The block of flats was to be built across the southern boundary of the nursery’s playground/outdoor classroom at the Grade II Listed Colvestone Primary School in Dalston’s Ridley Road.
Before making their planning application the developer/architects’ firm, Chan and Eayrs, had personally surveyed the site. They had even counted the bricks to establish the height of the walls which surround the Nursery school’s outside space. But their sunlight expert modelled the outside space as if it were virtually in full sun, with only fence posts and not the high brick walls which enclose and already partially shade the space. The expert calculated and advised the Planning Committee , the area would still remain “well lit” after the planned development.
The Nursery Head Teacher had written to Hackney’s planning officer to object to the modelling error. Others, including the school’s Head Teacher, went to the Committee meeting last September 2015 and objected in person. An adjournment to obtain an independent sunlight report was refused. The Committee’s voted for and against granting the planning permission in equally numbers but, on the recommendation of Hackney’s case officer, permission was given by the use of the Committee Chair’s casting vote.
The developer/artchitect Chloe Chan, pictured below with her partner Merlin Eayrs, attended the Committee meeting, with their sunlight expert, and heard the community’s objections but neither said anything about the error in their report. Ms Chan was later named as an ‘interested party’ in the judicial review Court proceedings, but took no part in them.
After the decision to grant planning permission, local resident Judith Watt paid for an independent sunlight opinion. Contrary to the developer’s opinion, it advised of a potential “increase of two to three times the existing levels of overshadowing”. An application was immediately made to the High Court for a judicial review of Hackney’s planning permission. Judith also wrote to Hackney’s Mayor, who said he shared her concern about the effect of the development but he said that he was powerless to intervene in planning decisions. ( True. Planners and Committee members must act independently from political influence. Ed.) Judith’s judical review application was initially rejected by the Court but she appealed successfully and battled on – now with the benefit of a further independent expert’s report which was paid for by the Council’s own Hackney Learning Trust.( So public money was used both to fight the case as well as to defend it. Thanks Hackney! Ed).
Eventually in April, six months after the Court case started, the developer’s expert acknowledged his error – the surrounding brick walls had been omitted from his calculations. The loss of sunlight, he now calculated, would be more than double what the Committee had been told.
But, despite this set back, Hackney not only continued to defend its’ Planning Committee’s decision but it produced further evidence from the developer’s expert who had mislead the Committee. Hackney argued that the original error would have made no difference because more than 50% of the outdoor area would still have a yearly average of at least two hours direct sunshine a day and this exceeded the British Research Establishment (BRE) minimum guideline for playgrounds. The fact that most of the sunshine would be during the summer holidays, and that in winter the area would become totally overshadowed, was not considered relevant. As for any adverse impact on the health, education and well being of the children, Hackney said, the Court had no power to interfer with the planning permission because the Committee members were well aware of the consequences from what the Head Teacher had told them before the decision was made.
The Judge, His Honour Mr Justice Gilbart, revoked Hackney’s planning permission. He found that the effect on the children from the loss of sunlight was an issue of critical importance. The error in the developers’ Committee report had, he said, created a “misleading picture” which had resulted in “unfairness“.
It was also argued, for Judith, that the BRE guideline was not a formula to be applied mechanically in every case, regardless of the actual context and effects of the loss of sunlight. The Judge found that, even though the accepted guideline on minimum sunlight for playgrounds would be exceeded, the Committee could still have refused permission.
Judith expressed delight at the Court’s decision saying “Only one in ten of applications for judicial review are successful so we’ve beaten the odds. It has been a long slog to get to this point but worth it to protect the children’s right to sunshine.”
Judith’s solicitor, Bill Parry-Davies, who acted under a “no win no fee” agreement, commented “It has set a useful precedent for challenging decisions where a planning authority has been misled, innocently or otherwise, by a developer. The judgment also reflects the importance of carefully considering and safeguarding the benefit of sunlight in the context of each case and treating guildelines as just that and not as fixed rules.”
The case has been reported here in the Hackney Citizen
Although the planning permission has been revoked, Dalston residents should watch out because there is likely to be a new application to develop the site in due course. Let’s hope that it will be more respectful of local needs.
Dalston resident wins right to fight for children’s sunlight
Luxury flats will make Colvestone School Nursery resemble a prison
Independent report reveal loss of sunlight to Colvestone School Nursery
Hackney Plannning Committee deicison blights Dalston Nursery Schoool