OPEN Dalston’s objections to planning application 2022/2952
Location : 2, Colvestone Buildings Colvestone Crescent, Hackney, London, E8 2LG
This proposed development of the land to construct a three-storey residential/commercial building should not be granted planning permission on the following grounds:
1. The development will caste the outdoor classroom of the adjoining Nursery School into shadow thereby damaging its amenity to an unacceptable extent. The detail of this is provided in paragraph 7 below. This would be contrary to policies LP2A (adverse impact on the amenities of neighbours)
2. The 3-4 year old nursery school children using the open space will be confronted by a brick wall extending across the entire southern boundary of the outdoor learning space of 9 metres in height and blocking out the sky. The development will create a strong sense of overbearing and enclosure. This will adversely affect the wellbeing, and the educational development, of the school children. This would be contrary to policies LP2A (adverse impact on the amenities of neighbours)
3. The outdoor learning space has been designated as an Asset of Community Value. The harm caused to the community interest caused by the development is a material planning consideration requiring specific consideration, but which the applicant has not addressed.
4. The development will obscure the view of the Grade II listed Colvestone Primary School and other buildings from the western entrance to the St Mark’s Conservation Area. That is a view of noted importance in the Conservation Area appraisal. The development will not preserve or enhance the significance of the historic environment and the setting of heritage assets contrary to policy LP1.A.iv (local character)
5. The development will impede the planned improvements for the Ridley Road market area being developed under LP33 and contrary to PP2 Dalston (public realm improvements along Ridley Road).
6. The sole access currently available for construction is from Birkbeck Road which is heavily trafficked throughout the day for transporting goods by Ridley Road stallholders and shops. The environs has extensive parking restrictions. Construction will disrupt the street market activities, and create noise and dust nuisance and construction vehicle emissions, which would adversely affect both the market and particularly the school children to an extent which is disproportionate to the benefits derived from the development
7. The applicant’s Design and Access statement states that “No material alterations have been made to the [previously] refused development” and that “The only material consideration for this resubmitted development is, therefore, the one reason for refusal relating to overshadowing implications for the external space of Colvestone Primary School” and that “To address this concern, a revised comprehensive assessment has been prepared and supports this application”. For these reasons the remainder of this objection focusses on the applicant’s Design and Access Statement and its Overshadowing Report dated November 2020.
7.1 Although the Inspector, when refusing the earlier application, was critical of the lack of detail in the applicant’s previous Overshadowing Report, it is apparent from paragraph 6 of his decision that he was aware that the direct sunlight retained would exceed the BRE recommended minimum requirement of 2 hours over more than 50% of the area. The Inspector nevertheless refused the application because of the impact of the development’s overshadowing. The additional analysis which the applicant now provides does not improve its case and, in fact, its Transient Overshadowing and Time in Sun illustrations for 21 March, reproduced below, demonstrate a major adverse impact. The Inspector’s refusal was not appealed by the applicant. The application should again be refused.
7.2 The applicant’s Design and Access statement concludes that the development “would not result in an overly dominant form of development that suffers an inappropriate scale.” This conclusion is mistaken for the following reasons:
7.2.1 The Overshadowing Report states that its 3D model is based on a 3d laser scan site survey. The applicant had requested access to the school to undertake a survey within the open space to which the school had agreed subject to the applicant sharing its resulting computer model. The applicant opted to proceeded without availing itself of such access and without sharing its model.
7.2.2 The architect’s drawings show a three-storey building with a rear elevation wall of 9 metres. The overshadowing model appears to have been created with lower rear elevation wall of 8.85metres in height.
7.2.3 Notwithstanding that the building is said to be of the same design to that refused on appeal, the Overshadowing Report’s conclusions as to the extent of overshadowing is at variance with the conclusions reached in relation to the design which was refused on appeal.
7.2.4 The Overshadowing Report’s conclusions are based on calculations, which “average” the impact over a whole year, on the spring solstice of 21 March. The BRE Guidelines at 3.3.14 confirm that this measure is appropriate “If a space is used all year round”. However the school’s space is only used from 9am until 3.30pm and only during the school year. The fact of greater sun lighting during the school’s summer holiday, which the calculation for 21 March includes, is of little consolation. The assessment of impact should be calculated over the school year when the space is in actual use.
7.2.5 For these reasons the calculations derived from the overshadowing model cannot be presumed to be reliable.
7.3 The Overshadowing Report opines that “64% of the space will be able to receive more than 2 hours on 21st March after development and, since this is above 50%, according to the BRE guidelines, the space will be adequately sunlight throughout the year”. This opinion of adequacy is based upon a misinterpretation of the BRE Guidelines. Whilst adopting the BRE formula for quantifying overshadowing , the applicant has excluded material considerations when assessing its adequacy, for example the particular requirements for sunlight of the receptors ( eg children of 3-4 years, for example Vitamin D is essential for proper bone growth), the particular uses ( eg outdoor learning, plant growing), the times when sunlight is required ( eg during school hours over the school year), the location (eg an inner-city area deficient in public amenity space & where some 75% of residents live in flats without gardens) and the adverse impact on the Asset of Community Value
7.4 The requirement for an applicant to make a proper assessment of the actual environmental impact of its proposals is clear from the following sections of the BRE Guidelines:
7.4.1 Section 3.3.3 lists six types of outdoor amenity spaces, ranging from public squares to children’s playgrounds.
7.4.2 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”.
7.4.3 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 recommending that all these types of spaces should receive a minimum period of direct sunlight but that some spaces may require more.
7.4.4 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.
7.4.5 Appendix H: 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 H6: “Factors tending towards a minor adverse impact include … outdoor space which has only a low level requirement for skylight or sunlight”.
• Paragraph H7: “Factors tending towards a major adverse impact include … outdoor spaces (which) have a particularly strong requirement for … skylight or sunlight, eg …a children’s playground” .
As explained above, the BRE Guide contains no numerical formula which determines the adequacy of sunlight for any particular amenity space save for the recommendation of a minimum requirement.
7.4.6 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 “where natural light is of special importance , less obstruction and hence more sunlight and daylight may be deemed necessary” …”The calculation methods in Appendices A (sunlight) and B (vertical sky component) are entirely flexible in this respect”
7.5 The applicant’s assessment of the development’s overshadowing impact on 21 March ( the spring equinox which is indicative of average annual overshadowing) can be found in its description and the Transient Overshadowing and the Time in Sun illustrations reproduced below. The Overshadowing Report states “A large area of shadow will cross the playground between midday and 2pm, but by 3pm there is little additional shadow caused by the proposed development.” In fact, encroachment by shadow across the open space begins at 9am and extends for the entire school day from 9:00am until leaving the space after 4:00pm.
7.6 The applicant’s Overshadowing Report illustrates that during the winter solstice on 21 December the more limited sunlight which the space and the classroom windows presently receive would, between 11am and 2pm, become almost completely obstructed by the development. BRE Guidelines provide an illustration of an overshadowed area commenting that “This outdoor space is in shade all winter. It is grim and underused.”
7.6 In attempting to mitigate the development’s major adverse impact on the outdoor learning space, the Overshadowing Report then opines that “In reality, the impact will be less significant than that shown due to the likelihood of cloud cover in March”. This opinion amounts to unevidenced speculation. The BRE Guidelines Glossary clarifies that its method for calculating ”Probable Sunlight Hours” produces “The long-term average of the total number of hours during a year in which direct sunlight reaches the unobstructed ground (when clouds are taken into account)”. The Guidelines regarding Sunlighting (3.2.4) clarifies further that the calculations allow for “average levels of cloudiness for the location in question (based on sunlight probability data)“. The Guidelines offer no recommendations for incorporating any additional weather forecasting when making assessments.
7.7 In summary, the BRE Guidelines provide assistance with quantifying direct sunlight on open spaces but do not provide a formulaic test or rule for its adequacy. Whilst a minimum requirement for the open spaces identified is recommended, adequacy is subject to context. For particularly sensitive locations it recommends a number of additional tests eg transient overshadowing illustrations, to assist the decision maker’s assessment of adequacy. The BRE Guidelines make it clear that the judgment on adequacy is a matter for the decision maker – for example. what may be acceptable for a “sitting out” area may be considered inadequate for the outdoor learning space of an inner-city nursery school. The applicant fails to address the issue of adequacy properly or at all. 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 the overshadowing which the development would cause.
8. For all the above reasons the planning application should be refused.
11th January 2023
The BRE Guidelines refers to the BRE publication “Site layout planning for daylight and sunlight – a guide to good practice” 2022 Edition.
OPEN Dalston is a forum of local people who have contributed to and/or support these objection
Applicant’s transient overshadowing illustration for spring equinox on March 21st
Applicant's Time in Sun Assessment on March 21st