Judith Watt's objections to appeal: APP/U5360/W/21/3274827

SUBMISSION ON APP/U5360/W/21/3274827 

Judith Watt, of Colvestone Crescent, London E8 2LG Submitted 25 October 2021 

The proposed development on the land at the junction of Colvestone Crescent, Ridley Road and Birkbeck Road should not be granted planning permission on these grounds:

 • Impact on the Nursery School, a designated Asset of Community Value. It will have a “major adverse impact” on the outdoor learning space of the Nursery School, putting it into shadow for most of the school day for most of the school year thereby significantly impacting the health and well-being of generations of children aged 3-4 years old.

 • Impact on the Conservation Area. It will destroy the view of the Grade II listed Primary School at the entrance to the St Mark’s Conservation Area. 

• Impact on the market and surrounding area. It will notably impede the planned improvements for the whole Ridley Road Market area and for Colvestone Crescent becoming a “21st century street” under the new Dalston Plan. 

1 Impact on the Nursery School, a designated Asset of Community Value 

1.1 Misleading interpretation of the BRE Guidelines 

The BRE Guidelines featured heavily in the Judicial Review of a previous application for permission to build a 3-storey building of a similar shape (about half a metre higher) on this site – hence the detail offered in this submission. 

The “playground” of the Colvestone Nursery is really an outdoor learning space that is used all day every day by the children, weather permitting. It has many activity areas, including a raised garden bed, and has been carefully designed for outdoor learning throughout the year. 

Treating this precious resource as just another open space, such as a park and or a playing field, is inappropriate and fails to take into account the needs of this particularly vulnerable part of the population: children under five in a deprived part of London. 

The developer’s assertion at 4.4.1 of its Daylight and Sunlight Study that “the playground area at Colvestone Primary School meets the BRE recommendations”, and that the environmental impact is acceptable, is incorrect as is clear from the following sections of BRE Guidelines: 

 1.1.1 Section 3.3.3 lists six types of outdoor amenity spaces, ranging from public squares to children’s playgrounds. 

1.1.2 Section 3.3.4 explains that “each of these spaces will have different sunlight requirements and it is difficult to suggest a hard and fast rule”. 

1.1.3 Section 3.3.7 explains that “it is recommended that at least half of the amenity areas listed above should receive at least 2 hours sunlight on the 21st March”. This is saying that all these types of spaces should receive the minimum (50% for 2hrs) but some spaces may require more. 

1.1.4 Section 3.3.11 explains that “if as a result of new development the area which can receive two hours of direct sunlight on 21 March is reduced to less than 0.8 times its former size, this further loss of sunlight is significant”. This is saying that a reduction of more than 20% in the area receiving 2 hours of sunlight is a significant loss of sunlight. 

 1.1.5 Appendix I: Environmental Impact Assessment explains that “where the loss of … sunlight does not meet the guidelines … the impact is assessed as minor, moderate or major adverse”. 

 • Paragraph I6: “Factors tending towards a minor adverse impact include … outdoor space which has only a low level requirement for light”. 

• Paragraph I7: “Factors tending towards a major adverse impact include … outdoor spaces (which) have a particularly strong requirement for … sunlight, eg … a children’s playground” (my highlighting). 

1.1.6 Section 1.6 explains that BRE advice “is not mandatory and the guide should not be seen as an instrument of planning policy” and that “although it gives numerical guidelines, these should be interpreted flexibly”. 

Furthermore, section 1.6 also explains “In special circumstances … the planning authority may wish to use different target values” and “the calculations methods in Appendix … G are entirely flexible in this respect”. 

In summary, the BRE Guidelines provide assistance with quantifying direct sunlight on open space but do not provide a formulaic test or rule for its adequacy. Whilst a minimum requirement for open space is recommended, adequacy is subject to context. The sensitivity or requirements of the people or receptors experiencing the loss of light and the degree of sunlight loss (in percentage terms) is central to the assessment of its environmental impact. The Guidelines make it clear that the judgment on adequacy is a matter for the decision maker – what may be acceptable for a car park may be considered inadequate for an outdoor learning space of an inner-city Nursery. Far from supporting the developer’s case, the application of the BRE Guidelines referenced above to the design and impact of the proposed development provides a powerful rationale for protecting current and future generations of children at the Nursery School from overshadowing. 

The developer’s (mis)interpretation of the BRE Guidelines are not the only misleading aspect of this proposal. 

 1.2 Misleading calculations 

The developer’s calculations of the overshadowing need to be carefully scrutinised before any decision is arrived at by the Inspectorate. It appears that their sunlight consultant has made at least one major error, and possibly several more important missteps in determining the extent of the overshadowing on the Nursery. Only when the developer is required to hand over the computer modelling for independent expert analysis will this become clear. 

The major error is likely to concern the extent to which they have factored in (or left out) the so-called “perforated” section of the back wall. The Design and Access Statement states that “on the side facing the school the wall will rise up to 1.8m, above there will be a perforated wall made of roof tiles, eliminating any possibilities of overlooking to the playground, at the same time allow more sunlight to reach the playground of the school. As a result, the proposed design meets the recommendations as set out in the BRE Guide.” 

 It is surely nonsense to suggest that light travelling through the perforated section of the back wall will bend to reach the children at ground level. It is more likely that the perforated section of the wall has been designed for the benefit of the one or two residents in the flat. 

The developer’s pictures below show the back wall of the proposed building as it will be seen from Colvestone Crescent, towering over the entire width of the outdoor learning space; and the terrace on the second floor of the proposed flat with the perforated section above 1.8m. 

The High Court required the previous developer’s sunlight expert and the independent sunlight expert commissioned by the Council to go together to the school on 6 May 2016 to take and agree measurements to provide a baseline for the existing extent of overshadowing, and then to model the impact of the proposed building. 

The Council expert shared his modelling with the developer for checking but the developer refused to reciprocate. The Judge accepted the Council’s expert report and cited it in his judgment, which the developer references in the application. 

 The table below compares these 2016 findings with the figures provided by the current developer for the proportion of the playground surface that will receive at least two hours of sunlight on 21 March:

Sunlight to the outdoor space is compromised, for reasons of child safety, by an existing tall brick wall enclosing the area which reduces available sunlight to 82% of its surface area. The table shows that the current proposal uses a higher baseline than is recorded as 82% in the Court judgment and it then reports an implausibly low reduction in overshadowing for a building that is only around half a metre shorter – but without providing any calculations to back this claim. 

 Given the High Court approved the baseline measurement of 82% of the outdoor learning space currently receiving 2hrs of sunlight on 21 March, this developer’s calculations should have used the same baseline. 

 The previous development would have reduced this to 57%. Given that this current proposal is for a building half a metre lower, and whilst the applicant claims it would satisfy the minimum requirement of 50% for 2hrs (BRE 3.3.7), it is likely that it would fail the 0.80 overall reduction (BRE 3.3.11). 

 If the calculations were done correctly by the developer (and independently verified), even if the post-development measurement of the area receiving 2hrs could be as high as 66% it would still fail the 0.80 reduction test. However, even if it passed that test, the other points set out at 1.1.5 and 1.1.6 above should be taken into consideration. Any which way, the overshadowing caused by this development will have a “major adverse impact” on the Nursery School children and staff. Furthermore, the developer has unhelpfully failed to illustrate use of any of the sunlight prediction tools such as sunpath indicators, BRE sunlight availability protractor, or shadow plotting and plans which the BRE Guidelines recommend be used in cases of critical open spaces as in this case (BRE 3.3.12, 3.3.13 & 3.3.16). 

1.3 Misleading drawings 

The developer has submitted drawings showing a red outline of the previous application superimposed over its proposed building, which gives the highly misleading impression that this new proposal is significantly smaller in scale to the earlier one, which it most definitely is not. The diagram below places both developers’ scaled drawings side by side, with green lines I have added at ground level and at the roof level of the adjacent building to the right of the site to aid comparison. 

 1.4 Misleading assertions 

The assertion in this proposal that the “size of the new building has also been established through the previous scheme which was granted planning” literally makes no sense. Yes, the previous scheme was granted planning permission, but this was quashed by the High Court, at significant cost to the Council and the community. 

 While the judgment hinged on the false calculations of overshadowing submitted by the previous developer, the case demonstrated conclusively that it was the height of the proposed building – and the extent of the overshadowing it would have caused when correctly calculated – that was the root of the problem. 

The Judge made clear in his judgment that the issue of overshadowing was for him “the one of critical importance” and he agreed with the findings of the independent sunlight expert, commissioned by Hackney Council’s Strategic Property Services on behalf of The Hackney Learning Trust. The Judge concluded “that very substantial parts of the playground are in shadow for substantial parts of the school day” and that “in December none of the area would be sunlit”. 

1.5 Asset of Community Value 

In August 2021, Hackney Council designated the Nursery’s outdoor space as an Asset of Community Value, thereby confirming its commitment to the future of the school and “the social well-being of the local community”. 

The Council has confirmed that this ACV status is a material consideration in planning matters, and for good reason. In the immediate area around the school (including the homes of many of the families with children at the school), 87% of dwellings have no access to open public space (GLA green infrastructure database) and the area exceeds the London average on poor air quality and on health deprivation. 

Serious consideration should be given to the impact of the extensive overshadowing that this will cause to the Nursery School, especially from October through to April. The children and staff (and parents and local residents passing by) will face a 9m x 9m brick wall at the end of the outdoor learning space:

 • This lovely learning environment will be permanently degraded for children and staff alike, with knock-on effects for this and future generations of Nursery pupils 

• Overshadowing will make for a darker, colder environment where ice and damp will persist for longer, making surfaces more slippery and risky 

• Plants grown by the children will be much less likely to thrive

 • An increased sense of being closed in by brick walls will be seriously depressing for everyone except the one or two people living in the building. 

 2 Impact on the Conservation Area 

 While the developer suggests the building is small when it comes to overshadowing, they “big it up” when it comes to its impact as a potential “local landmark”. In reality, it would almost completely obscure the view of a genuine local landmark, the Grade II listed Primary School which currently marks the entrance to the St Mark’s Conservation Area. Indeed, the developer asserts that “The new building will serve as the new ‘gatehouse’ to the conservation area” and has “the potential to become a modest architectural gem.” 

The Heritage Statement submitted by the developer notes (twice) that the “view of Colvestone Primary School from the corner of Ridley Road has also been identified as an important view within the conservation area.” But goes on to argue that “It would be too simplistic to suggest that … the view of the primary school should be preserved” and poses this question, “whether the architectural quality of this proposed building … would outweigh the change of view from Ridley Road” to which my answer is that it most certainly would not. 

 The currently open view of the school from the market has been enjoyed since the Second World War when the Birkbeck Literary and Scientific Institute that had stood on what is now the Nursery playground fell into ruins after local bomb damage. 

The school is the only one of the “Birkbeck Schools” still intact. These were established by William Ellis between 1848 and the early 1860s. Richard Clark, Research Fellow at Birkbeck College writes that the school’s “premises, which today remain nearly intact as Colvestone Primary School, reflect in their architecture some of the most progressive elements of Ellis’ philosophy” with “well-lit classrooms in place of dull monitorial halls”. 

 If this development goes ahead and the building stands for as long as the Nursery has had the outdoor learning space, then the one or two people living in the flat will have blocked the light to well over a thousand 3-4 year-olds. How progressive is that? 

3 Impact on improvements to Ridley Road market and surrounding area 

This proposal is for the wrong building in the wrong place. If built, it will prevent that pivotal piece of land, in relation to the school, the market and the surrounding area, from being used for much more suitable purposes. 

 The Council is finalising its new Dalston Plan after extensive consultations with local residents, market traders, local businesses, and visitors to Dalston. This small patch of land has featured in many of the comments on what Dalston needs. As far as I can tell, not one comment was made in support of it being used for anything like a 30sqm commercial unit (when so many shops in the High Street are empty) with a two-storey dwelling for one or two people. 

The Council engaged urban design consultants to help develop plans for improving the market with the £1m+ budget under the Greater London Authority’s Good Growth Fund and to develop ideas for Colvestone Crescent becoming Hackney’s first 21st century street. These consultants have made a point of showing the potential use of this site in their proposals back to the Council. 

 Furthermore, the Consultation Report for the Plan published in August 2020 states that concerns were raised about “potential developments … on the triangle of land at the Colvestone Crescent junction” and notes on page 17 that the “Colvestone Family and Staff Association submitted an independent survey with 91 responses on the preferred future use on the triangle of land outside Colvestone Primary School, which included a larger nursery, an educational garden for children and public seating. More information can be found at CSFA - Submission to Dalston Plan consultation.” The 91 suggestions made by staff and parents at the school were as follows: 41 A bigger Nursery playground 25 A garden for kids to learn about flowers and vegetables 12 Public seating for people shopping in the market 7 Other ideas: - A creche for shoppers - A Tea Garden - A bike park - A basketball hoop stand, with perimeter fencing - A woodland garden - A food bank - An advice service for homeless people 6 A ground floor level café 

 Concluding remarks 

The Council sold this piece of land in 2001 for £45,000 and tried (but failed) to buy it back in 2018 for £200,000. It has been a costly error to date. But the true cost will become clear if this new proposal is granted permission and is built. The detrimental impact will be significant: 

• to the health and well-being of the Nursery children and staff for generations to come 

• to the integrity of the Conservation Area 

• to the potential for greening the market area and improving the market for traders and customers alike 

• to the relationship between planning authorities and the local community for prioritising one tiny commercial unit and a one-bed flat at the expense of all the above. Even though the Council sold the land, it clearly intended there to be no harm caused to the school since it inserted covenants into the transfer of title to protect the school, including the following texts in which the “retained land” means the school, the “Property” means the site, and the “Transferor” means the Council:

 • The right of uninterrupted and unheeded access of light and air to the retained land over the Property 

• Any access of light or air now or hereafter enjoyed over any part of the retained land by or in respect of the Property shall be deemed to be so enjoyed by the licence or consent of the Transferor and not as of right. 

 I sincerely hope that the Inspectorate can protect the “light and air” needed by all in the school community and the neighbourhood by refusing permission for this development. Thank you.