Enforcement Report - 179 Brockley Rd PDF 67 KB - Council meetings

Committee PLANNING COMMITTEE (B)
Report Title 179 BROCKLEY ROAD SE4 2RS - REQUEST FOR ENFORCEMENT
ACTION
Ward
Brockley
Contributors Richard Lockett
Class PART 1 Date: 06 DECEMBER 2012
Background Papers
Designation
(1) Case File – DE/10/179/TP - EN/11/00299
(2) Adopted Unitary Development Plan (July 2004)
(3) Local Development Framework (June 2011)
(4) The London Plan (July 2011)
(5) Circular 10/97: Enforcing Planning Control: legislative
provisions and procedural requirements (2006)
(6) National Planning Policy Framework (March 2012)
Paragraph 207: Enforcement
Adopted UDP - Existing Use
PTAL 4
Local Open Space Deficiency
Brockley Conservation Area
Not a Listed Building
1.0 Introduction
1.1 This report deals with a breach of planning control at 179 Brockley Road, in relation
to the construction of an unauthorised extension at first floor level, an external timber
staircase and associated timber balustrade fencing constructed on top of an existing
single storey extension at the rear of the property and whether it is expedient for the
Council to instigate formal enforcement action.
2.0 Property/Site Description
2.1 The application site comprises a three storey plus attic, Victorian terraced property
of c1880 with shop premises on the ground floor, on the east side of Brockley Road,
within the Brockley Conservation Area. The property comprises a restaurant at
ground floor level and 6 hotel rooms on the upper floors. There is a large single
storey extension with a flat roof, extending to just over the mid point of the rear
garden. There is an extension at first floor level that was constructed approximately
18 months ago, to the north side of which is a further extension enclosing a
staircase. For clarity the latter structure will be referred to as the ‘staircase structure’
in this report. To the rear is an area of garden/yard, beyond which is a double
garage fronting Harefield Mews.
2.2 Harefield Mews is the only Mews within the Brockley Conservation Area which is a
public highway and is hard surfaced with public lighting. The surfacing comprises
granite setts and is an attractive feature of the Mews. Double yellow lines to prevent
parking at any time were provided to the mews several years ago.
2.3 Both the restaurant and hotel accommodation on the upper floors are accessed by a
single front entrance door on the Brockley Road frontage. The yard at the rear
appears to be accessible via either the garage fronting Harefield Mews or from
Brockley Road by walking through the restaurant and kitchen. Access to the rear

yard is also obtained over the flat roof of the extended ground floor via an internal
staircase and an extension (staircase structure) at first floor level which has a door
providing access onto the flat roof. An external wooden staircase has been
constructed adjoining the boundary with 5 Harefield Mews which provides access
from the rear yard to the flat roof of the restaurant kitchen in the rear part of the
premises . This staircase and associated balustrade fencing, as well as a small
extension (staircase structure) at first floor level on the north side of the first floor
extension has been constructed without the benefit of planning permission. In
addition there is a small single storey extension, recently constructed to the rear of
the original extension, which does not benefit from planning permission.
2.4 To either side are similar properties, some of which have houses fronting the mews
road.
3.0 Planning History
3.1 In March 2010 planning permission was granted for the change of use of the upper
floors of 179 Brockley Road, SE4 to a hotel (use class C4) together with the
construction of a part one/part two storey extension at the rear to provide additional
restaurant area, a new extraction flue, additional hotel accommodation and a selfcontained
2 bedroom flat accessed from Harefield Mews, alterations to the front and
rear elevations, including the retention of a dormer window to the front roof slope,
replacement windows and a new shopfront ( Ref. DC/09/72597).
3.2 Condition (6) of the permission requires that, aside from a very limited area identified
as a shallow balcony to one hotel room, the flat roof of the ground floor restaurant
shall not be used as a balcony, roof garden or similar amenity area.
3.3 The consented extension at first floor level at the rear of the frontage building
requires one of the existing first floor sash windows to be displaced to the side.
3.4 The proposed hotel, which would occupy the upper floors of the frontage building will
be accessed from a new internal staircase with entrance onto Brockley Road. The
proposed new shopfront which would serve as an access to the hotel as well as the
restaurant has been designed to have the appearance of a single shopfront. The
hotel would provide 6 double rooms all with en-suite facilities.
3.5 A new extension extending over the whole of the plot will house an enlarged
restaurant with its new kitchen and storage area. This will have a service access
onto Harefield Mews. A first floor will be added to this at the Harefield Mews end to
create a two bedroom managers flat. The flat is proposed to be accessed via an
internal staircase leading to a front door on to the Mews. The flat is proposed with a
balcony area on top of the flat roof of the proposed kitchen. The ventilation duct for
the kitchen is proposed to be attached to the rear elevation of the managers flat and
would vent above the roof of the proposed flat.
3.6 As originally submitted, the restaurant was initially shown with a staircase to a
rooftop smoking area. However, officers considered that this would give rise to
potential noise nuisance to adjoining occupiers and also generated concerns
regarding privacy and overlooking, particularly in relation to the the adjacent property
and the occupiers of room 3 within the proposed hotel. The applicant amended the
scheme during the life of the application to remove the access to this area from the
restaurant.

3.7 The 20010 planning permission as described above, has been only partly
implemented, with the change of use of the upper floors having been carried out.
Internal works to provide a ground floor disabled toilet have been carried out.
3.8 In terms of external works and other building operations, the following works have
been carried out:
a) The extension at first floor level, on top of the existing single storey extension
has been constructed, though the rear elevation of the extension differs from
the consented drawings;
b) A smaller extension (staircase structure) has been constructed at the side of
the first floor extension, this houses the access onto the flat roof and has a
sloping roof, sloping back towards the main rear elevation;
c) A wooden staircase and balustrade fencing enclosing the flat roof has been
recently erected to provide access to the roof from the rear yard;
d) A small brick built extension has been constructed within the rear yard
e) The shopfront differs from the approved scheme.
3.9 While the first floor extension approximates to that approved by the 2010 planning
permission, the other works described above did not form part of the planning
approval and have been constructed without the necessary planning permission.
Neighbouring Properties
3.10 Planning permission has been granted for the redevelopment of several of the
original single storey garages/workshops fronting the mews to provide two storey
dwellings and some of these have been implemented, including a relatively recently
constructed house adjacent to the site at the rear of 177 Brockley Road (5 Harefield
Mews.
3.11 Planning permission was granted in 2007 for the construction of a two storey mews
house at the rear of 181 Brockley Road, which is now close to completion. Planning
permission was also granted in December 2006 for the construction of a two storey
dwelling in a Victorian style at the rear of 183 Brockley Road. This permission does
not appear to have been implemented.
4.0 Policy Context.
National Planning Policy Framework (March 2012)
4.1 The NPPF was published on 27 March 2012.
4.2 With regard to enforcement Paragraph 207 of the NPPF states:-
"Effective enforcement is important as a means of maintaining public confidence in
the planning system. Enforcement action is discretionary, and local planning
authorities should act proportionately in responding to suspected breaches of
planning control. Local planning authorities should consider publishing a local
enforcement plan to manage enforcement proactively, in a way that is appropriate to
their area. This should set out how they will monitor the implementation of planning
decisions, investigate alleged cases of unauthorised development and take action
where it is appropriate to do so."

4.3 In addition, Circular 10/97: Enforcing Planning Control: legislative provisions and
procedural requirements (2006) is relevant.
London Plan (July 2011)
4.4 The London Plan was published in July 2011. Together with the Core Strategy and
saved policies in the adopted Lewisham UDP (July 2004), the London Plan
comprises the development plan for Lewisham. The policies that are relevant to this
case are:
Policy 7.1 Building London’s neighbourhoods and communities
Policy 7.4 Local character
Policy 7.6 Architecture
4.5 Adopted UDP (July 2004)
URB3 Urban Design
URB6 Alterations and Extensions
URB 16 New Development, Changes of Use and Alterations to Buildings in
Conservation Areas
HSG4 Residential Amenity
4.6 Core Strategy
The Core Strategy was adopted on 29 June 2011.
The following lists the relevant strategic objectives, spatial policies and cross cutting
policies from the Lewisham Core Strategy as they relate to this application:
Objective 10: Protect and enhance Lewisham’s character
Policy 15: High quality design for Lewisham
Policy 16: Conservation areas, heritage assets and the historic environment
5.0 Consideration of Enforcement Action
The Breach of Planning Control
5.1 The Council has confirmed by way of a site inspection that the following operational
development works have been carried out without the benefit of planning
permission:
(a)
(b)
(c)
(d)
(e)
An extension at first floor level, on top of the existing single storey extension
has been constructed. This is similar to that granted permission in 2010,
though the rear elevation of the extension differs from the consented drawings.
A further, smaller extension (staircase structure) has been constructed at the
north side of the first floor extension; this houses an access onto the flat roof
and has a sloping roof, sloping back towards the main rear elevation.
A wooden staircase and balustrade fencing, enclosing the flat roof has been
recently erected to provide access to the roof from the rear yard.
A small brick built extension has been constructed within the rear yard.
The shopfront differs from the 2010 approved design.

5.2 A retrospective planning application for the retention of these unauthorised works
has not been forthcoming.
The issue for consideration is whether it is appropriate and expedient for the Council
to serve an Enforcement Notice, under the Town and Country Planning Act 1990 (as
amended) in order to remedy the breach of planning control. The main planning
consideration relating to this unauthorised development is the level of impact upon
the amenity of neighbouring properties, especially those of the residential property at
5 Harefield Mews and on the character and appearance of the Brockley
Conservation Area.
Design and Conservation
5.3 The Council has a duty to pay special attention to the desirability of preserving or
enhancing the character and appearance of conservation areas under s.72 of the
Planning (Listed Buildings and Conservation Areas) Act 1990. National and local
planning policies place considerable emphasis on the importance of achieving high
quality design that complements existing development, established townscape and
character. All extensions should be sensitively designed to retain the architectural
integrity of the building.
5.4 Retained UDP Policy URB 3 states that the Council will expect a high standard of
design in extensions or alterations to existing buildings, whilst ensuring that
schemes are compatible with, or complement the scale and character of, existing
development and its setting. In assessing the urban design merits of a development,
the Council will consider the preservation and creation of urban form which
contributes to local distinctiveness, such as building features and roofscape and the
contribution of the development to energy and natural resource efficiency.
5.5 No 179 is located on the eastern side of Brockley Road. To the rear of this terrace is
the predominantly residential Harefield Mews. Whilst much of the unauthorised
development is to the rear of the existing property and not visible from the public
realm, the works at first floor level are visible from a number of properties in the
vicinity. Unauthorised development has been constructed adjacent to residential
properties to both sides, as Harefield Mews is located to the rear of this terrace. The
staircase extension (staircase structure) has been constructed substantially blocking
off one of the hotel room windows at first floor level in the rear elevation. The
staircase extension (staircase structure), the external staircase and associated
timber fencing, due to their bulky form and elevated position are out of character with
the existing building and the surrounding properties, contrary to saved Policy URB 3
Urban Design, Core Strategy Policy 15 High Quality Design for Lewisham and Core
Strategy Policy 16 Conservation areas, heritage assets and the historic environment.
5.6 In terms of the single storey extension at ground level, it is considered that this has
little or no impact upon the existing building or the Conservation Area, therefore
preserving the character and appearance of both. The extension has been
constructed against the boundary with 181 Brockley Road and is fairly modest in
size. Planning permission has already been granted for a much larger, full width
extension to the rear, therefore it is not considered expedient to take Enforcement
Action against this unauthorised extension.
5.7 The timber shopfront was originally painted red and black and was of poor
appearance. Recently it has been re-painted in dark red and cream colours and

while it differs from that approved, it is not considered so problematic in the context
of the retail parade as to justify enforcement action.
Amenity Issues
5.8 Policy HSG 4 seeks to protect residential amenity. When seeking permission for
extensions/alterations to existing buildings it must be demonstrated that significant
harm will not arise in respect of overbearing impact, loss of outlook, overshadowing,
loss of light, overlooking, loss or privacy or general noise and disturbance.
5.9 With regard to residential amenity, the neighbouring property most affected by the
staircase extension (staircase structure), external staircase and balustrade fencing is
5 Harefield Mews, which is adjacent to the rear part of 179 Brockley Road.
5.10 Prior to the change of use of the upper floors to a hotel, the only access to the upper
floors was via an external staircase from the rear yard and a walkway across the flat
roof extension. This staircase was of metal construction, and was adjacent to the
boundary with 181 Brockley Road. It is understood that the accommodation on the
upper floors was mainly occupied by restaurant employees. The staircase was
considerably less bulky than the recently constructed staircase and balustrade
fencing and the access to the roof was restricted by a metal hand rail along a narrow
walkway which prevented people from congregating on the roof.
5.11 The situation has clearly changed, as the internal staircase providing access to the
hotel rooms from the main street frontage in Brockley Road has now been
constructed, obviating the need for access from the yard to first floor level. As
outlined above (paragraph 3.6), the application submitted for extensions to the
premises and change of use of the first and second floors to a hotel initially
proposed the provision of access to the flat roof area at the rear for, among other
things, external dining, however officers considered this unacceptable and changes
were negotiated to the scheme. The consented scheme included a shallow balcony
of approximately 1m depth accessed from hotel room 3 only.
5.12 The timber staircase is considered to be a poorly-designed and bulky addition.
Given its height and proximity to the neighbouring residential dwelling, it is
considered to be overbearing and detrimental to neighbouring amenity contrary to
saved Policy HSG 4.
5.13 It is considered that there is impact in terms of loss of outlook, from 5 Harefield
Mews, which has windows at ground floor level in the flank and rear elevations.
Although planning permission has been granted previously for a large single storey
extension to the rear of 179 Brockley Road, the additional height created by the
fencing on top of the existing extension has created an unacceptable sense of
enclosure, especially from the rear windows and rear yard.
5.14 With regard to loss of light and overshadowing, the staircase and fencing has been
constructed to the south of the property at 5 Harefield Mews and is directly adjacent
to its small rear garden area. With this in mind, it is considered that the development
has a detrimental impact upon the already small amount of light enjoyed in the rear
garden.
5.15 With regard to loss of privacy and overlooking, the use of the staircase, apparently
by restauarant and hotel patrons and workers to gain access on to and make use of
the roof has been the cause of considerable disturbance and nuisance to the

esident at 5 Harefield Mews. Whilst the use of the flat roof for smoking cannot be
controlled by way of an Enforcement Notice, the provision of an enclosed staircase
(staircase structure) enabling access to it from the restaurant premises as well as
from the rear yard has considerably exacerbated the problem. It is far more likely
that the flat roof area will result in people, including restaurant/hotel patrons,
congregating on the roof, if easy access is available to it and if it can be safely used
due to the provision of balustrade fencing. With the residential development at the
rear of 181 Brockley Road almost complete, the continued use of this roof has the
potential to cause a nuisance to a growing number of local residents.
Summary
5.16 It is considered that the staircase extension (staircase structure), staircase and
balustrade fencing constructed are inappropriate and have resulted in material harm,
contrary to Core Strategy Policies 15: High Quality Design for Lewisham and 16
Conservation areas, heritage assets and the historic environment in the adopted
Core Strategy (2011) and saved Policies URB 3 Urban Design, URB 6 Alterations
and Extensions and HSG 4 Residential Amenity in the adopted Unitary Development
Plan (July 2004).
5.17 The unauthorised staircase structure, external staircase and fencing appear as
visually obtrusive and bulky forms of development, failing to relate to the host
building and causing demonstrable harm to the amenity of the neighbouring
residential property, contrary to saved policies URB 3 Urban Design; URB 6
Extensions and Alterations and HSG 4 Residential Amenity of the Council's adopted
Unitary Development Plan (2004) and Policies 15 High Quality Design for Lewisham
Core Strategy and 16 Conservation areas, heritage assets and the historic
environment of the Core Strategy (2011).
5.18 The staircase structure, external staircase and associated timber fencing surround
on top of the single storey rear extension, by reason of their poor design and
detrimental impact upon neighbours are contrary to policy. For these reasons it is
considered expedient to serve an Enforcement Notice to remedy the breach of
planning control.
6.0 Legal Implications
6.1 Government Policy advice to local planning authorities on the use of their
enforcement powers is set out in The National Planning Policy Framework (2012).
They have been given primary responsibility for taking whatever enforcement action
may be necessary in the public interest.
6.2 The Local Government Ombudsman can make a finding of "maladministration" if a
Council fails to take enforcement action when it is plainly necessary to do so.
6.3 For the planning system to be robust and to fully achieve its objectives, local
planning authorities should take a proportionate approach to enforcement. Where
developers or individuals have proceeded without due regard to the planning
process, resulting in unacceptable impacts on the local community, local planning
authorities should take appropriate action.
6.4 Effective enforcement is important as a means of maintaining public confidence in
the planning system. Enforcement action is discretionary, and local planning
authorities should act proportionately in responding to suspected breaches of

planning control. Local planning authorities should consider publishing a local
enforcement plan to manage enforcement proactively, in a way that is appropriate to
their area. This should set out how they will monitor the implementation of planning
permissions, investigate alleged cases of unauthorised development and take action
where it is appropriate to do so.
7.0 Human Rights Implications-
7.1 Implications in relation to the Human Rights Act 1998 (HRA) have been identified in
regards to the alleged breach. Action will therefore be relevant to the occupiers’
Article 8 rights and potentially their Article 1 rights under the first protocol of the
HRA, as set out below:
Schedule 1, Part II - The First Protocol
Article 1 Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law. The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to secure the payment
of taxes or other contributions or penalties.
7.2 Given the use of the site as a restaurant and hotel it is not considered that there are
any human rights implications arising from the recommendation to take enforcement
action to remove the staircase.
8.0 Equalities implications
8.1 The Council has considered the public sector equality duty under section 149 of the
Equalities Act 2010 and in the exercise of its functions to have due regard to the
need to eliminate discrimination, harassment and victimisation and any other
conduct which is prohibited under this Act and to foster good relations between
persons who share a relevant protected characteristic and those who do not share it.
The new duty covers the following nine protected characteristics: age, disability,
gender reassignment, marriage and civil partnership, pregnancy and maternity, race
religion or belief, sex and sexual orientation.
8.2 As with the case with the original separate duties, the new duty continues to be a
“have regard duty” and the weight to attach to it is a matter for the committee
bearing in mind relevance and proportionality. It is not an absolute requirement to
eliminate discrimination, advance equality of opportunity, advance equality of
opportunity or foster good relations.
8.3 It is considered that in this matter there is no known impact on equality and pursuing
enforcement action is proportionate and appropriate in all the circumstances.
9.0 Conclusion
9.1 The unauthorised staircase structure, external staircase and fencing constructed are
inappropriate and have resulted in material harm, contrary to Policies 15: High
Quality Design for Lewisham and 16 Conservation areas, heritage assets and the
historic environment of the Core Strategy (2011), saved policies URB 3 Urban

Design, URB 6 Alterations and Extensions and HSG 4 Residential Amenity in the
adopted Unitary Development Plan (July 2004).
9.2 The unauthorised additions appear as visually obtrusive and bulky forms of
development, failing to relate to the host building and causing demonstrable harm to
the amenity of the neighbouring residential property, contrary to saved policies URB
3 Urban Design; URB 6 Extensions and Alterations and HSG 4 Residential Amenity
of the Council's adopted Unitary Development Plan (2004) and Policy 15 High
Quality Design for Lewisham and Policy 16 Conservation areas, heritage assets and
the historic environment of the Core Strategy (2011).
10.0 Requirements of Enforcement Notices-
10.1 To remove the unauthorised staircase extension at first floor level, the timber
staircase and associated fencing from the roof of the single storey extension to the
rear.
10.2 In order to ensure that the breaches of planning control are properly resolved it will
be necessary to:
• Remove the unauthorised timber staircase and the balustrade fencing from the
roof of the single storey extension to the rear.
• Remove the unauthorised staircase structure at first floor level.
• Remove any building materials and rubble arising from the site resulting from
these works.
11.0 RECOMMENDATION
Authorise The Head Of Law to take all necessary action to remove the
unauthorised staircase extension, the unauthorised timber staircase and balustrade
fencing for the following reasons:-
The unauthorised additions appear as visually obtrusive and bulky forms of
development, failing to relate to the host building and causing demonstrable harm to
the amenity of the neighbouring residential property, contrary to saved policies URB
3 Urban Design; URB 6 Extensions and Alterations and HSG 4 Residential Amenity
of the Council's adopted Unitary Development Plan (2004) and Policy 15 High
Quality Design for Lewisham Core Strategy Policy 16 Conservation areas, heritage
assets and the historic environment of the Core Strategy (2011).
Period for Compliance:
3 months