Case Reference: 3268157

Appeal Decision
Inquiry opened on 13 July 2021
Site visit made on 21 July 2021
by Paul Griffiths BSc(Hons) BArch IHBC
an Inspector appointed by the Secretary of State
Decision date: 29 October 2021
Appeal Ref: APP/A5270/W/21/3268157
51-56 Manor Road and 53-55 Drayton Green Road, West Ealing, London
W13 0LJ
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission.
• The appeal is made by [APPELLANT] against the decision of the Council of the London Borough of Ealing.
• The application Ref.202231FUL, dated 29 May 2020, was refused by notice dated 23
December 2020.
• The development proposed was described as ‘redevelopment of the site to demolish
existing buildings and to provide a building over basement and part 12 and part 19
storeys comprising 2 units at ground floor in either Use Classes A1, A2, A3, D1 or D2;
144 flats over part mezzanine, and 1st to 19th floors (100% affordable); bike and bin
stores; sub-station; ancillary space; private and community amenity space; and
alterations to highways’.
Preliminary Matters
1. Owing to the continuing pandemic, the Inquiry was conducted on a ‘virtual’
basis, using PINS’ Teams platform. It opened on 13 July and closed on 23 July
2021. I am grateful to all parties for the positive way in which they approached
the ‘virtual’ event.
2. As well as the main parties, the Inquiry was assisted by a Rule 6(6) Party: Stop
the Towers1 who were represented and participated fully. Most of the Inquiry
evidence was dealt with in the traditional manner, with cross-examination, but
aspects relating to living conditions, and cycle and ‘Blue Badge’ parking, were
dealt with through discussion in a ‘round table’ format.
3. I carried out an unaccompanied site visit in advance of the Inquiry2 when I was
able to familiarise myself with the site and its surroundings. In addition, I
carried out an accompanied site visit on 21 July 2021, following an itinerary
helpfully agreed between the main parties and passed to me at the site visit3.
4. The description of the development proposed in the header above comes from
the original application form. As set out in the Statement of Common Ground
agreed between the appellant and the Council4, this was amended by the
Council, with the agreement of the (then) applicant to read ‘construction of a
1 Referred to hereafter as STT
2 On 5 July 2021
3 ID33
4 Referred to hereafter as SoCG (STT were able to provide comments on the document)
building with a basement level, part double-height ground floor with part
mezzanine floor and 18 and 12 floors above with roof plant and communal roof
garden to accommodate two flexible-use units at ground floor (A1/A2/A3/D1 or
D2 Use Classes) and 144 residential units (100% affordable) on the upper
floors (mezzanine to 18th floor) with associated cycle and bin stores,
substation, private and communal amenity space and alterations to the
highway (following demolition of existing buildings on the site)’. I have
proceeded on the basis of this agreed description.
5. In the course of the Inquiry, the latest (July 2021) version of the National
Planning Policy Framework5 was published by the (then) Ministry of Housing
Communities and Local Government. The parties were able to address changes
from the previous document in the course of the Inquiry6. I have of course
used the latest version of the Framework in reaching my decision.
Decision
6. The appeal is allowed and planning permission is granted for the construction
of a building with a basement level, part double-height ground floor with part
mezzanine floor and 18 and 12 floors above with roof plant and communal roof
garden to accommodate two flexible-use units at ground floor (A1/A2/A3/D1 or
D2 Use Classes) and 144 residential units (100% affordable) on the upper
floors (mezzanine to 18th floor) with associated cycle and bin stores,
substation, private and communal amenity space and alterations to the
highway (following demolition of existing buildings on the site) at 51-56 Manor
Road and 53-55 Drayton Green Road, West Ealing, London W13 0LJ in
accordance with the terms of the application Ref.202231FUL, dated 29 May
2020, subject to the conditions listed at Annex A to this decision.
Application for Costs
7. A written application for costs was made by the appellant against the Council at
the Inquiry7. The Council’s response, and subsequent comments from the
appellant, were dealt with through written submissions after the Inquiry
closed8. The application for costs is the subject of a separate Decision.
Main Issues
8. These are (1) the effect of the proposal on the character and appearance of the
area (including design, and any impact on the setting and thereby the
significance of heritage assets); and (2) whether the affordable housing
proposed is acceptable. There are other issues too that can be bracketed under
‘other matters’ notably whether the proposal would provide an acceptable
standard of accommodation for its residents; its effect on existing residents of
the area; the approach to cycle parking; and the situation in relation to ‘Blue
Badge’ parking spaces.
9. Underlying all that, is the need to follow the correct approach to decision-
making in the light of the Council’s acceptance9 that it cannot demonstrate a
five-year supply of deliverable housing sites.
5 Referred to hereafter as the Framework
6 ID21, ID24, ID25 and ID26
7 ID28
8 ID34 and ID35
9 ID1 and elsewhere
Reasons
Character and Appearance
10. An analysis of the effect of the proposal on character and appearance ought to
start with an analysis of the area within which the appeal site lies. The area to
the north of the railway is dominated by streets of relatively low-rise,
traditional housing. Some of this housing is particularly attractive, notably that
within the St Stephens Conservation Area to the north of the appeal site.
11. However, the area around the point where The Avenue, Drayton Road, Argyle
Road, and Manor Road join and cross the railway, and lead into Drayton Green
Road, is more commercial in nature, and of a manifestly different character.
This area contains the appeal site, and some non-designated heritage assets
that reflect its largely non-residential character – Nos.4-24 The Avenue (which
have shops and the like at ground floor level), the Drayton Court Hotel, and the
Royal Mail Sorting Office. The area also contains buildings of significant size,
notably the Waitrose Supermarket (off Alexandria Road), Luminosity Court (5-9
storeys), Sinclair House (4-7 storeys), Dominion House (6-12 storeys, or
thereabouts), and the new, and rather smaller, West Ealing (Crossrail) Station.
12. In that context, the appeal site itself, which contains an assortment of (mostly)
single-storey buildings, of poor quality, appears chronically under-used. That is
especially so when one considers that it lies within the defined Ealing Town
Centre, a Metropolitan Centre designated by the London Plan10. That potential
for development is recognised by the inclusion of the appeal site in Site
Allocation EAL 12 West Ealing Crossrail Station, part of the Ealing Development
Sites Development Plan Document 201311 as a mixed-use development
appropriate to the town centre, and compatible with the functioning of the
Crossrail station.
13. EDSDPD Allocation EAL 12 sets out that the height and massing of
development on this (allocated) site should both respond to the adjacent
Crossrail station and to the bulk of the buildings featured at this intersection.
Its bulk, scale and design should be sympathetic to the adjacent residential
area, seek to enhance the setting of the locally listed sorting office, and seek to
complement rather than compete with the appearance of the new Crossrail
station. Further, the appeal site has a PTAL rating of 4, which will rise to 5
when Crossrail (eventually) comes into operation. Unsurprisingly, against that
overall background, no-one questions the principle of development on the
appeal site.
14. That leads on to the form that re-development ought to take. All agree that the
proposal would undoubtedly be a tall building. It is correct to note that EDSDPD
Site Allocation EAL 12 does not explicitly state that the site is suitable for a tall
building. However, reflective of Chapter 11 of the Framework, and paragraph
119 in particular, LP Policy GG2 says that to create successful sustainable
mixed-use places that make the best use of land, those involved in planning
and development must, in summary, enable the development of brownfield
land particularly on sites within and on the edge of town centres, as well as
utilising small sites; prioritise sites which are well-connected by existing or
planned public transport; promote higher density development in locations that
10 Referred to hereafter as LP
11 Referred to hereafter as EDSDPD
are well-connected to jobs, services, infrastructure and amenities by public
transport, walking, and cycling; apply a design-led approach to determining the
optimum development capacity of sites; and understand what is valued about
particular places and use that as a catalyst for growth, renewal, and place-
making. Allied to that, LP Policy D3 looks towards the optimisation of site
capacity through the design-led approach. It says, put very simply, that all
development must be designed to make the best use of land in a way that is
contextually appropriate.
15. In that overall context, one of the main questions informing a proper analysis
of the impact of the tall building proposed is whether it optimises, rather than
maximises, the obvious potential of the appeal site. There are other questions
to address too. These are best expressed by LP Policy D9: Tall Buildings.
16. First of all, the policy deals with the principle of ‘Locations’. We are told that
Boroughs should determine if there are locations where tall buildings may be
an appropriate form of development and that any such locations and
appropriate tall building heights should be identified on maps in Development
Plans. Tall buildings, we are told, should only be developed in locations that are
identified as suitable in Development Plans.
17. The policy then goes on to deal with ‘Impacts’ and says that schemes should
address firstly visual impacts notably the views of buildings from different
distances. In long-range views, attention needs to be paid to the top of the
building – it should make a positive contribution to the existing and emerging
skyline and not adversely affect local or strategic views. In mid-range views,
attention should be paid to the form and proportions of the building. It should
make a positive contribution to the local townscape in terms of legibility,
proportions, and materiality. In immediate views, attention should be paid to
the base of the building. It should have a direct relationship with the street,
maintaining the pedestrian scale, character and vitality of the street. Where the
edges of the site are adjacent to (of relevance in this case) buildings of
significantly lower height, there should be an appropriate transition in scale
between the tall building and its surrounding context.
18. LP Policy D9 then sets out that whether part of a group or stand-alone, tall
buildings should reinforce the spatial hierarchy of the local and wider context
and aid legibility and wayfinding. Architectural quality and materials should be
of an exemplary standard to ensure that the appearance and architectural
integrity of the building is maintained through its lifespan. Proposals should
take account of, and avoid harm to, the significance of London’s heritage
assets and their settings. The buildings should positively contribute to the
character of the area. In many ways, this approach follows the path of the
Framework, and Chapter 12 (Achieving Well-Designed Places) in particular and
the references therein to the National Design Guide, and National Model Design
Code.
19. In assessing those ‘Impacts’, there was discussion at the Inquiry about the
‘landmark’ quality of the building, and points were made that the area does not
need such a landmark. To my mind, that is to approach the question from the
wrong direction. The starting point for assessment of a tall building proposal
like this one is, put simply, whether the site is worthy of the gesture.
20. Here, the site lies at the confluence of a number of roads, at the point where
they cross the railway. It is directly adjacent to what will become West Ealing
Crossrail Station, an important commuter hub, in an immediate area where
recently introduced buildings like the Waitrose Supermarket, Luminosity Court,
Sinclair House, and Dominion House, with others to follow to the east of
Dominion House, have a much greater footprint and height than buildings that
prevailed in the area historically. It is clear from the aerial photographs in the
evidence of the appellant, and from what I saw during my site visit, particularly
from the Jacob’s Ladder footbridge over the railway (to the west of the appeal
site), that a spine of taller development is evolving along the path of the
railway. The proposal would be seen as another part of that spine. Against that
background, I take the view that a tall building on the appeal site would not
look out of place. The site is clearly worthy of the gesture.
21. There is the question then to address about the height of the building. The
proposal before me is not as high as was originally proposed12. The submitted
visual material demonstrates that in longer and mid-range views, the building
proposed would not appear as an alien insertion into the townscape; rather it
would act as an effective marker of an important nodal point. In close-up
views, the impact would be greater, of course, but even in View 10 (taken from
Argyle Road)13 it would appear logical, as an indicator of the transition from
buildings of lower size and height to the north of the appeal site, to the more
intensive uses, and buildings of greater size and height, around the node or
hub formed by the meeting of the roads, their crossing of the railway, and the
station.
22. The detailed design of the building would be an important brake on its impact
in longer-, mid-, and immediate views. It would be a large building of course
but it would have a clear base (which would have an active frontage that
responds well to the street pattern), middle, and top. Moreover, the
proportional arrangement of the facades, with vertical and horizontal bands,
the use of brickwork of different colours, and the size of the openings, would
give it a human scale. This banding also serves to balance out vertical and
horizontal emphases so that its height is not accentuated by the elevational
treatment. The junction between the taller and shorter elements has been
skilfully composed and the step between them would allow a reasonable
relationship to be formed with the adjoining Crossrail Station, itself an
attractive, modern insertion into the area. To my mind, so long as the
materials used are of the high quality proposed, a matter that can be dealt with
by condition, the building would be an exemplary piece of design that would
make a positive contribution to the area.
23. The concept of ‘beauty’ warrants attention too given the stress placed on it by
STT in questions and in closing. There is I believe something of a tension
between identifying a building as an exemplary piece of design which is an
objective finding based on established architectural principles, and adorning a
building with the epithet ‘beautiful’, which is a subjective one. To my mind, my
finding that the building would attain a very high (or exemplary) standard of
design is sufficient to justify a conclusion that the proposal does not fall foul of
Government advice on the subject in the Framework, the National Design
Guide, and the National Model Design Code.
12 It was reduced in height after a consultation process
13 The view highlighted by the Council as that where visual impact would be at its greatest
24. Concern has been expressed about the impact of the scheme on the setting
and thereby the significance of various heritage assets. As far as the St
Stephens Conservation Area, a designated heritage asset, is concerned, there
would be filtered views of the proposal along the Avenue14, and I am sure the
proposal would be seen from other places in the conservation area too.
However, it is not correct to equate visibility with harm.
25. The tall building proposed would very clearly be located well beyond the
conservation area, marking a different area entirely. Its visual presence would
change the setting of the conservation area, but it would have no harmful
impact on its significance.
26. The identified non-designated heritage assets Nos.4-24 The Avenue, the
Drayton Court Hotel, and the Royal Mail Sorting Office derive some of their
significance from their setting in an area that is commercial in nature, unlike
the residential areas that surround it. The proposal would serve to underline
that difference and, in that way, notwithstanding the differences in height,
would not detract from their settings or their significance.
27. Taking all those points together, I am of the firm view that the scheme would
meet the requirements of LP Policy D9 in terms of its ‘Impacts’. Moreover, and
for the same reasons, I consider that the proposal optimises, rather than
maximises, the potential of the appeal site, and in that way, it complies with LP
Policy GG2. The design is of a standard that meets the requirements of LP
Policy D3.
28. There is no doubt that the proposal would bring a significant change to the
area. There is an understandable reluctance from local residents to accept the
nature and extent of the change proposed. Linked to that, in terms of the
‘Locations’ element of LP Policy D9, the site is not identified as a suitable one
for a tall building in the Development Plan. The idea that proceeding with the
proposal without offering the community the opportunity to address that
question through an examination process would be harmful stands alongside
the many complaints I have heard and read about what is perceived to be a
lack of consultation by the appellant.
29. I return to this matter below but would observe at this stage that the appeal
site is, as I have set out, chronically under-used. In the light of the very much
heightened housing requirement set out for the London Borough of Ealing in
the LP, and the Council’s failing performance in relation to those targets15, best
use really does have to be made of this site. The suggestion16 that
development on the site should be limited to 10 storeys, is simply untenable
when, as I have found above, much, much more can be accommodated without
any harmful impact on the character or appearance of the area.
Affordable Housing
30. As I have alluded to above, the Council accepts that it cannot demonstrate a
five-year supply of deliverable housing sites (with the appropriate buffer).
14 View 6
15 The Council accepts that it cannot demonstrate a five-year supply of deliverable housing
sites
16 Made on behalf of the Council in evidence and taken up by STT
31. Moreover, it accepts that the level of need for affordable housing, and historic
shortfalls in provision set out in the appellant’s evidence. In short, the Council
is delivering, at best, 40% of its objectively assessed need for affordable
housing. Like the rest of the capital, the need for affordable housing in the
London Borough of Ealing is acute.
32. All of the one hundred and forty-four units in the proposal would be affordable
homes (that is 100% of the scheme) as defined in the LP, and the Framework.
Fifty (35%) would be London Living Rent and ninety-four (65%) would be
London Shared Ownership.
33. The Council, as it must, recognises that the provision of one hundred and forty-
four affordable homes would be a benefit that attracts significant weight, but
takes the view that the benefit would be even greater if the scheme included
units in the London Affordable Rent tenure.
34. Be that as it may, the evidence shows that there are tens of thousands of
Ealing households in need of intermediate tenure affordable housing. There is
no provision in local or national policy or guidance that justifies ranking one
form of affordable housing need over another. Indeed, Planning Practice
Guidance makes clear that all households whose needs are not met by the
market and who are eligible for one or more of the types of affordable housing
specified in the Glossary to the Framework are in affordable housing need.
35. On that basis, the significant weight to be attached to the benefits of the
proposal in this regard are in no way diluted by the forms of tenure offered.
The proposal is in very clear accordance with LP Policy H5.
36. As it contains 100% affordable housing, the proposal was, initially at least,
dealt with under the Fast Track Route set out in LP Policy H5. Criterion D says
that developments which provide 75% or more affordable housing may follow
the Fast Track Route where the tenure mix is acceptable to the borough or the
Mayor where relevant. The purpose of this route is to incentivise schemes that
contain a significant amount of affordable housing.
37. Much time was spent discussing this matter at the Inquiry, but it suffices for
me to observe that there is nothing particularly ‘fast track’ about a process
where Officers agree with the tenure mix at pre-application stage, only for
Council Members to deem it unacceptable when the time comes for them to
make a decision. If the Fast Track Route is really meant to work in that way,
then to my mind, the incentive it offers is diluted somewhat.
Other Matters
38. A series of concerns have been expressed about the acceptability of the living
conditions that prospective residents of the development would experience.
39. In particular, questions have been raised about heating/cooling given the
orientation of some of the units. However, the appellant has set out the
manner in which these issues would be addressed, and it is sufficient, in my
view, to leave this matter to conditions.
40. The layout of the various flats has been carefully considered to ensure
reasonable levels of privacy, and adequate daylighting. There are a number of
single aspect units in the scheme, but most (90%) are south facing. Given the
nature of the site, and its east-west axis, I do not regard this as a significant
drawback of the scheme especially when issues around heating/cooling have
been carefully considered.
41. Potential difficulties with noise transmission between adjoining residential units,
and between residential and commercial units, and from plant, or outside noise
sources like the railway, or aircraft can be dealt with through appropriately
worded conditions.
42. In terms of access to outside space, each of the units would have a balcony or
winter gardens17. These would be large enough (five square metres or more) to
comply with the requirements of LP Policy D6, and Policy 7D of the Ealing
Development Management DPD18.
43. There would also be a communal garden, with play-space, on the roof of the
lower element of the building which would be a useful resource for residents.
The play-space would be large enough at 254 square metres to accord with the
requirements of LP Policy S4. Notwithstanding that, in order to properly comply
with DMDPD Policy 7D, which would require 2,160 square metres of communal
garden, the appellant has agreed to make a financial contribution to improve
existing parks in the vicinity. DMDPD Policy 7D allows for such a route and as
such, the policy is complied with.
44. On top of all that, the evidence shows that that the proposal would have no
unacceptable impact on the living conditions of existing residents of the area
through loss of sunlight or daylight, visual impact, overshadowing, overlooking
and resultant loss of privacy, or anything else.
45. There was a good deal of discussion about cycle parking at the Inquiry. The
appellant is willing to accept a condition that sets out cycle parking
requirements that accord with LP Policy T5 and London Cycle Design
Standards. That, to my mind, is sufficient to ensure that cycle parking would be
dealt with in an appropriate manner.
46. Issues were raised too about ‘Blue Badge’ parking spaces. According to the
SoCG, LP Policies T6.1 and T6.5 would require at least five ‘Blue Badge’ parking
bays to be provided from the outset, with passive provision for a further ten
spaces. The proposal falls some way short of this level of provision with one
specific ‘Blue Badge’ space being provided adjacent to the building alongside
two other parking bays, and a service and delivery bay.
47. Disability is a protected characteristic and I recognise, bearing in mind the
provisions of the Equality Act 2010, and my duties relative to s.14919, that this
is a very important matter. However, the proposal is put forward as being ‘car
free’ (with a prohibition on permits for the surrounding CPZ) which is laudable,
and it is directly adjacent to a Crossrail Station which has step-free access.
48. In that context, I do not believe that the lack of ‘Blue Badge’ parking spaces
need necessarily act as a deterrent to anyone with disabilities who might wish
to occupy one of the units. Moreover, the provision for a financial contribution
to the Council in the sum of £10,000, to allow for the provision of further ‘Blue
Badge’ spaces in the Unilateral Undertaking20 (that I deal with below), would
17 Winter gardens would principally be located on the upper levels of the building
18 Referred to hereafter as EDMDPD
19 The Public Sector Equality Duty (PSED)
20 Referred to hereafter as UU
allow for the provision of such a space for any prospective occupier with
disabilities who needs one. I consider that this satisfactorily addresses any
potential inequality.
49. With all that in mind, and cognisant of my PSED, I do not consider the failure
to accord with LP Policies T6.1 and T6.5 in this regard as determinative.
Conclusions
50. The proposal would deliver one hundred and forty-four units of much-needed
affordable housing in a tall building of exemplary design that would have no
harmful impact on the character or appearance of the area, or the setting and
thereby the significance of heritage assets. On that basis, it would optimise
rather than maximise the use of the site. Moreover, it would provide
reasonable living conditions for its occupiers, and have no detrimental impact
on the living conditions of existing residents of the area.
51. As a consequence, there would be clear compliance with LP Policies H5, D3,
GG2, and the ‘Impact’ element of D9.
52. That said, there would be failure to accord with LP Policies T6.1 and T6.5 in
relation to ‘Blue Badge’ parking spaces, and the ‘Locations’ element of LP Policy
D9. In relation to the former, as I have set out above, the failure to accord is
not determinative as alternative provision to address this matter has been
made.
53. On the latter point, I would observe that bearing in mind the significant uplift
from previous figures in the housing targets referred to in LP Policy H1, and the
urgent need to provide new housing in the capital, it would seem to me rather
obtuse to wait for the boroughs to allocate sites for tall buildings, a process
that might well take years and years, before permitting a predominantly
residential tall building of exemplary, and contextually appropriate, design.
54. On that basis, my judgment is that the proposal accords with the development
plan read as a whole and there are no material considerations of sufficient
weight to justify a decision contrary to its provisions.
55. For the sake of completeness, it is helpful to rehearse an alternative approach
to decision-making. If I were to conclude that the failure to accord with LP
Policies T6.1 and T6.5 in relation to ‘Blue Badge’ parking spaces, and the
‘Locations’ element of LP Policy D9 meant the proposal failed to accord with the
development plan read as a whole, then other material considerations would
come into play.
56. Most significant amongst those material considerations would be the
Framework. The Council acknowledges that it cannot demonstrate a five-year
supply of deliverable housing sites so, as all agree, the ‘tilted’ balance in
paragraph 11 d) would apply; planning permission should be granted unless
any adverse impacts of doing so would significantly and demonstrably outweigh
the benefits, when assessed against the policies in the Framework considered
as a whole.
57. It seems to me plain that in this scenario, the harmful impacts in relation to the
failure to accord with LP Policies T6.1 and T6.5 in relation to ‘Blue Badge’
parking spaces (cognisant of the PSED), and the loss of opportunity for local
people to take part in an examination process that considered the allocation of
the site for a tall (or another form of) building, would be clearly outweighed by
the benefits of providing one hundred and forty-four units of affordable housing
in a tall building of exemplary design that would have no harmful impact on the
character or appearance of the area, or the setting and thereby the significance
of heritage assets.
58. Whichever way one approaches the conclusion, the result is the same. Planning
permission should be granted for the proposal.
Conditions and the Obligation
59. Discussions between the appellant and the Council around the conditions the
Council would favour in the event that the appeal was allowed, and planning
permission was granted, took place before and during the Inquiry21. This
facilitated a ‘round table’ discussion involving all parties, including third parties,
and I have considered the various conditions in the light of that discussion, and
advice in paragraph 56 of the Framework.
60. This explains that planning conditions should be kept to a minimum and only
imposed where they are necessary; relevant to planning and to the
development to be permitted; enforceable; precise; and reasonable in all other
respects. It continues to the effect that, of relevance, conditions that are
required to be discharged before development commences should be avoided,
unless there is clear justification. Footnote 25 sets out that sections 100ZA(4-
6) of the Town and Country Planning Act 1990 will require the applicant’s22
written agreement to the terms of a pre-commencement condition, unless
prescribed circumstances apply. In that regard, I have treated the inclusion of
pre-commencement conditions in a list agreed by the appellant as conferring
that written agreement.
61. In producing a final list in Annex A, I have made a number of minor changes to
the drafting, notably to remove references to outside bodies like Network Rail,
Thames Water, and the Lead Local Flood Authority. If in dealing with and
discharging the relevant conditions, the Council needs to discuss them with
outside bodies then it can do so without the requirement being set out in the
condition concerned.
62. In the first instance, a condition is necessary to deal with commencement as is
another to set out the approved plans.
63. Demolition of the existing buildings and structures on the site, and the
construction of the proposal, are likely to be complex processes that have the
potential to cause disturbance to local residents, and potentially, lead to
difficulties with the operation of the railway adjacent. On that basis, conditions
are required to secure method statements and management plans for both
processes. On top of that, another is needed to deal with air quality and dust
management, and yet another to cover the use of non-road mobile machinery.
I have deleted elements of the suggested conditions in order to avoid needless
repetition.
64. In relation to existing air quality in the vicinity of the site, it is necessary to
apply a condition to address ventilation of the residential units. Uncertainty
21 ID13, ID22 and ID27
22 And I take that to include appellants
about historic uses of the site mean that it is necessary to attach conditions to
deal with the potential for contamination of the land.
65. Surface water drainage is a matter that needs to be addressed by condition, as
is fire safety. A whole series of conditions have been suggested to deal with
various aspects relating to noise. Given the locational character of the site, and
the sensitivity of the residential use, all are reasonable impositions.
66. As set out above, the design of the development proposed is an important
point in its favour. In order to ensure that the design quality depicted on the
various drawings and visualisations is brought to fruition, it is important that
the materials used are of the requisite quality. On that basis, a condition
requiring details and/or samples of the materials proposed for external surfaces
to be submitted for the approval of the Council is essential.
67. Given the size of the development, and its location, deliveries and servicing
need to be managed in a way that does not cause disruption to the highway, or
local residents. To that end, notwithstanding material submitted with the
application, a Delivery and Servicing Management Plan needs to be agreed with
the Council before occupation.
68. Cycle parking was the subject of discussion (see above) and reflective of the
matters raised, it is necessary to apply a condition requiring the provision of
the requisite number of cycle (including larger cycle) spaces, as well as the
cycle lift, that meet the relevant standards, before occupation. Notwithstanding
details submitted with the application and given the car-free nature of the
development, a condition is required to secure the submission and operation of
a revised Travel Plan.
69. As disruption might result if arrangements are not properly followed, a
condition needs to be applied to ensure that the refuse and recycling storage
provision for the proposal, and the collection arrangements, are put in place
before the development is occupied, and operated thereafter in accordance
with those details.
70. Given the nature of the proposal, with provisions for landscape at around the
base of the building, and at the level of the roof garden and play space, a
landscaping condition requiring the submission of details for approval is a
necessity. The condition as agreed refers to planting taking place ‘within the
first planting season following the commencement of the development’. Given
the nature of the development, that would be very difficult to achieve. As a
result, I have amended the suggested condition to require the submission of a
timetable for approval.
71. Like any tall building, the potential impact of the wind microclimate needs to be
effectively managed. To that end, conditions are required to address this issue
at ground floor (street) level, at the level of the roof garden, on balconies, and
in winter gardens.
72. As touched on above, the proposal includes a good deal of glazing and in that
context, issues may well arise in relation to overheating and cooling. In that
context, a condition is essential to ensure the measures set out in the
submitted report by MLM Consulting Engineers are incorporated.
73. Given the need to manage the energy performance of the building and reduce
as far as possible its carbon footprint in use, conditions are necessary to deal
with these matters and to monitor performance once the building is in use.
However, to avoid duplication with the UU, part a) of suggested condition 30
needs to be removed.
74. Similarly, conditions are needed to deal with sustainable design and
construction, the whole-life-cycle carbon assessment of the development, and
(a repeat of the reference in suggested condition 29 which I have removed to
avoid repetition) the safeguarding of a future connection to any District Heat
Network.
75. It is necessary to ensure that lifts (passenger and cycle) are installed and
operational before residential occupation and retained as such thereafter
through a condition. Conditions are also necessary to set out the number of
Accessible Units to be provided, and the number of Wheelchair Units.
76. External lighting has the potential to cause issues for nearby residents, so a
condition has to be applied to ensure it is installed and operated in line with
relevant guidance.
77. The hours of opening of the flexible-use units proposed at ground floor level
need to be controlled by condition. The daily opening hours suggested (0730 to
2200) seem to me realistic. A condition to protect these units from subdivision
or any change in use through permitted development rights is a reasonable
imposition.
78. Any water network upgrades made necessary by the development need to be
dealt with by condition. However, the condition suggested needs adjustment to
make clear that approval of any matters required to be approved are within the
ambit of the local planning authority. Any liaison with Thames Water necessary
for discharging the condition would be a matter for the local planning authority.
I reach similar conclusions in relation to the suggested condition that deals with
the boundary between the development and Network Rail property.
79. Linked to that relationship with Network Rail, it is necessary to apply a
condition to ensure opportunities for objects to fall from the building on to the
railway are restricted as far as possible. On top of that, the nature of the
development is such that there is the possibility of glare from it to affect train
drivers. It seems to me that this matter has been addressed in the appellant’s
(August 2020) report on Reflected Solar Glare so there is no need to require
the submission of fresh details. The condition simply needs to ensure that the
development is carried out in accordance with the report.
80. A condition is needed to ensure the proposal achieves ‘Secured by Design’
accreditation. I also asked some questions about detailed design of the
proposal. On reflection, it seems to me that the conditions requiring
development to be carried out in accordance with the approved plans,
alongside the one requiring samples of materials, offers sufficient comfort. A
condition requiring a written statement relating to the ‘design intent’
(suggested condition 45) is unnecessary in this context.
81. A completed UU was submitted in the course of the Inquiry and was the subject
of discussion, informed by a CIL Compliance Schedule very helpfully prepared
by the Council. Mirroring the requirements of Regulation 122(2) of the CIL
Regulations 2010, paragraph 57 of the Framework says that planning
obligations must only be sought where they are: (a) necessary to make the
development acceptable in planning terms; (b) directly related to the
development; and (c) fairly and reasonably related in scale and kind to the
development.
82. The UU contains a number of Obligations relating to an education infrastructure
financial contribution (£425,000); a healthcare infrastructure financial
contribution (£120,000) ; a pedestrian and cycling infrastructure and route
improvements contribution (a total of £190,000); a traffic calming measures
contribution (£30,000); CPZ contribution (£20,000) and a restriction on
parking permits; a Blue Badge parking bays contribution (£10,000); car club
membership; TfL (bus priority measures) contribution (£144,000); Travel Plan
monitoring (£3,000); parks and open space contribution (£125,000);
employment and skills contribution (£16,500); carbon offset contribution
(£149,133); renewable energy monitoring (£8,477); air quality improvement
measures contribution (£15,000); affordable housing and an early-stage
viability review; a local employment and training plan with opportunities for
three apprenticeships (including an Apprentice and Local Labour Scheme
Contribution of £16,500); and various highway matters including the on-street
loading bay, three street trees, and visitor cycle parking on the highway (via a
s.278 agreement).
83. It is clear from the Council’s CIL Compliance Schedule that the various
Obligations have a proper policy basis and use credible multipliers to arrive at
the levels of financial contribution. The appellant accepts in the SoCG that
these Obligations should be imposed in the event planning permission is
granted for the scheme. On my analysis, all the Obligations are necessary to
make the development acceptable in planning terms, are directly related to the
development, and are fairly and reasonably related in scale and kind to the
development. As such, they all meet the requirements of paragraph 57 of the
Framework, and Regulation 122(2).
Final Conclusion
84. For the reasons given above I conclude that the appeal should be allowed.
Paul Griffiths
INSPECTOR
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY
Katherine Olley of Counsel Instructed by the Council of the
London Borough of Ealing
She called23 Michael Lowndes
Senior Director, Lichfields
FOR STOP THE TOWERS (STT)
Nicholas Grant of Counsel Instructed by STT
He called Andrew Colvin24
FOR THE APPELLANT
Christopher Katkowski QC Instructed by Jade Chalmers of
and Zack Simons of Counsel Howard Kennedy LLP
They called25 Stephen Levrant
Principal, Heritage Architecture Ltd
Dr Chris Miele
Senior Partner, Montagu Evans LLP
Claire Dickinson
Founding Director, Quod
Will Edmonds
Partner, Montagu Evans LLP
INTERESTED PERSONS
James Murray MP Member of Parliament for Ealing North
Councillor Linda Burke Council Member for Cleveland Ward
Dr Gerald Power The Draytons Community Association
Justine Sullivan Local Resident, Member of the
Draytons Community Association, and
Co-Chair of STT
Will French Chair of Save Ealing Centre
Martin Gorst Ealing Cycling Campaign
Peter Mynors Ealing Cycling Campaign
23 Katie Crosbie and Alison Luff (Council Officers both) took part in the discussions about
conditions and the various obligations
24 Recorded as having been called given the active part he took across the proceedings
25 Matt Sealby (Operations Director, Sweco UK Ltd., Joseph John Ellis (Senior Director,
RPS), Jeff Stokes (Director of DMWR Architects), and Jade Chalmers (Howard Kennedy LLP)
took part in the various ‘round table’ sessions
INQUIRY DOCUMENTS
ID1 Council’s Note on Housing Land Supply
ID2 Appearances for the appellant
ID3 Opening for the appellant
ID4 Opening for STT
ID5 Opening for the Council
ID6 Ms Sullivan’s Note
ID7 Dr Power’s Note
ID8 Note from Mr French (1)
ID9 Information of ‘Blue Badge’ applications
ID10 Ealing Cycling Club (ECC) Submissions
ID11 List of Definitions (Council)
ID12 Information on AMR
ID13 Draft condition 44
ID14 Note on density (appellant)
ID15 Note from Mr French (2)
ID16 ECC Note on draft condition 22
ID17 Affordable Housing Tables (appellant)
ID18 Response to ID15 from Mr Edmonds (appellant) (19/07/21)
ID19 Response to ID6 (appellant) (20/07/21)
ID20 Council’s Maps and Tables (20/07/21)
ID21 NPPF (July 2021) Track Changes Version
ID22 Suggested Conditions v.2 (amended conditions 13, 22 and 28)
ID23 Committee Report and Minutes of Meeting relating to Perceval House
ID24 Appellant’s Notes on July 2021 NPPF
ID25 Council’s Note on July 2021 NPPF
ID26 STT’s Note on July 2021 NPPF
ID27 Suggested Conditions v.3 (amended condition 22)
ID28 Appellant’s Application for Costs
ID29 Closing (with authorities) by STT
ID30 Closing by the Council (with attachment)
ID31 Closing by the appellant
ID32 Completed Unilateral Undertaking
ID33 Site Visit Itinerary
ID34 Council’s response to the appellant’s application for costs
ID35 Appellant’s response to ID34
Annex A: Schedule of Conditions
1) The development hereby permitted shall begin not later than three years
from the date of this decision.
2) The development hereby approved shall be carried out in accordance with
the following approved plans: 3545-PL-100 Rev A (Site Location Plan);
3545-PL-101 Rev A (Block Plan); 3545-PL-102 Rev A (Site Location &
Ownership Plan); 3545-PL-103 Rev / (Existing Elevations); 3545-PL-104
Rev A (Existing Sections); 3545-PL-105 Rev B (Proposed Site Plan);
3545-PL-106 Rev B (Proposed Basement Plan); 3545-PL-107 Rev C
(Proposed Ground Floor Plan); 3545-PL-108 Rev A (Proposed Mezzanine
Floor Plan); 3545-PL-109 Rev A (Proposed 1st -12th Floor Plan); 3545-
PL-110 Rev A (Proposed 13th Floor Plan); 3545-PL-111 Rev A (Proposed
14th &15th Floor Plan); 3545-PL-112 Rev A (Proposed 16th -18th Floor
Plan); 3545-PL-113 Rev / (Proposed Roof Plan); 3545-PL-114 Rev B
(Proposed North Elevation); 3545-PL-115 Rev B (Proposed South
Elevation); 3545-PL-116 Rev B (Proposed East & West Elevation); and
3545-PL-117 Rev / (Proposed Sections AA & BB).
3) Prior to the commencement of demolition, a detailed site demolition
method statement and management plan shall be submitted to and
approved in writing by the local planning authority. The submission shall
specifically consider a joint approach with the construction of any
approved development on the adjoining site to minimise highways and
amenity impacts of this busy location. The submitted details shall include
the following: (a) the number of on-site construction workers and details
of the transport options and parking facilities for them; (b) details of
working hours and all associated activities audible beyond the site
boundary restricted to 0800-1800hrs Mondays to Fridays and 0800-1300
Saturdays; (c) anticipated route, number, frequency and size of vehicles
entering/exiting the site per day; (d) delivery times, locations and
booking system (which is to be staggered to avoid morning and afternoon
school-run peak periods); (e) route and location of site access for
construction traffic and associated signage; (f) management of
consolidated or re-timed trips; (g) details of noise and vibration
mitigation measures and monitoring arrangements for noise and vibration
by suitably qualified noise specialists. Noise and vibration mitigation
measures must accord with the Mayor’s 'Best Practice Guidance’ and
Approved CoP BS 5228-1 and -2:2009+A1:2014; (h) details of site
security, temporary lighting and the erection and maintenance of security
hoarding including decorative displays and facilities for public viewing,
where appropriate; (i) secure, off-street loading and drop-off facilities; (j)
wheel washing provisions; (k) vehicle manoeuvring and turning, including
swept path diagrams to demonstrate how construction vehicles will
access the site and be able to turn into and emerge from the site in
forward gear and including details of any temporary vehicle access
points; (l) details as to the location(s) for storage of materials, plant and
construction debris and contractors’ welfare facilities and offices; (m)
procedures for on-site contractors to deal with complaints from members
of the public; (n) measures to consult cyclists, disabled people and the
local schools with regard to delivery times and necessary diversions; (o)
details of all pedestrian and cyclist diversions; (p) a commitment to be
part of Considerate Constructors Scheme; (q) confirmation of use of TfL's
Freight Operator Recognition Scheme (FORS) or similar; (r) submission of
evidence of the condition of the highway prior to-demolition and a
commitment to make good any damages caused during demolition; (s)
details of parking restrictions which may need to be implemented during
demolition work; and (v) resident prior notification arrangements of when
any heavy machinery work will be undertaken on site. Prior to the
commencement of any demolition work, all sensitive properties
surrounding the site shall be notified in writing of the nature and duration
of the works to be undertaken, and the name and address of a
responsible person to whom enquiries/complaints should be directed.
These details shall also be displayed at regular intervals around the site
construction compound. The development shall be carried out strictly in
accordance with the details so approved. Any areas to be used for the
storage of building materials or other site activities outside of the
relevant phase of the development shall be returned to the original
condition immediately following the practical completion of the works.
Such details shall be implemented, and phasing agreed in writing, prior to
the commencement of works on site and thereafter retained for the
duration of the works.
4) Prior to the commencement of development, a detailed site construction
method statement and management plan shall be submitted to and
approved in writing by the local planning authority. The submitted details
shall include the following: (a) the number of on-site construction
workers and details of the transport options and parking facilities for
them; (b) details of working hours and all associated activities audible
beyond the site boundary restricted to 0800-1800hrs Mondays to Fridays,
0800-1300 Saturdays; (c) anticipated route, number, frequency and size
of vehicles entering/exiting the site per day; (d) delivery times, locations
and booking system (which is to be staggered to avoid morning and
afternoon school-run peak periods); (e) route and location of site access
for construction traffic and associated signage; (f) management of
consolidated or re-timed trips; (g) details of noise and vibration
mitigation measures and monitoring arrangements for noise and vibration
by suitably qualified noise specialists. Noise and vibration mitigation
measures must accord with the Mayor’s 'Best Practice Guidance’ and
Approved CoP BS 5228-1 and -2:2009+A1:2014; (h) details of site
security, temporary lighting and the erection and maintenance of security
hoarding including decorative displays and facilities for public viewing,
where appropriate; (i) secure, off-street loading and drop-off facilities; (j)
wheel washing provisions; (k) vehicle manoeuvring and turning, including
swept path diagrams to demonstrate how construction vehicles will
access the site and be able to turn into and emerge from the site in
forward gear and including details of any temporary vehicle access
points; (l) details as to the location(s) for storage of materials, plant and
construction debris and contractors’ welfare facilities and offices; (m)
procedures for on-site contractors to deal with complaints from members
of the public; (n) measures to consult cyclists, disabled people and the
local schools with regard to delivery times and necessary diversions; (o)
details of all pedestrian and cyclist diversions; (p) a commitment to be
part of Considerate Constructors Scheme; (q) confirmation of use of TfL's
Freight Operator Recognition Scheme (FORS) or similar; (r) the
submission of evidence of the condition of the highway prior to-
demolition and a commitment to make good any damages caused during
demolition; (s) details of parking restrictions which may need to be
implemented during demolition work; and (v) resident prior notification
arrangements of when any heavy machinery work will be undertaken on
site. Prior to the commencement of any construction work, all sensitive
properties surrounding the site shall be notified in writing of the nature
and duration of the works to be undertaken, and the name and address
of a responsible person to whom enquiries / complaints should be
directed. These details shall also be displayed at regular intervals around
the site construction compound. The development shall be carried out
strictly in accordance with the details so approved. Any areas to be used
for the storage of building materials or other site activities outside of the
relevant phase of the development shall be returned to the original
condition immediately following the practical completion of the works.
Such details shall be implemented, and phasing agreed in writing, prior to
the commencement of works on site and thereafter retained for the
duration of the works.
5) Before the development is commenced (including demolition and site
clearance), an Air Quality and Dust Management Plan (AQDMP) that
includes an Air Quality (Dust) Risk Assessment shall be produced in
accordance with current guidance ‘The Control of Dust and Emissions
during Construction and Demolition’ SPG (GLA July 2014), for the existing
site and the proposed development. A scheme for air pollution mitigation
measures based on the findings of the report shall be submitted to and
approved by the local planning authority prior to the commencement of
any works on the site. Development shall be carried out in accordance
with the approved details.
6) All Non-Road Mobile Machinery (NRMM) to be used in the development
site shall meet as a minimum the Stage IIIB emission criteria of Directive
97/68/EC and its subsequent amendments, unless it can be
demonstrated that Stage IIIB equipment is not available. An inventory of
all NRMM shall be registered on the NRMM register at
https://nrmm.london/user-nrmm/register. All NRMM shall be regularly
serviced, and service logs kept on site for inspection. Records shall be
kept on site detailing proof of emissions standards for all equipment.
7) Prior to the commencement of the superstructure works, details of the
installation in the dwellings of a filtered fresh air ventilation system
capable of mitigating elevated concentrations of nitrogen oxides and
particulate matter in the external air shall be submitted to and approved
by the local planning authority. The details to be submitted shall include
the arrangements for continuously maintaining the operational efficiency
of the system. The ventilation system shall be completed in accordance
with the submitted details prior to occupation and retained as such
thereafter.
8) Prior to the commencement of any works on site (other than demolition
and site clearance) and based on an approved conceptual site model
(contained within an approved desk study phase 1 report IDOM
/Merebrook report DS21741-18-254 Rev02 2020), the site and any
previously inaccessible ground shall be investigated. The site conceptual
model shall be amended based on the findings of the intrusive site
investigation and the risks to identified receptors updated. This
assessment must be undertaken by a competent person, and shall assess
any contamination on the site, whether or not it originates on the site.
The findings of the site investigation and proposed remedial options shall
be submitted to the local planning authority for approval in writing prior
to any remedial works and/or any development works commencing.
9) A detailed remediation scheme to bring the site to a condition suitable for
the intended use shall be submitted to and subject to the approval in
writing of the local planning authority. The scheme must include all works
to be undertaken, proposed remediation objectives and remediation
criteria. The scheme must ensure that the site will not qualify as
contaminated land under Part 2A of the Environmental Protection Act
1990 in relation to the intended use of the land after remediation. The
approved remediation scheme must be carried out in accordance with its
terms prior to the commencement of development, other than that
required to carry out remediation works.
10) Following completion of measures identified in the approved remediation
scheme, a verification report that demonstrates the effectiveness of the
remediation carried out must be produced and is subject to the approval
in writing of the local planning authority. The verification report
submitted shall be in accordance with the latest Environment Agency
guidance and industry best practice.
11) Prior to commencement of the development hereby approved (excluding
demolition and site clearance) a detailed surface water drainage design
(including relevant specifications), and a maintenance plan, shall be
submitted and approved in writing by the local planning authority (in
consultation with the Lead Local Flood Authority). The development shall
be carried out strictly in accordance with the approved detailed drainage
scheme.
12) The development shall be implemented in accordance with the Fire Safety
Statement (Rev 07) prepared by MLM Group, dated 18 September 2020.
13) Prior to the commencement of the superstructure works a noise
assessment having regard to the mitigation recommendations in the
report entitled ‘Noise and Vibration Impact Assessment prepared by MLM,
dated April 2020 (Revision 2)’ (according to the assessment standard of
the Council’s interim SPG10) shall be submitted to the local planning
authority for approval in writing, of external noise levels from
transport and industrial/commercial/cultural sources (including reflected
and re-radiated noise where appropriate). Details shall include the sound
insulation of the building envelope including glazing
specifications (laboratory tested including frames, seals and any integral
ventilators, approved in accordance with BS EN ISO 10140-2:2010) and
of acoustically attenuated mechanical ventilation and cooling as
necessary (with air intake from the cleanest aspect of the building and
details of self-noise) to achieve internal room- and (if provided) external
amenity noise standards in accordance with the standards of SPG10 and
internal noise criteria of BS8233:2014. A post installation sound
assessment shall be carried out where required to confirm compliance
with the Council's assessment standard and noise criteria. Details of the
post installation test shall be submitted for the Council’s approval before
the premises are occupied and additional steps shall be taken as
necessary to minimise noise. Details of best practicable mitigation
measures shall also be submitted for external amenity spaces to achieve
these criteria. Approved details shall be implemented prior to occupation
of the development and retained as such thereafter.
14) The site is within the worst mode aircraft 1-day noise contour predicted
for 2016 (60 dB). Prior to commencement of the superstructure works,
details shall be submitted for approval by the local planning authority in
writing, for the insulation of the building envelope, with windows shut
and other means of ventilation provided, which will achieve the internal
criteria for sensitive rooms, as specified in Supplementary Planning
Guidance 10. The details should also include the provision of alternative
means of ventilation in accordance with authority’s criteria. The works
shall be completed before occupation and permanently retained
thereafter.
15) Prior to commencement of the superstructure works, details shall be
submitted to the local planning authority for approval in writing, of an
enhanced sound insulation value of at least 5dB above the maximum
Building Regulations value, for the floor/ceiling/wall structures separating
different types of rooms/uses in adjoining dwellings/areas, namely, any
kitchen/living/dining/bathroom adjoining the bedroom of a separate
dwelling. The assessment and mitigation measures shall be based on
standards of the Council’s SPG10. Approved details shall be implemented
prior to occupation of the development and permanently retained
thereafter.
16) Prior to commencement of the superstructure works, details shall be
submitted to the local planning authority for approval in writing, of an
enhanced sound insulation value of at least 10dB above the Building
Regulations value for residential use, of the floor/ceiling/walls separating
lifts and other communal facilities and areas (eg bin stores, bike stores,
etc) from dwellings. Details shall include the installation method and
materials of separating structures and, where necessary, additional
mitigation measures and the resulting sound insulation value and internal
sound level. The assessment and mitigation measures shall be based on
standards of the Council’s SPG10 and internal noise criteria of
BS8233:2014. Approved details shall be implemented prior to occupation
of the development and retained as such thereafter.
17) Prior to commencement of the superstructure works, details shall be
submitted to the local planning authority for approval in writing, of the
sound insulation value of the floor/ceiling/walls separating plant rooms
and other non-residential parts of the development from dwellings.
Details shall demonstrate that the sound insulation value is enhanced by
at least 15dB above the Building Regulations value for residential use (as
appropriate) and that, where necessary, additional mitigation measures
are implemented to contain non-residential noise. The assessment and
mitigation measures shall be based on standards of the Council’s SPG10
and the criteria of BS8233:2014. Approved details shall be implemented
prior to occupation of the development and retained as such thereafter.
18) The individual and combined external sound level emitted from plant,
machinery or equipment at the development site shall be lower than the
lowest existing background sound level by at least 10dBA, as measured
at/calculated to the nearest and/or most affected noise sensitive
premises at the development site and at surrounding premises. The
assessment shall be made in accordance with BS4142:2014, with all
machinery operating together at maximum capacity. A post-installation
sound assessment shall be carried out to confirm compliance with the
noise criteria and any additional steps required to mitigate noise shall be
taken, as necessary. Approved details shall be implemented prior to
occupation and permanently retained thereafter.
19) Prior to use, machinery, plant or equipment/extraction/ventilation system
and ducting at the development shall be mounted with proprietary anti-
vibration isolators and fan motors shall be vibration isolated from the
casing and adequately silenced and maintained as such.
20) Prior to commencement of the superstructure works details of the
materials to be used for the external surfaces of the development shall be
submitted to and approved in writing by the local planning authority. This
condition shall apply notwithstanding any indications as to these matters
which have been given in this application. Development shall be carried
out only in accordance with the approved details and retained as such
thereafter.
21) Notwithstanding the submitted Framework Delivery and Servicing
Management Plan, a detailed Delivery and Servicing Management Plan
shall be submitted to and approved in writing by the local planning
authority prior to first occupation of any part of the development. The
development shall be operated in accordance with the approved Delivery
and Servicing Management Plan thereafter.
22) At least 249 long stay secure and sheltered cycle parking spaces shall be
provided in full accordance with the standards and specifications of the
London Cycle Design Standards (LCDS), including at least 13 larger bike
spaces. All the cycle parking, and the dedicated LCDS compliant cycle lift,
shall be available for use prior to first occupation of the residential
development, and retained as such thereafter.
23) Notwithstanding the submitted Framework Travel Plan, a revised and
detailed Travel Plan shall be submitted to and approved in writing by the
local planning authority before first occupation of any part of the
development. The Travel Plan shall include an increased modal split
target for cycle trips and for public transport trips. The Travel Plan shall
be prepared in accordance with the TfL Travel Plan Guidance and the
Council’s Sustainable Transport for New Development SPD in use at the
time of its preparation. The development shall be carried out in
accordance with the approved Travel Plan.
24) The approved refuse and recycling storage provision and collection
arrangements shall be put in place prior to the first occupation of the
relevant use to which the store(s) serves and retained thereafter.
25) Notwithstanding the submitted information full details of hard and soft
landscaping, roof garden and boundary treatments shall be submitted to
and approved in writing by the local planning authority prior to first
occupation. These details shall address and include (but not be limited
to): (i) hard and soft landscaping works at ground level within the red-
lined application site boundaries - these details shall ensure that the
design is coordinated with any approved development on the adjoining
Crossrail site and highways land and include planting and soft
landscaping, hardscape, cycling parking, and any other equipment
including planters and furniture - details of hardscape, boundary
treatment and furniture palette to include not just material and height
but also specifications, and colour schemes; (ii) the boundary treatment
along the Network Rail boundary should include a trespass-proof fence;
the details and location of this boundary treatment needs to be agreed
with Network Rail prior to submission of the detail application to the local
planning authority; (iii) details of play equipment and play areas on the
roof garden, showing a range of play items and play experience offered
for the relevant age ranges, and also safety surfacing and barriers; (iv)
the roof garden shall have a non-climbable barrier of 2.4m and any
climbing aids (eg trees and furniture) need to be secured away from this
barrier to prevent the risk of objects falling onto the adjacent tracks and
railway platform; (v) details of a planting palette and species; (vi) details
of a Landscape Management Plan to cover a minimum period of 5 years
from the implementation of final planting; (vii) a full planting schedule of
tree sizes, species, number of trees and locations; (viii) Details of the
green roof construction and specification, together with a maintenance
schedule; and (ix) submitted details should be accompanied by plans,
elevations, sections, a materials schedule/samples, and other relevant
specifications. The approved details of the hard landscaping, boundary
treatments and play spaces shall be implemented prior to first occupation
and retained thereafter. The play spaces and play equipment shall be
accessible to all residents of the development. The soft landscaping
details shall be laid out and planted in accordance with a timetable first
submitted to and approved in writing by the local planning authority. Any
trees or plants which die within 5 years of planting, are removed, or
become seriously damaged or diseased shall be replaced with others of
the same size and species and in the same positions within the next
planting season.
26) Prior to commencement of the superstructure works, details of mitigation
measures to ensure that the wind microclimate conditions of the street
level entrances and pedestrian routes, would have measured comfort
levels appropriate to the intended use shall be submitted to and approved
in writing by the local planning authority. The approved measures shall
be implemented prior to first occupation of the residential element of the
development and retained thereafter.
27) Prior to first occupation of the residential part of the development details
shall be submitted of mitigation measures to ensure that the wind
microclimate conditions of the roof garden would have measured comfort
levels that are suitable for recreation and sitting out. The approved
measures for the roof garden shall be implemented prior to first
occupation of the residential element of the development and retained as
such thereafter. The mitigation measures for the balconies and winter
gardens detailed in the Environmental Wind Study Rev 2 prepared by SLR
Consulting (dated April 2020) shall be implemented prior to first
occupation of the residential element of the development and retained as
such thereafter.
28) The development shall incorporate the overheating and cooling measures
in line with the relevant CIBSE TM49 and/or TM52 guidance and detailed
in the Dynamic Overheating Assessment submitted by MLM Consulting
Engineers in September 2020.
29) A. Prior to the commencement of superstructure works the applicant shall
submit for the approval of the local planning authority a detailed roof
plan and accompanying report detailing the deployment of the maximum
amount of PV technically possible. If the incorporation of PV is not
technically possible then the report should explain in detail why not. B.
Prior to first occupation the development shall implement and maintain,
and in the case of energy generation equipment confirm as operational,
the approved measures to achieve an overall reduction in regulated CO
2
emissions of at least 35% over Building Regulations Part L 2013. These
CO savings shall be achieved through the Lean, Clean, Green Energy
2
Hierarchy as detailed in the approved Energy Statement prepared by
MLM Consulting Engineers September 2020 including: (i) passive design
measures to achieve an annual reduction of at least 10% in regulated
carbon dioxide (CO ) emissions over BR Part L 2013 for the residential
2
development, and at least 15%, over Part L 2013 for the non-residential
space: (ii) renewable energy equipment comprising Air Source Heat
Pump(s) to achieve an annual reduction of at least 20% in regulated
carbon dioxide (CO ) emissions over Part L 2013; and (iii) heat and
2
electric meters installed to monitor the carbon efficiency (COP) of the
heat pump(s) including the heat generation and the combined parasitic
loads of the heat pumps. C. Prior to commencement of construction
details of the specifications, design and layout of the proposed heat pump
system(s) and associated monitoring devices required to identify their
efficiency (COP) shall be submitted to and approved in writing by the
local planning authority. D. Prior to construction completion details of the
installed renewable/low-carbon energy equipment shall be submitted to
the local planning authority for approval. The details shall include the
exact Heat Pump thermal kilowatt output, heat output pipe diameter(s),
parasitic load supply schematics, monthly energy demand profile, and/or
the exact kW capacity of PV arrays. The name and contact details of the
heat pump and/or PV installation contractor(s), and if different, the
commissioning electrical contractor, should be submitted to the Council
along with copies of all relevant commissioning documentation. The
development shall be implemented only in accordance with the approved
details. E. All boilers to serve the energy requirements of the
development detailed in the approved energy strategy should be specified
with NOx emissions (g/m²) that are compliant with or better than the
ultra-low NOx (g/m²) benchmarks as set out at Appendix 5 of the
Mayor’s Sustainable Design and Construction SPG. F. Within three
months of the occupation/first use of the development the relevant
Energy Performance Certificate (EPC) and detailed SAP Worksheets
showing clearly the TER and DER, and/or the Display Energy Certificates
(DEC's), accompanying Advisory Reports and detailed BRUKL modelling
output reports showing clearly the TER and BER from the ‘as built stage’
following completion of the development, shall be submitted to, and
approved by, the local planning authority in order to confirm compliance
with the energy efficiency measures detailed in the approved Energy
Strategy. The development shall be carried out strictly in accordance with
the approved details.
30) In order to allow for post-construction energy monitoring, the developer
shall upon final construction of the development, or relevant phases of
the development, and prior to occupation, submit to the Council proof of
a contractual arrangement with a certified contractor that provides for
the ongoing, commissioning, maintenance, and repair of the
renewable/low-carbon energy equipment for a period of three years from
the point that the building is occupied and the equipment fully
operational.
31) Prior to completion the sustainability measures detailed in the approved
Sustainability Statement prepared by MLM Consulting Engineers (dated
May 2020) shall be implemented and thereafter retained. The measures
shall meet the requirements of local and regional planning policies and be
in line with the Mayor’s Sustainable Design and Construction SPG. The
development shall be constructed in line with the approved energy and
sustainability measures.
32) Before the development commences, a Whole Life Cycle (WLC) Carbon
Assessment that demonstrates compliance with the GLA Guidance on how
to calculate and reduce whole life-cycle carbon emissions to fully capture
the development’s carbon impact shall be submitted to and approved in
writing by the local planning authority. Development shall be carried out
and operated in accordance with the approved details.
33) Prior to commencement of the superstructure works details
demonstrating how the plantroom layout in the basement would facilitate
future connection to an offsite District Heat Network (DHN) shall be
submitted to and approved in writing by the local planning authority. The
approved and safeguarded floor area and connection point shall be made
available for future connection to an off-site network at least three
months before the DHN becomes operational.
34) The passenger and cycle lifts shall be installed and operational prior to
the first residential occupation of the development and retained as such
thereafter.
35) One hundred and twenty-nine (129) of the approved residential
dwellings shall be designed and constructed to meet Approved Document
M (Volume 1: Dwellings), Part M4(2) (Accessible and Adaptable
Dwellings) of Building Regulations 2015, or other such relevant technical
requirements in use at the time of the construction of the development.
36) Fifteen (15) of the approved residential dwellings shall be designed and
constructed to meet Approved Document M (Volume 1: Dwellings), Part
M4(3) (Wheelchair User Dwellings) of Building Regulations 2015, or other
such relevant technical standards in use at the time of the construction of
the development.
37) External artificial lighting at the development shall not exceed lux levels
of vertical illumination at neighbouring premises that are recommended
by the Institution of Lighting Professionals in the ‘Guidance Notes for The
Reduction of Light Pollution 2011’. Lighting should be minimised, and
glare and sky glow should be prevented by correctly using, locating,
aiming, and shielding luminaires, in accordance with the Guidance Notes.
38) The hours of business use for the ground floor flexible-use commercial
units (A1 or A2 or A3 or D1 or D2 Use Classes) hereby approved shall be
restricted to the period 0730 – 2200 hours each day.
39) Notwithstanding the provisions of the Town and Country Planning
(General Permitted Development) Order 2015 (as amended) (or any
subsequent order revoking and re-enacting that Order with or without
modifications), the ground floor commercial units shall not be subdivided
and shall only be used for A1 or A2 or A3 or D1 or D2 Use Class activities
and not for any other use.
40) No properties shall be occupied until confirmation has been provided to
the local planning authority that either: (i) all water network upgrades
required to accommodate the additional flows to serve the development
have been completed; or (ii) a housing and infrastructure phasing plan
has been agreed with Thames Water to allow additional properties to be
occupied. Where a housing and infrastructure phasing plan is agreed no
occupation shall take place other than in accordance with the agreed
housing and infrastructure phasing plan.
41) No development shall take place (including demolition) until details of the
new boundary treatment between the site and the property of Network
Rail adjacent have been submitted to and approved in writing by the local
planning authority. Development shall be carried out in accordance with
the approved details.
42) All balconies on the eastern tip of the building shall have glazed screening
that is fixed in place to prevent opportunities for objects to fall on to or
towards the railway. All windows and winter gardens that open on the
southern façade of the building shall be fixed with bottom-hung inward
opening windows as shown on the approved plans.
43) The development must achieve Secured by Design accreditation prior to
first occupation.
44) External materials including glazing shall be fully compliant with the
principles in the submitted report entitled ‘Reflected Solar Glare’ (12
August 2020) and be retained as such thereafter.


Costs Decision
Inquiry opened on 13 July 2021
Site visit made on 21 July 2021
by Paul Griffiths BSc(Hons) BArch IHBC
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 8 November 2021
Costs application in relation to Appeal Ref: APP/A5270/W/21/3268157
51-56 Manor Road and 53-55 Drayton Green Road, West Ealing, London
W13 0LJ
• 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] West Ealing Ltd and Metropolitan Thames
Valley Housing for a full award of costs against the Council of the London Borough of
Ealing.
• The inquiry was in connection with an appeal against the refusal of planning permission
for the construction of a building with a basement level, part double-height ground floor
with part mezzanine floor and 18 and 12 floors above with roof plant and communal
roof garden to accommodate two flexible-use units at ground floor (A1/A2/A3/D1 or D2
Use Classes) and 144 residential units (100% affordable) on the upper floors
(mezzanine to 18th floor) with associated cycle and bin stores, substation, private and
communal amenity space and alterations to the highway (following demolition of
existing buildings on the site).
Decision
1. The application for an award of costs is allowed in the terms set out below.
The Submissions for the Appellant
2. These were submitted in writing1 during the Inquiry.
The Response by the Council
3. This was submitted in writing2 after the Inquiry closed in accordance with an
agreed timetable.
Final Comments by the Appellant
4. These were submitted in writing3 after the Inquiry closed in accordance with
the agreed timetable.
Reasons
5. Planning Practice Guidance4 tells us that in general, parties in planning appeals
and other planning proceedings normally meet their own expenses. All parties
1 ID28
2 ID34
3 ID35
4 Referred to hereafter as PPG
are expected to behave reasonably to support an efficient and timely process.
Where a party has behaved unreasonably, and this has directly caused another
party to incur unnecessary or wasted expense in the appeals process, they may
be subject to an award of costs. The aim of the costs regime, amongst other
things, is to: encourage all those involved in the appeal process to behave in a
reasonable way and follow good practice; and to encourage local planning
authorities to properly exercise their development management
responsibilities; and discourage unnecessary appeals.
6. PPG gives a series of examples of where an award of costs may be given
against a local planning authority, but it is made explicit that the lists are not
exhaustive. The PPG does say that local planning authorities are at risk of an
award of costs with respect to the substance of the matter under appeal, for
example, by unreasonably refusing planning permission, or by unreasonably
defending appeals.
7. Here the point made on behalf of the appellants is that the decision to refuse
planning permission for the proposal (contrary to the advice of Officers) was
made without considering matters that might have been very important
influences on the decision-making process. In short, the Council failed to take
into account that when it took the decision, it could not demonstrate a five-
year supply of deliverable housing sites. Moreover, the Council failed to take
account of Government advice in the National Planning Policy Framework5 on
how it should approach decision-making in that context. Put simply, the Council
failed to apply the so-called ‘tilted balance’ in reaching its decision.
8. The monitoring of housing supply is such a fundamental and important part of
the development management process that it is not something that can simply
be set to one side when decisions on housing applications are made. The failure
to address this matter means that a very important aspect of Government
policy in the Framework was effectively ignored. It could be said that had
Members applied the ‘tilted balance’ to the matter before them they would
have reached the same decision. However, the important point is that we
simply do not know. Had Members done so, they could very well have reached
the opposite conclusion. This failure to engage with the ‘tilted balance’ was a
significant failing, and palpably unreasonable.
9. Further, the Council’s evidence to the Inquiry did not address this fundamental
matter. When the omission was brought to light, at the point when evidence
was exchanged, the Council did not review its case as the PPG suggests it
should but continued to defend their stance without reference to it. Again, that
is unreasonable.
10. The best conclusion for the Council that I can draw from all that is that the
Inquiry was unnecessarily prolonged because of the Council’s unreasonable
failure to review its case. However, it seems to me far more likely that the
appellant has been put to the time and trouble of an unnecessary appeal,
because the decision to refuse planning permission was made on an
unreasonable basis in the first place.
11. As such, unreasonable behaviour resulting in unnecessary or wasted expense,
as described in the PPG, has been demonstrated and a full award of costs is
justified.
5 Referred to hereafter as the Framework
Costs Order
12. In exercise of the powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other enabling powers in that behalf, IT IS HEREBY ORDERED that the
Council of the London Borough of Ealing shall pay to [APPELLANT] West
Ealing Ltd and Metropolitan Thames Valley Housing, the costs of the appeal
proceedings described in the heading of this decision; such costs to be
assessed in the Senior Courts Costs Office if not agreed.
13. The applicant is now invited to submit to the Council of the London Borough of
Ealing, to whom a copy of this decision has been sent, details of those costs
with a view to reaching agreement as to the amount.
Paul Griffiths
INSPECTOR