Judge affirms that planners should consider impact on existing residents when making decisions on vertical extensions

Lawyers representing Vanbrugh Court Residents’ Association say the case establishes the important principle that when considering planning applications for upwards extensions, the residential amenity of existing residents of the block is a material planning consideration.

Residents at the four-storey block of flats at Vanbrugh Court, Wincott Street, Lambeth, objected to the planning application for 16 extra flats and five external lifts after it was submitted in July 2018. They were concerned about the lack of a structural report to explain how the upwards extension could be built while they were still living in the building and what impact the building work would have on them.

They objected again in February 2019 and May 2020, following further reports to Lambeth Council.

In September 2021 the council granted the application on the basis that the extension would rest on a steel frame that would sit above the existing building’s roof. In an email exchange between a council officer and the applicant it was stated that it might be necessary for residents in the top floor flats to move out while work was done on the roof, but it was highly unlikely. Councillors were advised that the applicant said this was highly unlikely.

In an application for judicial review of the council decision to allow the extension to be built, residents argued that there was no evidence to assess whether the existing building could support the extension or whether they would be required to vacate their flats during construction. The developers should have been required to produce a structural survey to address the issues.

In a judgment given on Friday 20 May, Mrs Justice Thornton said the concern that residents might need to vacate their homes during construction raised an issue of amenity and the acceptable use of the land in question. She identified the central question as whether the council had treated the issue of the residents having to leave their homes as legally capable of being a material consideration. The residents said the council had not done so, while the council said that while it had treated residential impacts as capable of being a material consideration, it decided to give the issue no weight and so did not ask the applicant to provide a structural survey.

The judge said that since a planning officer had exchanged emails with the applicant on the issue of the possibility of residents having to relocate, it cannot be said that they treated the risk of impact on residential amenity as legally immaterial. She did not accept that not telling councillors that it might be necessary for residents to move out amounted to misdirecting them.

She said the decision not to attach weight to the issue of residents having to move out could not be seen as irrational.

The judge said:

“Officers treated the question of whether residents might have to vacate their homes during construction as legally capable of being a material consideration. However, they decided to attach no weight to the matter, on the basis of information from the applicant that the scenario is ‘highly unlikely’. Further, in the circumstances of this case, the Council’s decision to rely on the response from the applicant about structural issues, and not to require a structural survey, was entirely reasonable.”

Vanbrugh Court Residents Association spokesperson David Boardman said:

“This is a setback for the long suffering residents of Vanbrugh Court, who will consider their appeal options, but it is modest better news for others on the receiving end of upward extension proposals.

“Not only is the amenity impact during building firmly established as a material consideration in coming to the planning decision, but we now know two things which we did not when our planning decision was taken.

“First, the Government has acknowledged in a Building Control Circular, that upward extension of blocks of flats involves generally a change in structural engineering risk class, and the need to consider strengthening to prevent the risk of progressive collapse. Second, from the Impact Assessment for the Upward Extension Permitted Development, that it may be necessary to decant residents while major structural works are undertaken.

“Let us hope that no future planning committee faced with such a proposal accepts airy statements from applicants that there is no need to worry about structural issues and their impact on amenity!"

Leigh Day solicitor Ricardo Gama, who represents the residents, said:

“This was a near miss for Lambeth. Proposals for upwards extensions have the potential to create massive impacts for residents who find their homes underneath a construction site or even worse have to leave their homes during construction. In order to avoid challenges like this in future council planning officers will need to make sure that their advice to councillors makes very clear that impacts on residential amenity as a result of structural issues are allowed to be taken into account in the planning balance.”