8 Albert Embankment – Review of the Secretary of State’s Decision

Applications for planning approval were made by U and I (8ae) Limited and the London Fire Commissioner in respect of land at 8 Albert Embankment and land to the rear bounded By Lambeth High Street, Whitgift Street, The Railway Viaduct, Southbank House together with land on the corner of Black Prince Road and Newport Street, London in 2019.

The previous application by another party, in 2013 had been refused permission, on appeal, on a number of grounds including those of daylight and sunlight impacts but this application was supported by the ?Local Planning Authority who recommended approval of the application. The Deputy Mayor of London was unable to deal intervene but with the number of objections and the public local enquiry held by David Richards BSocSci DipTP MRTPI in December 2020, it was decided that it should be called in by the Secretary of State, whose decision was published 23rd June 2021.

There were multiple reasons given for refusal and daylight impacts featured large amongst these, although they did take account of the updated London Plan.

On first reading of the 177 pages of the decision it is possible to gain an impression that the decision was affected by local politics but one has to bear in mind that this was not a normal inquiry where a council refusal is appealed. Lambeth council had approved the development and even fielded their own experts to testify in favour of it. The opposition to the development came from a well organised residents group which used a wide range of arguments against it and this may well be the reason behind this initial perception.

Evidence in respect of daylight and sunlight was given on behalf of Lambeth Council by Ian Dias of Schroeders Begg; on behalf of Lambeth Village by Dr Paul Littlefair of the BRE and on behalf of the applicants by Justin Bolton of Point 2.

In summary, the decision sets out the reasons for refusal in respect of ‘Living conditions of neighbouring residents with particular reference to daylight and sunlight effects’ as follows:

Daylight effects

The Secretary of State agrees with the Inspector in that he accepts that the proposal would have a major adverse impact on the 24 rooms on the lower floors of Whitgift House (IR731).?He also agrees with the Inspector’s analysis of daylight effects at 2 Whitgift Street (IR732-735). He further agrees with the Inspector’s analysis of daylight effects at 72-79 Black Prince Road, 9 Albert Embankment and other buildings.

Acceptability of daylight impacts

The Secretary of State has considered the Inspector’s analysis of the acceptability of daylight effects.?For the reasons given there, he agrees with the Inspector’s conclusion that the proposal would result in some significant individual reductions in daylight levels to a limited number of properties.

He agrees that those reductions at Whitgift House and 2 Whitgift Street would result in reductions greater than Building Regulations Establishment (BRE) guidelines, in some cases substantially so, and residents would experience an unacceptable increase in gloominess.?Accordingly, like the Inspector he attaches very significant weight to the harm to the occupiers of these two properties.?

He further agrees with the Inspector’s conclusion that there would be some other – mostly minor to moderate – adverse effects on daylighting at a number of other properties.?

Sunlight effects

For the reasons given, the Secretary of State agrees with the Inspector that the development would have a very limited adverse impact on levels of sunlight to the windows of affected properties, or to neighbouring gardens/amenity spaces.

Overall conclusion on living conditions

For the reasons set out above the Secretary of State agrees with the Inspector overall, that there would be harm to the living conditions of residents by reason of significant loss of daylight to windows and habitable rooms, principally affecting Whitgift House and 2 Whitgift Street (IR837).

He considers that the identified harms would involve a degree of conflict with the relevant development plan policies particularly in respect of aspects of LLP site allocation Policy PN2 as well as LLP policy Q2 and LP policies D3 and D6.

Amenity of neighbouring community and other uses

For the reasons given the Secretary of State agrees with the Inspector that it is clear that the Garden Museum is a great cultural and community asset to the locality and to London. However, he further agrees that he is unable to find any persuasive evidence that the proposed development would be harmful to the Garden Museum’s continuing success, or would prevent it developing its work in the community, including the greening and enhancement of adjacent spaces.

For the reasons given the Secretary of State agrees that the Beaconsfield Gallery would still receive adequate levels of daylight and sunlight in its key spaces and agrees that its use would not be compromised or its future threatened by the development.?

Overall, he agrees with the Inspector that there would be no significant adverse effect on the levels of sunlight and daylight reaching community uses and associated spaces in the neighbourhood of the development.???

Weighing against the proposal is the less than substantial harm to a number of important heritage assets from the impact of the proposed tall buildings; to the significance of 8 Albert Embankment (former London Fire Brigade HQ and drill tower), to the significance of the Albert Embankment Conservation Area, to the setting of Lambeth Palace and the associated conservation area and to the setting of the Palace of Westminster WHS.

Collectively this harm is apportioned great weight and also puts the development in conflict with key principles of the site allocation policy in respect of heritage.?

Significant weight is apportioned to the harm to residential amenity by virtue of loss of daylight and sunlight at flats within Whitgift House and 2 Whitgift Street, which also conflicts with relevant principles of the site allocation policy.?

Furthermore, the Secretary of State attributes significant weight from the conflict with emerging local plan policy in the DRLLP including on tall buildings at this location specifically within the allocation.??

This decision has significant consequences for daylight and sunlight advisers who, most recently, had been relying on the inspectors decisions in respect of Graphite Square and Whitechapel Estate appeals, to justify the use of 15% VSC in dense urban developments. It is therefore important to understand the arguments raised and whether this case should be treated as an exception.

Evidence provided by the Applicants

The SoS decision sets out how the applicants had given careful consideration to the fact that, even with huge care in the design, the scheme would give rise to a number of negative effects in terms of daylight and sunlight for neighbouring buildings but that Mr Pilbrow, working with Point 2, had designed taller slimmer blocks set at an angle within the site to minimise the reduction in daylight to neighbours.

The report, by Point 2, set out sets out the policy tests applicable to the assessment of whether the scheme would have an acceptable or unacceptable effect on living conditions and that, in order to make a judgement, it is necessary to start by assessing the effects by reference to the BRE Report BR209 for Vertical Sky Component (VSC), No Sky Line (NSL) and, if relevant, Average Daylight Factor (ADF).

It was pointed out that BR209 is purely advisory and not an instrument of policy. The numerical values stated are to be interpreted flexibly, as frequently acknowledged by Dr Littlefair. For this reason, the ?emphasis in both Court decisions on daylight and sunlight and appeal decisions always proceed on the basis of a two-stage test, using the BRE assessment followed by contextual judgement as to acceptability and the evidence provided by Point 2 and Schroeders Begg should be considered in this light.

Both reports used retained VSC values in the mid-teens, as their benchmark, on the basis that these have been held to be reasonable, in inner urban locations, in recent planning appeal decisions.

Comment

In doing this they failed to properly analyse the noticeability of reductions in VSC which might, or might not, have provided a better indication of impact.

It was pointed out that Dr Littlefair had confirmed that he had not carried out any form of contextual appraisal, arguing instead that the Whitechapel case was “not so relevant” and that the mid-teens benchmark was something that developers “try to get away with”. He denied that mid-teens VSC was used a benchmark by local authorities but it was pointed out that the mid-teens benchmark “is a clearly-established test which applies to areas of Inner London like the appeal site within the VNEB” and that it is ?a common approach referenced by both Mr Bolton and Mr Dias.

It was argued that Dr Littlefair’s response – ‘it’s not in the BRE’ ?was unhelpful especially as BR209 was published in 2011 and no revision had yet been issued, at the time of the hearing, to reflect current thinking. In fact, it was pointed out that “Dr Littlefair had not applied the mid-teens retained VSC benchmark and had no evidence to give as to whether, if it was applied, the scheme would be seen as giving rise to acceptable effects on daylight”.

Dr Littlefair considered that mid-teens VSC would tend to result in poor daylight but accepted that nothing in BR209 sets out a point at which retained levels would become unacceptable. There was no challenge to the methodologies used in the reports and for this reason it was argued that the effects of the proposal, whilst material, would not be unacceptable.

Comment

It is known that BRE are currently amending BR209 following the issue of BS EN 17037. Perhaps this is an opportunity to add some clarity in respect of this.

The evidence in respect of retained values was as follows:

Whitgift House

·???????Average 17.8% VSC on the ground floor, with the worst 16.6%.

·???????Average across the entire face of the building towards the Site is 19.2%,

·???????Averages by floor ranging from 17.8% on the Ground Floor to 21.5% on the Third Floor.

2 Whitgift St

????????All 22 windows on the front elevation facing the site would retain VSC in excess of 15.28%, including all nine windows underneath the deep projecting balconies.

????????If one discounts the balconies as existing features, the average jumps to 23.56%.

????????The NSL results for the building are satisfactory.

9 Albert Embankment

????????Building B would retain 16% VSC on average facing the scheme, a percentage point more, if one removes the balcony effect.

????????Building A, East, would retain an average of 20%, rising to 26% without the balcony effect,

????????Building A, West, would retain average VSC of 23% across the 191 windows.

It was accepted that there would be some moderate to major adverse impacts measured by reference to BR209 but asserted that the resulting retained levels would be acceptable in this location.

The property at ?73-79 Black Prince Road, which currently has an unobstructed outlook over a vacant site, would not be affected to the extent claimed by objectors who, it was suggested, had misread the evidence. Whilst there would be a 57% reduction in VSC for the large south-facing window , the three equally large east facing windows cast a considerable amount of light into the space and would be entirely unaffected by the scheme such that the average retained value would be 20.84% and the main space would achieve nearly 100% of NSL.

On the subject of sunlight on ground it was argued that it was only the garden walk in the middle of the Site which would be relatively shady – the rest would all receive good sunlight. ?It was also stated that there was no basis for the suggestion that Old Paradise Gardens would be cast into shadow, in combination with the consented scheme to the north east.

Evidence from the Local Authority

The local authority perceived that the critical issue in the case was whether the proposal would have an ‘unacceptable’ effect on local residents and pointed out that “the relevant policies do not define ‘acceptability’ by reference to the criteria contained in the BRE guidance.?A judgment on acceptability needs to take into account other parameters, including, importantly, what the retained level of Vertical Sky Component (VSC) or Daylight Distribution (DD) would be, how particular premises are used, the effect of the inherent sensitivity of the building in question, and how the effects measure against guidance on the delivery of housing in London and other similar typologies in the area.?It is unsurprising that other factors should be taken into account in reaching this judgment since the BRE guidance, in terms, states that it is to be applied flexibly and is not a policy tool”.?

They pointed out that the objectors’ error was to concentrate solely on the BRE guidance and not consider the other factors bearing on ‘acceptability’. Consequently, the objectors’ case had failed entirely to establish a sustainable objection to this part of the scheme.?In fact, the Council did assess the question of acceptability and reached the conclusion that the scheme complied with its local plan policy.?

Mr Dias, acting for the Council, had considered the effects of the scheme from the perspective of the BRE guidelines and other attributes; his conclusions, established the following:

Whitgift House???

It was stated that, the impact under the EIA classification criteria would be moderate/major adverse.?However, there would be significantly less impact than the appeal scheme in both the VSC and DD.??

????????The average VSC in the proposed scheme is 19.15% and in the appeal scheme it was 15.96%.

Mr Dias considered that the retained values were reasonable for the area, both by reference to existing typologies (Eustace House) and the criteria contained in the Whitechapel Estate decision.???

Whilst Dr Littlefair had rejected the use of a retained value of 15%, he had not rejected the use of retained values as a matter of principle and it was noted that it is an approach which is consistent with the Mayor’s guidance that targets should be assessed “drawing on broadly comparable residential typologies” and that “Decision makers should recognise that fully optimising housing potential on large sites may necessitate standards which depart from those presently experienced but which still achieve satisfactory levels of residential amenity and avoid unacceptable harm”.?

By contrast, it was noted that Dr Littlefair disagreed with the first part of this guidance and had relied upon the Sainsbury’s Whitechapel and the Peachtree decisions in reaching his assessment. It was the Council’s position, however, that the Inspector in the Sainsbury’s case did accept, in a positive way, the use of a 15% retained VSC and that, as for the Peachtree decision, the Inspector in that case did in fact conclude that a residual standard was appropriate; the use of a VSC criterion of 20% was, in that case, deemed appropriate, but this was chosen because of the ‘domestic scale’ of the housing in the area and so they argued that the conclusion in that case was distinguishable from the current case.??

Of personal interest to me is that Mr Dias had stated that, while tree cover is not included in an assessment of effect under the BRE guidance, the reality is that the tree cover in front of a number of the properties in Whitgift House already limits daylight and sunlight and it is my view that this might have been modelled to positive effect.

2 Whitgift Street.??

This property was assessed by Mr Dias as having a ‘moderate’ effect under the EIA classification, albeit that it has a ‘minor’ effect for the upper half of the building.?The proposal does, however, have a significantly better effect than the appeal scheme.

????????Retained VSC levels at 19.35% compared to 16.75%.???

????????The main affected windows in this property have a low level of existing VSC by virtue of the deep overhanging balconies which create an inherent sensitivity and so the actual reduction is generally no more than 5%.?Those windows not under the balcony generally retain VSC levels above 20% with the isolated exception of the ground floor, with a VSC value of c. 17%.???

????????In terms of DD, all rooms except 2 bedrooms meet the BRE default criteria and these are also affected by the balcony restrictions.???While it is right that the DD is a separate test under the BRE guidance, the fact that a development does typically meet the DD is nevertheless relevant when considering the acceptability of the scheme.????

9 Albert Embankment (“9AE”), Building A East ?

Mr Dias assessed the EIA categorisation effect on this building as “moderate”.

·???????Average retained VSC levels were stated to be 19.57% but the lower floors, where the impact would be the greatest, have their daylight restricted by balconies. It was agreed by ?Dr Littlefair that these could be taken into account, in which case, in the lower half of the building, VSC reductions would be typically just over 20% and, in the upper half, typically do not exceed a 20% reduction.??

????????In respect of daylight distribution, it was stated that, of the 63 rooms analysed, there would be 8 that would suffer a ‘major’ effect, 6 with a ‘moderate’ effect and 6 with a ‘minor’ effect.???

9 Albert Embankment, Building A West?

Mr Dias considered that the effect on this building would be ‘minor’ with the exception of isolated areas of ‘moderate’ effects on VSC but in such instances.

·???????Retained VSC levels would be above the mid-teens.?

·???????Daylight distribution reductions would typically meet the BRE guidance.???

Albert Embankment, Building B

Mr Dias was also of the view that the effects would be mainly ‘minor’ barring isolated windows below balcony soffits and that daylight distribution reductions would be generally in accordance with the BRE target criteria except for some very isolated ‘moderate effects at lower levels.

73-79 Black Prince Road?

It was acknowledged that there would be 8 ‘moderate’ and 8 ‘major’ reduction effects on VSC but Mr Dias pointed out that these effects would be in respect of bedrooms.

·???????Retained average values range between 17.5% on the ground floor and 22.4% on the third floor.?The living rooms all face away from the proposed development and would be unaffected by the scheme.??

·???????The daylight distribution would meet the BRE guidance with the exception of one top-floor bedroom which would experience a ‘minor’ adverse reduction.

15-17 Lambeth High St??

It was Mr Dias’ view that the effects on No. 15 would meet BRE guidance.

·???????In relation to Nos. 16 – 17, the VSC would generally meet the BRE target criteria except for isolated ‘minor’ and ‘moderate’ effects (on 2 and 3 main studio windows respectively). The average retained VSC for this property would be better than the appeal scheme.?

·???????Daylight distribution results would meet the BRE guidance, with the possible exception of three galley kitchens.???

44 Lambeth High St (the Windmill)?

It was accepted that There would be ‘moderate’ or ‘major’ effects on the VSC to some windows but that, for habitable rooms served by windows in the front elevation, all but one small bedroom is served by at least two windows and that one living room is served by five windows

·???????Retained VSC values would be typically at mid-teens and above.

·???????Daylight distribution and sunlight would meet BRE guidance.???

71 Black Prince Road (the former Queen’s Head)?

The adverse impact relates to 3 habitable rooms (at ‘major’).

·???????Retained VSC would be about 15% but the average effect on VSC for the building would be over 21%.

·???????Daylight distribution would be significantly reduced to these rooms.???

Remaining properties would meet BRE guidance, experiencing only minor change.

It was therefore argued that that the effect of the present scheme on the VSC of Whitgift House and 2 Whitgift Street, which were the prime determinants of the Appeal Inspector’s decision to reject the Appeal scheme, would be significantly better than the Appeal scheme and that, where the effect would be worse, the average retained VSC level would be generally over 15%.

The Council pointed out that Dr Littlefair’s assessment table showing that the number of windows failing the BRE guidance that would be worse in the present scheme than the appeal scheme should be rejected as a measure of the effect of the scheme because it failed to assess the extent of any such reductions and their effects.?

It was further asserted that Dr Littlefair’s reliance on the degree to which rooms would meet the ADF criteria (which he considered would result in ‘conclusive’ evidence of adverse effects) should be rejected, if only because of Dr Littlefair’s own acknowledgement of the shortcomings of that measure and because his analysis failed to compare the existing ADF levels with the post-scheme levels.

Evidence on Behalf of Objectors

Dr Littlefair’s used the Applicant’s data and to undertake his assessment and it was asserted that his analysis demonstrated that the harm would be much greater than presented by the Applicant. It was also stated that ‘it is not correct to say that the calculations for this target are based on a suburban context and that they are based on having an acceptable amount of daylight for the function of residential accommodation’

Comment

In truth this is difficult for surveyors to accept when the guidance itself contains appendix F which is solely about setting alternative target values particularly in respect of dense urban environments.

It was asserted that 221 windows under the failed 2013 scheme would have failed the VSC test whereas 424 would fail under the current proposals and that, out of 1,430 windows, 1,375 windows would lose more daylight under the proposed scheme than the rejected Native Land scheme, with 55 windows having a greater than 20% loss beyond the impact of the rejected Appeal scheme. It was also stated that 14 of the 18 buildings around the perimeter of the development would lose more daylight than they would have through the rejected scheme.

The objectors argued that it was not sensible to use average figures of daylight to all windows in a building as a measure of acceptability when, for example, 9 Albert Embankment Building B would have some of the worst daylight levels if this scheme were permitted, with an average VSC of just 15.78% with some flats retaining 33% VSC but others less than 10%.

The VSC in Whitgift House would have averaged 15.96% VSC under the rejected scheme but would now average 19.15% if the application were approved.

Importantly, it was stated that 23 out of the 25 living rooms in the flats in Whitgift House would be left with substandard daylight, below the minimum values in the former British Standard BS 8206-2. This was withdrawn in 2019 and replaced with the more demanding EN 17037, which establishes the ‘acceptable living standards’ referred to in the NPPF paragraph 123 (c).?

Comment

This implies the use of the ADF calculation which BRE state should not be used to assess existing situations for the simple reason that internal conditions will vary and the difference between bets case and worse case is quite large.

It was complained that Mr Dias’ report drew a a false conclusion by saying that the social housing on Whitgift Street would do marginally better than the rejected Appeal and that, therefore, the impacts on all neighbouring properties are acceptable: “for an urban scheme of this nature, it is considered that the adversity impact could be considered acceptable with the scheme also representing an improvement (lesser impact) when compared to the appeal scheme” and that ‘this sentence went directly into the conclusion on daylight in the report which was given to members of Lambeth’s Planning Applications Committee on 3rd December 2019, who then resolved to grant permission.

The objectors claimed that, among the impacts that had not been given sufficient weight were reductions of up to 60% of the daylight on bedsit dwellings with single windows at 71 Black Prince Road, and similar reductions at the Beaconsfield gallery. It was their case that applicants had ignored the test of noticeability of reductions as set out in the BRE guidance and concentrated instead on justifying alternative targets by reference to previously approved clusters of tower blocks. Mr Dias had added to this narrative by selectively citing comparable developments close to the site but without consideration of the particulars of those schemes.

The Decision Analysed

Policy and Guidance

The decision notice set out the relevant policy documents including the Mayor’s SPG which advises that an appropriate degree of flexibility needs to be applied when using the BRE guidelines, ‘which should be applied sensitively to higher density development, especially in opportunity areas taking into account local circumstances, the need to optimise housing capacity, and the scope for the character and form of an area to change over time. The degree of harm on adjacent properties and the daylight targets within a proposed scheme should be assessed drawing on broadly comparable residential typologies within the area and of a similar nature across London’.?

It then went on to describe the tests set out in the BRE publication ‘Site Layout Planning for Daylight and Sunlight: A guide to good practice’.

When considering the Environmental Statement and the Point 2 report it was noted that the average daylight factor (ADF) test was suitable for use on new dwellings where the designer could compensate for a high level of obstruction, for example by making the windows larger or the room smaller. No comment was made about the use for testing existing dwellings. It then went on to describe how, when the loss of daylight or sunlight does not meet the guidance in the BRE Report, the impact is assessed as minor, moderate or major adverse giving the factors which would lead towards a categorisation of minor adverse impact as being where ‘only a small number of windows or limited area of open space are affected; the loss of light is only marginally outside the guidelines; an affected room has other sources of skylight or sunlight. Factors tending towards a major adverse impact include: a large number of windows are affected; the loss of light is substantially outside the guidelines; all the windows in a particular property are affected’.

The key points of the applicants’/ London Borough of Lambeth’s case were summarised as follows:

1????????????????There are some adverse results in terms of impact on daylight but these need to be considered?‘in reference to the detail and background to the particular property under review.’ In terms of sunlight the proposals adhere to the BRE guidance.

2?????????????????Compliance with BRE Guidance is not mandatory and the overall merits of the scheme will have an influence on the balance of acceptably.

3????????????????The proposals represent and improvement on the Appeal scheme.

4????????????????Subject to relevant specifics, the decision in Graphite Square illustrates that alternative targets may be appropriate.

5????????????????The GLA Stage 2 report confirmed that the benefits provided by the scheme were significant and were considered to outweigh daylight and sunlight issues and the Council had sought an independent review of the Point2 Surveyor’s report by Schroeders Begg and, based on this review it was agreed that for an urban scheme of this nature, the adversity impact is considered acceptable with the scheme also representing an improvement (lesser impact) when compared to the 2013 appeal scheme.

6????????????????The sun on ground results would meet the BRE guidance.

The decision then goes on to summarise the objections from Lambeth Village as follows:

1????????????????The daylight impacts have been understated in evaluations by the Applicant and the Council;

2????????????????The importance of daylight impacts on living rooms have been generally undervalued.

3????????????????The BRE guidance provides metrics but do not state what would be acceptable in particular circumstances.

4????????????????Case law suggests a staged approach should be used to assess levels of VSC, No \sky Line and ADF (where applicable).

5????????????????LV identified a major adverse impact to sky light in flats 1 – 24 Whitgift House. Existing VSC ranges from some 27% to 34%, daylight levels generally improving as one moves up the building. All 60 would suffer a loss daylight in excess of the BRE guidelines. The Applicant’s data shows that they would all have VSCs significantly below 27% and that VSC components with the new development in place would be between 0.59 and 0.67 times their previous values, substantially below the 0.8 times recommended in the BRE guidelines.

6????????????????The lowest calculated retained VSC factor on this fa?ade would be 16.6%. 53 of the windows would retain a VSC above of 18%, with the average retained VSC across the front elevation facing the proposed development would be 19.2%.

7????????????????Applying the NSL approach, 24 of the rooms would have an impact on their daylight distribution outside the BRE guidelines, with 10 rooms on the ground floor having a loss of 40% or more in the area receiving daylight. For all the rooms assessed, the retained daylight falling in the room behind the aperture would exceed 50% with 54 out of 64 rooms achieving light of 60% or more. The average retained NSL for rooms with windows on the front elevation would be 77.3%.

8????????????????For 2 Whitgift Street The living room windows under the balconies would be the most affected, with retained VSC values of some 25 – 50% of their current values. There are also smaller secondary windows to be considered which would have VSCs of 0.58 – 0.75 times their current values.

9????????????????Of the 22 windows on the front elevation, all would retain a VSC in excess of 15.28% (including the 9 windows located under the balconies). These 9 windows are overshot by projecting balconies, serving 5 lounge/kitchen/diners and 4 bedrooms. The obstructed view of the sky result in an average existing retained VSC value of 6.77% for these windows.?

10?????????????Turning to 73-79 Black Prince Road, of the 16 north-facing windows analysed by the Applicant the retained VSC would be between 0.61 and 0.49 of their former values. The worst affected windows would be towards the eastern end of the building.

11?????????????Next considering 9 Albert Embankment, the windows facing onto Black Prince Road would be affected. In Building B West, the main impacts would occur on the upper floors, as the lower floors are already obstructed by Southbank House. 53 windows would suffer a loss of light outside the BRE guidance.

12?????????????Building A East has balconies along its northern elevation facing the new development. 96 windows would suffer losses of VSC above the BRE guidelines, including all windows on floors 1 – 5. On the lower 5 floors windows would typically lose between a third to a half of their VSC. Retained VSCs with the new development in place would typically be in the 5 – 15% range, which LV consider would result in poor daylighting to the interiors.

13?????????????Building A West has its main fa?ade facing west over Albert Embankment, there would be some significant losses of light to east facing bedrooms and kitchens tucked into the gap between Building A, West and Building A, East, which in most cases are just outside the guidance. Overall, the loss of daylight to Building B West would be assessed as minor adverse.??

14?????????????In considering other buildings LV maintained that The Windmill Public House faces onto Lambeth High Street. LV consider that windows facing onto the street would have a substantial loss of light, with reductions in VSC of between 0.71 and 0.39 times their current values. 15 – 17 Lambeth High Street would have a reduction of VSC of between 0.61 and 0.78, which they assesses to be a moderate to major adverse impact on VSC; 21 – 67 Newport Street would have reductions in VSC of between 0.6 and 0.8 times the current value; The Queen’s Head PH (71 Black Prince Road) would experience reductions in VSC greater than 40%;?80 windows at 81 Black Prince Road would not meet the BRE guidelines for VSC although they accept that the loss of light is not far below the guidelines

Conclusions on daylight impact

Within the decision it was stated that, in respect of Whitgift house, it was accepted that there is a judgment to be made as to acceptability but, in terms of the guidance, the proposals would have a major adverse impact on the 24 rooms on the lower floors of Whitgift House, having regard to the reduction in VSC and the retained light levels. Impacts on the upper floors would be less serious, but I would still regard the impact as moderate adverse having regard to the BRE criteria. However, in respect of the Black Prince property, the flats would retain a good standard of amenity overall, and the effects of the proposal on daylight would be acceptable.

Dr Littlefair accepted, in respect of 9 Albert Embankment, that existing balconies above the windows cut out a proportion of the light and worsen the relative loss of light. Point2 undertook a calculation without the balconies in place. There would still be 74 windows with losses of VSC outside the guidance, and 18 rooms would have a worsening of VSC outside the guidelines, with the loss of light assessed as moderate to major adverse.

The decision went on to state that the BRE guidelines are an aid to analysing effects. They can assist in quantifying effects of development in terms of whether a room would become gloomier. This did not necessarily mean that the scheme should fail and the applicants had drawn attention to other decisions such as the Whitechapel Estate where the Inspector agreed that ‘the blanket application of the BRE guide optimum standards, which are best achieved in relatively low-rise, well-spaced layouts, is not appropriate in this instance’.

Comment

It should be noted that ‘gloominess’ is a subjective expression and that with available daylight varying constantly there will be times when a room will not feel gloomy but may be less well daylit than previously.

It was also noted that the site allocations in the LLP, and the inclusion of the site in the VNEB, are clear indications that change is to be expected to the form and character of the area over time in this part of Lambeth and then referenced the Mayor’s Housing SPG which advises that guidance should be applied sensitively to higher density developments, especially in opportunity areas.

Arguments that the 27% ‘target’ for VSC is more appropriate to a suburban location, rather than an inner London Opportunity Area were rejected by Dr Littlefair and it was pointed out that the Judge in the Rainbird case noted that there is nothing in the BRE guidelines that states that this value is derived from a suburban development or that indicates that its guidelines are only applicable to developments outside an ‘inner city urban environment’.

The Applicant had undertaken comparative studies with nearby Eustace House which appeared to justify lower levels of VSC but the SoS decision stated that ‘I do not consider that Eustace House should be treated as an appropriate benchmark for acceptable daylight levels’.

The SoS decision dismissed the references to the Whitechapel Estate and Graphite Square appeal decisions and referenced the Sainsbury’s appeal at Cambridge Heath Road, London E1 5SD, in which case, the Secretary of State agreed with the Inspector’s assessment that very many existing neighbours would experience a gloomier outlook than at present, and that a large number of windows would be affected, many quite significantly. He considered that this harmful impact on neighbouring properties should carry substantial weight against the proposal and would conflict with the relevant core strategy policy.

The decision then concluded that the proposal ‘would result in some significant individual reductions in daylight levels to a limited number of properties. Those reductions at Whitgift House and 2 Whitgift Street would result in reductions greater than the BRE guidelines, in some cases substantially so, and residents would experience an unacceptable increase in gloominess. The reduction in light would affect all of the flats in Whitgift House but would be particularly noticeable on the lower floors. I attach very significant weight to the harm to the occupiers of these two properties’.

The decision also took account of the other lesser impacts as part of the overall balance.

Comment

Whilst most surveyors will be concerned that this decision will make it harder to advise clients on the appropriate level of acceptable impacts, it is worth noting that LV always believed that they, the residents, had a good case given the widespread impacts, which were worse than those for the previous scheme which had been turned down on appeal.

Turning to the analyses of impacts on sunlight the decision concludes that the development would have a very limited adverse effect on levels of sunlight to the windows of affected properties, or to neighbouring gardens/amenity spaces.

Commentary on the acceptance of 15% VSC

The use of 15% VSC in inner cities has gained some currency following analyses in many areas and it is fair to say that, in many upmarket properties, the norm is often less than 15% without complaint from the occupiers who are more concerned with location than the possible health and other benefits of adequate daylight.

Nevertheless, it is worth understanding what 15% VSC represents in internal daylight terms.

Many years ago, it was a requirement that habitable rooms should have a window area of 10% of the floor area. This requirement took no account of VSC but was deemed to be sufficient for ordinary use. If one considered a room, using the ADF calculations provided by BRE, then a living room of size 6 metres by 4 metres by 2.4 metres would require a glazed area of 2.4m2. Using a transmission factor of 0.68, internal reflectance 0.5 (although this could be higher) and a visible sky angle of 45 (equates to 15% VSC) then the ADF would be 1.02% which is below the BRE guidance.

However, if the window size were 15% of the floor area, the result in an ADF slightly above 1.5%

Similarly, in a bedroom, 3 metres square, a window of 10% of the floor area would give an ADF of 0.78% but a window of 13% of floor area would achieve an ADF in excess of 1%.

Using this methodology, it would be reasonable to assert that even where the VSC reduction is noticeable and even when it is reduced to 15%, an adequate daylit appearance might be achieved if the existing window glazed area is at least 15% of the floor area of the room.