Case Reference: 3264195

Appeal Decision
Inquiry held on 20 and 21 April 2021
Site visits made on 8 April and on 26 April 2021
by Peter Rose BA MRTPI DMS MCMI
an Inspector appointed by the Secretary of State
Decision date: 16 August 2021
Appeal Ref: APP/A5270/W/20/3264195
92-100 Warwick Road, Ealing W5 5PT
• The appeal is made under section 78 of the Town and Country Planning Act 1990
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 Ealing.
• The application Ref: 172559FUL, is dated 28 April 2017.
• The development proposed is described as ‘demolition of existing buildings and
redevelopment to provide a mixed-use development extending to 5 storeys in part
comprising 20 residential apartments and 5 mews houses (Class C3); 95 sqm of
commercial floorspace (flexible Class A1, A2, D1 or B1 use), together with associated
landscaping, cycle and refuse storage, parking and new access arrangements from
Warwick Road’.
Decision
1. The appeal is allowed and planning permission is granted for demolition of
existing buildings and redevelopment to provide a mixed-use development
extending to 5 storeys in part, comprising of 20 residential units and 5 mews
houses (Class C3); 95 square metres of flexible commercial floorspace (Classes
E(f) or F.1), with associated landscaping, cycle and refuse storage, parking and
new access arrangements from Warwick Road, at 92-100 Warwick Road, Ealing
W5 5PT in accordance with the terms of the application Ref: 172559FUL, dated
28 April 2017, and subject to the conditions set out in the attached Schedule.
Applications for costs
2. Applications for costs have been submitted by both main parties. These
applications are the subject of separate Decisions.
Preliminary matters
Description of development
3. The application form refers to Use Class A1, A2, D1 and B1 and the submission
was publicised on those terms. In September 2020, changes were made to the
Use Classes Order1 and relevant aspects arise in relation to new Classes E and
F. The parties have agreed a partly amended description to the effect of:
‘95 square metres of flexible commercial floorspace (Classes E(f) or F.1)’. This
represents a reduction in the range of commercial and other uses previously
1 Town and Country Planning (Use Classes) Order 1987 (as amended)
identified and I am satisfied the revision falls within the terms of the original
description as publicised and that no prejudice arises. I consider the proposal
on those terms.
National Planning Policy Framework (the Framework)
4. On 20 July 2021, the Government published post-Inquiry its revised
Framework. This represents the Government’s up-to-date planning policies for
England and sets out how they should be applied. The revised Framework is a
material consideration in this appeal and the views of the main parties
regarding possible implications for this proposal have been sought.
Background
5. Following receipt of the appeal, the Council indicated objections based upon
two matters. The first concerned questions of financial viability and the
implications arising for provision of affordable housing. The second involved
‘loss of social infrastructure’.
6. Following further discussions between the parties, the opening of the Inquiry
was advised by the Council that the second concern had been resolved through
a proposed restriction upon the non-residential floorspace so as to safeguard
community use. A compromise had also been achieved in relation to the first
objection and which involved payment of a fixed commuted sum and
commitments to early and late-stage reviews.
7. In accordance with agreed arrangements, contact continued after the Inquiry
between the appellant and the Council in response to issues around the draft
terms of the proposed undertaking as they related to legal arrangements for
management of parking permits, and regarding details of the review
mechanisms for affordable housing.
8. The appeal is now supported by a completed unilateral undertaking (the
undertaking) from the appellant dated 20 May 2021 and made pursuant to
section 106 of the Act and other legislation. The Council supports the
undertaking except in relation to detailed aspects of the review mechanisms for
contributions to affordable housing and, post-Inquiry, opposes the
development on that basis.
Main issues
9. Notwithstanding agreement reached between the Council and appellant on all
matters except the review mechanisms for contributions to affordable housing,
significant other objections were received from local interested parties.
10. The issues in this appeal remain:
• whether or not the proposal would make appropriate provision for
affordable housing;
• the implications of the scheme for local traffic and parking;
• the effect of the development upon the character and appearance of
the appeal site and its surroundings, and with particular regard to its
design and scale;
• whether or not the scheme would preserve or enhance the character
or appearance of the Ealing Green Conservation Area;
• the effect of the scheme upon the living conditions of adjoining
occupiers and with particular regard to light, outlook and privacy.
Reasons
Affordable housing
11. The main parties accept that the viability of the scheme is incapable of
delivering a full on-site provision of affordable housing as otherwise required by
the development plan.
12. To ensure delivery of the proposal, it is further agreed that, in principle, the
scheme could provide the maximum viable contribution to affordable housing
through arrangements involving early and late-stage review mechanisms in
accordance with Policies H4 and Policy H5 of The London Plan2, and as set out
in its accompanying Viability SPG.3
13. Policy 1.2 of the Council’s Core Strategy4 indicates to similar effect that
contributions from private residential and mixed use schemes will be
negotiated on the basis of seeking the maximum reasonable amount of
affordable housing, taking account of the specific circumstances of the site and
including financial viability.
14. The broad terms of the review mechanisms were presented to the Inquiry as
agreed, and components were set out within the ‘Compromised Area of
Common Ground Affordable Housing Financial Viability’ (Table 3.0).5 The
intended accompanying undertaking was not completed at the closure of the
Inquiry and the appellant has presented further details and evidence
subsequent to Table 3.0 around those terms and to which the Council has
raised a number of specific concerns. These include the need to achieve a
surplus prior to any further contribution, a wider definition of ‘build costs’,
possible delay to the early-stage review, and accompanying implications for the
scale of any subsequent contribution arising from a surplus value.
15. The appellant has indicated how funders are generally relaxed about review
mechanisms, but only if they allow schemes to generate a full level of normal
profit before any additional payments become due. I appreciate the potential
risk to the scheme of an additional affordable housing contribution becoming
due in circumstances where the scheme might otherwise remain in deficit, and
the possible adverse impact this requirement could have upon the scheme’s
ability to secure funding. Implications would therefore arise for the
deliverability of the proposal.
16. Further, evidence has been provided of how the Greater London Authority also
recognises shortcomings in this aspect of its own review formulae and how
they can be, and have been, amended to address schemes which are in deficit.
17. The Viability SPG further states that applicants should demonstrate that their
proposal is deliverable and that their approach to viability is realistic. As such,
2 The Spatial Development Strategy for Greater London March 2021
3 Affordable Housing and Viability Supplementary Planning Guidance 2017
4 Development Strategy 2026 Development Plan Document Adopted 3 April 2012
5 See Statement of Common Ground signed and dated 16 April 2021
appraisals would normally be expected to indicate that the scheme does not
generate a deficit, and that the target profit and benchmark land value can be
achieved with the level of planning obligations provided. In relation to review
mechanisms, it states that if a scheme provides a higher proportion of
affordable housing to that which has been demonstrated to be viable at
application stage, it may be necessary to specify that a deficit is overcome
before any surplus value is used towards the provision of additional affordable
housing.6
18. The Viability SPG indicates that ‘build costs’ has a range of components and is
not just confined to base build (construction) costs.7 Similarly, the Planning
Practice Guidance (the Guidance) advises that, for the purposes of viability,
costs should cover a range of items and inclusive of professional fees. It further
confirms how costs should include the total cost of all relevant policy
requirements including contributions towards affordable housing and
infrastructure.8 I also note that the appellant’s previous viability evidence has
similarly identified construction costs as only one element of total costs.
Importantly, the undertaking also defines build costs on broadly consistent
terms throughout the review stages.
19. I do not have any particular unease regarding adjustments to the wording of
the substantial implementation target date, and nor accommodation for
matters outside the developer’s control. The Viability SPG underlines the
importance of delivery by explaining how the early review should occur where
an agreed level of progress has not been reached after a period of two years of
the permission being granted, or on such terms as otherwise agreed.9
20. More generally, the accompanying narrative to Policy H4 offers important
context to the detailed matters of dispute, and explains how the London Plan’s
threshold approach provides the opportunity to move away from protracted
viability debates. It seeks to create certainty in terms of affordable housing
requirements, and offer a clear incentive for developers to increase affordable
housing delivered through the planning system above the level in planning
permissions granted in recent years.10 The Guidance further advises that
viability assessment should not compromise sustainable development but
should be used to ensure that policies are realistic, and that the total
cumulative cost of all relevant policies will not undermine deliverability.11
21. Notwithstanding the Council’s concerns and the agreed absence of any surplus
at application stage, Schedule 1 to the completed undertaking still includes the
appellant’s proposed ‘goodwill’ affordable housing commuted sum contribution
of £100,000.12 This would be paid to the Council upon occupation of 75% of the
open market units and has been offered in an attempt to secure some degree
of certainty for the developer. Schedule 2 includes clear arrangements for the
early and late-stage reviews. The former, amongst other things, would serve to
incentivise delivery, and the latter would capture any subsequent surplus profit
for the benefit of affordable housing. Significantly, the appellant’s evidence
6 Footnote 29
7 Paragraph 3.51
8 Paragraph: 012 Reference ID: 10-012-20180724
9 Paragraph 3.56
10 Paragraph 4.4.2
11 Paragraph: 002 Reference ID: 10-002-20190509
12 Agreed to be reduced by the authority in its compromise position from some £400,000
post-Inquiry includes support from a second specialist viability consultant and
draws upon further discussion with the Greater London Authority.
22. I consider the overall terms of the completed undertaking in relation to
affordable housing to be appropriate in the circumstances and that, taken in
the round, the scheme is likely to deliver the maximum reasonable amount of
affordable housing in that context. In particular, a deficit-generating scheme
would provide a significant voluntary commuted payment and would offer some
prospect of further contributions through the review mechanisms proposed and
in a manner not jeopardising overall delivery. The need to ensure delivery was
also a matter particularly underlined by the authority at the Inquiry.
23. I therefore conclude that the proposal would make appropriate provision for
affordable housing. It would thereby generally accord with Policies H1, H2, H4,
H5, H10, and GG4 of The London Plan, with Policy 1.2 of the Core Strategy,
and with Policy 3A of the Council’s DPD13. These policies, amongst other things,
generally seek to ensure provision of the maximum reasonable amount of
affordable housing but in the context of each scheme. The proposal would also
accord with the government’s Framework commitment to address the needs of
people who require affordable housing.
Traffic and parking
24. The appeal site is located within the Thames Valley University Controlled
Parking Zone (CPZ), and this designation serves to both limit and regulate
parking of vehicles in streets around the appeal site.
25. The scheme would deliver seven off-street car parking spaces, two of which
would be wheelchair accessible, five would be associated with the mew houses,
and all would benefit from access to an electric vehicle charging point. This
provision would generally accord with the standards set out in Policy T6.1 and
Table 10.3 of the London Plan and Policy 6.13 of the DPD.
26. Additionally, the undertaking contains provision to limit further demands upon
existing parking capacity within the CPZ by way of restrictions to ensure a low
car development. In particular, except for any Blue Badge Holders, future
occupiers would not be eligible for CPZ parking permits from the Council.
27. The site enjoys very good public transport connections and is well placed to
support, and to be served by, a range of local services and other facilities.
These features would all help to reduce car-dependency.
28. I therefore conclude that the proposal would not cause harm for local traffic
and parking. It would thereby accord with Policies T4, T6 and T6.1 and the
accompanying Table 10.3 of the London Plan and with Policy 6.13 of the DMD.
These policies require, amongst other things, that development mitigates
transport impacts, that car parking should be restricted in line with levels of
existing and future public transport accessibility and connectivity, and that
car-free development should be the starting point for all development
proposals in places that are well-connected by public transport. It would also
accord with the Framework which requires development to promote sustainable
transport and for significant development to be focused on locations which are
or can be made sustainable, through limiting the need to travel and offering a
genuine choice of transport modes.
13 Development Management Development Plan Document Adopted 10 December 2013
Design and scale
29. The immediate Warwick Road streetscape has very contrasting components. It
reflects an historic suburban character to the east of the appeal site, located
outside the Ealing Green Conservation Area (the Conservation Area), but
larger-scale contemporary development immediately to the north and west and
which fall within the Conservation Area.
30. The university campus opposite, by virtue of its scale and modern design,
dominates and encloses the street frontage on the facing side of Warwick Road.
The imposing adjacent form of The Curve, a large residential block of flats also
of contemporary design, and including other ground floor uses fronting
St Mary’s Road, is similarly prominent on the southern side of the street.
31. To the east, the character and appearance of the streetscape is of a late
Victorian and Edwardian London suburb, and the architecture is of a far more
traditional domestic scale and form. This includes two terraces of two-storey
cottages at Warwick Place immediately adjacent to, and running parallel to, the
appeal site.
32. The development would face the campus and sit between the considerable bulk
and scale of The Curve, and the more modest presence of the cottages. In
response to this varied and challenging context, the scheme proposes a
gradual stepping down in height eastwards towards the cottages, thereby
reducing any harsh transition between The Curve and Warwick Place.
33. The scale and design of Block A would relate much more closely to the adjacent
development of The Curve and to the campus opposite. A connecting
three-storey element (Block B) of contrasting design would provide an effective
visual transition in scale and design down towards Warwick Place where the
scheme would provide a two-storey form echoing in design the adjacent
cottages.
34. The mews houses to the rear would be relatively enclosed. They would read as
relatively modest buildings with two storeys and mansard roofs broadly
respecting the scale of adjacent buildings in Warwick Place and St Mary’s Road.
35. Whilst presenting an unbroken frontage to Warwick Road, the scheme
comprises three constituent elements of contrasting scale and form. This would
serve to introduce an interesting and distinctive presence to the street-scene
but also variously characteristic of its surroundings.14
36. The density of the scheme is some 185 units per hectare, slightly above an
identified range of 45 to 170 units set out in the relevant Housing SPG.15 Even
so, the Housing SPG explains how, in assessing individual residential proposals,
such ranges should be used as a starting point and guide rather than as an
absolute rule so as to also take proper account of other objectives, including
local character and context. It further confirms that there are circumstances
where densities above the ranges in the matrix may be appropriate subject to
design and other matters.
37. Further, Policy GG2 of the subsequent London Plan sets out the expectation to
create successful sustainable mixed-use places that make the best use of land.
14 This is particularly demonstrated by Proposed CGI Rendering 01
15 Mayor of London’s Housing Supplementary Guidance (2016). See Table 3.2
Amongst other factors, it encourages promoting higher density development,
particularly in locations that are well-connected to jobs, services, infrastructure
and amenities by public transport, walking and cycling, and by applying a
design-led approach to determine the optimum development.
38. The site occupies a sustainable location, the scheme generally follows the
principles of the design-led approach highlighted in Table 3.2 of the London
Plan, and is an appropriate architectural response to the local area taking into
account its constraints and character. The Framework also expects planning
decisions to support development that makes efficient use of land.
39. I therefore conclude that the proposal would not cause harm to the character
or appearance of the appeal site or its surroundings, and with particular regard
to its scale and design. It would thereby accord with Policies D1, D3, D4, D6
and Table 3.2 of the London Plan, and with Policies 7.4 and 7B of the DPD.
These policies require, amongst other things, that development should deliver
high quality design and should optimise site capacity through a design-led
approach. It would also accord with the Framework which requires
development to be sympathetic to local character and history.
Conservation Area
40. The appeal site is located at the eastern boundary of the Conservation Area.
The heritage asset’s boundary clips the south-west corner of the site and so
includes a very small portion of the appeal land. That portion is largely is
enclosed by other sites and so affords little public exposure.
41. The significance of the Conservation Area is as an area of varied architectural
heritage with buildings largely dating from the eighteenth century. Building
types and uses are wide-ranging and illustrate how the area has generally
expanded and flourished as a London suburb.
42. This part of the Conservation Area falls within Sub Area 1 (Ealing Green and
St Mary’s Road) as defined by the asset’s accompanying Appraisal.16 The
Appraisal identifies Sub Area 1 as reflecting a gradual development in which
buildings have been arranged according to an informal layout following the line
of streets or other property boundaries.
43. The setting of this part of the Conservation Area along Warwick Road is
principally shaped by the historic suburban character to the east and by the
larger-scale modern development of The Curve and the campus. This setting is
of significance to the special interest of the Conservation Area insofar as it
affords gateway views of the asset along the road and thereby offers some
appreciation of the asset’s character and appearance relative to development of
the wider surrounding area of which it also forms a part.
44. The existing site content is undistinguished in its form and history. It comprises
a varied collection of ad-hoc structures of dissimilar forms, and incidental open
areas. It displays little aesthetic or functional relationship to The Curve, to the
campus, or to the adjacent cottages. The appeal site itself has little heritage
value and does not contribute coherently or positively to either the
street-scene or to the setting of the adjacent Conservation Area.
16 Ealing Green Conservation Area Appraisal March 2008
45. The development would add relevant architectural interest at an important and
sensitive gateway entrance to the Conservation Area. It would help to frame
key views into and out of the Conservation Area along Warwick Road and, in so
doing, would enhance the setting of the Conservation Area by better reflecting
and highlighting the prevailing local architectural context and the gradual
historic pattern of development.
46. In terms of both setting, and more directly in terms of the small portion of the
site which falls within the Conservation Area itself, I therefore conclude that the
proposal would preserve and enhance the character and appearance of the
Conservation Area. It would thereby accord with Policies D1 and HC1 of the
London Plan, with Core Policy 1.1, and with Policies 7.4 and 7C of the DPD.
These policies require, amongst other things, that the significance of heritage
assets should be understood and be conserved when applying sustainable and
inclusive design principles and measures, and that harm to any heritage asset
should be avoided.
47. These policies are consistent with the Framework which advises how great
weight is to be given to the significance of a designated heritage asset when
considering the impact of a proposed development. It requires proposals that
preserve those elements of a setting that make a positive contribution to the
asset, or which better reveal its significance, to be treated favourably. The
Framework also seeks to ensure that development should establish or maintain
a strong sense of place, and emphasises how heritage assets are an
irreplaceable resource and should be conserved in a manner appropriate to
their significance.
Living conditions
i) The Curve
48. Existing non-residential buildings within the appeal site abut the side flank wall
of The Curve. Those buildings would be cleared and this neighbouring boundary
would contain Block A and mews houses. Block A would not extend beyond the
depth of the existing flank wall to The Curve, and the rear gardens of the mews
houses would adjoin the appeal site boundary further to the south. In principle,
Block A should not generally impede light or outlook to or from The Curve.
Rather, a more open outlook would be achieved by the rear gardens. This
benefit would also apply in relation to the properties in St Mary’s Road.
49. The scheme would, however, involve a wall some one metre from the balcony
to the existing third floor flat in the rear south-east corner of The Curve, and
this would be part of a similar configuration to The Curve. This would have
some implications for existing outlook and lighting, including for east-facing
balcony doors from the existing flat, but the doors would not be unduly
enclosed and would still draw light, and the flat would generally have a more
open outlook to the south. The doors occupy a significant proportion of the
flank wall and already face towards a lower enclosure of the balcony itself.
They also serve as a secondary, non-main window and there would be no
impact upon the flat’s separate primary window which is south-facing. The
Council raises no objection in this regard, and identifies the similar ‘corner-cut’
form of this part of the scheme to that of the adjacent flat. On balance, I find
the implications for the balcony and its associated flat not to be unduly harmful
and that available light and outlook would be appropriate to the context.
50. The scheme is accompanied by a technical assessment of the daylight, sunlight
and overshadowing implications of the development for the relevant windows
of all adjacent properties.17 Whilst confirming some impact upon Vertical Sky
Component and sunlight to the balcony openings of the particular corner flat
identified, it shows how all main neighbouring windows to the development
would still accord with the relevant guidelines, including flats in The Curve. This
evidence has not been significantly challenged and no other technical
submission has been provided to the contrary.
51. Blocks B and C have been designed to ensure that the number of windows or
balconies that would look towards The Curve is minimised. For those which
would face in that direction, privacy screens and obscure glazing would be used
to restrict such views. The only windows or amenity spaces likely to allow a
direct view of windows at first floor and above at the rear of The Curve would
be the gardens of the first and second mews houses and views from the second
mews house itself. The views from the gardens would involve looking up from
below the windows in The Curve, and those from the mews house located some
15 metres to the south-east would be through the rooflights and at an acute
angle. Specific design details to further mitigate and safeguard in this regard
could be subject to a planning condition should the appeal be allowed.
52. Balconies to the front of The Curve are not included within the formal
definitions which accompany the appellant’s technical assessment but, given
their northern outlook and the relative positions and orientations of the
balconies and of Block A and the proposed common building line, I find little
reason the scheme should significantly impede light. I would also envisage little
impact upon overall outlook from the balconies.
53. Privacy screens are suggested by the appellant to avoid any intrusive views
between the two sets of balconies. Whilst I do not find significant harm needing
to be mitigated, I agree such screens as proposed could be beneficial for
residents and appropriate. The appellant’s intention is for these to be glass and
fritted (or etched), thereby allowing sunlight and daylight to penetrate. The
final form, design and fixing of any screens would require further consideration
and such details could be the subject of a planning condition should the appeal
be allowed.
ii) St Mary’s Road
54. To the west are the rear spaces and outbuildings of properties at
Nos 33-43 St Mary’s Road.
55. No 35 has the closest rear elevation to the appeal site boundary. The proposal
would provide a distance between the nearest first floor window of No 35 and
the rear elevation of the proposed mews houses of some 16.75-17 metres. The
scheme proposes oriel windows at first floor level on the three closest mews
houses at the northern end of the terrace and which would include opaque
glass and directional glazing. The first floor rooms within the mews houses
would be bedrooms, and also therefore less likely to be occupied regularly
during daylight hours.
56. The distance between the rooflights of the second and third mew houses and
the rear first floor of No 35 would be at least a further 0.5 metre. Future
17 Daylight and Sunlight Study (Neighbouring Properties) by Right of Light Consulting dated 18 April 2017
residents would be physically unable to look down into the first-floor windows
and rear space of No 35 from within the bedrooms of the mews houses. The
view from these bedrooms would be of the skyline above No 35.
57. The Housing SPG states that, in the past, planning guidance for privacy has
been concerned with achieving visual separation between dwellings by setting a
minimum distance of 18-21 metres between facing homes (between facing
habitable rooms as opposed to between balconies or terraces or between
habitable rooms and balconies/terraces).18 Whilst recognising these can still be
useful yardsticks for visual privacy, it explains how adhering rigidly to these
measures can limit the variety of urban spaces and housing types in the city,
and can sometimes unnecessarily restrict density.
58. The rear space of No 35 is currently the subject of some shadow resulting from
the existing buildings and which would be cleared. The mews houses would
have pitched roofs and would be some six metres further removed from the
common boundary. The shadow that would be cast is likely to be no greater
than by the existing buildings, and the immediate outlook would be more open.
59. The appellant’s technical assessment of daylight and sunlight implications,
whilst identifying some reduction in Vertical Sky Component, finds no breaches
of the guidelines for the main windows of properties in St. Mary’s Road,
including in relation to overshadowing, and no specific technical evidence has
been provided to the contrary.
60. The Council also identifies the existing compact pattern of local development as
a further factor to be considered and I agree the scheme would be
characteristic in that regard, but not harmfully so.
iii) Warwick Place
61. The site is bounded to the east by the rear gardens and outbuildings to the
terrace of cottages at Nos 10-15 Warwick Place. No adverse implications for the
enjoyment of those properties by their occupiers have been identified and I
consider none appear likely to arise.
iv) Other properties
62. Given the distances between the development and other nearby properties,
including Sayers Court to the south, I conclude there would be no adverse
implications for the enjoyment of those properties by their occupiers.
v) General noise and disturbance
63. The development would replace a site currently occupied as a school and
inclusive of a rear play area. The residential use would be generally less
intensive in its activity and less open in its physical form. If allowed, conditions
could be considered to ensure appropriate noise insulation/attenuation.
64. Block A would include sedum roofs to the rear and they would not be used as
amenity space to overlook adjacent properties. Conditions could also be used
to safeguard against any such possible intrusion.
18 Paragraph 2.3.36
vi) Summary
65. Subject to appropriate conditions to mitigate aspects of overlooking and other
detailed implications as identified, I conclude that the proposal would not cause
undue harm to the living conditions of adjoining occupiers and with particular
regard to light, outlook or privacy. It would thereby accord with Policy D6 and
Table 3.2 of the London Plan, and with Policy 7B of the DPD. These policies
require, amongst other things, that new development achieve a high standard
of amenity for users, and that the design of development should provide
sufficient daylight and sunlight to new and surrounding housing that is
appropriate for its context. It would also accord with the Framework which
requires development to create places with a high standard of amenity for
existing and future users.
Other matters
Social infrastructure
66. The site has previous permissions for various forms of community use,
although questions have been raised regarding the lawful status of the existing
occupier. To safeguard a continuing opportunity for community use, the
scheme includes some 95 square metres of floorspace to be restricted for use
as a creche, day-nursery or day-centre or for learning and non-residential
institution purposes. This agreed range of uses has also been reduced to help
safeguard community activities at the expense of other commercial occupiers.
The use would enjoy an accessible ground floor location and with a convenient
frontage to Warwick Road. The extent of floorspace would represent a trade-off
with housing, and would also relate to wider issues of scheme viability.
67. I conclude there would not be harm arising in terms of loss of social
infrastructure. The scheme would thereby accord with Policy S1 of the London
Plan and with Core Policy 6.2. These policies seek, amongst other things, to
develop social infrastructure. It would also accord with the social objective of
the Framework which requires development to support strong, vibrant and
healthy communities and to support communities’ health, social and cultural
well-being.
Other concerns raised by local interested parties
68. A number of other issues have been raised, including implications for schools,
and for ecology. The undertaking includes specific mitigation in relation to local
primary and secondary education. No other concerns previously raised have
been substantiated, none are supported by the authority, and I find no reason
to conclude harm on any of those terms.
Five-year housing land supply (5YHLS)
69. The Council has confirmed it is unable to demonstrate a 5YHLS and has not
produced any up-to-date evidence of the current position. As such, the tilted
balance of paragraph 11d) is thereby engaged by virtue of Footnote 8.
70. The appellant suggested a figure of 2.8 years’ supply19, but this has not been
substantiated in detail and was not tested in evidence at the Inquiry.
19 Mr Kenworthy’s proof at paragraph 4.4
71. The scheme would make a significant contribution to both market and
affordable housing for Ealing consistent with the social objective of the
Framework. It would support the government’s objective of significantly
boosting the supply of homes and help to meet local housing needs.
72. In this context, the scheme’s housing delivery would represent a very
significant benefit.
Unilateral undertaking
73. The undertaking makes various commitments to mitigation, additional to
arrangements for affordable housing, for car-free development, and for
education. These include contributions to health, parks and transport facilities,
and measures relating to air quality, Co2 emissions, energy, and support for a
travel plan.
74. The mitigations are consistent with Policy DF1 of the London Plan and with
Core Policy 6.4. These seek to ensure that development proposals should
provide the infrastructure and meet the other relevant policy requirements
necessary to ensure proposals are sustainable and support delivery of the
development plan.
75. I am satisfied with the form and content of the undertaking as a deed. I find
the undertaking to be compliant with Regulation 122 of the Community
Infrastructure Levy Regulations 2010 (as amended) and to be generally
fit-for-purpose. Accordingly, I take into account the commitments and
accompanying terms as considerations of my decision.
Other factors
76. The site is brownfield land and its development draws support from the
Framework in that regard.
77. The economic benefits of development would include investment in
construction and related employment for its duration, and an increase in
subsequent local household expenditure and demand for services.
78. I disregard any suggestion of financial contributions to the local authority
through Council tax receipts or similar as a possible benefit of the scheme. The
Guidance states that whether or not a local finance consideration is material to
a particular decision will depend on whether it could help to make the
development acceptable in planning terms.20 Further, it advises that it would
not be appropriate to make a decision based on the potential for a
development to raise money for a local authority or other government body.
Overall assessment
i) The development plan as a whole
79. I consider the policies which are most important are those referred to and
variously applied in my assessment of the main issues and other
considerations. Notwithstanding the absence of a 5YHLS, I regard this overall
basket of most important policies to be in substance up-to-date, and have
found no significant conflict or harm in those regards.
20 Paragraph: 011 Reference ID: 21b-011-20140612
80. Of particular overarching relevance are Policy GG2 of the London Plan, and
Policy EA of the DPD. The former seeks to create successful sustainable
mixed-use places that make the best use of land. The latter seeks, when
considering development proposals, to take a positive approach that reflects
the presumption in favour of sustainable development set out in the
Framework. It identifies proactive and joint working with applicants to find
solutions to enable proposals to be approved wherever possible, and to secure
development that improves economic, social and environmental conditions in
the area. I consider the scheme to be compliant with both policies.
81. Set within the wider basket, I conclude the proposal would involve broad
compliance on a range of important matters and would so accord with the
development plan as a whole.
ii) Other considerations
82. The scheme would not give rise to any significant harm which could not be
addressed by either planning conditions or mitigation as set out in the
undertaking.
83. The collective benefits of the development would amount to very significant
weight in favour of the proposal. These would include housing delivery,
environmental improvement and economic benefits as identified. As such, any
possible adverse impacts of granting planning permission would not
significantly and demonstrably outweigh the benefits, when assessed against
the policies in the Framework taken as a whole. The scheme therefore benefits
from the presumption in favour of sustainable development and which is a
further material consideration.
iii) Final planning balance
84. The proposal would accord with the development plan as a whole and other
material considerations do not indicate a decision other than on those terms.
Accordingly, planning permission should be granted, subject to conditions.
Conditions
85. I have considered as a starting point the suggested list of conditions put
forward and agreed by both main parties. I have had regard to the advice set
out in the Guidance and in the Framework, and have reviewed and adjusted
detailed recommendations in terms of the necessity for, and reasonableness of,
individual conditions and aspects thereof, and to ensure clear and enforceable
wording and general consistency.
86. For reasons of certainty, a condition is imposed to ensure the development is
undertaken in accordance with the relevant drawings.
87. To ensure the continued availability of social infrastructure, a condition is
necessary to safeguard use of the 95 square metres of flexible commercial
floorspace for appropriate community-related purposes.
88. To safeguard the character and appearance of the appeal site and its
surroundings, and to preserve and enhance the setting of the Ealing Green
Conservation Area, conditions require details to be submitted of external
materials and of landscaping.
89. To ensure a satisfactory living environment for both occupiers and neighbours,
a condition requires details to be approved of proposed drainage. Conditions
similarly require details of refuse storage, of privacy screens and of
obscure-glazed openings, and of arrangements to mitigate any possible site
contamination. It is also necessary to prevent inappropriate use of roof spaces.
90. To safeguard living conditions for future occupiers, a condition is necessary to
ensure fire safety. Appropriate schemes of sound insulation and ventilation are
required for Blocks A and B. To prevent any noise disturbance, restrictions are
placed upon the external doors of the non-residential floorspace. I do not
consider it necessary or reasonable to require non-opening windows within that
space.
91. To protect the living environment of neighbours during construction, it is
necessary for the works to be undertaken in accordance with a Construction
Method Statement. A separate condition has been suggested to regulate
implications of piling, and a reference is instead included within the terms of
the Construction Management Statement.
92. To ensure the free and safe movement of vehicles and pedestrians at and in
the vicinity of the site, provisions for off-street parking, cycle storage and
servicing are required to be made prior to occupation of dwellings. An updated
travel plan is also required to promote sustainable means of travel, and
arrangements for electric vehicle charging.
93. To contribute to a sustainable development, conditions require arrangements
for regulating Co2 emissions, for preventing overheating of buildings, for
efficient use of water, for energy monitoring, and for ensuring that no adverse
implications for air quality arise from boiler emissions or other fume extraction.
94. To safeguard any hitherto unrevealed heritage interest within the site, a
scheme of archaeological investigation is necessary.
95. To meet local housing needs, a condition requires dwellings to be accessible
and adaptable to the requirements of people with different physical capabilities,
and for a proportion of the dwellings to be designed as accommodation for
wheelchair users.
96. Matters relating to contamination, drainage, archaeology, and the Construction
Method Statement are all to be addressed before development commences.
This is necessary given the importance of those matters and the implications
which could otherwise arise should works proceed in the absence of their
resolution.
Conclusion
97. For the above reasons, I conclude the appeal should be allowed subject to the
conditions identified.
Peter Rose
INSPECTOR
SCHEDULE OF CONDITIONS
Time limit
1. The development hereby permitted shall begin not later than 3 (three) years
from the date of this decision.
Details and drawings
2. The development hereby permitted shall be carried out in accordance with
the following approved plans:
2842/PL 000; 2842/PL 101 Rev. B; 2842/PL 102 Rev. A;
2842/PL 103 Rev. A; 2842/PL 105 Rev. C; 2842/PL 109;
2842/PL 110 Rev. A; 2842/PL 111 Rev. C; 2842/PL 112 Rev. B;
2842/PL 113 Rev. C; 2842/PL 114 Rev. C; 2842/PL 115 Rev. C;
2842/PL 116; 2842/PL 117 Rev. A; 2842/PL 118 Rev. A;
2842/PL 119 Rev. A; 2842/PL 120 Rev. A; 2842/PL 121 Rev. A;
2842/PL 122 Rev. A; 2842/PL 123 Rev. A; 2842/PL 130 Rev. B;
2842/PL 131 Rev. A; 2842/PL 132 Rev. D; 2842/PL 133 Rev. A;
2842/PL 134 Rev. A; 2842/PL 135 Rev. B; 2842/PL 136 Rev. C;
2842/PL 137 Rev. B; 2842/PL 138 Rev. B; 2842/PL 150; 2842/PL 151;
2842/PL 152; 2842/PL 153 Rev. A; 2842/PL 154; 2842/PL 155 Rev. A;
2842/PL 156 Rev. B.
Pre-commencement
3. No development shall take place until a Construction Method Statement has
been submitted to and been approved in writing by the local planning
authority. The statement shall include, as a minimum, provision for:
a) parking of vehicles of site operatives and visitors, arrangements for
delivery/unloading of plant and materials, and associated arrangements for
site access and vehicle manoeuvring;
b) storage of plant and materials;
c) erection and maintenance of site hoardings, site offices and external
lighting;
d) wheel washing facilities;
e) measures to control the emission of dust and dirt during construction;
f) a scheme for recycling/disposal of waste resulting from construction
works;
g) delivery and construction working hours;
h) a piling method statement, including relevant safeguarding of existing
service infrastructure, and appropriate mitigation measures in relation to any
other works below ground level as may be required;
i) details of public engagement both prior to and during construction works,
including transmission of information and arrangements for liaison and
contact during the course of the development.
The approved Construction Method Statement shall be implemented and
adhered to throughout the construction period, and the Statement shall be
accompanied by appropriate details of the phasing of all relevant works.
4. No development shall take place until an investigation of the nature and
extent of any existing contamination within the site has been carried out in
accordance with a methodology which has previously been submitted to and
been approved in writing by the local planning authority. The results of the
site investigation shall be made available to the local planning authority and
a consequent remediation scheme and accompanying programme of works
shall have been submitted to and been approved in writing by the local
planning authority before any development begins.
The remediation scheme shall be carried out in accordance with the details
and the programme as approved.
If, during the course of development, any contamination is found which has
not been identified in the site investigation, additional measures for the
remediation of this further source of contamination shall be submitted to and
be approved in writing by the local planning authority. Works shall be
immediately halted in the area/part of the development affected until such
time as the further remediation works have been agreed and which shall be
implemented as approved and in accordance with an agreed programme.
Following completion of all measures identified in the approved remediation
schemes, verification reports demonstrating that full details and
specifications of the approved measures have been implemented shall be
prepared in accordance with an agreed timescale and be approved in writing
by the local planning authority.
5. No development shall take place until full technical details of a scheme of
sustainable surface water drainage to serve the development have been
submitted to and been approved in writing by the local planning authority,
and the scheme shall be implemented in accordance with the details as
approved and an accompanying programme. The submitted details shall
include a management and maintenance plan for the lifetime of the
development and which shall set out arrangements for adoption by any
public authority or statutory undertaker and any other arrangements
necessary to secure the operation and maintenance of the scheme.
6. No development shall take place until a scheme of archaeological
investigation has been submitted to and been approved in writing by the
local planning authority. The scheme shall include:
a) a programme and methodology of site investigation and recording;
b) arrangements for post-investigation assessment;
c) provision for publication and dissemination of the analysis and records of
the site investigation and for archive deposition;
d) nomination of a competent person or persons/organisation to undertake
the works to be set out within the approved scheme.
The developer shall afford access at all reasonable times to any
archaeologist nominated by the local planning authority, and shall allow that
person to observe the excavations and record items of interest and finds.
Any historic or archaeological features not previously identified which are
subsequently revealed when carrying out the development hereby permitted
shall be retained in-situ and shall be reported in writing to the local planning
authority. Works shall be immediately halted in the area/part of the
development affected until provision has been made for retention and/or
recording in accordance with details that have been submitted to and been
approved in writing by the local planning authority.
All aspects of the scheme of archaeological investigation, and including
arrangements for any agreed additional measures as may become necessary
during the course of development, shall be implemented as approved and in
accordance with an agreed programme.
Pre-occupation
7. No part of the development shall be occupied until a scheme has been
submitted to and been approved in writing by the local planning authority
setting out details of how 10% (ten per cent) of the approved dwellings will
be designed and constructed to meet Approved Document M (Volume 1:
Dwellings), Part M4(3) (Wheelchair user dwellings) of the Building
Regulations 2015. The scheme shall also demonstrate that 90% (ninety per
cent) of the approved residential dwellings will be designed and constructed
to meet Approved Document M (Volume 1: Dwellings), Part M4(2)
(Accessible and adaptable dwellings) of the Building Regulations 2015. The
scheme shall be implemented in accordance with the details as approved
and the corresponding works shall be completed prior to any occupation of
each dwelling and be maintained and retained thereafter.
8. No part of the development shall be occupied until the corresponding
provision for refuse storage and collection for each dwelling shown on the
drawings hereby approved have been provided and are available for use to
those residents, and the approved provision shall thereafter be maintained
and remain available for such purposes.
9. No part of the development shall be occupied until the corresponding
arrangements for vehicle parking for each dwelling shown on the drawings
hereby approved have been provided and are available for use to those
residents, and the approved provision shall thereafter be maintained and
remain available for such purposes.
10.No part of the development shall be occupied until full details of the relevant
corresponding arrangements for electric vehicle charging as indicated on the
approved drawings have been submitted to and been approved in writing by
the local planning authority and those arrangements have been implemented
in accordance with the approved details. Such arrangements shall be
maintained and retained thereafter as approved.
11.No part of the development shall be occupied until the corresponding
arrangements for cycle parking for each dwelling shown on the drawings
hereby approved have been provided and are available for use to those
residents, and those approved arrangements shall thereafter be maintained
and remain available for such purposes.
12.No part of the development shall be occupied until detailed arrangements for
deliveries and service vehicles attending the development reflecting the
principles set out in the appellant’s Transport Statement (April 2017) have
been submitted to and been approved in writing by the local planning
authority and the corresponding arrangements have been implemented in
accordance with the approved details. The approved arrangements shall
thereafter be maintained and remain available for such purposes.
13.No part of the development shall be occupied until an updated travel plan
has been submitted to and been approved in writing by the local planning
authority. The plan shall include measures to promote and raise awareness
of local opportunities for sustainable transport, and arrangements for
monitoring implementation of the plan. The travel plan shall be implemented
in accordance with the approved details and an agreed programme.
14. No part of the development shall be occupied until full details of all
obscured-glazed privacy screens and of obscured-glazed and non-opening
rooflights/windows as indicated on the drawings hereby approved have been
submitted to and been approved in writing by the local planning authority.
The details of all such screens and rooflights/windows shall be designed with
particular regard to mitigating all potential overlooking from the dwellings
proposed towards existing properties in The Curve and in St. Mary’s Road.
The openings shall be installed as approved, and shall be obscure-glazed and
in non-opening forms as indicated unless those parts of the window that can
be opened are more than 1.7 metres above the floor level of the room which
it serves. The corresponding screens and rooflights/windows shall be
implemented in accordance with the approved details prior to the occupation
of each dwelling and be thereafter maintained and retained as approved.
15.No part of the development shall be occupied until full details of hard and
soft landscape works, and of all associated enclosures, structures and
equipment, have been submitted to and been approved in writing by the
local planning authority. The works shall be implemented in accordance with
the details as approved and within the first planting season following the
commencement of the development or such other period as may be agreed
in writing by the local planning authority, and shall be maintained and
retained in accordance with an approved management plan. Any trees or
plants which die within 5 (five) years of planting, or which are removed, or
which 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.
16.No part of the development shall be occupied until full details of proposed
boiler installations and accompanying emissions for each dwelling have been
submitted to and been approved in writing by the local planning authority.
The relevant corresponding facilities shall be implemented in accordance
with the approved details prior to first occupation of each dwelling. The
equipment or similar shall be maintained and retained thereafter in
accordance with the details as approved.
17.No part of the development shall be occupied until full details of proposed
fume extraction serving each dwelling have been submitted to and been
approved in writing by the local planning authority. The relevant
corresponding equipment shall be installed in accordance with the details as
approved prior to first occupation of each dwelling. The equipment or similar
shall be maintained and retained thereafter in accordance with the details as
approved.
18.No dwellings within Block A or Block B shall be occupied until full details of
proposed arrangements for appropriate sound insulation and ventilation, and
including details of any necessary noise and vibration mitigation associated
with such equipment, have been submitted to and been approved in writing
by the local planning authority and have been implemented in accordance
with the agreed particulars. The measures shall be maintained and retained
thereafter in accordance with the details as approved.
19.No part of the development shall be occupied until a fire safety statement
produced by a suitably qualified independent assessor in accordance with the
requirements of Policy D12 of the London Plan has been submitted to and
been approved in writing by the local planning authority. The statement shall
detail how the development will ensure occupants’ safety, including means
of escape, and relevant aspects of construction and other features necessary
to reduce risk to life. The development shall be implemented in strict
accordance with the approved statement and an accompanying programme,
and any specified measures shall be maintained and retained thereafter.
20.No part of the development shall be occupied until details of the following
arrangements, and including a programme for implementation, have been
submitted to and been approved in writing by the local planning authority:
a) measures to regulate and monitor Co2 emissions generated by the
scheme;
b) measures to prevent over-heating of the development and of individual
dwellings;
c) measures to ensure efficient use of water within each dwelling;
d) measures to monitor performance of the photovoltaic panels and ensure
their efficient operation and maintenance.
The above arrangements shall also include subsequent monitoring of those
measures and make provision for any possible ameliorative action following
occupation of the development should that be required.
Each set of measures shall be implemented in accordance with the approved
details, and shall be maintained and retained thereafter in accordance with
the relevant particulars.
Other
21.Prior to the construction of any external surfaces to any buildings, full details
of all external materials shall be submitted to and be approved in writing by
the local planning authority and the works shall be implemented in
accordance with the details as approved.
22.Aside from the roof balconies and terraces as formally shown on the
drawings hereby approved, no other parts of the rooftops of the
development shall be used as or be altered to form a balcony, roof garden,
roof terrace or similar amenity area. The rooftops shall not be accessed or
used except for maintenance or emergency purposes.
23.Notwithstanding provisions of the Town and Country Planning (Use Classes)
Order 1987 or the Town and Country Planning (General Permitted
Development) (England) Order 2015 (and nor any re-enactments or
amendments thereto), the 95 square metres of flexible commercial
floorspace hereby approved shall not be used for any purpose other than as
a creche, day-nursery, or day-centre as defined by Class E(f), or other than
as a learning and non-residential institution use as defined by Class F.1.
24.Occupation of the 95 square metres of flexible commercial floorspace shall
not commence until all external doors to this area have been fitted with
self-closing devices, and which shall be maintained and retained in an
operational condition thereafter, and at no time shall any external door
within that space be fixed in an open position.
End of conditions 1-24.
APPEARANCES
For the local planning authority:
Richard Langham of Counsel, instructed by the Director of Legal and
Democratic Services, London Borough of Ealing
He called:
Demetri Prevatt - Planning Officer, London Borough of Ealing
For the appellant:
Kevin Leigh of Counsel, instructed by [APPELLANT]
He called:
Justin Kenworthy - Partner, Barton Willmore LLP
Interested parties
Nick Walford - local resident
INQUIRY DOCUMENTS
The following documents were submitted to and accepted by the Inquiry:
Reference Title
ID1 Opening submissions by Mr Langham
ID2 Appellant’s draft unilateral undertaking
ID3 Copies of previous planning permissions relating to
92-98 Warwick Road, and to 100 Warwick Road
ID4 Land Registry Official Copy of Title Plan
ID5 Closing submissions by Mr Langham
ID6 Closing submissions by Mr Leigh
The following documents were submitted in accordance with agreed arrangements
after closure of the Inquiry:
Reference Title
ID7 Inspector’s post-Inquiry note of outstanding actions dated
21 April 2021
ID8 Appellant’s confirmation of arrangements for site inspection by
email dated 21 April 2021
ID9 Copies of email correspondence between advocates dated
22 April 2021 relating to proposed arrangements for parking
permits
ID10 Suggested revised conditions attaching to the Council’s email of
28 April 2021 and the appellant’s email of the same date
ID11 Density and car parking policy position note attached to the
appellant’s email of 29 April 2021, and subsequent correction
received by email from the appellant dated 14 May 2021
ID12 Confirmation of wording of amended description of development
and recommended conditions by the Council’s email dated
29 April 2021 and the appellant’s email of the same date
ID13 Appellant’s further draft undertaking and supporting material
received by email dated 17 May 2021
ID14 Council’s response to draft undertaking attaching to email dated
21 May 2021
ID15 Appellant’s completed undertaking dated 20 May 2021
ID16 Appellant’s response to Inspector questions by email dated
2 June 2021
ID17 Council’s response to Inspector questions by email dated
2 June 2021
ID18 Final comments from the appellant by email dated 4 June 2021
ID19 Application for costs from the Council attaching to email dated
2 June 2021, and subsequent comments from the parties
ID20 Applications for costs from the appellant attaching to email
dated 11 June 2021, and subsequent comments from the
parties
ID21 Revised National Planning Policy Framework July 2021 and
responses from the parties


Costs Decisions
Inquiry held on 20 and 21 April 2021
Site visits made on 8 April and on 26 April 2021
by Peter Rose BA MRTPI DMS MCMI
an Inspector appointed by the Secretary of State
Decision date: 16 August 2021
Costs applications in relation to Appeal Ref: APP/A5270/W/20/3264195
92-100 Warwick Road, Ealing W5 5PT
• The applications are 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 applications are made by [APPELLANT] for a full or partial award of costs
against the Council of the London Borough of Ealing.
• The Inquiry was in connection with an appeal against a failure to give notice within the
prescribed period of a decision on an application for planning permission. The
development proposed is ‘demolition of existing buildings and redevelopment to provide
a mixed-use development extending to 5 storeys in part comprising 20 residential
apartments and 5 mews houses (Class C3); 95 sqm of commercial floorspace (flexible
Class A1, A2, D1 or B1 use), together with associated landscaping, cycle and refuse
storage, parking and new access arrangements from Warwick Road’.
Decisions
1. The applications for full and partial awards of costs are refused.
The submissions for [APPELLANT]
2. The application for a full award is that the appellant has lost the opportunity to
fight the appeal and deal with the Council’s case on the basis that no
contribution for affordable housing can be justified. The appellant seeks a full
costs award if it is unable to succeed with its appeal based on the events
following the Inquiry.
3. The basis for a partial award is that the appellant has wasted a huge amount of
time and money dealing with an issue post-Inquiry relating to the final terms of
its undertaking and which the Council has misunderstood and/or failed to
properly inform itself.
The response by the Council
4. The Council understood that the appellant’s unilateral undertaking would adopt
the components/terms set out within the agreed Statement of Common
Ground. Instead, the appellant’s completed undertaking was not in accordance
with those arrangements and evidence considered at the Inquiry. It instead
required the Council to respond to new terms and matters not raised at the
event.
Reasons
Full award
5. This application is contingent upon a dismissal of the associated planning
appeal. For the reasons set out in my accompanying decision, the appeal has
been allowed and the circumstances of the full application do not arise.
Partial award
6. The Planning Practice Guidance (the Guidance) identifies various examples of
unreasonable behaviour by a local planning authority, and these include
providing information that is shown to be inaccurate.1
7. Review mechanisms were presented to the Inquiry and these were identified as
signed and agreed within the ‘Compromised Area of Common Ground
Affordable Housing Financial Viability’ (Table 3.0).2
8. Nevertheless, accompanying correspondence from the appellant to the Council
indicates that the detailed wording of the heads of terms was still to be the
subject of continuing discussions between the parties.
9. The evidence shows that, on the first day of the Inquiry, a further draft of the
undertaking was submitted to both the Council’s advocate and its planning case
officer. This was inclusive of amended definitions and wording and serves to
indicate intended continuing discussions. Further, references made by the
Council’s advocate in discussion of the draft terms on the second day of the
Inquiry do appear to have been consistent with those then latest terms. These
included passing references to definitions of the target return, to substantial
implementation, and to the substantial implementation target date.
10. The decision by the Council to oppose the scheme post-Inquiry due to details of
the undertaking also contrasted markedly with its closing statement. The
Council submitted that this was not a case where the authority was asking
itself whether benefits are or are not outweighed by adverse impacts, and that
it did not see there to be adverse consequences in light of current policy
imperatives. It advised this was not a case where a balance needed to be
struck, and that there was no reason not to allow the appeal. Rather, it
submitted that amended provision for the reviews, to be addressed through the
subsequent discussion, would instead be highly desirable.
11. Aside from the particular details in dispute, the form and content of the final
undertaking were otherwise generally consistent with the terms listed in Table
3.0. Even so, the principle of some detailed changes to the final version was
not unannounced, I have assessed those changes to be reasonable, and they
were intended to be reflective of an on-going dialogue previously identified by
the appellant.
12. Post-Inquiry, the Council has remained broadly committed to the headline
particulars of Table 3 whilst, for reasons explained and demonstrated in very
necessary and appropriate detail by the appellant, those terms have required
significant adjustment, and with submission of accompanying justification.
1 Paragraph: 047 Reference ID: 16-047-20140306
2 See Statement of Common Ground signed and dated 16 April 2021
13. The terms of the unilateral undertaking are a matter for the appellant to
progress and finalise. Those terms are complex, and the final undertaking
involves significant later detail and supporting evidence.
14. It is clear that considerable effort has been made by the appellant post-Inquiry
to conclude the undertaking’s content and, significantly, to justify its terms for
consideration as part of the planning decision. This included liaison with the
Greater London Authority and appointment of a second viability consultant to
respond to the Council’s concerns, and supporting evidence was submitted
from both.
15. Despite the position taken post-Inquiry by the Council, and requests for further
dialogues between respective specialist consultants, the appellant’s work has
not been wasted, but has been necessary in demonstrating and justifying the
planning merits of its own evolved position towards affordable housing. Those
submissions made an essential contribution to my accompanying decision.
16. Although not raised in the same terms at the Inquiry, the Council is entitled, in
principle, to take issue with detailed aspects of the subsequent changes to the
undertaking as matters of planning merit, and those concerns were considered
as part of the accompanying appeal decision and in the context of the
appellant’s various submissions.
17. Whilst there is no basis to the Council’s own application for a partial award of
costs, and notwithstanding the accuracy of the Council’s contrasting
understanding of matters post-Inquiry, on balance, I do not find unreasonable
behaviour on the part of the authority resulting in unnecessary or wasted
expense.
Conclusion
18. I therefore find that unreasonable behaviour on the part of the Council
resulting in unnecessary or wasted expense incurred by the appeal, as
indicated in the Guidance, has not been demonstrated. I conclude that the
submission for a full award does not apply, and that a partial award of costs is
not justified in this instance.
Peter Rose
INSPECTOR


Costs Decision
Inquiry held on 20 and 21 April 2021
Site visits made on 8 April and on 26 April 2021
by Peter Rose BA MRTPI DMS MCMI
an Inspector appointed by the Secretary of State
Decision date: 16 August 2021
Costs application in relation to Appeal Ref: APP/A5270/W/20/3264195
92-100 Warwick Road, Ealing W5 5PT
• 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 the Council of the London Borough of Ealing for a partial
award of costs against [APPELLANT].
• The Inquiry was in connection with an appeal against a failure to give notice within the
prescribed period of a decision on an application for planning permission. The
development proposed is ‘demolition of existing buildings and redevelopment to provide
a mixed-use development extending to 5 storeys in part comprising 20 residential
apartments and 5 mews houses (Class C3); 95 sqm of commercial floorspace (flexible
Class A1, A2, D1 or B1 use), together with associated landscaping, cycle and refuse
storage, parking and new access arrangements from Warwick Road’.
Decision
1. The application is refused.
The submissions for the Council
2. The Council understood that the appellant’s unilateral undertaking would adopt
the components/terms set out within the agreed Statement of Common
Ground. Instead, the appellant’s completed undertaking was not in accordance
with those arrangements and evidence considered at the Inquiry. It instead
required the Council to respond to new terms and matters not raised at the
event.
The response by [APPELLANT]
3. It is incorrect that the completed undertaking has broadly departed from
previous discussions. Solicitors to both main parties were in possession of a
draft of the undertaking prior to the Inquiry and were aware of the outstanding
areas in discussion to follow.
4. The changes made to the draft undertaking following the Inquiry simply sought
to correct drafting errors from this version, to resolve well‐acknowledged
weaknesses with the Greater London Authority formulae, and to ensure the
late‐stage review mechanism was consistent with the agreed target profit value
of 20% of gross development value.
5. Nothing introduced was seeking to materially change any impact upon
affordable housing, or to undermine the agreed areas of common ground.
Reasons
6. The Planning Practice Guidance (the Guidance) identifies various examples of
unreasonable behaviour by an appellant, and these include introducing fresh
and substantial evidence at a late stage necessitating an adjournment, or extra
expense for preparatory work that would not otherwise have arisen.1
7. Review mechanisms were presented to the Inquiry and these were identified as
signed and agreed within the ‘Compromised Area of Common Ground
Affordable Housing Financial Viability’ (Table 3.0).2
8. Nevertheless, accompanying correspondence from the appellant to the Council
indicates that the detailed wording of the heads of terms was still to be the
subject of continuing discussions between the parties.
9. The evidence also shows that, on the first day of the Inquiry, a further draft of
the undertaking was submitted to both the Council’s advocate and its planning
case officer and inclusive of amended definitions and wording. Further,
references made by the Council’s advocate in discussion of the draft terms on
the second day of the Inquiry do appear to have been consistent with those
then latest terms. These included passing references to definitions of the target
return, to substantial implementation, and to the substantial implementation
target date.
10. Aside from the particular details in dispute, the form and content of the final
undertaking were otherwise generally consistent with the terms listed in Table
3.0. Even so, the principle of some detailed changes to the final version was
not unannounced, I have assessed those changes to be reasonable, and they
were intended to be reflective of an on-going dialogue previously identified by
the appellant.
Conclusion
11. I therefore find that unreasonable behaviour on the part of the appellant
resulting in unnecessary or wasted expense incurred by the appeal, as
indicated in the Guidance, has not been demonstrated. Accordingly, I conclude
that an award of costs is not justified in this instance and the application is
refused.
Peter Rose
INSPECTOR
1 Paragraph: 052 Reference ID: 16-052-20140306
2 See Statement of Common Ground signed and dated 16 April 2021