England and Wales High Court (Administrative Court) Decisions

(1)   planning permission (“the Permission”) for -

“Excavation and construction of a below ground parking facility for 2 cars, installation of car turntable, landscaping works, replacement entrance gates and associated works”; and

(2)   listed building consent (“LBC”) to allow the implementation of the Permission and described the proposals in similar terms.

“4.1 The application seeks planning permission and listed building consent (the latter under application LB/19/04529) for the excavation and construction of a single storey basement level below the private driveway in order to provide a below ground parking facility for two cars. The plans show that the parking would be accessed through the installation of car lift/stacker and ground level turntable, with associated landscaping works. This includes proposed repaving of the driveway and lighting.

4.2 The submitted plans and documents set out that that top surface of the car lift will be integrated into the driveway surface and concealed. When activated, it is set out that the lift platform will rise to maximum height of 2.5m to allow access for the vehicle using the lift. The lift will then lower to the required level and automatically the vehicle will then be moved to the required position whilst the top of the lift platform remains closed at driveway level. As such, there would be minimal visible manifestations of the stacker when in a closed position. The stacker construction/mechanism would be fully automated, with an operation time from raising to the open position/car loading/descent/closure of 3 minutes.

4.3 In addition, planning permission and listed building consent is also sought for replacement entrance gates to Thurloe Place and associated works. The plans show that the gates would be automated.”

“10. Summary

10.1. The following is a summary of the issues highlighted with the application documents;

...

10.1.4. The proposals do not adequately describe the location of buried services and incoming utilities, including public sewer on the site.

...

10.1.6. The Heritage Assessment fails to assess the impact on several designated heritage assets, establish criteria to assess the impact of the car-lift, or assess the impact on Thurloe Lodge.

10.1.7. The technical information for the car lift submitted does not allow sufficient analysis of the impact of this equipment.

10.1.8. The Noise Impact Assessment is inadequate and gives a misleading impression of the impact on neighbouring residents.

10.2. The following is a summary of the issues highlighted with the principle of the proposals…

…

10.2.2. The applicant has no legal right to undertake the proposals to the communal access road. In undertaking the works, the applicant would extinguish the access rights of Thurloe Lodge and on completion would restrict their rights.

10.2.3. The application should be assessed as more than one storey based on the depth of excavations when accounting for SuDS drainage, lowest part of basement and drainage sumps, meaning that the depth of the basement exceeds the value stated by the applicant.

…

10.2.5. The proposals will create a modern, above ground intervention which will be unsightly and not in keeping with the surrounding buildings including multiple heritage assets. This is a wholly inappropriate design for the context and will damaged designated heritage assets.

10.2.6. The proposals will be in close proximity to Amberwood House, being directly outside of the front entrance, and have a significant negative effect on the amenity of that property and it’s heritage value.

10.2.7. The proposed design, by it’s nature and siting, increases the risk of collision with vehicles using Thurloe Lodge and risk to members of the public. This is contrary to obligations of designers under CDM 2015 to design out risk. Measures to mitigate any risk would need to include more ‘commercial’ solutions, such as alarms, that inappropriate for the domestic context and will increase nuisance and reduce amenity.

10.2.8. The proposals will adversely affect the free and safe use of the communal access road by pedestrians visiting the site. Furthermore, the application does not make allowance for how pedestrians with impaired mobility, hearing or vision will be able to safely use the communal road.

10.2.9. The proposed turntable cuts into the pedestrian route across the communal road and will therefore interfere with its free use by members of the public on foot.

10.2.10. The proposals do not take account of the character of the local streetscape and are detrimental to the historic context of Thurloe Mews.

10.2.11. The turntable and car-lift will require additional equipment for operation not indicated on the application documents and the duration of use of the equipment will exceed the amounts the applicant states.

10.2.12. The proposals will create an increase in parking, contrary to local and mayoral policies. In practical terms during use, this could be a significant increase in numbers and could increase the amount of reversing onto the main road.

10.2.13. The location of the car lift will inhibit the ability of occupants to Thurloe Lodge and emergency vehicles to freely access that property. The proposals do not indicate that emergency services have been consulted over the proposals.

10.2.14. The car-lift and turntable will lead to a significant increase in noise levels to neighbouring properties, especially Thurloe Lodge. This is without accounting for the simultaneous use of equipment or alarms necessary for safe operation.

10.2.15. The impact of the construction of the car lift will be significant and last over a period of two years, during which time Thurloe Lodge will have no, or severely restricted, vehicular access to their property despite their legal entitlement…”

Preliminary remarks: bundles

“B. Electronic Bundles

In all cases where the application is filed by a legal representative the electronic bundle must be prepared as follows and be suitable for use with all of Adobe Acrobat Reader and PDF Expert and PDF Xchange Editor. The document:

…

(b) must be numbered in ascending order regardless of whether multiple documents have been combined together (the original page numbers of the document will be ignored and just the bundle page number will be referred to)

(c) Index pages and authorities must be numbered as part of the single PDF document (they are not to be skipped; they are part of the single PDF and must be numbered).

(d) The default display view size of all pages must always be 100%.

(e) Texts on all pages must be selectable to facilitate comments and highlights to be imposed on the texts

(f) The bookmarks must be labelled indicating what document they are referring to (it is best to have the same name or title as the actual document) and also display the relevant page numbers.

(g) The resolution on the electronic bundle must be reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another.

(h) The index page must be hyperlinked to the pages or documents it refers to.”

“1. To help remote hearings go smoothly and not take up more time than normal, the judges need to be able to make best use of pre-reading time (typically on the Monday of the week in which the hearing takes place). For that we would welcome succinct skeletons cross-referenced to key passages in the bundle and accompanied by an agreed, focused list of essential reading (e.g. pages and paras).

2. Bundles need to be limited to material which really is essential for the legal argument on both sides. By way of example, we do not normally need to be given the whole of the NPPF, or a development plan, or (where relevant) proofs of evidence or closing submissions at an inquiry. The inclusion of peripheral material make navigability more difficult. The requirement in the Protocol for a core bundle is crucial. In many cases a really well-chosen, agreed core bundle (or what [Lord] Carnwath once called a micro bundle) may be all that is really needed.

3. Bundles of authorities should be confined to essential material and need not duplicate decisions in the ICLR casebook.

4. It is essential that a bundle has a good index, a single set of numerical, continuous pagination and hyperlinks. Sophisticated pagination does not work.

5. If parties follow the protocols this will also help judges when they come to prepare reserved judgments.

6. The need for the court to make best use of its resources in the interests of all users is now all the more critical. Parties and their advisers are expected to keep under the review the merits of their cases and grounds of challenge. Points which do not have worthwhile merit really should be abandoned as far in advance of the hearing as possible and the time estimate reduced if appropriate. If a Defendant considers that there should be a submission to judgment then the other parties and the court should be notified at the earliest opportunity. Co-Defendants and Interested Parties should then quickly indicate whether they consider that the decision should nonetheless be defended. A claimant who wishes to withdraw a claim should likewise do so well in advance of the hearing. If this good practice (which is already set out in the Administrative Court Guide) is followed, then it is more likely that the court will be able to redeploy judicial resources to other cases and avoid waiting times increasing unduly. If there is a dispute on costs which the parties cannot resolve, then generally that may be decided by the court on brief paper submissions applying well-established principles.”

“This book gathers together the key cases which are referred to frequently in the Planning Court. Arrangements have been made so that judges hearing cases in the Planning Court will normally have access to the book, so that these cases will not need to be copied into bundles of authorities. Use of this book will also ensure that the court has cited to it the preferred reports of these cases, in accordance with Practice Direction (Citation of Authorities) [2012] 1 WLR 780.”

Grounds of challenge

(1)   The LPA failed to take into account a material consideration, namely the impact of the control panel for the car stacker and/or turntable and thereby failed to consider the actual impact of the proposal on inter alia relevant Listed Buildings, the Conservation Area, the residential amenity of Thurloe Lodge and the impact on rights of way (and therefore the statutory tests in ss. 16, 66 and 72 Planning (Listed Buildings and Conservation Areas) Act 1990);

(2)   In identifying that a decisive issue was compliance with Local Plan Policy CL7 (Basements), and that the proposals complied with that policy, RBKC misinterpreted and misapplied Policy CL 7, which does not apply to a freestanding car park on a communal roadway which stands (when open) as a significant above-ground structure. In approaching the issue in this way, the OR seriously misled the Committee;

(3)   With regard to noise impact, the OR significantly misled the Committee in concluding, without reference to the Cs’ own noise assessment, that the noise impact is acceptable, that in doing so the OR failed to address the matters raised by that noise assessment (which were a material consideration) and failed to provide adequate reasons why the noise impact was considered acceptable, despite the contrary assessment undertaken for the Cs;

(4)   There were a number of material considerations (e.g. visual impact of the lift when rising and when open, disruption to the access to Thurloe Lodge and the works being carried out there, safety and buried services and utilities), with regard to the impact of the proposals on the residential amenity of Thurloe Lodge which the OR failed to take into account and in respect of which, in any event, it did not provide adequate reasons;

(5)   The assessment of impact on heritage assets is defective for a number of reasons –

(a)    There is no identification and assessment of the significance of heritage assets that may be affected contrary to the advice in para. 190 of the NPPF (2019);

(b)   It failed to take account of the impact (alone and cumulatively with other impacts) of the lift when raised above ground. The limited visual impact of the car lift when underground was not a reason to conclude that the car lift would preserve the settings or any features of special architectural or historic interest of listed buildings or conservation areas when it is raised above ground;

(c)    It failed to identify whether Thurloe Lodge was considered to be a non-designated heritage asset (“NDHA”) within para. 197 of the NPPF or consider the impact of the proposals on the setting or significance of Thurloe Lodge as a NDHA;

(6)   With respect to the application of car-parking policy, the OR accepted that the proposal would result in the addition of 2 new underground spaces erred in fact that it would lead to an increase in car parking spaces and so misled the Committee. In any event, the OR failed to explain adequately how the proposal would result in 2 fewer parking spaces.

The Court’s approach to challenges to planning authority decisions

Discussion

Ground 1: the control panel

“5.4 Stacker Operation

The stacker construction/mechanism will be fully automated to minimise time in operation and to maximise safety. Operation time from raising to the open position/car loading/descent/closure is 3 minutes.

The automatic parking mechanism will be controlled from Amberwood House as well as from the driveway. When the lift is in the raised position, and when in operation, automatic safety barriers will be in place to the lift opening. The below ground maintenance platform will be fully protected from the car bay positions.

The turntable located within the driveway will be recessed into the driveway surface and be fully integrated. The operation of the turntable is separate to the car lift and can be operated from both Thurloe Lodge and Amberwood House.

The automatic entry gate positioned off Thurloe Place allowing for no. 2 parked cars with the driveway clear of the car lift for manoeuvring of vehicles associated with the operation of the car lift.”

“It is understood that the car stacker will be operated from Amberwood House and the driveway. Should external control panels be required for operation, these may require planning permission at a later date. The proposals. When in a closed position, for the majority of the time, there would be minimal visible manifestations of the stacker and the proposals would preserve the character and appearance of the conservation area.”

“Since the publication of the report, the Agent has also contacted Officer's to advise an above ground control panel would be necessary for the turntable. This was noted the objections. This is shown as a small rectangle on drawing number CL01 Rev.B.

As such, revise condition 12 to include:

(b) details of the proposed control panel on the private driveway shown on CL01 RevB.”

Ground 2: Local Plan Policy CL7

“Basement

6.3 The proposed basement would be a single storey in compliance with policy CL7. For the purposes of the assessment of the planning application, the open space of the site is the driveway on which the proposed car stacker would be located. The proposed basement would extend up approximately 44.5% of the open area of the site, in accordance with part (a) of policy CL7. The submitted plans show that only 0.48m of topsoil would be provided above the proposed basement. However, in this context where the car stacker would be located above a private, tarmaced driveway, and given that the replacement landscaping for the driveway would be constructed to incorporate permeable paving and slot drainage channels, this would represent an improvement over the existing situation and the proposals are acceptable. Recommended condition 2 would ensure that the landscaping works are carried out in accordance with the details shown on the landscaping plan. Recommended condition 11 would secure the provision of a suitable pumped device within the basement in order to protect against sewer flooding.

6.4 The application has been submitted alongside an acceptable construction method statement. This document demonstrates that structural stability in the surrounding area would be safeguarded. Condition 4 is recommended to ensure that the works are supervised by a suitably qualified engineer. The application also satisfactorily details how noise, dust and vibration will be adequately controlled throughout the duration of the works.

6.5 A draft Construction Traffic Management Plan (CTMP) has been submitted with the application. The principle of the draft CTMP is acceptable; however, some amendments are required to the final CTMP. The document refers to deliveries and vehicle movements being carried out in accordance with the CTMP approved for planning permission ref. PP/13/01526. As this is a separate application, the final CTMP should explicitly state how construction traffic and deliveries will be managed for this proposal. Furthermore, further details of consultation and co-ordination with surrounding developments, including the adjoining Thurloe Lodge are required, as is greater clarity, avoiding words such as ‘on occasion’ to ensure that the document is enforceable. Subject to these amendments, the development can be constructed without causing an unacceptable impact on the highway. Condition 3 is recommended to secure an acceptable final CTMP prior to commencement of the development.”

“At a maximum depth of 3.85m, the basement would constitute a single storey only. It is noted that 1m of topsoil is not provided; however, the driveway would be constructed to incorporate permeable paving and slot drainage channels and would represent a significant improvement over the existing situation.”

(1)   RBKC was wrong to consider that the basements policy CL7, on its true construction, applied to this type of development which was at least partly above ground;

(2)   It was not possible for the Court to say, in accordance with s. 31(2A)-(2C) that it was highly likely that the decision would have been the same even had RBKC agreed that CL7 was not applicable since the matrix of policies and considerations applicable would require the exercise of planning judgment afresh.

“22.3.46 This policy applies to all new basement development. For the purposes of this policy, basement development is the construction or extension of one or more storeys of accommodation below the prevailing ground level of a site or property.

22.3.47 Basements are a useful way to add extra accommodation to homes and commercial buildings. While roof extensions and rear extensions add visibly to the amount of built development, basements can be built with much less long term visual impact - provided appropriate requirements are followed. This policy sets out these requirements.

22.3.48 Basement development in recent years has been the subject of concern from residents. Basements have given rise to issues about noise and disturbance during construction, the management of traffic, plant and equipment, and concerns about the structural stability of nearby buildings. These concerns have been heightened by the growth in the number of planning applications for basements in the Royal Borough with 46 planning applications in 2001, increasing to 182 in 2010, 294 in 2012 and 450 in 2013. The vast majority of these are extensions under existing dwellings and gardens within established residential areas.

22.3.49 In the Royal Borough, the construction of new basements has an impact on the quality of life, traffic management and the living conditions of nearby residents and is a material planning consideration. This is because the borough is very densely developed and populated. It has the second highest population density and the highest household density per square km in England and Wales. Tight knit streets of terraced and semidetached houses can have several basement developments under way at any one time. The excavation process can create noise and disturbance and the removal of spoil can involve a large number of vehicle movements.

22.3.50 A basement development next door has an immediacy which can have a serious impact on the quality of life, while the effect of multiple excavations in many streets can be the equivalent of having a permanent inappropriate use in a residential area. There are also concerns over the structural stability of adjacent property, character of rear gardens, sustainable drainage and the impact on carbon emissions. Planning deals with the use of land and it is expedient to deal with these issues proactively and address the long term harm to residents’ living conditions rather than rely only on mitigation. For all these reasons the Council considers that careful control is required over the scale, form and extent of basements.”

“Policy CL7 Basements

The Council will require all basement development to:

a. not exceed a maximum of 50 per cent of each garden or open part of the site. The unaffected garden must be in a single area and where relevant should form a continuous area with other neighbouring gardens. Exceptions may be made on large sites;

b. not comprise more than one storey. Exceptions may be made on large sites;

c. not add further basement floors where there is an extant or implemented planning permission for a basement or one built through the exercise of permitted development rights;

d. not cause loss, damage or long term threat to trees of townscape or amenity value;

e. comply with the tests in national policy as they relate to the assessment of harm to the significance of heritage assets;

f. not involve excavation underneath a listed building (including vaults);

g. not introduce light wells and railings to the front or side of the property where they would seriously harm the character and appearance of the locality, particularly where they are not an established and positive feature of the local streetscape;

h. maintain and take opportunities to improve the character or appearance of the building, garden or wider area, with external elements such as light wells, roof lights, plant and means of escape being sensitively designed and discreetly sited; in the case of light wells and roof lights, also limit the impact of light pollution;

i. include a sustainable drainage system (SuDS), to be retained thereafter;

j. include a minimum of one metre of soil above any part of the basement beneath a garden;

k. ensure that traffic and construction activity do not cause unacceptable harm to pedestrian, cycle, vehicular and road safety; adversely affect bus or other transport operations (e.g. cycle hire), significantly increase traffic congestion, nor place unreasonable inconvenience on the day to day life of those living, working and visiting nearby;

l. ensure that construction impacts such as noise, vibration and dust are kept to acceptable levels for the duration of the works;

m. be designed to safeguard the structural stability of the existing building, nearby buildings and other infrastructure including London Underground tunnels and the highway;

n. be protected from sewer flooding through the installation of a suitable pumped device.

A specific policy requirement for basements is also contained in policy CE2, Flooding.”

(1)   A basement should be considered as something that formed part of a building (see e.g. CL7(h) and (m);

(2)   CL7 applied a criterion by reference to 50% of a “garden or open part of the site” which necessarily assumes some form of building of which the basement will form part;

(3)   The application site was not underneath a property, or a garden or an open part of the site because it was neither private nor to the front, rear or side “of the property”.

“2 The lowest or fundamental part of a structure; an underlying layer.”

“22.3.50 A basement development next door has an immediacy which can have a serious impact on the quality of life, while the effect of multiple excavations in many streets can be the equivalent of having a permanent inappropriate use in a residential area. There are also concerns over the structural stability of adjacent property, character of rear gardens, sustainable drainage and the impact on carbon emissions. Planning deals with the use of land and it is expedient to deal with these issues proactively and address the long term harm to residents’ living conditions rather than rely only on mitigation. For all these reasons the Council considers that careful control is required over the scale, form and extent of basements.”

“framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse…”

Ground 3: noise assessment

“8.3. The Hann Tucker review of the KP Acoustics Report states “We have some concerns regarding the findings of the KP Acoustics assessment and consider their conclusions are not accurate”. They go on to list that the survey was undertaken on a weekday (when noise levels are likely to be lower) that façade retention and tonality/ impulsivity correction have not been taken into account, their assessment is based on turntable operation only when the car-lift is down (meaning their calculation is based on the motor being attenuated by the car-lift roof) and that no noise information is available from the manufacturer. The application therefore does not allow adequate assessment of the impact of noise and should be rejected on that basis.

8.4. The Hann Tucker Noise Impact Assessment Report states that operation of the car-lift will exceed local authority requirements by 18dBA during daytime and 23dBA during night time and BS8233:2014 by 12dBA and 17dBA.28 Therefore every time a car enters or leaves the garage a nuisance will be caused to the occupants of Thurloe Lodge, especially during the night, and therefore the proposals should be rejected on that basis.

8.5. Pursuant to 8.4, the simultaneous operation of the turntable and car-lift will cause an increased noise level and therefore nuisance to the occupants of Thurloe Lodge…”

“10.1.8. The Noise Impact Assessment is inadequate and gives a misleading impression of the impact on neighbouring residents.”

“Harm to residential amenity: The stacker would open right in front of no17A Thurloe Place - which is currently being rebuilt as a private home of the highest design quality following several years of very careful negotiation with the Council. The stacker would extend nearly 3 metres above ground, well in excess of the top of the ground floor of no.17A. It would impede access to the house and prevent anyone from reversing out of the garage.  The noise from the stacker would breach the Council’s own guidelines: see the expert report prepared by Hann Tucker Associates, which has been entirely ignored in the Officer’s Report.”­­

“The applicant’s own noise report gives a misleading impression of the impact, being undertaken during noisy working hours on a construction site whereas the stacker will operate at all times, including late at night and the weekend.”

“4. The next critical issue is the loss of amenity contrary to policy CL5 which requires that reasonable enjoyment of building will not harmed due to disturbance etc. To say the car lift will create little visual and audio impact when not in use ignores the dramatic impact on Thurloe Lodge when it is raised. Please remember that there will be no limit to the number of times a day that the car lift can be in operation and each time that the mechanism takes three minutes to raise and lower the lift. So immediately in front of Thurloe Lodge a structure more than the length of a car and wider than a car will rise up to 3 metres like a submerged submarine rising from the sea. If the visual impact is not enough Hann Tucker’s noise report concludes that the noise from the stacker will breach Concerns about access.”

“8. It has not been demonstrated the car lift could operate without causing harm to the living conditions of neighbouring occupiers.

The noise impact report satisfactorily demonstrates that the noise generated by the equipment would be line with the Council’s standards and guidance in the Noise SPD. Conditions 9 and 10 are recommended to secure compliance.”

“9. Anti-vibration mounts for air-conditioning/ extraction equipment

The car lift plant and shall not operate unless it is supported on adequate proprietary anti-vibration mounts to prevent the structural transmission of vibration and regenerated noise within adjacent or adjoining premises, and these shall be so maintained thereafter.

Reason - To prevent any significant disturbance to residents of nearby properties and comply with development plan policies, in particular policy CL5 of the Consolidated Local Plan.

10. Noise from building services plant and vents

Noise emitted by all building services plant and vents associated with the car lift shall not exceed a level 10dBA below the existing lowest LA90(10min) background noise level at any time when the plant is operating, and where the source is tonal it shall not exceed a level 15dBA below. The noise emitted shall be measured or predicted at 1.0m from the facade of the nearest residential premises or at 1.2m above any adjacent residential garden, terrace, balcony or patio. The plant shall be serviced regularly in accordance with the manufacturer's instructions and as necessary to ensure that the requirements of the condition are maintained. If at any time the plant is determined by the local planning authority to be failing to comply with this condition, it shall be switched off upon written instruction from the local planning authority and not used again until it is able to comply.

Reason - To prevent any significant disturbance to residents of nearby properties and comply with development plan policies, in particular policy CL5 of the Consolidated Local Plan.”

“The noise from the stacker would breach the Council’s own guidelines: see the expert report prepared by Hann Tucker Associates, which has been entirely ignored in the Officer’s Report.”

“55. I regard every stage in that argument as fundamentally misconceived. I do not read the judgment in the NHS case as going anywhere near supporting the proposition that there is an obligation on a planning officer to specifically engage with the opinions of a consultant instructed by the applicant (or, for that matter, by an objector to or supporter of the application). Subject to rationality, and any mandatory legislative requirements, he is free to take those opinions into account or to disregard them; he can make a value judgment about the relevance and usefulness of the contents of the expert report. If he does take them into account, he can choose what he accepts and what he rejects and how much weight to place on them. 

56. He does not have to give reasons in his report for disagreeing with an assessment made by an expert who has expressed an opinion on a matter within his expertise, let alone where (as here) the expert has expressed a view on a matter which the decision maker has to determine, applying planning judgment. There is no such obligation, even on the decision maker, who is not the planning officer. Even in a situation in which, unlike the present case, the decision maker is under a duty to give reasons for his decision, he does not have to give reasons for those reasons.”

“57. In any event, "harm" to a landscape setting is not something that can be assessed by objective criteria using some recognised technique. The applicant's consultant was able to explain how the vistas from the north over the fields towards the Church tower contributed to its significance, and how the development might affect those vistas and vistas from further afield. Armed with that information, (if the planning officer accepted it), the assessment of "harm" was largely a matter of aesthetic impression on which two people familiar with the vistas described could reasonably differ.

58. The planning officer was in just as good a position as a consultant on listed buildings to form a view about whether the slight impact on a long-distance view of the Church tower, from the angle and positions to the north-east described in the HIA, (or indeed from anywhere else) failed to preserve the special qualities of the setting of the Church. Ultimately that was a matter of planning judgment, not a matter of expert opinion. He was entitled to use his common sense and local knowledge and to refuse to accept the consultant's suggestion that the identified restriction "could be" of a nature which harmed the Church's wider setting and therefore to be given "great weight".”

“61. As a variant on the "reasons" argument it was submitted that the Committee was materially misled because its members were not told that the consultant had expressed the opinion that there was some harm to the wider setting of the Church, albeit of a very limited nature. I reject the submission that the planning officer was under any obligation to tell the Committee anything about the views of the applicant's heritage consultant. Subject to fairly reflecting the views of the statutory consultee, Historic England, which he did, it was up to the planning officer to decide what other information should go in the report and how much detail to include. There is and can be no challenge to the rationality of that exercise of judgment.”

(1)   The overall resolution of concerns about amenity was the application of a noise condition which was not said to be either incapable of enforcement or which set levels inappropriate to protect residential amenity, the core concern of the representations;

(2)   It must have been clear to members that an issue had been raised with regard to noise from the stacker given not only the OR but also the representations from the Cs and I am satisfied they would have those issues well in mind when considering the application;

(3)   On the facts of this case, whilst the technical noise differences between the Cs and the IP’s consultants are not ones on which a planning officer could reach a conclusion without assistance, members were told by the Cs through Urban Infill that their noise assessment had not been mentioned by the OR. They were therefore aware there was a disputed assessment. However, the OR was able to recommend the imposition of a condition which would deal with the Cs’ concerns regarding impact on residential amenity and noise nuisance;

(4)   Regardless of whether the OR ought to have flagged up the disputed assessment, which in any event was drawn to members’ attention by Urban Infill, the issue was one which officers considered could be resolved by the condition and it is not suggested that the imposition of such a condition was incapable of compliance or irrational.

Ground 4: neighbouring amenity

(1)   the visual impact of the car lift -

(a)    rising/moving to its maximum height of c 2.5 m immediately in front of Thurloe Lodge;

(b)   when open at its maximum height above ground given that there is no limit on the number of times which the car lift can be used in a day;

(2)   The interruption to access to the Cs’ properties since the Road has shared use and is the only road access to Cs’ properties. The construction and operation of the development will also have a significant impact on Cs’ amenity because of the interruption to access during the lengthy construction process and during its operation and use.

(3)   the impact of the operation of the car lift and turntable (which may be remotely operated from Amberwood House) on the safety of users of the Road;

(4)   the impact on works to buried services and utilities located in the footprint of the development both generally and in terms of heritage designations. Although the issue was raised by the Cs, RBKC fail to consider whether the identified services needed to be moved and, if so, to where they might be moved, together with the impact of such works on the Cs’ residential amenity or on heritage assets.

(1)   The Council took of account of the visual impact of the car lift both moving and when open. These impacts were obvious and it is absurd to suggest that they were not considered. The application drawings demonstrated the car lift in its open position,  provided sufficient information as to the visual relationship between the proposed development and the surrounding buildings and the operation of the car lift for RBKC to assess and reach a judgment on these aspects of the proposal. Moreover, the Cs’ own representative highlighted the issue in his oral submissions to the Committee as had the Urban Infill Committee Note;

(2)   With regard to the possible disruption to other road users and impact on safety of, during construction and operation, this matter was addressed by para. 5.4 of the Design and Access Statement and this was considered in the OR (Section 8 items 22 and 25). The Cs’ submissions amount to a contention that the OR should have provided more detailed reasons, but such additions were not required. The OR contained the following in Section 8 -

(a)    At item 22 it rejected the Cs’ objection in relation to pedestrian safety and the safety of those with mobility issues -

“22. [objection] The proposal would restrict pedestrian access along the laneway, as well as restricting persons with mobility issues.

[response] This is a private driveway and the car lift can operate without causing access restrictions. The tacker construction/mechanism would be fully automated with an operation time from raising to the open position/car loading/descent/closure of 3 minutes. It will be closed at other times.”

(b)   At item 25, it rejected the Cs’ objection regarding potential conflicts for vehicles -

“The location of the turntable would not impede access to the garage of Thurloe Place. Whilst the car lift could potentially give rise to conflict within the driveway, this would be for a limited time only, this is a private driveway and the proposed installation of the turntable would not result in any undue impact upon the function of the highway.”

(3)   Utilities were expressly considered in the report (Section 8 item 19) and it was not necessary for them to be further addressed as part of the decision. To the extent that existing below ground utilities will need to be relocated, they will be relocated adjacent to the enclosure of the car/lift without any above ground impacts (DAS para. 5.3) and the impacts of construction on residential amenity and heritage assets will otherwise be adequately controlled by the Construction and Traffic Management Plan and Site Construction Management Plan as required by Conditions 3 and 6 and which would need to be approved by RBKC.

(1)   The potential for disruption is to be managed and mitigated in the usual way through the Construction Traffic Management Plan secured by Condition 3. Thurloe Lodge is itself a construction site at present, being accessed via the Road and the Cs’ complaint about construction disruption is misconceived;

(2)   There was sufficient information before members to enable them to conclude that the proposed development would operate safely including para. 5.4 of the DAS which explained that the automatic parking mechanism is controlled from Amberwood House as well as from the Road and when the lift is in the raised position, and when in operation, automatic safety barriers will be in place to the lift opening. The automatic entry gate (which serves only two other dwellings) will be positioned off Thurloe Place allowing for two parked cars within the Road clear of the car lift for manoeuvring of vehicles associated with the operation of the car lift. The safe movement of persons and vehicles within this space is governed by the users themselves as would be the case anywhere where different users have access to a shared drive space. The pedestrianised footpath would be unaffected by the operation of the car stacker and turntable.

Ground 5: heritage assessment

(1)   There is no identification and assessment of the significance of heritage assets that may be affected contrary to the advice in para. 190 of the NPPF (2019);

(2)   It failed to take account of the impact (alone and cumulatively with other impacts) of the lift when raised above ground. The limited visual impact of the car lift when underground was not a reason to conclude that the car lift would preserve the settings or any features of special architectural or historic interest of listed buildings or conservation areas when it is raised above ground;

(3)   It failed to identify whether Thurloe Lodge was considered to be a non-designated heritage asset (“NDHA”) within para. 197 of the NPPF or consider the impact of the proposals on the setting or significance of Thurloe Lodge as a NDHA;

“Listed building and conservation area

6.6 The site relates to a shared private road accessed from Thurloe Place which provides access for Thurloe Lodge and Amberwood House. The adjoining properties within Thurloe Square and Thurloe Place were constructed in the 1840’s and form part of the planned townscape within the Alexander Estate. These terraced groups, consisting of London townhouses in the Classical style, are characterised by their ordered composition and formal and balanced appearance. The immediately adjoining piers to the entrance of the private road contribute to this coherent, ordered and balanced character.

6.7 The application site is surrounded by both designated and non-designated heritage assets. The adjoining properties on Thurloe Square and Thurloe Place are Grade II listed, and it is noted that the Grade I listed Victoria and Albert museum lies directly opposite. Whilst Thurloe Lodge and Amberwood House are not listed, they both contribute positively to the character and appearance of the Conservation Area. As the site is surrounded by heritage assets, it is important that any new development is undertaken in a sensitive manner and is visually unobtrusive. Whilst a car lift and turntable is a modern intervention, the proposals are relatively minimal and will have a limited visual impact when the car lift is not in use and will therefore preserve the special architectural and historic interest, character and significance of the listed buildings and the character and appearance of the conservation area.

6.8 Concerns were raised as part of the earlier withdrawn applications (ref. PP/18/08354 and LB/18/08355) with regard to the scope of the assessment which had been carried out with regard to the associated impact of the excavation/construction works on the adjacent listed garden walls to Thurloe Square. A listed wall protection method statement has been submitted as part of the current application which concludes that the effect of the proposed piling method on the existing listed wall will be negligible. Detailed drawings and a construction method statement have also been submitted to support this view. As such, it has been demonstrated that the basement excavation will preserve the special architectural and historic interest of the designated heritage assets and is acceptable in heritage terms.

6.9 As part of the associated landscaping works, condition 12 is recommended to secure further details of the hard landscaping materials to ensure that the materials are appropriate. The private road is a secondary space within the formal planned townscape and the materials, including the bound gravel, should all have a similar colour/tone to ensure a balanced, pared back and relatively unassuming appearance.

6.10 With regards to the proposed gates, the private road was created in the 1840s and it is unlikely that any gates enclosed the northern end of this space at that time. However, the historic maps provided as part of the heritage statement indicate that gates did exist in 1872, but were removed by 1895. As late as the 1952 OS map, there are still no gates shown. As such, whilst the existing gates are attractive and idiosyncratic, it has been demonstrated that they are not original. As such, there replacement is acceptable. The proposal seeks to replicate the existing design and would preserve the special architectural and historic interest, character and significance of the listed buildings and the character and appearance of the conservation area.”

“Heritage harm: The Officer’s Report says that the car-stacker won’t harm the Conservation Area or the neighbouring listed buildings (including the V&A) “when the car lift is not in use” - see paragraph 6.7 of the Officer’s Report. But what about when it is? It is absolutely obvious that the scheme would be harmful when it is open. Quite apart from the stacker itself, there would be guard rails and associated infrastructure, none of which is detailed in the application (though their pre-application shows things such as control boxes and intercoms). And remember of course that there is no way to control how often the stacker is used or how long it would be left open for when it is.”

“The application site is surrounded by both designated and non-designated heritage assets …. Whilst Thurloe Lodge and Amberwood House are not listed, they both contribute positively to the character and appearance of the Conservation Area. As the site is surrounded by heritage assets, it is important that any new development is undertaken in a sensitive manner and is visually unobtrusive...”

Ground 6: parking spaces

“Parking and highway safety

6.11 The existing private driveway does not appear to have any allocated spaces, but is sufficient in length to accommodate a number of parked vehicles. The applicant states that four existing off street parking spaces could be provided and whilst it is likely that more could be accommodated, they would unlikely be independently accessible. The proposal would involve the addition of two new underground spaces at the southern end of the driveway which would be accessed by the new car lift and a turntable. This would involve the loss of an equivalent level of parking capacity at ground floor level. The applicant, should they wish to do so, could continue to make use of remaining driveway for parking as they currently can and there would not be any material increase in off-street parking capacity. Whilst the level of off street parking spaces available would exceed the maximum standards for off-street parking as set out in the Transport and Streets SPD, this is already the case, and there would not be any material increase in off-street parking or increase in traffic congestion as result. In this context, it would not be necessary to attach a condition limiting the number of cars that could be parked on the driveway.

6.12 The introduction of a vehicle turntable will allow vehicles to manoeuvre in and out of the driveway in forward gear, which is not currently possible. The turntable would provide sufficient clearance to accommodate a 5m long vehicle and this improvement in manoeuvrability of vehicles on the driveway would likely lead to less disruption to the Transport for London Road Network (TLRN) and as such the proposals are acceptable. Recommended condition 7 would secure the installation of the turntable, prior to the use of the car stacker.

6.13 The private road is accessed via a crossover directly from Thurloe Place, which forms part of the TLRN. The application seeks to restore the gates which are located at the front boundary of the property, directly onto the public highway on Thurloe Place. Subject to recommended condition 8 to ensure that the gates are automatic inward opening gates, there would be no material harm on highway safety.

6.14 An objection has been received from Transport for London (TfL) relating to an increase in parking and potential for disruption during construction works. However, there is an existing vehicle access point in this location and the proposals would not materially alter how this is used. Furthermore, there would be no material increase in off-street parking capacity. With regards to the CTMP, it is noted that the site is accessed directly from the TLRN and as such, the applicant would need to get agreement form TfL prior to carrying out the works. As such, this does not preclude the determination of the current application. The final CTMP, secured by recommended condition 3 should address the comments raised by both the Council and TfL and show that TfL is in agreement prior to the approval of the final CTMP.”

“Car Parking

The applicant has stated that the driveway currently provides space for three cars, with a further space provided within a garage belonging to Thurloe Lodge. A site visit confirmed that this garage has been demolished however the developer's intentions as part of the wider extant planning permission are to reinstate this area as a garage. The driveway measures c.4.5m wide with more space available on the pathway. Car parking provision is judged on the number of spaces that are independently accessible and it is considered likely that the driveway could have accommodated the stated number of vehicles. The swept path drawings submitted within the Transport Note show that vehicles could park alongside each other or on the pathway without blocking access to other vehicles on the driveway.

The current provision of four car parking spaces exceeds the maximum car parking standards as detailed in the Transport and Streets SPD however the proposal would not result in an increase in off-street spaces and it is not considered that there would be any material increase in vehicular traffic as a result. No conflict with CT1(b).”

S. 31(2A) to (2C) of the Senior Courts Act 1981

Conclusion

Costs

(1)   Cs seek their costs necessitated in responding to the IP’s evidence which I have held I would not take into account in considering the exercise of the powers in s. 31(2A) to (2C) of the Senior Courts Act 1981. Although the costs submissions take the matter at length, in essence the complaint is that Cs have had to respond to significant evidence which has been ruled to be inadmissible;

(2)   Similarly the Cs submit that they should not pay RBKC’s costs occasioned by the production of evidence which relates to ex post facto evidence and/or a commentary on the robustness of D’s decision; and

(3)   RBKC also seeks a proportion of its costs from the IP to the extent that they cannot be recovered from the Cs.

(1)   I should bear in mind my criticism of the Cs’ grounds in my judgment and that on the submission of Tom Hawkley’s witness statement, Cs withdrew their Ground 1 allegation relating to the height of the stacker;

(2)   The IP accepts that the Court found that RBKC and the IP’s evidence “went too far in assuming the court’s willingness and ability to adjudicate on what are matters of planning and related expert judgments” (at 25]) was not unreasonable such that it should attract a costs sanction. It was directed at a legitimate submission on discretion (which actually succeeded on other grounds not requiring reference to the witness statements). Moreover, the witness statements did contain significant factual content (e.g. in relation to the demolition of most of Thurloe Lodge –a matter Cs agreed during the hearing as reflected at [106]);

(3)   Cs’ 5 witness statements and Reply were an unnecessary and excessive response to the IP’s evidence;

(4)   Cs misunderstand the statutory question to which RBKC and THE IP’s evidence was directed. Under s.31(2A)-(2C) SCA 1981, the issue is whether it would have been “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. To respond to such a submission, and beyond making short submissions on admissibility, it is not necessary for a claimant to file substantial evidence seeking to show that its planning arguments are correct. A claimant instead has to show that it is not highly likely that the claimant’s arguments are wrong. Cs’ extensive evidence in response went well beyond rebutting reliance on s.31(2A)-(2C) and amounted to a full blown attempt to argue the planning merits and was symptomatic of the way in which it has pursued this claim;

Disposition