The notice sought demolition of the houses on the basis that they had not been built in accordance with a set of approved plans for the redevelopment of the Grade II listed Beltwood House estate in the Dulwich Wood Conservation Area in Sydenham. 

The parties agreed that the terraced houses had (as built) a different relationship to the adjacent servants’ wing of the listed building (in real life) relative to that depicted on the approved plans, which had been based on what later turned out to have been an incorrect survey and had inconsistencies. Consequently, applying Choiceplace Properties Ltd v SSHCLG [2021] EWHC 1070 (Admin), the houses had been built without permission. 

The Inspector allowed the developer’s appeal and required the terraced houses’ height to be reduced by 472mm on the basis that this would result in less than substantial harm to the significance of Beltwood House that would be outweighed by the public benefits associated with the development. LBS had supported a reduction in height instead of full demolition and suggested the houses be reduced in height by 960mm. The Appellant argued that no height reduction was necessary. 

The Inspector also made a partial costs award in the developer’s favour. The Inspector found that LBS had acted unreasonably by:

• failing to adequately investigate part of the alleged breaches of planning control before taking enforcement action and including the vague phrase “alteration of ground levels” in describing the breach in the notice; 
• seeking an affordable housing contribution from the unauthorised development whilst ignoring the fact that the terraced houses were part of the overall redevelopment/renovation of Beltwood House estate, rather than a free-standing development project, which the Council agreed was unviable;
• including an unsubstantiated objection on fire safety grounds; 
• alleging that the development failed to preserve or enhance the character or appearance of the conservation area and to refer to “substantial” harm in its hearing statement in relation to the listed building; and
• making a costs application that the Inspector concluded had no reasonable chance of success.

The Inspector did not accept that LBS’s failure to determine a previous s73 application and to issue the enforcement notice constituted unreasonable behaviour. Nor did the Inspector conclude that LBS’s position on harm to living conditions of neighbouring residents or its view that a condition controlling the use of the roofs of each of the house would not meet the enforceability and reasonableness tests.

George Mackenzie acted for appellant developer, instructed by Nicholas Kingsley-Smith of Kingsley Smith Solicitors.
Merrow Golden acted for the London Borough of Southwark.
The appeal decision can be found here, the appellant's costs decision here and the council's costs decision here.