Communities secretary Eric Pickles has recovered an appeal against the London Borough of Camden’s refusal of a prior approval application by the owners of Utopia Village in Primrose Hill, which asked to convert 23 of the business units into 53 flats.
A campaign against the conversion is being led by TV retail guru Mary Portas and fashion and business leaders, who this week wrote to Pickles to ask him to deny the appeal.
Camden Council argues that the proposals are unacceptable because they would overlook surrounding residential properties and affect occupiers’ privacy. It says this would constitute an interference of their rights under the European Convention of Human Rights.
In its decision note issued last December, the council had originally listed 15 reasons for refusing the application, many related to the National Planning Policy Framework as opposed to the tightly defined prior approval tests for the permitted development right.
In a delegated report, the authority said while the proposal had been submitted as a prior approval application, the council made its assessment having regard to local and national planning guidance.
But the appellant argued that 11 of the council’s reasons for refusal "are not lawful considerations for the prior approval determination", as under the prior approval system councils may only consider the transport and highways impacts of proposals, as well as contamination and flooding risks.
Following a ministerial statement issued in February, in which former planning minister Nick Boles said some authorities "do not appear to have applied the correctly intended tests to determine applications for prior approval", the council agreed to concede the reasons for refusal that were not directly related to the office-to-residential tests.
It has also agreed to enter into a section 106 agreement to overcome four reasons for refusal related to the transport and highways impacts of the scheme.
But it is still requesting the appeal’s dismissal on the basis that the project would "significantly harm existing occupiers’ privacy to the extent that it would constitute an interference of the neighbours’ rights under Article 8 of the European Convention of Human Rights, the right to respect for private and family life".
In their letter to Pickles this week, opponents of the scheme maintain that the "economic and social impact of this opportunistic use of the new rules is something that you can, and must, take into account in your decision".
They add: "As has been argued in submissions put before you, it is part of the balancing exeresis that must be read into the process."
But Claire Fallows, partner at law firm Speechy Bircham, said there are no grounds for seeking prior approval related to wider social and economic impacts. The clear intention of the government is that prior approval should only relate to highways contamination and flooding, she maintained.
Fallows added that some local planning authorities had initially responded to the new permitted development rights by seeking to use reasons for refusals "that weren’t in the scope of prior approval". But she noted: "Gradually over time they’ve realised that’s not going to wash."
Marnix Elsenaar, head of planning at law firm Addleshaw Goddard, said Camden Council had seemed to have "totally disregarded the fact that prior approval only applies to limited grounds" in refusing the application. "They seem to have thrown the kitchen sink at it," he said.
But Elsenaar said he found it "slightly uncomfortable" that the decision on the case would be made by Eric Pickles rather than by a planning inspector.
"It’s not surprising that Pickles has recovered the appeal because it is his policy," Elsenaar said. "But in making a decision about his own policy he is behaving as judge and jury. There is obvious politics in that."
Former civil servant Michael Bach, who drew up the government town centre first policy in the 1990s, said the Utopia Village example illustrated the unintended effects of the office-to-residential measure.
"Why would the government want to wipe out a successful complex like that and basically throw them out on the street?" he asked.
Other Office-to-Residential Appeals in Camden
54 units, Carlow House, NW1
An appeal was lodged against Camden Council’s decision in January to refuse a prior approval application to convert a 6,902-square metre office into 54 residential units. The council cited 11 grounds for refusal in its notice. The appeal was later withdrawn, and in August the authority approved plans to convert the property into 85 units, subject to a section 106 agreement.
14 units, Marlborough House, NW3
Camden Council rejected a prior approval bid to convert the second and third floors of Marlborough House to residential use, citing ten reasons for refusal. However, in July inspector Christine Thorby allowed an appeal, arguing that there is no contamination or flooding risk and that there would be no harm to the transport network or highway safety from vehicle parking.
13 units, Belsize Road, NW6
An appeal has been lodged against Camden Council’s decision to refuse a prior approval application for the conversion of a 2,285-square metre office building into 13 housing units. According to the appellant, six of the borough’s eight reasons for turning the proposal down do not amount to "lawful considerations for the prior approval determination".
14 units, Fortress Road, NW6
An appeal was lodged in July against the council’s decision to refuse a prior approval bid to convert a four-storey commercial building into 14 homes. Four of the five reasons for refusal related to transport and highways impacts. The council also said the proposal would result in overlooking, breaching Article 8 of the European Convention on Human Rights.