Norton Rose Fulbright’s planning team act on successful appeal for house builder Linea Homes

Norton Rose Fulbright’s (“NRF”) planning team (Sarah Fitzpatrick, Head of Planning, and Carina Wentzel, Senior Associate) have successfully secured planning permission on appeal for client Linea Homes following a two day hearing in August 2022. The scheme for an 8 storey residential building in Hillingdon had been refused permission in June 2021 by the London Borough of Hillingdon (the “Council”). The scheme forms the third part of a former industrial site allocated for residential development with the other two parts of the allocation having already been built out or having already secured planning permission. The Council argued that the scheme would affect the character of the area, due to a shortfall in amenity space would provide unsuitable living conditions for future occupiers, and would cause harm the amenity of neighbours. One of the principal issues was the daylight and sunlight impacts on the property to the rear of the appeal site (Fitzroy Court), this property forming part of the site allocation. Since the determination of the application new Guidance published by the British Research Establishment “Site Layout Planning for Daylight and Sunlight” (BRE 209 2022) (the “BRE Guidance”) had been published, and the Inspector needed to consider the updated Guidance. Fitzroy Court had been built close to its boundary, with windows serving bedrooms inserted into the elevation facing the appeal site pursuant to a s.73 permission. If the full 21 metre set back from these windows was applied (which was the Council’s policy) it would mean the appeal site could not realistically be developed, and that would defeat the purpose of the site allocation. The Inspector agreed with the appellant on all points, and his key findings were:

• Applying the ratio in Rainbird v The Council of the London Borough of Tower Hamlets [2018] EWHC 657 (Admin), the Inspector determined that daylight and sunlight impacts on neighbouring properties should be assessed in a two-step process, firstly by considering whether there would be a material deterioration in conditions based on technical assessment, and secondly whether that deterioration would be acceptable in the particular circumstances of the case, which includes considering a proposal in its local context;
• The Inspector determined that as windows in Fitzroy Court are extremely close to the shared site boundary, and access daylight from over the appeal site, that these take more than their fair share of light. Since it could be expected that the height and scale of development at the appeal site would be consistent with the other sites within the allocation, and given the proximity of Fitzroy Court, and the linking of sites via the allocation it was appropriate to consider a mirror image assessment, to understand the effects of the scheme. This would produce a more equitable assessment where a property takes more than its fair share of light. This justified a greater reduction in daylight to Fitzroy Court than by strictly applying the BRE Guidelines. Failure to apply a mirror image assessment would unfairly prejudice the development of the appeal site, and hamper the delivery of a building of suitable scale that would be commensurate with the aspirations of the allocation;
• The relationship of the scheme and Fitzroy Court was judged by the Inspector to be acceptable taking the urban location of the site into account where expectations of a wide outlook and high level of daylight and sunlight would be reduced. Reduced daylight and sunlight would be offset by occupiers having easy access to the town, its services, and public transport connections;
• Occupiers of Fitzroy Court should have been aware that they were moving into a regeneration area, and that the appeal site would also come forward for development at some point, given its inclusion in the allocation;
• The fact that the Council stated in a committee report (when granting the s.73 permission for the windows within Fitzroy Court that would overlook the appeal site), that the addition of these windows would not prejudice the development of the appeal site was of “great importance” as a material consideration.

As one of the first appeal cases to consider the new BRE Guidance, the case provides an important steer in relation to the how sites in regeneration areas, in a tight urban context, should be considered, as well as confirming the applicability of the mirror image approach to assessment where an adjoining property has been built close to its boundary, taking more than its fair share of light.

Sarah Fitzpatrick, Head of Planning at NRF said “We are absolutely delighted to have secured planning permission for Linea Homes, we deliberately set up the application so that it was “oven ready” for an appeal, and addressed all the issues that the Council had identified when refusing a previous iteration of the scheme. The fact that we were triumphant on all points demonstrates that we got our strategic approach to this site absolutely right.”

Antony Stark, Director, at Linea Homes said “A huge thank you to all the team at NRF for their conscientious hard work on this project. Their input was instrumental in helping us secure this positive outcome. We look forward to working with Sarah and the team in the future.”

A copy of the appeal decision can be downloaded here.