Case Reference: 3353887

Appeal Decision
Site visit made on 5 March 2025
by David Cross BA(Hons) PgDip(Dist) TechIOA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 24th March 2025
Appeal Ref: APP/U5360/W/24/3353887
Land At 28 Clonbrock Road, Hackney, London N16 8RR
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as amended)
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 Hackney.
• The application Ref is 2023/2892.
• The development proposed is demolition of existing studio building and front boundary wall,
construction of new three storey building including excavation to form new basement.
Decision
1. The appeal is dismissed and planning permission for demolition of existing studio
building and front boundary wall, construction of new three storey building including
excavation to form new basement is refused.
Application for Costs
2. An application for costs was made by [APPELLANT] against the Council of the
London Borough of Hackney. This application is the subject of a separate Decision.
Preliminary Matters
3. The Government has published its Housing Delivery Test results alongside the
publication of a revised National Planning Policy Framework (The Framework) in
December 2024. The appellant has responded on the revised Framework in their
final comments, and I have had regard to the comments made in reaching my
decision.
4. The appellant has submitted a Unilateral Undertaking (UU) which includes
payments in respect of affordable housing, carbon off-set, and monitoring as well
as measures relating to car-free development and the Considerate Constructors
Scheme. The Council has raised some concerns about the wording of the UU.
However, given my conclusions in my reasoning below I have not requested that
the appellant redraft the UU, even if it was necessary. Nevertheless, I have
determined this appeal giving due regard to the contributions and measures set out
in the UU.
5. The appellant has submitted amended plans which include a reduction in the site
boundary and the introduction of hit-and-miss brickwork across an obscured
window on a side elevation. I consider that these are minor amendments and that
no party would be prejudiced if I proceed to determine this appeal on the basis of
the amended plans.
6. The Council has also requested changes to the design of the proposal which it has
asked that I impose as a pre-commencement condition. However, even if I had the
power to do so, I consider that the amendments go beyond what could be
considered to be minor amendments and should be subject to further consultation. I
have therefore proceeded to consider the appeal on the basis of the amended
plans provided by the appellant.
Background and Main Issues
7. The appeal has been submitted due to the failure of the Council to give notice
within the prescribed period of a decision on a planning application. The Council
has also failed to submit its Statement of Case within the appeal timetable. The
Council has therefore not indicated its reasons for refusal had it been minded to do
so. I also note the comments from the Council’s case officer provided with the
appellant’s claim for costs which state that following appropriate amendments they
would be able to recommend approval.
8. Based on the evidence before me, including comments from third parties, I
consider that the main issues in this appeal are the effect of the proposal on the:
• Living conditions of nearby residents in respect of outlook and light; and
• Character and appearance of the area.
Reasons
Living Conditions
9. The appeal site is part of what was previously the garden area of the dwelling at
28 Clonbrock Road, although the evidence indicates that the dwelling at No 28 and
the appeal site are in separate ownership.
10. The proposed dwelling would be located in very close proximity to the rear external
amenity area of No 28, which also has a number of openings including windows
and glazed doors looking onto it. Due to the proximity and arrangement of the
appeal proposal to No 28, this would lead to a substantial loss of sunlight and
daylight reaching its external amenity area as well as the openings which look onto
it. Similarly, because of the proximity and scale of the proposal, it would have an
oppressive and overbearing relationship in the outlook from the amenity area and
openings to the rear of No 28.
11. The appellant has submitted a Daylight and Sunlight Assessment (DASA), but this
does not address the impact on No 28.
12. Reference has been made to a previous permission for a dwelling on the appeal
site dating from 20061. Based on the evidence before me, the appeal proposal
would have a reduced scale and massing compared to the 2006 permission and
would therefore have a lesser impact on No 28. However, the 2006 permission
was not implemented and the evidence suggests that this permission has lapsed.
This means that the 2006 permission does not represent a fallback scheme as it
has not been demonstrated that it can still be built. Furthermore, the
circumstances in place at the 2006 permission, and the Council’s consideration of
the effect on No 28, have not been fully set out. On that basis, the 2006
1 LPA Ref: 2006/2359
permission does not lead me to a different conclusion on the harm to No 28 based
on the evidence before me and my own observations.
13. The proposal would also be located close to the rear gardens and elevations of
dwellings on Shakespeare Walk. Having regard to the relationship with these
dwellings and the appeal proposal as well as the DASA, the development would
not lead to material harm to the rear elevations and amenity areas of the dwellings
of Shakespeare Walk in respect of daylight and sunlight. Due to the angled
arrangement of the main building within the appeal proposal and the limited
change along the site boundary, I also conclude that the proposal would not lead
to material harm to the outlook from the rear of Shakespeare Walk.
14. Notwithstanding my conclusions in respect of Shakespeare Walk, I conclude that
the proposal would lead to substantial harm to the living conditions of residents of
No 28 in respect of loss of outlook and light.
15. The Council has submitted a number of policies with its questionnaire and policies
are also referred to in the appellant’s Statement of Case. Based on the evidence
before me, the proposal would be contrary to the amenity requirements of
Policy LP2 of the Hackney Local Plan 2020 (the Local Plan) and Policy D3 of the
London Plan 2021. The proposal would also be contrary to the Framework with
regards to achieving a high standard of amenity for existing and future users of
places.
Character and Appearance
16. The appeal site consists of what was previously garden land attached to No 28
and contains a single storey building described as a studio. It is located in a
residential area which primarily consists of attractive traditional dwellings of
varying scales and massing.
17. A number of comments have been made about the principle of development on
the site. However, even allowing for the historical development of the area, the
development of this enclosed and underused site for housing in a built-up area
with good access to services would be appropriate in principle.
18. The proposed building would be attached to No 28 which is one of a pair of
attractive 2-storey dwellings, although No 26 has had a storey added at roof level.
The appeal proposal is of a modern design that would contrast with the traditional
appearance of its immediate neighbours. However, the appeal site is located
within part of the streetscape that includes relatively modern buildings that are of a
different character to the wider area. The height of the proposal would reflect that
of a modern dwelling adjoining No 26, and it would be viewed as part of a group of
buildings including traditional dwellings bookended by contrasting modern designs.
Given that immediate context, a modern design of the scale of the appeal proposal
may be appropriate.
19. However, there are elements of the design of the proposal which are of concern.
The proposal would include a raised feature on a corner of the building which
would appear as a contrived and incongruous element on a building with otherwise
modern and clean lines. The proposed bin and bike stores also appear as clumsy
features in what could otherwise be a coherent façade extending along the
streetscape.
20. The Council also considers that more openings should be provided facing onto the
street, particularly in respect of the kitchen and living/dining room. However, the
proposed visualisations indicate that there would be an extent of hit-and-miss
brickwork in the elevation directly adjacent to the pavement, and I consider that
this is an appropriate response to introduce some interest into what could be an
otherwise stark and blank elevation.
21. Given that I have accepted the principle of the development of the site as well as
the scale of the proposal and the use of a modern design; my concerns relate only
to matters of detailed design. Considered objectively and in context, the appeal
proposal would lead to no more than moderate harm to the character and
appearance of the area. Nevertheless, the proposal would be contrary to the
design and character requirements of Policies D3 and H2 of the London Plan and
Policy LP1 of the Local Plan with regards to achieving well-designed new homes.
Planning Balance and Conclusion
22. The appellant specifies that the Council is unable to demonstrate a 5-year housing
land supply and that the ‘tilted balance’ of paragraph 11(d) of the Framework is
triggered with regards to the presumption in favour of sustainable development.
This states that permission should be granted unless any adverse impacts would
significantly and demonstrably outweigh the benefits of the scheme, when
assessed against the policies in the Framework taken as a whole having particular
regard to key policies.
23. I have concluded that the proposal would lead to substantial harm to the living
conditions of residents of No 28 in respect of outlook and light. I have also
concluded that the proposal would lead to no more than moderate harm to the
character and appearance of the area.
24. In respect of benefits, the proposed dwelling would add to the mix and supply of
housing in the area, and would be in a sustainable location with good access to
services. It would provide a self-build dwelling on a small site, both of which are
supported by development plan policy. However, even given the Council’s housing
land supply position, the benefits arising from a single dwelling carry only limited
weight in favour of the appeal. The proposal would not be an efficient use of land
due to the identified harm arising from the development in respect of living
conditions and character and appearance.
25. The UU includes a contribution to affordable housing, but the scale of the
contribution would be of limited benefit. Other aspects of the UU relate to
managing the impacts of the development itself and are therefore neutral in the
overall planning balance.
26. The proposal would bring an underused site back into a productive use. I have
considered whether the appeal site would represent previously developed
‘brownfield’ land. The definitions of brownfield land in the Framework and the
London Plan excludes land in built-up areas such as residential gardens. The
appeal site was previously part of the residential garden of No 28, although it has
been separated from No 28 for a number of years. That said, the definition of
brownfield land in the Local Plan does not exclude residential gardens. I am
mindful that the Framework gives substantial weight to the value of using suitable
brownfield land within settlements for homes, and that proposals for which should
be approved unless substantial harm would be caused. However, even if I was to
conclude that the appeal site is brownfield land, this would not outweigh the harm
to the living conditions of residents of No 28 which would be substantial.
27. Considered individually and cumulatively, the benefits arising from the proposal
would only be limited. The adverse impacts of the proposal would significantly and
demonstrably outweigh the benefits, when assessed against the policies of the
Framework taken as a whole and the key policies. The proposal would therefore
not represent sustainable development.
28. The proposal would conflict with the development plan and there are no other
considerations, including the Framework, that outweigh this conflict. For the
reasons given above, I conclude that the appeal should be dismissed.
David Cross
INSPECTOR


Costs Decision
Site visit made on 5 March 2025
by David Cross BA(Hons) PgDip(Dist) TechIOA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 24th March 2025
Costs application in relation to Appeal Ref: APP/U5360/W/24/3353887
Land At 28 Clonbrock Road, Hackney, London N16 8RR
• The application is made under the Town and Country Planning Act 1990, sections 78, 322 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 Hackney.
• The appeal was 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 existing studio building
and front boundary wall, construction of new three storey building including excavation to form new
basement.
Decision
1. The application for an award of costs is allowed in the terms set out below.
Reasons
2. Parties in planning appeals normally meet their own expenses. However, the
Planning Practice Guidance (the Guidance) advises that costs may 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.
3. The Guidance states that examples of a Council’s unreasonable behaviour which
may result in an award of costs include a delay in providing information or other
failure to adhere to deadlines as well as introducing fresh and substantial evidence
at a late stage necessitating extra expense for preparatory work that would not
otherwise have arisen.
4. As can be seen from my Appeal Decision, I have dismissed this appeal in respect
of harm to the living conditions of nearby residents as well as character and
appearance. It could therefore be argued that the Council’s behaviour has not led
to an appeal which could otherwise have been avoided.
5. However, the appellant had to submit an appeal against non-determination of the
planning application to ascertain the views of the Council. Even then, the Council
did not meet the deadline for the submission of its Statement of Case which was
subsequently turned away. Furthermore, copies of some representations on the
proposal were only submitted late in the appeal process in response to a request
from the Inspector.
6. Whilst the appeal has been dismissed, I consider that the appellant was denied the
opportunity to make an informed decision in terms of whether they should pursue
the appeal, including the employment of a consultant, owing to the lack of certainty
about the Council’s position relating to the planning application and appeal. On that
basis, I consider that the unreasonable behaviour of the Council has led to the
appellant incurring unnecessary expense in progressing this appeal.
7. I note the comments of the most recent Council case officer for the proposal in
respect of working proactively with the appellant. However, this does not negate the
Council’s unreasonable behaviour leading up to the appeal and during the appeal
process.
8. For the reasons given above, unreasonable behaviour resulting in unnecessary or
wasted expense has occurred and a full award of costs is therefore warranted.
Costs Order
9. 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 Hackney shall pay to [APPELLANT], 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.
10. The applicant is now invited to submit to the Council of the London Borough of
Hackney, to whom a copy of this decision has been sent, details of those costs with
a view to reaching agreement as to the amount.
David Cross
INSPECTOR