of FH in the
interim period, before any national policy changes are brought into effect,
where it can be shown to meet AH needs. I accordingly reject the Council’s
objection to the use of a FH form of AH on these grounds.
95. Notwithstanding that the UU was not available before the appeal was lodged,
the Council has had an opportunity to review and comment on the draft
wording of the UU. It has not suggested any specific changes to that wording.
Its contention that my allowing the appeal would result in the eligibility criteria
for the FH units being imposed on the Council is, therefore, rejected.
Information on average incomes and affordability ratios is readily available for
the Council to judge whether a 30% discount would render the units affordable
in Bromley. In addition, the ‘local connections test’ is well-established within
the planning framework and should not be new to the Council.
96. Accordingly, I see nothing in the terms of the UU in relation to the proposed
arrangements that should give rise to significant concerns on the Council’s
part. The Government considers that FH can be secured through planning
obligations under s106 of the Town and Country Planning Act 1990. The
objections advanced by the Council do not provide good reason for me to come
to a different conclusion.
22 Government’s Consultation paper [CD 7.7] and Response to the FH Consultation [CD 7A.8]
97. At the inquiry the Council asserted that allowing the appeal could negate or
frustrate consideration of borough-wide arrangements for the future delivery of
FH in Bromley. The Council’s closing submissions go further, asserting that it
would be unlawful for me to allow the appeal including the AH provision as
proposed because my decision would have the effect of introducing a new
policy regulating the use of land in Bromley. Having considered those
submissions carefully, I am not persuaded that I am invested with such a
power. Given that the FH proposed would be a form of DMHS that falls within
the BLP definition of AH, I also reject the assertion that my allowing the appeal
would have that effect.
98. The approval of a single scheme including FH at this stage would not prevent
the Council from preparing a report on these matters and drafting whatever
policy or guidance it considers appropriate. However, given the scale and
pressing nature of the AH need in Bromley, I do not consider it either
necessary or appropriate that the appeal scheme should be rejected because
the Council has yet to undertake that exercise.
99. The definition of AH set out in the signed s106 agreement for the Homefield
Rise development [ID18] includes a reference to FH. However, the approved
scheme on that site does not include FH. On my reading, the agreement only
contemplates FH units forming part of the Additional AH Scheme in the event
that an early stage review indicates a surplus in the amount of AH that the
scheme can reasonably provide. I do not consider that this UU supports the
appellant’s case.
100. As noted above, BLP Policy 2 provides for AH provision at a level below 35%
and/or a with different tenure mix if this is justified following consideration of
the scheme specific FVA. This is consistent with LonP Policy H5, which requires
that applications following the ‘Viability Tested Route’ should be supported by
viability evidence so as to ascertain the maximum level of AH deliverable on
the scheme.
101. It is clear from the parties’ positions on viability at the close of the inquiry
that the appeal proposal could not support 35% AH. The Council had also
retreated from its assessment that a 28% level of provision would be viable.
Having regard to Policy 2, the key test is whether the viability evidence
demonstrates that the proposed 49 FH (19%) provision represents the
maximum level that could be delivered. The dispute between the parties is now
largely about tenure rather than quantum.
102. A large volume of evidence on viability was presented and the issues between
the parties have narrowed. The Building Costs SoCG [ID20] sets out agreement
on a number of matters but shows a difference of £2.74M between the parties
in their assessment of building costs. However, in showing an ongoing dispute
on the building programme, it is inconsistent with the Viability SoCG (agreed at
an earlier date) which agreed a 36 month overall building period. I have taken
that to be the agreed position and note that this amendment would result in an
increase of £798,541 in the Council’s estimate of the building costs.
103. Having assessed all the evidence, I consider that the appellant’s estimates for
staircases (of a quality commensurate with the overall design) and for 4 rather
than 3 cranes (given the location next to the railway) are to be preferred.
Together with additional costs resulting from the 36 month programme, these
adjustments would increase the Council’s estimate by £1.6M to just under
£60M. I do not have a reworked FVA using this figure. However, as Appraisal
Nos. 1A to 4A in Dr Lee’s final FVA note use a cost estimate of £59.715M
(being the midpoint between the parties’ final estimates), I consider that these
provide a sound basis on which to assess the viability of the scheme.
104. In relation to the 19% FH option, Appraisals 3A and 4A adopt the position
agreed in the Viability SoCG that receipts from the sale of these units would
come at the end of the 36 month build period. For the 19% Shared Ownership
(SO) options (1A and 2A) Dr Lee has used his preferred approach of a ‘golden
brick’ (30%) payment on commencement with the balance being received over
the construction period. The parties have agreed that receipts from the sale of
40% of the market housing units would commence in the first quarter after
completion of the south block (at the end of the first 24 months of the 36
months overall building period) and then continue at a rate of 4.5 per month.
Although no specific evidence was given to support Dr Lee’s position on sales
receipts from the SO units, my notes do not record that Dr Lee was cross
examined on this point.
105. The economic downturn resulting from the Coronavirus pandemic is the
biggest since the second world war and we remain in a period of great
economic uncertainty. However, the balance of evidence from the residential
agents and Land Registry data shows that house prices, including those of
apartments in London, held up over the 12 months to October 2020 and have
increased rather than decreased since the start of the pandemic. Those who
prepare FVAs have to have regard to the current economic climate at the time
of their assessment and to future prospects over the likely building and sales
programme for the scheme.
106. Dr Lee’s examples of FVAs, submitted since March 2020, for other residential
developments in London and the South East have been prepared during the
current economic crisis. These have all adopted a profit level of 17.5% on
Gross Development Value (GDV) on the market housing component of those
schemes. Many of these schemes have not yet secured planning permission.
However, the figures in his Table 13.1 are the profit levels sought by the
developers in the submitted FVAs and, therefore, reflect their starting point in
the negotiations. It is unlikely that many developers would submit an appraisal
that adopts 17.5% profit in the expectation that those acting for the local
authority would seek to increase this. Hence, I consider that those appraisals
provide a good indication of what levels of return are currently being sought by
residential developers in the London market.
107. In comparison, the examples relied upon by Mr Turner are quite historic and
are of more limited use for that reason. I acknowledge that 20% was used in
respect of the Dylon 1 scheme. That scheme was appraised at a time when the
residential market nationally was very flat; that is not the case in respect of the
London residential market at present. I accept that the construction risks are
likely to be similar and that the scheme cannot be phased to control cash flow.
However, the market conditions are different, and it seems to me that sales in
the Dylon 2 development are likely to benefit from this part of Bromley having
now been established as a high density residential location.
108. The Dixon Searle report of 2016 was a high level study and, being over 4
years old, is somewhat dated as a benchmark for an appropriate level of profit
in current market conditions. Their December 2020 report also adopts a figure
of 20% for developer profit but this update is concerned only with viability in
relation to the CIL Charging Schedule. The assessment adopts what it calls a
“buffered approach”23 which seeks to ensure that not all of the viability
headroom is taken to fund CIL charges. It may have been appropriate to adopt
a 20% profit in a strategic level assessment which seeks to strike an
appropriate balance between the desirability of funding public infrastructure
and development viability. I do not accept that this sets a precedent for
scheme specific FVAs for all development proposals in the Borough. On
balance, therefore, I consider a return of 17.5% on GDV to be appropriate for
the market housing in the appeal scheme.
109. Using that profit level, and the midpoint construction costs, Appraisal 2A in Dr
Lee’s final FVA note shows that a scheme with 19% SO would generate a
higher residual land value than a scheme with 19% FH (Appraisal 4A). It is
possible that some further adjustments to the costs side of the equation might
be needed to reflect the amendments that I have accepted in paragraph 102
above. However, I consider that this evidence is sufficient for me to conclude
that the appellant has not demonstrated that a scheme with 19% FH would
represent the maximum level of AH deliverable in the appeal proposal. The
appellant’s failure to demonstrate that this is the case gives rise to a conflict
with LBP Policy 2 and LonP Policy H5.
110. As both policies are agreed to be amongst the most important policies for the
determination of the appeal they are deemed to be out-of-date by virtue of the
Council’s inability to demonstrate a 5 year HLS. That does not mean that no
weight should be given to them. However, having regard to the case law in
Suffolk Coastal and Richborough Estates,24I consider that the rigid enforcement
of Policy 2 and LonP Policy H5 would be likely to frustrate the delivery of new
housing to help meet the shortfall against the 5 year housing target in
Bromley. In this context, and in view of the significant undersupply against the
5 year housing target and the shortage of new AH in the Borough, I find that
only limited weight should be given to the conflict with those policies.
111. The Council raised the possible need for a late stage review clause in the UU
in respect of AH provision but has not addressed this in its closing. This
requirement is promoted in the LonP but there appears to be no guidance as to
how it should be implemented. Neither has the Council provided any wording
which could be inserted into the UU or a legal agreement. In the absence of
such wording, I am unable to determine whether an appropriate mechanism
could be put in place without creating the significant risks to delivery of the
project that the appellant fears. I therefore find that this requirement should
not be imposed in respect of this appeal.
Very Special Circumstances
112. Paragraph 143 of the Framework advises that the very special circumstances
needed to justify inappropriate development in the MOL will not exist unless
the potential harm by reason of inappropriateness, and any other harm
resulting from the proposal, is clearly outweighed by other considerations. As in
respect of the 2019 appeal decision, the starting point is that substantial
weight must be given to the definitional harm by reason of inappropriateness
23 Paragraphs 18-19 of Executive Summary and
24 CD 5A
and to the harm caused to the openness, notwithstanding my finding that there
would only be a limited effect on openness.
113. For the reasons already set out, I attach very substantial weight to the
delivery of the market housing proposed in the scheme. Although not policy
compliant in accordance with BLP Policy 2, the provision of 49 affordable units
would make a significant contribution to meeting the considerable need for AH
in the Borough. I attach substantial weight to this social benefit of the
proposal. As identified at Appendix 2 to Mr Butterworth’s rebuttal proof, the
proposal would result in substantial economic benefits through construction
employment and investment, additional expenditure, and local authority
revenue. I agree that significant weight should be given to these economic
benefits.
114. The proposal would also provide a new high quality open space for public use,
new planting to the bank of the River Pool that would enhance its biodiversity
and appearance, and a new public path through the site that would fill an
existing bap in the Green Chain and Waterway Link. I accept Mr Butterworth’s
assessment that, taken together, these environmental and social benefits of
the proposal should be given very significant weight.
115. Collectively these benefits of the proposal would clearly outweigh the harm
that I have identified and amount to the very special circumstances needed to
justify a grant of permission for inappropriate development in the MOL.
Accordingly, I find that the proposal complies with the policies in section 13 of
the Framework, BLP Policy 50 and Policy G3 of the LonP.
Planning Balance
116. I find that the proposal conflicts with BLP Policy 2 and LonP Policy H5 but that
only limited weight should be given to that conflict. The proposal accords with
all of the other relevant policies in the development plan. Although these most
important policies are deemed to be out of date because of the absence of a 5
year HLS, I consider them to be consistent with the policies in the Framework
and that full weight should be attached to them. In light of the compliance with
these other policies, and the positive support for the proposal from LonP Policy
D3 which encourages the optimisation of housing sites close to a station, I find
that the proposal complies with the development plan as a whole.
117. Having regard to the conclusions set out above, I also find that the adverse
impacts of the proposed development would not significantly and demonstrably
outweigh the many benefits of the scheme. The presumption in favour of
sustainable development, therefore, applies. As I have not identified any
material considerations which would indicate a decision other than in
accordance with the development plan, I conclude that permission should be
granted for the appeal proposal.
Conditions
118. As the suggested conditions discussed at the Inquiry were largely a repeat of
those attached to the 2019 planning permission there was very little dispute as
to the need for or wording of these. I have adopted them with only minor
changes to add clarity where I thought this appropriate.
119. For the avoidance of doubt a condition listing the plans approved as part of
the permission is required (2). A number of pre-commencement conditions are
needed, requiring the approval of certain details before development is started
so as to ensure a safe and satisfactory form of development. These relate to
tree protection (3), contaminated land assessment (4), a Construction and
Environmental Management Plan (5), floodplain storage (6) and piling works
(7). Further conditions requiring the approval of details before certain works
are commenced relate to flood protection (8), external materials (9), lighting
(10), glazing and ventilation (11), crime prevention measures (12) landscape
buffer to the River Pool (13), and hard surfacing (14). These are all needed to
ensure that the development is carried out to an acceptably high standard.
120. In order to ensure that all necessary facilities and services are in place for the
development to operate safely and satisfactorily, I have attached a number of
pre-occupation conditions relating to the outdoor gym and play facilities (15),
cycle parking (16), car parking and electric vehicle charging points (17), refuse
and waste storage (18), water network upgrades (19), waste management
(20), and energy efficiency (21,22). Other conditions require the completion of
the soft landscaping and tree planting works (23) and the publicly accessible
open space (24), and the provision of the agreed percentage of accessible and
wheelchair accessible dwellings (25). These conditions are required to ensure
that the development is policy compliant and delivers the benefits that I have
taken into account in my determination of the appeal.
Planning Obligations
121. The UU contains obligations relating to the payment of financial contributions
in respect of health, education, highways, traffic and carbon offsetting. I am
satisfied that all of these are justified in terms of mitigating the potential
effects of the development and to ensure compliance with the development
plan. I am also satisfied that the contributions have been calculated in
accordance with the Council’s standard formulae for such contributions. I note
that there is no policy basis for the financial contribution to cover the Council’s
costs in monitoring the planning obligations. However, the payment of such a
contribution is permitted under the Community Infrastructure Regulations and
the proposed payment is not unreasonable given the number and extent of the
obligations in this case.
122. The obligations in respect of the Travel Plan, car club spaces, electric vehicle
charging points are all warranted in order to ensure that future occupiers of the
development have a choice of means of travel. The provision and future
maintenance of the publicly accessible space and walkway are required to
ensure adequate recreational provision for the development. The affordable
housing provision forms an integral component of the proposal and a key social
benefit that I have had regard to in my determination of the appeal.
123. All of the obligations contained in the UU are necessary to render the proposal
acceptable in planning terms and satisfy the other tests for planning obligations
as set out in paragraph 56 of the Framework. I have taken these into account
in reaching my decision.
Conclusions
124. I find that the very special circumstances exist to justify a grant of planning
permission for the proposed development within the MOL. Notwithstanding the
conflict with BLP Policy 2 and LonP Policy H5, the proposal complies with the
development plan when taken as a whole. In view of absence of a 5 year HLS
paragraph 11 d) the Framework is engaged and I find that the adverse impacts
of granting planning permission would not significantly and demonstrably
outweigh the benefits of the proposed development. The presumption in favour
of sustainable development, therefore, requires that planning permission
should be granted. There are no material considerations that indicate a refusal
of permission against the provisions of the development plan.
125. For these reasons I conclude that the appeal should succeed and that
planning permission should be granted, subject to the conditions set out in
Annex A to this decision and the obligations comprised in the UU.
Paul Singleton
INSPECTOR
ANNEX 1
SCHEDULE OF CONDITIONS ATTACHED TO APPEAL REF:
APP/G5180/W/20/3257010
1) The development hereby permitted shall begin not later than 3 years
from the date of this decision.
2) The development herby permitted shall be carried out in accordance with
the following drawings:
634_P06A_101 R00 Site Plan
634_P06A_102 R00 Site Survey Plan
634_P06A_103 R00 Section Line Location
634_P06A_201 R00 Level 00 (Ground Level) Plan
634_P06A_202 R00 Level 01 Plan
634_P06A_203 R00 Level 02 Plan
634_P06A_204 R00 Level 03 Plan
634_P06A_205 R00 Level 04 Plan
634_P06A_206 R00 Level 05 Plan
634_P06A_207 R00 Level 06 Plan
634_P06A_208 R00 Level 07 Plan
634_P06A_209 R00 Level 08 Plan
634_P06A_210 R00 Level 09 Plan
634_P06A_211 R00 Level 10 Plan
634_P06A_212 R00 Roof Plan
634_P06A_213 R00 Level–1 (Undercroft Car Parking) Plan
634_P06A_214 R02 Landscape Plan
634_P06A_215 R00 Site Plan with spot height elevations
634_P06A_301 R00 Sections
634_P06A_401 R00 Main Elevations (East & West Side)
634_P06A_402 R00 Main Elevations (North & South Side)
634_P06A_403 R00 Partial Elevations
634_D2_P06A_410 00 Context elevation looking West
634_D2_P06A_411 00 Context elevation through Station Approach
634_D2_P06A_412 00 Context elevation from WBR looking
634_D2_P06A_413 00 Context elevation of PI and PII to East A1
634_D2_P06A_501 00 Part Elevation and Details A1
Pre-commencement conditions
3) No development, including demolition and all preparatory work, shall be
carried out until a scheme for the protection of the retained trees,
prepared in accordance with BS 5837:2012 and including a tree
protection plan(s) (TPP) and an arboricultural method statement (AMS)
has been submitted to and approved in writing by the local planning
authority. The TPP and AMS shall include:
a) construction details of any hard surfaces within the Root Protection
Area (RPA) of any retained tree (if required);
b) a specification for protective fencing to safeguard trees during both
demolition and construction phases and a plan indicating the alignment of
the protective fencing;
c) proposals to ensure that no boundary treatments take place within the
within the RPA;
d) the methodology and detailed assessment of root pruning (if
required);
e) arboricultural supervision and inspection by a suitably qualified tree
specialist;
f) reporting of inspection and supervision;
g) methods to improve the rooting environment for retained and
proposed trees and landscaping.
The development thereafter shall be implemented in strict accordance
with the approved scheme and details.
4) No development shall take place until a contaminated land assessment,
site investigation report, remedial strategy and quality assurance
scheme, together with a timetable of works, have been submitted to and
approved in writing by the local planning authority.
a) the approved remediation works shall be carried out in full on site in
accordance with the approved remedial strategy and quality assurance
scheme to demonstrate compliance with the proposed methodology and
best practice guidance;
b) upon completion of the works, a validation report shall be submitted to
and approved in writing by the local planning authority. The validation
report shall include details of the remediation works carried out,
(including of waste materials removed from the site), the quality
assurance certificates and details of post-remediation sampling;
c) the contaminated land assessment, site investigation (including the
report), remediation works, and validation report shall all be carried out
by contractor(s) who have been approved in writing by the local planning
authority.
If, during development, contamination not previously identified is found
to be present at the site, then no further development shall be carried
out until the developer has submitted and obtained written approval from
the local planning authority for a remediation strategy detailing how this
contamination shall be dealt with. The remediation strategy shall be
implemented as approved, verified and reported to the satisfaction of the
local planning authority.
5) No development, including any demolition or construction phase of the
development, shall be carried out unless a Construction Environmental
Management & Construction Logistics Plan (EM&CLP) for that phase of
the works has been submitted to and approved in writing by the local
planning authority. Each EM&CLP submitted under this condition shall
include the details of:
a) telephone, email and postal address of the site manager and details of
complaints procedures for members of the public;
b) a dust management strategy to minimise the emission of dust and dirt
during demolition and/or construction including, but not restricted to,
spraying of materials with water, wheel washing facilities, street cleaning
and monitoring of dust emissions;
c) measures to maintain the site in a tidy condition in terms of
disposal/storage of waste and storage of construction plant and
materials;
d) a scheme for the recycling/disposal of waste resulting from demolition
and construction works;
e) ingress and egress to and from the site for all vehicles;
f) the proposed numbers and timing of vehicle movements through the
day and the proposed access routes, delivery scheduling, use of holding
areas, logistics and consolidation centres;
g) the parking of vehicles for site operatives and visitors;
h) a travel Plan for construction workers;
i) location and size of site offices, welfare and toilet facilities;
j) the erection and maintenance of security hoardings including
decorative displays and facilities for public viewing;
k) measures to ensure that pedestrian access past the site is safe and not
obstructed;
l) measures to minimise risks to pedestrians and cyclists including, but
not restricted to, accreditation of the Fleet Operator Recognition Scheme
(FORS) and use of banksmen for supervision of vehicular ingress and
egress.
The development in the relevant phase shall not be carried out other than
in strict accordance with the approved EM&CLP for that phase.
6) No development shall take place until a scheme for compensatory
floodplain storage works has been submitted to and approved in writing
by the local planning authority. The scheme shall set out the sequence of
works for the transition from the existing situation to the completed
development and specify finished landscape levels whilst preventing an
increased risk of flooding during the work. The development shall
subsequently be carried out in strict accordance with the approved
scheme and completed prior to the first occupation of any part of the
development.
7) No development shall take place until details of any piling or other
penetrative methods of foundation construction have been submitted to
and approved in writing by the local planning authority. The details shall
demonstrate that there will be no unacceptable risk to groundwater. The
development shall be carried out in strict accordance with the approved
details.
Conditions to be discharged prior to commencement of works above slab level
8) No construction works above slab level shall be commenced unless the
following measures, as detailed within the approved Flood Risk
Assessment (FRA) ‘Dylon Phase 2 Worsley Bridge Road, Sydenham,
London’ (March 2018) plus accompanying report Reference
Mb/Ra/Rcef60978-003 L (8th June 2018), have been completed:
a) the provision of levels for level floodplain storage compensation and
external ground levels as detailed in Section 9.8 of the submitted FRA
and submitted drawing SK1755;
b) water entry grille thresholds set no higher than 24.00m AOD as
detailed in drawings P04A/DS707 Rev 01 ‘Car-Park Waterflow Strategy’
and SK1753 ‘Car-Park Waterflow Strategy-West Grill’;
c) ground floor (access) level set no lower than 27.0m AOD as detailed in
drawing number P04A/201 Rev R1 ‘Level 00 Ground Level) Plan (27.00)’;
d) the lower deck car park floor level set at 24.0 m AOD as detailed in
drawing number P04A/210 Rev R1 ‘Level-1 (Undercroft Car Parking) Plan
(24.00)’;
e) Surface Water Infiltration Systems including the installation of the
geocellular crate soakaways and geocellular crate detention tank, in
accordance with the design details shown within the submitted FRA, to
provide an infiltration rate of 0.010 metres/hour and to accommodate
flows arising from a 1 in 100 year storm return period plus a 40%
allowance for future climate change, with a final outflow to Pool River
limited to 5 litres/second shall.
9) No construction works above slab level shall be commenced unless
samples of all external materials, including green roof, wall facing
materials and cladding, window glass, door and window frames and
decorative features, have been submitted to and approved in writing by
the local planning authority. The development shall be carried out in
accordance with the approved details.
10) No construction works above slab level shall be commenced unless a
detailed lighting scheme for the access drive and basement car and cycle
parking areas has been submitted to and approved in writing by the local
planning authority. The submitted scheme shall be self-certified as being
in accordance with BS 5489-1:2003 and shall be implemented in full prior
to the first occupation of any part of the development.
The lighting shall subsequently be retained and maintained in good
operational order for the lifetime of the development.
11) No construction works above slab level shall be commenced unless full
written details, including relevant drawings and specifications, of the
proposed glazing and ventilation of the proposed apartments, so as to
achieve the standard recommended in the Cole Jarman Noise Assessment
(ref 11/4200/R3), have been submitted to and approved in writing by the
Local Planning Authority. The development shall be constructed in
accordance with the details approved.
The glazing and ventilation installed in accordance with the details
approved under this condition shall be retained in situ for the lifetime of
the development.
12) No construction works above slab level shall be commenced unless details
of measures to minimise the risk of crime, and to meet the specific
security needs of the application site and development, have been
submitted to and approved in writing by the local planning authority.
Measures to minimise the risk of crime shall be implemented in full in
accordance with the approved details prior to the first occupation of any
part of the development. The security measures implemented in
compliance with this condition shall achieve the "Secured by Design"
accreditation awarded by the Metropolitan Police.
13) No construction works above slab level shall be commenced until a
scheme for the provision and management of a buffer zone alongside the
Pool River has been submitted to and agreed in writing by the local
planning authority. The buffer zone scheme should be free from built
development and could form a vital part of green infrastructure provision.
The scheme shall include:
a) Details of proposed river in-channel/bank enhancements (within the
identified zone for naturalisation of river edge) in drawing ‘Landscape
Plan’ 634_P06A_214 Rev02 to help maintain and enhance the ‘River Pool
at New Beckenham’, a Site of Importance for Nature Conservation;
b) Details of any proposed planting scheme (native species of local
provenance should be used);
c) Details demonstrating how the buffer zone will be protected during
development and managed/maintained over the longer term including
adequate financial provision together with a named body responsible for
management and production of a detailed management plan. Details of
the longer term management of invasive non-native species should also
be included.
The approved scheme shall be carried out as part of the landscaping
works and shall be completed in the first planting season following the
first occupation of any of the buildings hereby approved. The
enhancement works shall thereafter be managed and maintained in
accordance with the approved details for the lifetime of the development.
Additional details to be approved
14) A detailed scheme for the treatment of all paved areas and other hard
surfaces, together with samples of the materials to be used in the
construction thereof, shall be submitted to and approved in writing by the
local planning authority prior to the commencement of any works
involving the use of the specified materials. The development shall
subsequently be carried out in accordance with the approved details.
Conditions requiring works prior to occupation
15) The Outdoor Gym and Children’s Play area shall be constructed in
accordance with the details shown on Plans Nos. P06A/2OGP 00; 01; 02;
03; 04; 05 and 06 inclusive and as set out in the Outdoor Gym and
Playground report dated February 2020 (634/P06A/OGP). The works shall
be completed such that the facilities are available for use prior to the first
occupation of any part of the development.
16) No part of the development shall be occupied unless the cycle parking
provision has been completed in accordance with the approved plans and
the London Cycle Design Guide. The cycle parking shall thereafter be
retained exclusively for this purpose for the lifetime of the development.
17) No part of the development shall be occupied unless:
a) the car parking and wheelchair accessible car parking spaces in the
basement car park and street levels have been laid out and completed in
accordance with the approved drawings; and
b) the electric vehicle (EV) charging points (both active and passive)
have been installed in accordance with Plan No 634 P06A/201/R00 and
213/R00 and are available for use.
All car parking and EV charging points provided under the terms of this
condition shall thereafter be retained exclusively for their intended
purpose for the lifetime of the development.
18) No part of the development shall be occupied unless the refuse and
recycling storage facilities have been installed in accordance with plans
that have been submitted to and approved in writing by the local
planning authority. The facilities installed under the terms of this
condition shall thereafter be retained exclusively for their intended use
for the lifetime of the development.
19) No part of the development shall be occupied unless written confirmation
has been submitted to and approved in writing by the local planning
authority, either that all water network upgrades that are required to
accommodate the additional surface water flows from the development
have been completed or that a housing and infrastructure phasing plan
has been agreed in consultation with Thames Water which expressly
allows for occupation of some or all of the apartments within the
development.
Where a housing and infrastructure phasing plan is agreed no occupation
of any of the apartments shall take place other than in accordance with
the agreed housing and infrastructure phasing plan.
20) No part of the development shall be occupied unless a plan for the
management and collection of refuse has been submitted to and
approved in writing by the local planning authority. The Waste
Management Plan shall be adhered to for the lifetime of the development.
21) No part of the development shall be occupied unless:
a) The energy efficiency and sustainability measures, as detailed in the
approved Energy Assessment dated 1 June 2020 and the Sustainability
Statement, dated 8 June 2020, have been installed in accordance with
the approved details; and
b) Details of the location and size (square metres) of the Photovoltaic
Panel arrays have been submitted to and approved in writing by the Local
Planning Authority.
All energy efficiency and sustainability measures and Photovoltaic Panel
arrays installed under the terms of this condition shall be maintained in
accordance with the manufacturer’s specifications and shall be retained
for the lifetime of the development.
22) Within 6 months of the first occupation of the development, a post-
completion verification report certificate for the building shall be
submitted to and approved in writing by the local planning authority. The
submitted report shall confirm that the minimum standards set out in
Condition 21 have been achieved, and that all of the approved energy
efficiency and sustainability measures have been implemented.
Other conditions
23) The soft landscaping and tree planting shall be completed in accordance
with the details shown on Plan No 634/P06A/214 R02 and as set out in
the Landscape Management Plan No. 634/P06A/LMP. The approved
planting shall be carried out in the first planting season following the first
occupation of any of the buildings hereby approved. The soft landscaping
shall thereafter be managed and maintained in accordance with the
Landscape Management Plan as submitted (634/P06A/LMP) for the
lifetime of the development hereby approved.
Any trees or plants which within a period of 5 years from the completion
of the development die, are removed or become seriously damaged or
diseased shall be replaced in the next planting season with others of
similar size and species.
24) The public accessible open space hereby approved shall be provided and
made available for public use by the end of the first planting season
following occupation of 50% of the residential units.
25) The development shall be built so that:
a) 90% of the dwellings hereby permitted accord with the criteria set out
in Building Regulations M4(2) ‘accessible and adaptable dwellings’; and
b) at least 10% of the dwellings hereby permitted are provided as
wheelchair dwellings in accordance with Building Regulations Part M4(3)
‘wheelchair user dwellings.’
The ‘accessible and adaptable’ and ‘wheelchair user’ dwellings provided in
accordance with this condition shall thereafter be retained in a condition
suitable for those intended users for the lifetime of the development.
ANNEX 2
APPEARANCES
FOR THE APPELLANT
Christopher Young QC and Leanne Buckley-Thompson of Counsel instructed by
West and Partners
They called:
Mr I S Ritchie CBE, RA Dip Arch (Dist) PCL ARB RIBA RIAI MIASBE FRSA FSFE,
FSHARE Hon FAIA Hon FRIAS Hon FRAM Hon MCSA Hon MSC Pdim Hon D Litt.
Director, Ian Ritchie Architects
Mr P Finch OBE Hon FRIBA
Editorial Director of Architectural Review and Programme Director of World
Architecture Festival
Dr C Miele MRTPI IHBC
Senior Partner, Montague Evans LLP
Mr S J Butterworth BA (Hons) BPI MRTPI
Senior Director, Lichfields
M J Stacey BA (Hons) DipTP MRTPI
Director, Tetlow King
Mr J Turner BSc (Hons) MRICS
Partner, Turner Morum LLP
FOR THE LOCAL PLANNING AUTHORITY
Gwion Lewis Of Counsel, instructed by G Ullman, Solicitor, London Borough of
Bromley
He called:
Mr D Bord BA (Hons) PG (Dip) MRTPI
Principal Planning Officer, London Borough of Bromley
Dr A Lee PhD MRTPI MRICS
Senior Director and Head of UK Development Consultancy, BNP Paribas Real Estate
INTERESTED PERSONS
Mr A Tanchev local resident
Mr C Hazelhurst local resident
Mr D Rayson local resident
ANNEX 3
CORE DOCUMENTS
1.0 Appeal Documents [file 1]
1.1 Covering Letter
1.2 Appeal Form
1.3 Statement of Choice of Procedure
1.4 Statement of Case
1.5 (i) Statement of Common Grounds
(ii) (a) 5YHLS SoCG
(ii) (b) Appendix 2-Sites Approved on Appeal
(iii) (a) Affordable Housing SoCG
(iii) b) Appendix 1-Affordable Housing Completions
(iv) Draft Planning Conditions 22 December 20
(v) Viability SOCG 21 December 20
1.6 List of Core Documents
1.7 Start Date Letter 21 August 2020
1.8 LBB Questionnaire
1.9 LBB Statement of Case
1.10 Appendices to LBB SoC
1.11 Case Management Conference Note
2.0 Application Documents [file 2]
2.1a Covering Letter
2.1b Application Form
2.2 CIL Form
2.3 Acknowledgement Letter 13 March 2020
2.4a Application Drawing List
2.4b Application Drawings
2.5 Planning Design & Access Statement
Addendum A-Appeal Decision 26 June 2019 ref 3206569
Addendum B-Letter from SoS to the Mayor 27 July 2018
Addendum C-Topographic Survey
Addendum D-Photographs 1 - 29
2.6 Appendix 1-Architectural Design Statement
2.7 Appendix 2-Transport Assessment
2.8 Appendix 3-Travel Plan
2.9 Appendix 4(i)-FRA
Appendix 4(ii)-Foul Water Drainage Assessment
2.10 Appendix 5-Tree Survey Report
2.11 Appendix 6-Habitat & Ecological Survey
2.12 Appendix 7-Geotechnical and Geo-environmental Ground Investigation Report
2.13 Appendix 8-Noise & Vibration Assessment
2.14 Appendix 9-Air Quality Assessment
2.15 Appendix 10 (i-a) R1-Energy Assessment Report
Appendix 10 (i-b) GLA Consultation - Energy Memo
Appendix 10 (I-c) Carbon emission spreadsheet
Appendix 10(ii) Sustainability Statement
Appendix 10 (iii) Overheating Assessment
2.16 Appendix 11-Construction Logistics Plan
2.17 Appendix 12-Affordable Housing Statement
2.18 Appendix 13-Daylight Sunlight Assessment
2.19 Appendix 14(i) Archaeological Assessment
Appendix 14(ii)Archaeological Evaluation Report
2.20 Appendix 15 (i-v) Playing Pitch Assessment
2.21 Appendix 16-Landscape Management Plan
2.22 Appendix 17-Outdoor Gym & Playground Design
2.23 Appendix 18-Biodiversity Metric Report & Metric Calculation
2.24 Appendix 19-Fire Safety Strategy Statement
2.25 Appendix 20-Playspace Provision Statement
3.0 Post Application Documents [file 3]
3.1 GLA Stage 1 letter and report 26 May 2020
3.2 Correspondence with LBB
3.2 (i) e-mail WP to LBB 130520
3.2 (ii) e-mail WP to LBB 100620
3.2 (iii) e-mail WP to LBB 150620
3.2 (iv) e-mail IH to LBB 230620
3.2 (v) e-mail WP to LBB 150720
3.2 (vi) e-mail WP to LBB 160620
3.2 (vii) e-mail WP to LBB 290620
3.2 (viii) e-mail WP to LBB 240720
3.2 (ix) e-mail LBB to WP 100620
3.2 (x) e-mail LBB to WP 150720
3.2 (xi) e-mail LBB to IH 250620
3.2 (xii) e-mail LBB to WP 230720
3.2 (xiii) letter WP to LBB 240720
3.2 (xiv) e-mail LBB to WP 290720
3.3 Correspondence with GLA
3.3 (i) e-mail WP to GLA 210420
3.3 (ii) e-mail GLA to WP 230420
3.3 (iii) e-mail WP to GLA 280420
3.3 (iv) e-mail WP to GLA 050520
3.3 (v) e-mail GLA to WP 200520
3.3 (vi) e-mail WP to GLA 200520
3.3 (vii) e-mail GLA to WP 280520
3.3 (viii) e-mail GLA to WP 250620
3.3 (x) e-mail GLA to WP 020720
3.3 (xi) e-mail WP to GLA 070720
3.4 LBB report of application to Development Control Committee 24th September
2020 (item 6)
3.5 Transcript of DC Committee consideration of item 6 report
3.6 (i) LBB Housing Trajectory 2020 report to Development Control Committee
24th September 2020 (item 10)
(ii) Minutes of LBB DC Committee 24 Sept 2020 re 5YHLS
3.7 Transcript of DC Committee consideration of item 10 report
3.8 Appellant’s Viability Assessment
3.9 (i) Section 106 Unilateral Undertaking
3.9 (ii) Inspector’s Route Map
3.9 (iii) Title Plan and Register Copy
4.0 Development Plan Documents [file 4]
[file 6]25
4.6 Bromley Local Plan
4.7 Local Plan Inspector’s Report
4.8 LBB Planning Obligations SPD December 2010
4.9 LBB Addendum to Planning Obligations SPD January 2012
4.10 LBB Addendum to Planning Obligations SPD June 2013
4.11 LBB Addendum to Planning Obligations SPD June 2015
4.12 LBB Addendum to Planning Obligations SPD January 2017
4.13 LBB Addendum to Planning Obligations SPD July 2018
4.14 LBB Adopted Affordable Housing SPD March 2008
4.15 LBB Addendum 2 to AH SPD January 2012
4.16 LBB Addendum to AH SPD June 2013
4.17 LBB Addendum to AH SPD July 2018
4.18 LBB Adopted SPG1 General Design Principles
[file 7]
4.19 GLA Strategic Housing Land Availability Assessment (2013)
4.20 GLA London Strategic Housing Market Assessment (2013)
4.21 GLA Sustainable Design & Construction SPG April 2014
4.22 GLA Character and Context SPG June 2014
4.23 GLA London Housing SPG March 2016.
[file 8]
4.24 GLA Affordable Housing and Viability August 2017
4.25 GLA London Strategic Housing Market Assessment (2017)
4.26 GLA Strategic Housing Land Availability Assessment (Nov 2017)
4.27(i) GLA Good Quality Homes for all Londoners
4.27(ii) GLA Optimising Site Capacity – A Design Led Approach SPG
4.27(iii) GLA housing design-Quality & Standards SPG
4.28 South East London SHMA (2014)
4.29 Letter of 9 December 2020 from Mayor to SoS
4.30 SoS Letter of 10 December 2020 to Mayor
4.31 Annex A to letter of 10 December 2020 from SoS to Mayor
4.32 Annex B to letter of 10 December .2020 from SoS to Mayor pdf
4.33 GLA Letter 21 December 2020 Mayor to SoS
4.34 Publication London Plan 21 December 2020
5.0 Court and Appeal Decisions [file 9]
5A.1Suffolk Coastal DC v Hopkins Homes
5A.2 Samuel Smith v N Yorkshire CC
5A.3 Timmins v Gedling BC [2015] EWCA Civ10
5B.1 Turner v SSCLG & EDC [2016] EWCA Civ 466
5B.2 Hunston Properties Ltd v SSCLG [2013] EWHC 2678 (Admin)
5B.3 St Modwen v SSCLG & ERYC [2017] EWCA Civ 1643
25 Files 4 & 5 related to the now superseded London Plan 2016 and Intend to Publish version of the replacement
London Plan
5B.4 Timmins v Gedling BC and Westerleigh [2014] EWHC 654 (Admin)
5B.5 Fordent Holdings v SSCLG [2013] EWHC 2844 (Admin)
5B.6 Euro Garages v SSCLG and Another [2018] EWHC 1753 (Admin)
5B.7 Wychavon DC v SSCLG [2008] EWCA Civ 692
5B.8 Lee Valley Regional Park Authority v Broxbourne BC [2015] EWHC 185
(Admin)
5B.9 Hallam Land Management Ltd v SSCLG & Eastleigh BC [2017] EWHC 2865
(Admin)
5B.10 Gladman Developments Ltd v SSCLG & CBC [2019] EWHC 127 (Admin)
5B.11 CPRE and Powcampaign v Waverley BC and SSCLG [018] EWHC (Admin)
5B.12 R (Basildon District Council) v SofS &Temple [2004] EWHC (Admin) 2759
5B.13 Brentwood v SoSE (ref (1996) 72P. & C.R. 61) J.P.L. 939
5B.14 McCarthy and Stone and Others v GLA 2018
5C.1 South Eden Park Road BR3 3LZ – APP/17/3174961
5C.2 Maybrey Works SE26 5AZ – APP/17/3181977
5C.3 North of Boroughbridge Road York – APP/19/3227359
5C.4 Land north of Nine Mile Ride, Finchampstead, Berkshire – APP/19/3238048
5C.5 Land at Pear Tree Lane, Euxton, Chorley – APP/20/3247136
5C.6 Hayes Street Farm – APP/18/3206947 & 3206949
5C.7 Millharbour, Muirfield Crescent and Pepper Street London APP/18/3194952
5C.8 Conington Road Lewisham SE13 7LH APP/18/3205926
5C.9 Land at the corner of Oving Road and A27, Chichester PO20 2AG
APP/16/3165228:
5C.10 Land off Aviation Lane, Burton-upon-Trent APP/20/3245077
5C.11 Land at Citroen Site, Capital Interchange Way, Brentford TW8 0EX
APP/19/3226914
5C.12 The Manor Shinfield Reading APP12_2179141
5C.13 (i) Oxford Brookes University Wheatley APP19_3230827 (SoS Letter)
5C.13 (ii) Oxford Brookes University Wheatley APP19_3230827 (Inspectors
Conclusions)
6.0 Dylon Phase 1 and 2 Appeal Documents [file 10]
6.1 (i) Dylon 1 APP 2114194- 5.04.10
6.1 (ii) Dylon 1 Approved Plans
6.2 Dylon 1 APP 2206836-18.03.14
6.3 Dylon 1 APP 2219910 and 2206836-16.0.15
6.4 (i) Dylon 2 APP 3144248-02.08.16
6.4 (ii) Dylon 2 APP 3144248-02.08.16 Plans
6.4 (iii) Dylon 2 APP 3144248-02.08.16 AVR's
6.5 (i) Dylon 2 Appeal Decision 26 June 2019 ref 3206569 (also at CD 2.5
Addendum A)
6.5 (ii) Dylon 2 26 June 2019 3206569 Approved Plans
6.5 (iii) Proof of Evidence of Steven Butterworth
7.0 Other Documents Reports and Publications
A [file 11]
7A.1 National Planning Policy Framework (2019)
7A.2 NPPG Housing and economic needs assessment July 2019
7A.3 NPPG Housing supply and delivery July 2019
7A.4 HDT Measurement Rule Book July 2018
7A.5 Housing Delivery Test 2018 Measurement Technical Note (19 February 2019)
7A.6 Changes to the current planning system - consultation Aug 2020
7A.7 First homes Consultation Feb 20
7A.8 First homes-design and delivery consultation response
7A.9 Guide to First Homes
7A.10 Housing White Paper-Fixing Our Broken Housing Market (February 2017)
7A.11 Conservative Party Manifesto (July 2017)
7A.12 Conservative Party Manifesto (December 2019)
7A.13 Building a Better Bromley - Sustainable Community Strategy (2009 - 2020)
7A.14 London Borough of Bromley Homelessness Strategy (2018 - 2023)
7A.15 Bromley Council Housing Strategy (2019-2029)
7A.16 Association of Residential Managing Agents ‘The Guide to the Management of
Mixed Tenure Developments’
7A.17 Planning Appeals Quarterly Monitoring Report April 19-December 19
7A.18 Planning Appeals Monitoring Report November 2020
7A.19 LBB Housing Trajectory (September 2020)
7A.20 White Paper-Planning for the Future August 2020
7A.21 (i) LBB 5YHLS Report, April 2019
7A.21 (ii) Appendices 1-7
7A.22 LBB Annual Monitoring Report (1st April 2018 -31st March 2019) November
2020
7A.23 Lichfield’s Start to Finish (Second Edition) February 2020
7A.24 LBB Report to DCC Committee, Tuesday 18th March 2020, Town Centre
Planning Policy Strategy: Bromley and Orpington
7A.25 River Corridor Improvement Plan SPD, London Borough of Lewisham,
September 2015
7A.26 Spending Review 2020 speech
7A.27 House of Commons Public Accounts Committee Starter Homes report
7A.28 Oral evidence Starter Homes HC 88
7A.29 Government response to the local housing... the current planning system”
7A.30 (i) Written statement of SoS 161220 (previously numbered 7A.27(i))
7A.30 (ii) London-new SM December 16 2020 (previously numbered 7A.27(ii))
7A.31 NPPG Chapter 10-Viability
B [file 12]
7B.1 (i) Planning Permission dated 11 June 2020 for National Westminster Bank
Sports Ground Copers Cope Road Beckenham BR3 1NZ
7B.1 (ii) Committee Report 18 March 2020
7B.1 (iii) Site and Roof Plan
7B.1 (iv) Elevations
7B.1 (v) Illustrative view from Copers Cope Road.
7B.1 (vi) App reference 19/04644/CONDT1, and details pertaining to condition 20
7B.1 (vii) App 21.11.20 for discharge of Condition 10(7)
7B.2 (i) Maybrey Works revised pp 21 November 2019
7B.2 (ii) Maybrey Works approved Section drawing 21 November 2019
7B.3 (i) South Eden Park Road PP 29.10.20
7B.3 (ii) Committee Report 20.10.20
7B.3 (iii) Boyer FVA re SEPR
7B.3 (iv) S73 Application 30 October 2020 Covering Letter
7B.3 (v) S73 application 30 October 2020 Form
7B.4 Famingo Park Club-S106 Covering Letter 10 August 2020
7B.5 124-126 High Street Bromley 17/04945
7B.6(i) 1 Scotts Lane 19_01755
7B.6(ii) 1 Scotts Lane 19_01805
7B.7 Lewisham Ravensbourne River Corridor Improvement Plan (2014), Waterlink
Way and Pool River Maps (extracts), Lewisham website
7B 8 (i) 6-10 Sherman Road, Bromley North, GLA Stage 2 Letter (October 2018)
7B 8 (ii) 6-10 Sherman Road, Bromley North, LBB Decision Notice (24th July 2018)
ref 17/05790/FULL
7B.8 (iii) 6-10 Sherman Road, Bromley North, Committee Report ref
17/05790/FULL
ANNEX 4
INQUIRY DOCUMENTS
ID1 Appellant’s Opening Statement
ID2 Council’s Opening Statement
ID3 Text of Mr Tanchev’s Statement
ID4 Text of Mr Hazlehurst’s Statement
ID5 Council’s application for a partial adjournment
ID6 Appellant’s response to partial adjournment application
ID7 Inspector’s ruling on partial adjournment application
ID8 Correction sheet for Dr Miele’s POE
ID9 Inspector’s Note re Agreed Deadlines for further written submissions
ID10 BNP Paribas Acklam Road Site FVA
ID11 Round Table Discussion Agenda
ID12 Environment Agency Letter August 2018
ID13 Environment Agency Letter July 2020
ID14 Ministerial Statement on Standard Methodology for assessing Local Housing
Need
ID15 Inspector’s Note re Additional Evidence
ID16 Mr Rees’s email 29 December 2020
ID17 Mr Rees’s note on Application of S106 of TCPA
ID18 S106 Undertaking re Homefield Rise Site
ID19 Decision Notice for Homefield Rise Site
ID20 Building Costs SoCG (signed)
ID21 LBB CIL Viability Update Report December 2020
ID22 Mr Turner’s note re CIL Viability Update Report
ID23 Dr Lee’s response to Mr Turner’s Note
ID24 Dr Lee’s Final Note Re Scheme FVA
ID25 Council’s Closing Submissions
ID26 Judgment in William Davis and Others v Charnwood BC [2017] EWHC 3006
(Admin)
ID27 Appellant’s Closing Submissions
ID28 SoS letter to Mayor of London 29 January 2021
ID29 Inspector’s Note to Parties re SoS letter dated 29 January 2021 and
Publication of LonP
ID30 Appellant’s comments on SoS letter dated 29 January 2021 and Publication
of LonP
ID31 Council’s comments on SoS letter dated 29 January 2021 and Publication of
LonP


Costs Decisions
Inquiry Held on 15-22 December 2020
Site visit made on 16 March 2021
by Paul Singleton BSc MA MRTPI
an Inspector appointed by the Secretary of State for Housing, Communities and Local Government
Decision date: 29 March 2021
Application A
Costs application in relation to Appeal Ref: APP/G5180/W/20/3257010
Footzie Social Club, Station Approach, Lower Sydenham, London SE26 5BQ
• The application is made under the Town and Country Planning Act 1990, sections 78,
320 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by [APPELLANT] for a full award of costs against the Council
of the London Borough of Bromley.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for demolition of the existing buildings and redevelopment of the site by the
erection of a four to eleven storey development comprising 254 residential units (130
one bedroom; 107 two bedroom and 17 three bedroom) together with the construction
of an estate road and ancillary car and cycle parking and the landscaping of the east
part of the site to form open space accessible to the public.
Application B
Costs application in relation to Appeal Ref: APP/G5180/W/20/3257010
Footzie Social Club, Station Approach, Lower Sydenham, London SE26 5BQ
• The application is made under the Town and Country Planning Act 1990, sections 78,
320 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Council of the London Borough of Bromley for a partial
award of costs against [APPELLANT].
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for demolition of the existing buildings and redevelopment of the site by the
erection of a four to eleven storey development comprising 254 residential units (130
one bedroom; 107 two bedroom and 17 three bedroom) together with the construction
of an estate road and ancillary car and cycle parking and the landscaping of the east
part of the site to form open space accessible to the public.
Decisions
1. Application A for a full award of costs against the Council of the London
Borough of Bromley (the Council) is refused.
2. Application B for a partial award of costs against [APPELLANT] is refused.
Application A
The submissions for [APPELLANT]
3. The application is made on both procedural and substantive grounds and a full
award of costs is warranted because of unreasonable behaviour in the Council’s
unnecessary pursuit of the appeal to the inquiry stage. The resolution to resist
the appeal was passed without any debate. It was also passed without proper
consideration of the weight to be given to the market and affordable housing
that would be delivered by the appeal scheme, in light of the Council’s inability
to demonstrate a 5 year housing land supply (HLS). The Council failed to
acknowledge the presumption in favour of sustainable development arising
from the absence of a 5 year HLS.
4. The necessary planning balancing exercise could have been undertaken on the
basis of Dyson 2 Limited’s proposal (at that stage) to provide 35% affordable
housing (AH) with tenure to be agreed at a later stage. The Council could have
resolved to approve the planning application subject to a legal agreement (or a
planning condition) requiring a detailed AH scheme at a later date. It was,
therefore, unreasonable for the Council to pursue putative Reason for Refusal
(RfR) 1.
5. In resolving to pursue putative RfR 2, the Council failed to have proper regard
to the 2019 appeal decision and material changes in the development context
of the site. The Council chose to oppose the appeal on design grounds despite
having resisted requests that it commission an independent design review of
the scheme. It has also failed to produce any substantive design evidence to
substantiate RfR 2. The Council’s objections regarding the effect on living
conditions were ‘make-weight’ historic objections that were resolved in the
2019 appeal decision.
6. Notwithstanding repeated requests before the date for exchange of evidence,
the Council declined to release information concerning its decision to approve
another residential development within the Borough with zero AH provision. As
the circumstances of that approval are directly relevant to issues before the
inquiry, the Council failed to act consistently in its decision making and to
discharge its duties to the inquiry. The Council’s witnesses in respect of viability
submitted evidence to the inquiry which is inconsistent with their professional
advice on other residential developments including in relation to the approved
Dylon 1 development.
The response by the Council
7. The planning application included scant information re AH and, despite
repeated requests, [APPELLANT] refused to be drawn on what tenure mix
was to be provided. This meant that the viability of the AH offer could not be
assessed. As a policy compliant AH provision had not been proposed, Bromley
Local Plan (BLP) Policy 2 required the submission of a Financial Viability
Assessment (FVA) to justify an alternative tenure mix. Neither the FVA nor any
additional information as to the proposed tenure mix had been provided by the
end of the statutory period for determination of the application.
8. At the end of that period, the Council made it clear that it wanted to continue
discussions in the hope of reaching agreement on this issue and there was no
need for an appeal to be lodged. The appellant’s decisions to appeal, and to
delay outlining its detailed case on AH and viability until late in the process,
amounted to an attempt to bypass the responsibility of the Council, and of the
Greater London Authority (GLA) as strategic planning authority, to assess a key
planning issue in the public interest. This is not how the planning system is
intended to operate.
9. At the Council’s Planning Committee in September 2020, there was a
contribution from the ward member and an opportunity for other members to
ask questions before moving to a vote. The members resolved to accept the
officers’ recommendations. The Chairman’s decision to take the report on the 5
year HLS position before that on the appeal proposal meant that members
were fully aware of the lack of a 5 year HLS when they considered the appealed
application.
10. In the absence of the necessary information on AH tenure mix and viability, it
would have been wrong for the Council to agree to defer the assessment of the
viability of the scheme to a point after passing a resolution to grant planning
permission. The planning balance assessment could not have been undertaken
on this basis. The approach taken in respect of the appeal decision in the South
Eden Park Road scheme provides no support for the appellant’s contention that
the AH issue could have been dealt with by a planning condition, thereby
rendering the appeal unnecessary.
11. The impact of the Crystal Palace FC (CPFC) covered pitch on local character is a
matter of subjective judgement. There is no approval for high fencing around
that site. The Council’s assessment of the appeal proposal had full regard to
the details of the scheme approved in the 2019 appeal decision. It was not
required to undertake an independent design review and nothing in any policy
or guidance suggest that it was unreasonable (for costs purposes) not to
commission such a review. The Council’s planning witness provided evidence to
support the its concerns with regard to the design and impacts of the appeal
scheme. The Council did not ignore Inspector Baird’s findings with regard to
single aspect units. It was not unreasonable for the Council to take issue with
the increased proportion of such units in the appeal proposal.
12. [APPELLANT]’s claim that it was unable to provide a FVA because of the
economic uncertainty due to the Covid 19 pandemic has never been
substantiated. All other residential developers who submitted applications
during this period have, without exception, been able to particularise their case
on viability. The mere fact that a party wishes to challenge the evidence of the
other party does not mean that the costs jurisdiction is engaged.
Reasons
13. The Government’s Planning Practice Guidance (PPG) advises that, irrespective
of the outcome of the appeal, costs may only be awarded against a party who
has behaved unreasonably and thereby caused the party applying for costs to
incur unnecessary or wasted expense in the appeal process. There must be a
causal link between the unreasonable behaviour and the unnecessary and
wasted expenditure which is alleged in the application. Local planning
authorities are at risk of an award of costs if they behave unreasonably with
respect to the substance of the appeal, for example by unreasonably refusing
an application or by a failure to produce evidence to substantiate each reason
for refusal on appeal.
14. [APPELLANT]’s complaints about the lack of debate at the 24 September
2020 Planning Committee are not borne out by the transcript of the
proceedings. These show that the meeting was addressed by Councillor Mellor,
whose comments were supported by another ward member, and that the
Chairman invited other members to comment. Councillor Mellor made a point
of drawing the Committee’s attention to the detailed report on the application
and stated his assumption that all members had read this. The absence of
further comments or questions from the Committee suggests that they
considered that the report provided sufficient information for them to come to a
view on the officer recommendations rather than a lack of interest in the case.
15. The Chairman decided to take the update report on the Council’s 5 year HLS
before the report on the appealed application. In my view, this demonstrates
both his understanding of the relevance of the 5 year HLS to the Council’s
decision whether or not to oppose the appeal and his desire that members
should have a clear understanding of the HLS position. The officer report fully
explained the implications of the absence of a 5 year HLS in terms of the
presumption in favour of sustainable development in section 11 of the National
Planning Policy Framework (Framework). Paragraphs 6.1.2 and 6.1.3 of the
report expressly advised members what the presumption means in terms of
decision making and the relevant development plan policies. Paragraph 6.1.6
explained that the subsequent sections of the report set out the officers’
assessment of the overall planning balance of the proposal, having regard to
that presumption.
16. The report acknowledged that, in the 2019 appeal decision, the Inspector had
attributed very substantial weight to the market housing and AH that would be
provided and that the current scheme could potentially contribute to an uplift in
housing and AH provision. The report noted that the AH offer in the 2019
appeal scheme had been fully policy compliant and explained that it was
uncertain that the same benefit would be delivered by the current proposal
because of the lack of a confirmed AH tenure or FVA.
17. These considerations were carried forward into section 8 of the report which set
out the officers’ conclusions, both on whether the very special circumstances
needed to justify a grant of permission in the Metropolitan Open Land (MOL)
had been demonstrated and on the planning balance. The report was both
extensive and comprehensive. It provided more than sufficient information to
enable the Committee to make its decision.
18. BLP Policy 2 states that, in negotiating AH provision, the Council will seek a
tenure split of 60% social/affordable rented and 40% intermediate provision.
The policy is clear that, where the proposed tenure split is not compliant with
this preferred mix, the Council will require evidence in the form of a FVA to
justify that alternative mix. Since both Policy 2 and the related London Plan
policies were cited in the AH Statement that accompanied the application, the
appellant was fully aware of the policy requirements when the application
submission was being prepared. Despite [APPELLANT]’s many protestations
to the contrary, the absence of any firm proposal as to the AH tenure mix to be
provided, and of a FVA to justify any proposed departure from the Council’s
preferred, meant that the application submission was not policy compliant in
this regard.
19. In those circumstances, the Council was entitled to take the view that it had
insufficient information to form any firm conclusions as to the weight to be
given to the potential benefit of the AH, either in respect of the very special
circumstances test or in the overall planning balance. The Council’s decision to
resist the appeal on the grounds set out in RfR 1 did not, therefore, constitute
unreasonable behaviour.
20. Irrespective of the position that may have been adopted by the Council in the
South Eden Park Road appeal, the condition attached to the permission granted
on appeal (condition 25) required the submission of an AH scheme that met
the policy requirements for a minimum of 35% of the units to be affordable and
a mix that accorded with the Council’s preferred 60:40 split. The absence from
the Inspector’s decision on that appeal of any detailed reasoning for the
imposition of this condition suggests that its wording had been agreed by the
parties.
21. That Inspector’s use of that condition does not support [APPELLANT]’s case
that the Council should have been willing, at the application stage, to agree to
a condition which left the AH tenure to be agreed at some subsequent date.
The Planning Inspectorate does have a model condition in respect of AH.
However, this is to be used in exceptional circumstances and in cases where
the heads or principal terms of the legal agreement that is likely to be required
under that condition have largely been agreed. That was clearly not the
position at the time that the appeal was lodged.
22. The officer report included considerable detail on the planning history of the
appeal site and on the key differences between the various proposals that had
been submitted for its development. It also included a detailed comparison
between the current proposal and the 2019 appeal scheme in terms of their
relative height, scale and massing and their effects on the openness of the
MOL. For example, paragraph 6.3.10 of that report states the officers’ view
that the “proposed development would have a greater impact in terms of its
scale and bulk when compared to the scheme allowed at appeal.”
23. Having regard to these many references, I can see no grounds for the assertion
that the Council failed to have proper regard to the 2019 appeal decision.
Given that the appellant had firmly rejected the GLA’s suggestion about the
redistribution of units from the north to the south block, I see no reason why
the officers should be expected to have reported that possible revision of the
scheme to the Committee.
24. The officer report noted that there are no new or emerging large scale
developments in the townscape surrounding the site “except the indoor and
outdoor sports facilities at the National Westminster Sports Ground”. Although
the appellant may have a different view as to how significant that change in the
townscape context of the site has been, it is not correct to assert that the
Council did not have regard to this change.
25. These matters were both taken up and expanded upon in Mr Bord’s proof of
evidence. In that proof, he set out his analysis of the impacts of the increased
height, scale and massing of the proposal, both in respect of the scheme’s
acceptability in design terms and its effect on openness. That assessment was
set very clearly within the framework of the form of development that had
been found to be acceptable in the 2019 appeal scheme. The proof provides
further information on the Council’s decision to grant permission for the CPFC
covered pitch and the assessment that was made by officers of its likely effects
on openness and available public views when recommending that application
for approval. Mr Bord concluded that the covered pitch would not have a
significant bearing on views into the appeal site or significantly affect the open
character of the wider area, except along a section of Copers Cope Road. Those
are matters of subjective judgement.
26. PPG advises that a local planning authority may be found to have acted
unreasonably if it fails to produce evidence to substantiate each reason for
refusal on appeal. PPG does not require that that evidence should itself be
substantial or that it should be supported by an independent design review.
What is required is that the LPA should produce evidence to demonstrate that it
had some respectable basis for its reason for refusal. Although I have come to
a different conclusion than Mr Bord in respect of putative RfR 2 in my
determination of the appeal, I have no doubt that his evidence satisfies that
requirement.
27. Standard 29 of the Mayor’s Supplementary Planning Guidance (SPG) on
Housing seeks that the number of single aspect units should be minimised. This
requires an assessment of the scheme under consideration and of whether or
not this meets the SPG requirement that the design should address issues such
as noise, ventilation and daylight. The fact that Inspector Baird found the 2019
appeal scheme acceptable in this regard does not mean that a wholly different
design for a much larger scheme on the same site should also be considered
acceptable. The scheme has to be assessed on its own merits and this is what
the Council did. The fact that I have come to a different conclusion in my
appeal decision does not mean that the Council’s assessment amounted to
unreasonable behaviour.
28. The preparation of an FVA is normally informed by an assessment of costs and
values achieved or adopted in other developments within the local area but the
final assessment must be particular to the circumstances of the scheme under
consideration. Where a consultant, such as Dr Lee, produces a large number of
such appraisals over the course of a year it is to be expected that he will adopt
different, and on some occasions seemingly contrasting, assumptions in respect
of those different appraisals. At the appeal inquiry, Dr Lee provided a
reasonable explanation for the alleged discrepancies put to him by counsel for
the appellant. I do not agree that his evidence was inconsistent with his
professional advice on other schemes unrelated to the appeal proposal. His
explanation as to the different economic circumstances under which the Dylon
1 scheme was assessed was clear. I have accepted that explanation in reaching
my conclusions on the viability of the appeal scheme.
29. Had the Council refused to make information available to the inquiry which it
knew to be directly relevant to the issues in the appeal and directly
contradictory to the case that it presented at the inquiry, that could have
amounted to unreasonable behaviour on its part. I do not consider that that is
what occurred in this case.
30. The Council agreed, in October 2020, to the removal of a condition on the
South Eden Park Road planning permission that required AH to be provided as
part of that development. That decision was taken by the Council in the
particular circumstances of that case, having regard both to the FVA submitted
by the applicant and the advice received from Boyer, its independent viability
expert. Scheme viability needs to be assessed in the particular circumstances
of each case. The Council was entitled to come to the view that the
circumstances relating to the South Eden Park Road development were not
identical to those in respect of the appeal proposal. Having considered the
viability evidence in that case, the Council resolved to accept a zero level of
AH. That did not create a precedent in respect of the position it should adopt in
relation to the appeal scheme. I do not accept that its reluctance to release
what it considered to be financially sensitive information amounted to
unreasonable behaviour.
31. Whether the Council should have published the Boyer report as a background
paper at the time that the application was considered by the Planning
Committee is a separate matter which is not for me to determine.
32. It may have been helpful for Dr Lee to have seen the Boyer report when
preparing his evidence, so that he could have been aware of their assessment
of the building programme in that scheme and how they had dealt with the
issue of cost inflation. This may possibly have led to an earlier narrowing of the
differences between the viability experts in the appeal. However, given the
extent of those differences at the exchange of proofs, I cannot be certain that
this would have been the case. Even if that information had been available at
an earlier date, I am not persuaded that this would have had a significant
effect in terms of the time needed for Mr Turner to produce his evidence for the
inquiry. Hence, I do not find that the timing of the release of that report has
caused the appellant to incur unnecessary or wasted expenditure in the
preparation of its viability case.
Conclusions
33. For the reasons set out above I find that the Council’s actions with regard to its
decision to oppose the appeal and in producing evidence to substantiate its
putative RfR do not amount to unreasonable behaviour. I also find that there
was no unreasonable behaviour with regard to the timing of the Council’s
release of the Boyer report. The application for costs is, therefore, refused.
Application B
The submissions by the Council
34. The application is for a partial award of costs relating to the instruction of two
of the Council’s witnesses to prepare evidence on viability and act for the
Council in the appeal. The appellant failed to provide the viability assessment
required at the planning application stage. Its backloading of the viability
evidence until a late stage in the appeal process was demonstrably
unreasonable.
35. The late provision of this evidence caused the Council to incur additional
expense in instructing these consultants at late notice. By misusing the appeal
process, the appellant has evaded the expectation, in accordance with the
Council’s Planning Obligations Supplementary Planning Document (SPD), that it
would pay the costs of any independent expert that the Council may need to
appoint to review the appellant’s FVA. Had the appellant provided the FVA at
the application stage, the Council would not have incurred the costs of
instructing these consultants. The extensive common ground agreed by the
close of the Inquiry could have been agreed at the application stage, taking
these matters off the table by the time the appeal was lodged.
36. The appellant’s Statement of Case did not comply with the guidance in the
Planning Inspectorate’s Procedural Guide in relation to Planning Appeals. It did
not set out the full particulars of the appellant’s case on AH and viability, it
failed to contain full details of the relevant facts and planning arguments that
the appellant intended to rely on and did not outline the methodology or
assumptions to be used to support the viability case. The Statement included
no meaningful disclosure of what became an unexpected and controversial case
with regard to AH provision. As a result, the Council was not fully aware of the
appellant’s case, arguments and issues from the start. This represented a
further failure to comply with the Procedural Guide and amounted to
unreasonable behaviour.
Response by [APPELLANT]
37. As the Council had no viability expertise in house, the only circumstances in
which it would not have had to call viability evidence would have been if all
matters had been agreed. Dr Lee’s evidence on the three main areas of
difference between the parties on viability, the differences with regard to the
Cost Plan and his evidence on First Homes (FH) all demonstrate that whatever
might have been agreed before the Inquiry is immaterial, as these matters
would always have been in dispute.
38. The appellant exercised its right of appeal some 7 weeks after the end of the
statutory period available for the Council to determine the application. Prior to
lodging the appeal, it had proposed that, if officers would recommend that
permission be granted, the Council could pass a ‘minded to approve’ resolution,
subject to completion of a S106 Agreement to cover the tenure of the AH.
Alternatively, the Council could have attached a condition that required the
submission of a scheme for the provision of AH which would include the details
of the level and tenure of that provision. Both of these are established and
accepted mechanisms for dealing with AH and a condition of this type was
suggested by the Council in respect of the planning appeal for the South Eden
Park Road development scheme.
39. The appellant was unable to submit detailed viability information either with
the application, or at the time that the appeal was lodged, because of the
economic uncertainties caused by the Covid 19 pandemic. As a result of the
pandemic the RICS had, on 17 March 2020, introduced a requirement that
Chartered Surveyors should include a statement regarding ‘Material Valuation
Uncertainty’ in all valuations and FVAs, thereby rendering them of limited
value. This was only lifted in mid-September 2020. Following the lifting of that
requirement, the appellant’s presentation of its viability case has been
exemplary and in accordance with the deadlines set by the Inspector.
40. Having prepared an alternative costs plan, the Council’s costs expert was then
unavailable to attend the inquiry. This led the closing of the inquiry to be
deferred and to additional costs being incurred by the appellant. The Council
receives a planning fee when a planning application is made and is legally
bound to determine the application on its merits. The Council’s SPD is a non-
statutory document which is not binding on the applicant. The SPD does not
constitute the necessary authority for the Council to impose a charge for the
instruction of external consultants to advise on viability assessments.
Reasons
41. The application was lodged on 2 March 2020. In the AH Statement that
accompanied the application [APPELLANT] advised that 35.4% of the units
would be affordable units and that these would all be accommodated in the
south block. However, the Statement did not provide any information as to the
proposed tenure mix of the AH or include any statement to the effect that this
would be in accordance with the Council’s preferred mix as set out in BLP Policy
2. Neither this Statement nor the Planning Statement accompanying the
application, gave any indication that [APPELLANT] had concerns, at the time
the application was made, about the viability of the proposal or that economic
uncertainty, arising from the then emerging picture with regard to the Covid 19
pandemic, would make it impossible for a tenure mix to be agreed.
42. The AH Statement claimed the proposed AH provision is “fully in accord” with
the relevant development plan policies and related SPDs. However, as set out
in paragraph 18 above, [APPELLANT] should have known that this was not
the case. Although it was fully aware of the requirement for a FVA to be
submitted to support a non-policy compliant tenure mix, [APPELLANT] chose
not to submit either a FVA or any detail as to what the mix might be.
43. In its email to West & Partners, dated the 20 April 2020, the GLA stated that it
had been unable to find any information within the application as to the AH
tenure mix. It requested that this should be provided. In his reply, Mr Francis
advised only that the AH would be within the scope of the definition set out in
the glossary to the Framework. He asserted that “at the present time, with the
new economic reality of Cov 19 we cannot go further than this.” Thereafter,
this same reason appears repeatedly to have been stated by [APPELLANT]
for its failure to produce the required FVA until October 2020. However, the
preparation of the planning application and accompanying documents predated
the Government’s announcement, on 23 March 2020, of the first Covid 19
lockdown and the introduction by the RICS of the requirement for valuations to
include a Material Valuation Uncertainty statement.
44. Nothing in the evidence provides a reasonable explanation as to why a FVA was
not submitted with the application. The failure to provide one left the Council in
the position that it could not properly assess whether the proposal complied
with Policy 2. It also had insufficient information to conclude what weight
should be given to the AH provision in determining whether or not the MOL
very special circumstances test had been met.
45. For the reasons set out in paragraph 21 above, I do not accept Dylon 2
Limited’s contention that the matter could have been resolved either through a
minded-to- approve resolution subject to the completion of a S106 agreement,
or by a planning condition such as that attached to the permission for the
South Eden Park Road development.
46. [APPELLANT]’s Statement of Case provided only scant information about the
case to be presented in respect of AH. Paragraph 2.9 states only that AH
provision will be made in accordance with the definitions in the Framework and
development plan and that, in light of unknown impacts of the Covid 19
pandemic, the tenure could not currently be specified. The Statement of Case
gave no indication that the scheme might not provide 35% AH as had been
claimed in the application or that the use of FH was being contemplated. These
possibilities were first outlined during the Case Management Conference on 12
October 2020.
47. I agree that this fell short of what is required in terms of setting out the full
particulars of the appellant’s case in accordance with the Procedural Guide. The
appellant might not have formulated its final AH offer at that stage. However,
given its reliance upon the economic uncertainties arising from the pandemic to
justify its position with regard to scheme viability, it seems unlikely that, in July
2020, the appellant was not already contemplating an AH offer below the 35%
level required under Policy 2.
48. Following on from the above, I find that [APPELLANT] acted unreasonably in
failing, at the application stage, to provide any detail about the form of AH
proposed and to submit a FVA to demonstrate what level of AH and tenure mix
the scheme could support. Given the timing of the application, I do not accept
that this can simply be excused by reference to the economic uncertainty
arising from the Covid 19 pandemic. I also find that there was unreasonable
behaviour on the appellant’s part in its failure to set out full particulars of its
likely case in relation to AH in its Statement of Case.
49. However, although I find that the failure to provide this information amounted
to unreasonable behaviour, I am not persuaded that this has directly resulted
in unnecessary or wasted expenditure on the Council’s part.
50. As no FVA was submitted with the application it is impossible to know what
conclusions this might have come to. The only information available is the FVA
that was eventually provided by [APPELLANT] dated 21 October 2020. The
findings of that FVA were that the scheme viability would not support a 35%
level of AH and that it shows a deficit when assuming a policy compliant
provision of AH. The FVA also concluded that, even with the 19% First Homes
AH provision that the appellant offered at the appeal inquiry, the scheme still
shows a deficit against the Benchmark Land Value.
51. When the Council’s viability and building costs experts reviewed Dylon 2
Limited’s FVA at the end of October, they challenged many of the assumptions
both in the building cost plan and in the viability appraisal itself. Although these
issues were narrowed through the discussions that I requested the parties
should enter into, significant differences remained at the close of the inquiry.
52. The extent of the remaining differences gives me no confidence that the parties
would have reached any agreement as to the level of AH to be provided, even
had the FVA been submitted with the application. Given the strength of the
case it presented at the inquiry, it seems unlikely that the Council would have
accepted that a 19% FH provision would render the proposal compliant with
LBP Policy 2. The Council’s vehement opposition to the FH format as an
acceptable form of AH provision in Bromley also indicates that it would have
been extremely unlikely that the Council would have accepted this AH offer as
being policy compliant. In my judgement, there would have been a strong
likelihood that these matters would have been in contention at the appeal
inquiry in any event.
53. For these reasons, I consider that, even if the FVA had been submitted at an
earlier stage, viability and the maximum level of AH that could be delivered
within the scheme would have remained a main issue in the appeal. The
Council would, in those circumstances, still have found it necessary to instruct
appropriately qualified experts to deal with these matters. Dr Lee was the
Council’s witness both in respect of the acceptability in principle of FH and the
scheme viability issues. As Dr Lee’s evidence depended, in no small part, on
Mr Brown’s Construction Cost Review this evidence could not have been
prepared without Mr Brown also having been instructed. I do not think it
possible to disaggregate the inputs of either of the experts to reach some
arbitrary view as to the extent of evidence that might have been needed had
the FVA been available at an earlier date.
54. The Planning Obligations SPD seeks that applicants should fund the costs of
external consultants that the Council may need to appoint to review FVAs.
However, the SPD is not a policy document and does not provide the necessary
legal authority for the Council to require such a contribution from the applicant.
Even if that were the case, that contribution would not extend to the costs of
instructing those consultants to prepare evidence for and to appear at any
subsequent planning appeal inquiry. It is clear that Mr Brown’s instruction did
not extend beyond preparing a report as an input into Dr Lee’s evidence since
it transpired that the Council had not checked his availability for the agreed
inquiry dates.
55. I accept that Dr Lee had to prepare his evidence in a relatively short time.
However, the timetable agreed at the Case Management Conference expressly
allowed him to have more time to prepare a full Proof of Evidence if he needed
it; this additional time was not used. Neither has the Council produced any
evidence to demonstrate that the actual time inputs required by Dr Lee to write
his evidence were in any way affected by his not having earlier sight of the
appellant’s FVA.
56. The Council’s application repeats concerns that were raised during the inquiry
about the rebuttal evidence submitted by the appellants after the exchange of
main proofs. That evidence was accepted into the inquiry for the reasons that I
gave at that time. It was for the Council to decide how it should deal with it. I
do not accept that the appellant’s submission of rebuttal evidence has resulted
in the Council incurring any unnecessary costs or expenditure in relation to the
appeal.
Conclusions
57. For the reasons set out above, I find that [APPELLANT] acted unreasonably
in its failure to provide any details of its proposed AH tenure mix and a FVA to
support that offer, either at the planning application stage or in its Statement
of Case. It has not, however, been demonstrated that this unreasonable
behaviour has resulted in the Council incurring unnecessary or wasted
expenditure in relation to the planning appeal. The application is, therefore,
refused.
Paul Singleton
INSPECTOR