An appeal decision this month overturned a local authority refusal of a permitted development (PD) conversion of a light industrial building in Watford into 15 flats, seven of which – the local authority claimed – would have no windows. The decision has shocked many in the planning sector and beyond.
Inspector Steven Rennie granted developer ISE Investments' appeal against Watford Council’s refusal of prior approval for the scheme close to Watford town centre.
The council's Lib Dem mayor Peter Taylor said the "shocking" case demonstrated the extent to which expanded PD rights to convert non-residential properties into homes, bypassing normal planning controls, have left councils with "no powers whatsoever" to enforce standards.
The appeal turned on the wording of the legislation that underpins the government’s 2016 amendments to the General Permitted Development Order (GDPO) underpinning PD rules. This makes clear that councils can only justify refusing prior approval applications under certain limited criteria. For the use class B1(c) light industrial to C3 housing category of PD rights, the prior approval criteria include whether the development poses transport, highways, flooding or contamination risks. Whether the change of use would have an "adverse impact" on the "sustainability" of an area's provision of industrial, storage or distribution services is another consideration. It does not, however, allow authorities to consider the quality of the new housing produced.
In initially refusing the scheme, Watford Council said the applicant's submitted drawings appeared to show a lack of windows for the seven first-floor flats. The authority also calculated that the proposed flats would be between 16.5 and 22 square metres in size, compared to national space standards of 37 square metres. These details, plus an apparent lack of an adequate means of fire escape from the upper floors, meant that it did not consider the resulting accommodations "could be classed as a 'dwelling' falling within class C3 use".
However, consultancy CR2 Planning, acting on behalf of the developer, asserted in a grounds of appeal document that the council was not in a position to reach such a conclusion on the lack of windows, or the other issues it objected to, from the "basic details" on the flats' internal layout in its application. In any event, factoring in such issues went beyond the scope of the GDPO, the firm argued. And it provided examples of other "small units without windows" granted prior approval.
In his report, the inspector said that "several of the units would not have any windows, based on the submitted plans" and noted that "living without a window would not be a positive living environment". However, he agreed with the developer that the legislation did not permit the council to refuse the proposal on these grounds.
Richard Blyth, head of policy at the Royal Town Planning Institute, said it was "gutsy" of Watford to have mounted this challenge, but ultimately "unsurprising" the inspector had reached this conclusion. Bob Bennett, chair of the development management network at local authority body the Planning Officers Society (POS), said: "The inspector has to go by what it says in the GDPO. If the conditions are complied with, there’s nothing anyone can do."
Taylor has written to secretary of state James Brokenshire questioning both the inspector’s decision, and the implications of the case for the government’s policy on PD rights liberalisation. "It shows the whole framework needs to be reviewed," he said. POS chair Mike Kiely said it represented the "perfect illustration" of the "inhumane" units being allowed under expanded PD rights, adding that he "regularly" saw plans for flats of just 13 square metres submitted to local authorities for prior approval.
The scheme is not thought to be the first PD scheme to feature flats without windows. Plans to convert a storage and distribution building in Hutton Gardens in Barnet, north London, into 11 flats were referenced in the appeal documents for the Watford scheme. The application, which received prior approval in May 2016, included at least one flat without windows, according to drawings lodged on the London Borough of Barnet’s planning portal. Another prior approval application in Barnet, submitted in May, proposes converting an office in Moxon Street into 107 apartments, 56 of which do not appear to have external windows. Bennett said he had heard of similar examples.
Dr Ben Clifford, senior lecturer at University College London's Bartlett School of Planning, said he had seen plans, while researching a study into the quality of PD conversion homes, for a flat with just one window, in the living room, leaving a windowless bedroom with no natural light. Henry Smith, policy manager at the Town and Country Planning Association, which is campaigning against residential PD rights, said the trade body had seen similar examples, such as a two-bed flat planned in Bournemouth with just one "tiny" window. "This is a moral issue," he said. "People’s safety and well-being is being compromised by the use of permitted development."
While there is no government planning policy mandating the provision of windows in residential developments, Clifford said it was inconceivable that flats without windows would be approved through the normal planning process. Typically, local plans contain policies stipulating "adequate" or "sufficient" provision of daylight for habitable rooms in residential buildings. Clifford said: "With planning permission you’d consider whether the scheme was of adequate quality – there’d be a way to refuse something like this, no doubt."
Taylor said the council is now looking at other options to prevent the scheme being built out or occupied, including building regulations provisions. Barry Turner, director of technical policy at membership body Local Authority Building Control, said building regulations contained no stipulations about daylight, but did require the provision of adequate ventilation and means of escape from fire. "If the developer intends to build it out, we’ll look at what other legal avenues we have to stop it," added Taylor.
Campaigners on this issue hope the Watford case will feed into the review of the quality of PD rights housing announced by Brokenshire in the Spring Statement. A housing ministry spokeswoman said the review is expected to report before the end of the year. Taylor said: "There’s a power imbalance between developers and local authorities at the moment. You’ve got to question how we arrived here."
Neither CR2 Planning nor the Watford scheme architect, HK Architecture + Design, responded to requests for comment for this piece, or to requests for contact details for ISE Investments.