Residents eye appeal after failure of High Court challenge to grant of planning permission for major roof extension

Residents who challenged the London Borough of Lambeth’s decision to allow a vertical extension to their block of flats are considering an appeal after a court heard that the effects of the building work on their lives was considered but not given weight.

Law firm Leigh Day, which acted for Vanbrugh Court Residents’ Association, claimed the case had though established the principle that the residential amenity of existing residents of the block is a material planning consideration for upwards extensions.

Vanbrugh Court is a four-storey block of flats, whose residents objected to a planning application for 16 extra flats and five external lifts.

They were concerned about the lack of a structural report to explain how the upwards extension could be built while they were still living in the building and what impact the construction work would have on them.

Lambeth granted planning consent in September 2021 on the basis that the extension would rest on a steel frame that would sit above the existing building’s roof.

The council admitted it might be necessary for residents in the top floor flats to move out while work was done on the roof, but considered this “highly unlikely”, Leigh Day said.

In their application for judicial review of the planning consent, residents argued that there was no evidence to assess whether the existing building could support the extension or whether they would be required to vacate their flats during construction.

In Vanbrugh Court Residents' Association v London Borough of Lambeth [2022] EWHC 1207 (Admin) Mrs Justice Thornton said the concern that residents might need to vacate their homes raised an issue of amenity.

She said the central question was whether the council had treated the issue of the residents having to leave their homes as legally capable of being a material consideration.

The residents said the council had not done so, while the council said it had but still decided to give the issue no weight and so did not ask the applicant to provide a structural survey.

Thornton J said a planning officer had exchanged emails with the applicant on possibility of residents having to relocate, and so it could not be said that the risk to residential amenity was treated as legally immaterial.

The judge said: “Officers treated the question of whether residents might have to vacate their homes during construction as legally capable of being a material consideration.

“However, they decided to attach no weight to the matter, on the basis of information from the applicant that the scenario is ‘highly unlikely’. Further, in the circumstances of this case, the council’s decision to rely on the response from the applicant about structural issues, and not to require a structural survey, was entirely reasonable.”

Leigh Day solicitor Ricardo Gama said: “This was a near miss for Lambeth.

"Proposals for upwards extensions have the potential to create massive impacts for residents who find their homes underneath a construction site or even worse have to leave their homes during construction. In order to avoid challenges like this in future council planning officers will need to make sure that their advice to councillors makes very clear that impacts on residential amenity as a result of structural issues are allowed to be taken into account in the planning balance.”

Vanbrugh Court Residents Association spokesperson David Boardman said the judgment had highlighted that since the planning decision was taken a Building Control Circular had said upward extensions of blocks of flats generally involved a change in structural engineering risk class and the need to consider strengthening to prevent the risk of progressive collapse.

Mark Smulian