Written by Nikki O’Hagan, 16th November 2023

Consent for a new dwelling in London is won on appeal.

Securing planning consent for a new dwelling can be a challenging endeavour, especially when faced with an obstructive local council. This challenge is all the harder for sites subject to access, fire, heritage, ecological and arboricultural constraints. In this news story, we share the journey of our clients who recently obtained full planning consent for their dream home after a series of refusals and obstacles.

Stage 1: Initial engagement with the local council & Planning Direct

Our clients bought a plot of land in a public park (Local Open Space) and Conservation Area, full of TPO trees and containing a small but totally dilapidated former park ranger’s bungalow. Vehicular access to the site was via a narrow, single-track route in poor condition, also shared with pedestrian users of the park.

The site was located in the an inner London borough and the owners first sought the council’s advice in respect of refurbishment and modest extension of the existing bungalow.

Although the council agreed the existing house was in a very poor condition and of no architectural merit, they strongly resisted the proposals to modestly extend it, citing heritage, landscape, public amenity and arboricultural concerns.

At this point, the owners contacted Planning Direct for advice. We carried out a thorough appraisal of the site and initial development proposals. Following this, we recommended they consider total demolition and replacement of the dwelling instead of its extension. This approach better suited their needs and desires, enabling them to maximise floorspace and deliver a genuinely high-quality family home built to modern standards.

Stage 2: Preparation & submission of a full application for a new dwelling

Planning Direct worked closely alongside the owners to design the new scheme. The driving brief was to deliver a contemporary-style building that respected those few positive features of the existing dwelling (including its modest scale), whilst improving on its many negative features. With our detailed advice in hand, the architects set about designing the new build.

This included digging the house into the site in order to achieve a very generous, 2-storey, 4-bed family home that was only modestly greater in height and width than the existing, 2-bed bungalow.

A full planning application was then prepared and submitted to the council in 2021.

Stage 3: London Borough Council considers the first application

In informal communications with Planning Direct, the council officer assigned to the case expressed their support for the design of the dwelling, noting the favourable comments of their Conservation Areas Advisory Committee. However, they raised concerns in respect of vehicular access – proposed to remain as existing – and impacts on trees and ecology.

Planning Direct requested the opportunity to provide additional information in respect of access, trees and ecology. Our experience is that the vast majority of local councils are willing to negotiate minor changes and facilitate the submission of additional information over the course of an application.

Unfortunately, the council refused to engage proactively with Planning Direct and promptly issued a refusal notice instead. To our great surprise, one of the reasons for refusal concerned the design of the dwelling. The council asserted the building to be of “excessive scale and bulk”, resulting in insupportable harm to the Conservation Area. This flew in the face of the advice issued by their own team of Conservation Area specialists.

Stage 4: Preparation & submission of a second application

Following discussions with the owners, we resolved to submit a new planning application to the council. This route was chosen, in part, because it would be far quicker than an appeal. The owners were able to make use of their “free go”, meaning no application fee was paid to the council.

Some minor changes were made to the layout of the garden to allow for the retention of a mature tree. Additional, detailed arboricultural and ecological reports were also submitted, alongside full details of the vehicular access to which various improvements were now proposed.

However, the owners did not wish to make any significant changes to the design of the house. We fully supported them in this, buoyed by the positive comments of the council’s team of Conservation Area specialists. The only change made was to the colour of the external zinc cladding.

Stage 5: London Borough Council considers the second application

Despite repeated attempts by Planning Direct to engage with the council over the course of the second application, all our phone calls and emails were left unanswered. The first communication we received from the council was, unfortunately, another refusal notice.

This time, the council had maintained its objections in respect of design and impact on trees. They conceded, on the strength of the information submitted, that previous concerns in respect of access and ecology were resolved. To our great surprise, they had also introduced a brand new reason for refusal in respect of fire safety.

Stage 6: Working out the way forward

Following receipt of the second refusal notice, Planning Direct reached out to the council to discuss next steps. Although the owners were reluctantly prepared to submit another application, they first wanted some advice from the council about how their concerns could appropriately be resolved.

Planning Direct cited to the council the following national planning guidance published by the UK government:

Before making any appeal the applicant should first consider re-engaging with the local planning authority to discuss whether any changes to the proposal would make it more acceptable and likely to gain planning permission. A revised planning application could then be submitted.

Unfortunately, the council flatly refused to engage with Planning Direct. They informed us they would not so much as consider another application for a replacement dwelling. They also stated that the owners were entitled to appeal their recent decision if they disagreed with it.

Stage 7: Proceeding to appeal

Faced with the council’s obstructive and unhelpful response, we urged the owners to submit an appeal. We remained of the strongly held view that the design of the development was excellent and its impacts were positive.

Overall, we believed the development was very much in the public interest. Not only would it improve the quality of the historic environment, it would also deliver a much needed family home. In addition, the owners were proposing to improve public access to the park at their own expense, making this safe and accessible to all, including people with mobility impairments, wheelchair users and pushchair users. 

The owners agreed and decided to try, one last time, to secure consent for their dream home. They instructed Planning Direct to prepare and manage the appeal and this was submitted in November of 2022. Planning Direct’s Head of Appeals & Heritage, Nikki O’Hagan, prepared a detailed grounds of appeal statement and subsequent rebuttal statement.

Stage 8: Consent for a new dwelling in London won on appeal

The appeal decision was finally issued in mid November 2023. We are delighted to announce that the appeal was allowed! After a lengthy battle, our clients now have full planning consent to build their dream home.

The appeal decision has confirmed what we always believed to be true:

Design & heritage impact

  • That the house was well-designed and would conserve the character and special interest of the Conservation Area. 

On this matter, the Inspector found:

“I agree with the comments from the Conservation Areas Advisory Committee that this is judged to be a well-balanced development of reasonably attractive modern architecture which does not cause harm to the CA. Therefore, I find that despite having a larger Gross Internal Area than set out within the London Plan, the character and appearance of the CA would be unharmed and preserved, ensuring that its significance as a heritage asset would be unaffected, accordingly the proposal would also not result in harm to Local Open Space.”

Arboricultural impact

  • That considerable care had been taken to preserve and protect trees on and surrounding the site. This was supported by robust and detailed arboricultural information. 

On this matter, the Inspector found:

“I am satisfied that the level of assessment accords with BS5837:2012 , while the proposed works would be carried out in accordance with BS3998:2010. Besides, the Council has not submitted any evidence which challenges the appellant’s findings in the updated AIA and AMS. Based on the evidence before me, the effect of the development upon the trees could be satisfactorily dealt with by condition, and the health of retained trees on site preserved”

Fire safety

  • That due to insurmountable access constraints, the existing dwelling was not capable of compliance with current fire safety requirements. Nor was the proposed dwelling. However, all opportunities to improve fire safety had been taken up. The result was a development that substantially improved the site’s fire safety, to the obvious benefit of both its occupants and public users of the park.

On this matter, the Inspector found:

“Whilst the Council has raised concerns regarding a dead-end route, the appellant have identified that there is also an existing emergency route across Fishponds Park, from Ewell Road, which would also be suitable for emergency vehicles, which the Council has not disputed. This information demonstrates that the appellant has considered in detail the issues of fire safety before the Building Control application stage, as required in the guidance notes to Policy D12. The appeal proposal is not a major development, and the site is already in residential use. Thus it is considered that the proposal has in a proportionate manner considered the requirements of D12. It would also offer an improvement upon the current situation should the existing dwelling be repaired and occupied.”

We are so pleased with this well-deserved and hard-fought outcome and wish our clients all the best as they move onto the construction stage. We hope to report back once the development is complete.

Get help with your complex planning application or appeal case

Are you dealing with an obstructive local council? Have your requests for proactive engagement been repeatedly ignored? Sometimes, the best solution is to take the decision out of the council’s hands and go to appeal instead. 

If you require advice or assistance with a complex planning appeal case, please get in touch. Our initial advice is always free of charge. 

Access the government’s current guidance on planning appeals here:

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