The Urbanissta Legal Beagle is on the case!
Welcome to the Urbanissta Legal Beagle’s case law reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgements and decisions that might be useful to you, day to day.
We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. We’ll be giving you an updated review each month so remember to keep any eye out for our updates in the weeks to come!
1 Housing shortfall leads to approval
Land to the west of Mill Road, Over, Cambridge, Cambridgeshire
Appeal Ref: APP/W0530/W/16/3148949
Appeal Decision Date: 18.01.17
Appellant: Bloor Homes
Respondent: South Cambridgeshire District Council
The appeal was made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.
Background
Bloor Homes (Eastern) made an application for the development of 55 dwellings with associated access, infrastructure and open space at Land to the west of Mill Road in South Cambridgeshire.
The Council refused the application on the following basis:
- The scale of development in the group village was not considered to be sustainable. Furthermore, future occupants would need access to a private car in order to access basic social and community facilities, employment and schools
- Site is located at a gateway to a village in the Countryside. The Council raised concern that the development could not accommodate the quantum of development proposed without materially detracting from the rural character of the setting of the village
Note: The Council also raised issue in respect of the achievement of the minimum separation distances between dwellings sought by the District Design Guide Supplementary Planning Document. However, this concern was later dropped as the master plan demonstrated that this could be achieved.
The main issues raised at the inquiry were:
- Access to shops, employment, and community facilities for proposed developments
- The effect on the rural character and village settings
Sustainable development and access to employment, shops and services
It was agreed that as the Council fall short of their 5 year supply of land, the blanket application of the existing settlement hierarchy would significantly restrict the achievement of boosting the supply of housing. Limited weight was attached to Policies DP/1a and DP/7, furthermore, due to the draft status of the emerging policies, these were considered to have little bearing on the matter.
Turning to the access to the school (Swavesey Village College) and shops, it was held that the school was within an accessible distance to the Site on the basis that the school is approximately 4.5km from the site and the average trip in the National Travel Survey is 5.2km – 7.3 km for rural or fringe locations and 12.2 km for rural villages and as such there were available means of transport that could be utilised other than the use of a private car.
In terms of shopping and employment there would be likely to be a need to travel outside the village, however, this would be no different to general population who rely on private vehicles. The inspector was satisfied that there were means of realistic and reasonable opportunities for the use of transport other than the private car (bicycle & bus). It was therefore concluded that there was limited harm arising from the access to facilities, due to the limited access to shops.
Rural Character and village setting
As the application was an outline with only matters of access to be considered, appearance was reserved for future consideration and therefore the detail and assessment of layout was not considered at inquiry and was not considered determinative of a future scheme. The development was found to be acceptable in visual terms and was considered not to conflict with policies DP/2 and DP/3 in the DCP. The Inspector was satisfied that the proposal would not have a detrimental impact and would outweigh the benefits of the scheme when assessed against the relevant policies. On this basis the scheme was considered to be sustainable and decided that it should be allowed.
It was agreed that the Council was unable to demonstrate a 5 year supply of land for housing and the policy restricting housing development outside the village boundary was considered ‘out of date’. The inspector was satisfied that the quantum of development could be acceptably accommodated and details in respect of appearance would be subject of future reserved matters application, allowing for detailed consideration of the “finer grain effects of any development” be reviewed at a later stage.
Conclusion
South Cambridgeshire was unable to demonstrate a five-year supply of land for housing and policies ST/6, DP/1 and DP/7 were considered out of date. Inspector therefore gave limited weight to them. Moreover, the proposed development was deemed to be acceptable in visual terms, with reasonable access to most services and facilities. Reliance on private cars was considered to give rise.
Considering the above, the Inspector was satisfied that any adverse impacts would not significantly outweigh the benefits of the scheme when assessed against the policies in the Framework taken as a whole.
Based on the above, the appeal was successful.
2 A significant and a serious shortfall of housing leads to approval
Land west of Shilton Road, Burford
The application Ref 15/00166/OUT
Appeal Decision Date: 17.01.17
Appellant: Hallam Land Management Ltd
Respondent: West Oxfordshire District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
Background
Hallam Land Management Ltd made an outline application for the development of up to 91 dwellings (50% affordable) and 5.2 acres of care provision comprising of up to 78 assisted/supported living apartments and up to a 90-bed care home; new accesses onto Shilton Road (B4020), local infrastructure improvements including new crossings on the Shilton Road and A40, and open space; landscaping and biodiversity enhancements.
The inspector considered the main issues to be:
- The effect on the character and appearance of the area having particular regard to its landscape setting, local distinctiveness and the established settlement pattern
- Accessibility to services and facilities and choice of modes of transport
- The effect of the proposed development on local services and facilities
- The effect of the proposed development on biodiversity
- Whether the development proposed represents sustainable development which ought to be permitted
Character and appearance
The Inspector noted that harm would be experienced, albeit, temporarily through the visibility of massed building on elevated ground within a vista characterised by a wooded fringe to Burford. This harm however, could be mitigated by reducing the building heights along the southern margin and by implementing a robust planting scheme to completely screen or potentially assimilate the buildings within the perceived woodland environment.
The inspector considered that the harmful conflict with the Development Plan and Framework could be overcome and as such, the proposal would not have a material effect on the character or appearance of the Burford Conservation Area or on the landscape and scenic beauty of the AONB.
Accessibility
It was held that the proposed development would be sufficiently accessible to services and facilities and the inspector was satisfied that the development would allow realistic modes of transport with the less mobile elderly having limited choice as this is the case in many care situations.
Services and facilities
The Council also raised concern in respect of the lack of any agreed mitigation package on its impact on the local community and facilities. It was considered that the conflict with policy BE1 could be resolved as the development could be adequately mitigated, as
“evidenced by the Council’s stated contentment with the scope and content of the bi-lateral agreements entered into”.
Biodiversity
The Inspector considered that a revised layout could conserve or retain the species rich area. The Inspector was satisfied that, in principle, the proposed development not have a detrimental effect on biodiversity which would harmfully conflict with the development plan, the Framework, or the relevant protective legislation.
Conclusion
The Inspector concluded that the policies within the West Oxfordshire District Council Local Plan were not up to date and the Council could not demonstrate a five-year land supply. As the Council could only demonstrate between 2 and 3 years of housing land supply, this was considered significant and a serious shortfall to which significant weight was given.
On the basis of the above, the appeal was allowed.
3 Doubt cast over the status of policies leads to approvals
Land at and to the rear of 9 Church Road, Wickham Bishops, Essex CM8 3LA
Appeal Ref: APP/X1545/W/16/3152640
Appeal Decision Date: 1 February 2017
Appellant: MAZ Dev Ltd
Respondent: Maldon District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
Background
MAZ Dev Ltd made an application for the demolition of an existing dwelling and erection of up to 52 residential dwellings with associated vehicular access at land at and to the rear of 9 Church Road, Wickham Bishops, Essex CM8 3LA.
The Inspector considered the main issues to be:
- The effect of the proposed development on the character and appearance of the area
- The accessibility to services and facilities by sustainable means of transport
- The amount of affordable housing to be provided
Policy Position
The Development Plan for Maldon consists of the Maldon District Replacement Local Plan saved policies (RLP) (2005). It was noted that the housing policies only covered the period up to 2011 and therefore have now expired. However, the Council were making some headway in the development of a new Local Development Plan (LDP) which has been submitted for Examination and is at an advanced stage.
Character of area
Majority of the site falls outside the development boundary however, policies for the provision of housing covered the period up to 2011 and have expired. Furthermore, the site fell within a Special Landscape Area and Policy CC7 presumed against development in Special Landscape Areas, unless the character of the area was conserved. The Council admitted that it had no particular landscape value and therefore, it was agreed that the impact of the proposal on the landscape would be limited.
The Inspector also noted that saved Policy CC7 conflicts with paragraph 113 of the Framework which requires that policies for development on protected landscape areas should be criteria-based. Based on the above, limited weight was given to that policy. In respect of the harm to the character and appearance of the area, moderate to significant weight was given to the harm. Although the development did not comply with Policy CC6 (permits development in the countryside which would not harm landscape character), the development complied with BE1 of the RLP, D1 of the LDP and Policy H4 of the LDP as the proposal would retain existing landscape features and would be in keeping with the adjacent residential areas.
Housing Supply
The Inspector noted that the housing supply policies are out-of date notwithstanding the existence of a 5 year supply. Saved policy H1 of the RLP, Saved policy H1 of the RLP, Policy S2 of the RLP and policy CC6 of the RLP restrict development outside the development boundaries which constrain the supply of new and carry limited weight as they are considered ‘out of date’.
Accessibility
The village was considered to be in a sustainable location for new development given that it has local facilities and good public transport connections. It was established that in principle, further development of the larger village would be sustainable. The Inspector concluded that Policies D1, H4, T1 and T2 require developments to be well connected to local services and facilities and that there are safe and attractive routes for walking and cycling. The proposal would accord with those draft policies.
Affordable Housing
The SHMA indicates a general need in the district for affordable housing. Given the out of date nature of the housing policies, some weight albeit limited was given to the emerging policy H1 as it has not been examined. The Inspector concluded that 40% affordable housing provision as stipulated in emerging policy H1 of the LDP would be justified.
Conclusion
The Inspector found that despite the Council being able to demonstrate a greater than 5 years housing land supply, the NPPF requires local authorities to give significant boost to the supply of housing, This was given significant weight in favour of the proposals, in addition to the 40% affordable housing proposed. The proposed development was reasonably sustainable. In considering the planning balance the Inspector considered that the benefits of the proposals outweighed the identified harms
In light of the above, the appeal was allowed.
4 Countryside site has been given approval due to land supply shortfall
Land off Dowbridge Kirkham
Appeal Ref: APP/M2325/W/16/3144925
Appeal Decision Date: 23 January 2017
Appellant: Hollins Strategic Land
Respondent: Fylde Borough Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.
Background
An appeal was made by Hollins Strategic Land against the non determination of a planning application for an outline development of 170 units in Dowbridge Kirkham. The development involved the loss of 11.3 hectares of grade 3a best and most versatile land (13ha in total).
In allowing the appeal and granting permission the Inspector gave consideration to the three main issues:
- The effect of the proposed development on the character and appearance of the surrounding landscape and on the setting of Kirkham
- Flood risk considerations
- The effect of the proposal on highway safety
Character and appearance of the surrounding landscape and on the setting of Kirkham
The Inspector was satisfied that the appeal scheme would be viewed as an extension of the existing urban area and that the appeal proposal would result in a modest erosion of the landscape character of this part of the open countryside contrary to LP housing policy HL2. This requires, amongst other things, that housing proposals are in keeping with the character of the locality.
The Council’s own assessment was that the site only has a moderate sensitivity to development. The Appellant provided evidence that other sites of high sensitivity had been granted planning permission.
Whilst it was identified that there would be some moderate harm to the setting of Kirkham, it would still read as a historic settlement on higher land surrounded by lower lying farmland.
The proposal was identified as contrary to LP Policy HL2 and Policies EP10 and EP11. Whilst the Council cited paragraph 109 of the Framework in its reason for refusal, it could not be seen as forming part of a ‘valued landscape’.
Flood Risk
Development would be located in flood zone 1 and The Environment Agency and Council were satisfied with the strategy in the FRA. The FRA set out an approach to the technical solutions which would be used to control the additional surface water run-off so as not to increase the risk of flooding elsewhere. The Inspector concluded that if such measures were adopted the risk of flooding elsewhere would not be materially increased and the flood risk to on-site development would be acceptable provided the dwellings were all located within flood zone 1.
Highway
The proposals have been subject to a road safety audit and two separate traffic speed surveys have been undertaken. Subject to the measures proposed being adopted the appeal scheme would not compromise highway safety in the vicinity of the site. In terms of highway safety, the proposal would not materially compromise the safety of pedestrians and other road users.
The Council has a deliverable supply of 4.8 years. As a result the Council has conceded that it did not have a 5YHLS which means that relevant policies for the supply of housing will not be considered up-to-date.
The proposal would be contrary to LP policies SP1 and SP2 in that it would be in the open countryside and outside a settlement boundary. It would also result in the loss of best and most versatile agricultural land and there would be a modest erosion of landscape character. However, relevant policies for the supply of housing are out of date.
“There is a serious and significant shortfall in the housing supply and more particularly a substantial need for affordable homes. The homes would be located in an accessible location and would bring economic activity and other benefits in terms of construction work…..The balancing exercise to be carried out in the first limb of paragraph 14 is not a straight balance; it is often referred to as a tilted balance because planning permission must be granted unless the adverse impact of the development significantly and demonstrably outweighs the benefits. In this case, I am satisfied that the adverse impacts which I have identified do not significantly and demonstrably outweigh the benefits.”
Conclusion
The Inspector highlighted that the proposal would be contrary to LP policies SP1 and SP2 in that it would be in the open countryside and outside a settlement boundary. There would also be a loss of agricultural land and a modest erosion of landscape character, moderate amount of visual and moderate amount to the setting of Kirkham, all of which are contrary to the development plan when viewed as a whole, however, as the policies related to supply of housing were out of date, and there was a significant shortfall in housing supply and a need for affordable housing, less weight was given to Policies SP1 and SP2.
The Inspector concluded that on balance, the adverse impacts identified did not significantly and demonstrably outweigh the benefits of the proposal.
On the basis of the above, the appeal was allowed.
5 Development of rural site allowed after mitigation to protect rural setting agreed
Land off Sturton Road, Saxilby, Lincoln, Lincolnshire
Appellant: S Myers on behalf of Leverton Farms Ltd
Respondent: West Lindsey District Council
Appeal Ref: APP/N2535/W/16/3142445
Appeal Decision Date: 20 January 2017
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline & full planning permission.
Background
An appeal was made by Mr S Myers on behalf of Leverton Farms Ltd against the decision of West Lindsey District Council to refuse outline and full planning permission for up to 133 dwellings with all matters reserved and the change of use of agricultural land to a cemetery.
The site occupies approximately 5.75 hectares of agricultural land to the north of Saxilby, and to the west of Sturton Road. The appeal was allowed and Outline/full planning permission was granted.
The main issues for consideration were:
- The effect of the proposed development on the rural character and appearance of the landscape
- The effect of the proposed development on the setting of the nearby Grade I listed Church of St. Botolph. The Inspector also took into consideration comments raised during the hearings regarding amenity of future occupiers and the need for a cemetery
Note: Housing land supply was also a consideration in determining the appeal.
Rural character and appearance of the landscape
The Inspector noted that the site, whilst being in the countryside, was well related to the existing settlement. Development of this site would not lead to the loss of rural character to the north of the village. It would be possible to incorporate a layout and design of development which would not result in an overall unacceptable impact on the wider landscape character of the rural area.
Effect on Grade I listed Church of St. Botolph
The appellant incorporated open space within the layout in such a manner as to preserve a clear vista from north of Saxilby towards the tower of the church, and maintain a degree of spatial relationship with the medieval heritage assets to the north. The Inspector concluded that the proposal would lead to less than substantial harm to the significance of a designated heritage asset.
The appellant has sought to address the impact on schools and healthcare within the application as raised during the application process. Contributions proposed towards open space provision on the site, and a MUGA within the village to address the increased demand on existing facilities.
Access
The Inspector expressed satisfaction that the existing footpath network allows good access to the village, with the various services and facilities all within reasonable walking distance and that whilst the final quantum of development was to be agreed, the inspector had not been provided with any compelling evidence which demonstrates that it would not be possible to provide access to the appeal site without an adverse impact on highway safety.
Drainage
On the matter of drainage, the Inspector gave regard to the approval in principle to the use of on SUDS on the site which has been provided by the lead drainage authority, Anglian Water, and the Environment Agency.
Housing supply
On the matter of housing land supply, the Council maintained that they had 5.26 years of supply, but the appellant stated that this figure was based on a low range of OAN and dependant on sites proposed for allocation in an emerging plan which had a number of objections outstanding. It has conceded that as a consequence of its inability to currently demonstrate sufficient allocations within the spatial strategy of the current Local Plan to meet supply, its housing supply policies should be considered to be out of date.
The proposals were therefore assessed against the presumption in favour of sustainable development including the provision of 133 homes and affordable housing. It was also identified as an accessible and sustainable location for new development as well as limited social provision for Saxilby in the form of the extension to the cemetery and additional footpath links, as well as the economic benefits related to the construction and future occupation.
Conclusion
The inspector noted that the proposal would result in there being less than substantial harm to the setting of the listed church. The public benefit in respect of the provision of additional housing including affordable units, the extension to the cemetery, and the economic benefits attached to the proposals, would outweigh the harm to the setting of the listed building and in allowing the appeal, the Inspector stated that:
“I am satisfied that the benefits of the proposed development would clearly outweigh the identified harm, and that having regard to all other matters raised and the economic, social and environmental dimensions of sustainable development set out in paragraph 7 of the Framework, the scheme does represent sustainable development. For the reasons given above, and subject to the conditions attached, the appeal should be allowed.”
6 Residential development did not constitute the very special circumstances to justify development in the Green Belt
Land at Harlow Road, Moreton Ongar, Essex CM5 0DL.
Appeal Ref: APP/J1535/W/16/3158086
Appeal Decision Date: 23 January 2017
Appellant: Mr Allen Neville
Respondent: Epping Forest District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
Background
An appeal was submitted by Mr Allen Neville against the decision of Epping Forest District Council to refuse new housing development at Harlow Road, Moreton Ongar, Essex CM5 0DL. Details of the development were that ‘is a new housing development’.
In dismissing the appeal, the Inspector highlighted the following issues:
- Whether the proposal would be inappropriate development within the Green Belt and the effect on the openness of the Green Belt
- The effect on highway safety under Article 5(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015
- If the development is inappropriate, whether the harm, by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. If so would this amount to the very special circumstances necessary to justify the proposal
In dismissing the appeal, the Inspector made the following comments:
Green Belt
Policy GB2A of the Epping Forest District Local Plan Alterations (‘LP’) adopted in July 2006 does allow for development that is in accordance with another Green Belt policy, Policy GB16. Affordable housing within smaller settlement in the district may be acceptable if there is demonstrable local need.
The proposal would therefore not be inappropriate development in the Green Belt if it can be shown to be limited affordable housing for local needs and in accordance with the policies in the development plan. However, the application was not supported by a proper appraisal of local housing need, nor is it supported by the Parish Council as required by Policy GB16. In 2013, the Parish Council completed a full Housing Needs Survey for the Parish (completed by the Rural Community Council of Essex) but there is no reference to this in the appellant’s evidence. There is no legal agreement or any other mechanism before me to secure affordable housing on the site to meet local needs.
On the evidence before the inspector this application did not fall within a category which would be considered appropriate or defined as a very special circumstance. Substantial weight was attached to paragraph 88 of the Framework in terms of inappropriateness and harm to openness of the green belt from the development. The Inspector also referenced the Government’s Planning Practice Guidance which states that:
‘Unmet housing need is unlikely to outweigh the harm to the Green Belt and other harm to constitute the “very special circumstances” justifying inappropriate development on a site within the Green Belt’.
Highway
The Inspector further noted that the proposals failed to demonstrate that there would not be harm to highway safety and such would conflict with Policies ST4 and GB16 (iii) of the LP:
“which supports new development subject to it not being detrimental to highway safety.”
Land supply
In terms of land supply and paragraph 49, the Council does not have a five-year supply of housing land. Policy GB2 should (not) (Urbanissta included) be regarded as a relevant policy for the supply of housing in this case. However, it was noted that the Government attaches great importance to the Green Belt and because it is broadly consistent with the Framework and the Inspector therefore attached significant weight to it. In light of this, the site was not regarded as a sustainable location and the Appeal was dismissed.
Conclusion
The Inspector only attached moderate weight to the considerations that weighed in favour of the proposal, however, concluded that, the considerations do not outweigh the substantial weight given to the harm to the Green Belt. As such, a very special circumstance could not be established.
7 Appeal dismissed as the proposal failed to take into consideration the impact on living conditions of existing and future occupiers
Former KSS Factory Site, Off Constable Street, Denton Holme, Carlisle, Cumbria CA2 6AB
Appeal Ref: APP/E0915/W/16/3158612
Appeal Decision Date: 23 January 2017
Appellant: Citadel Estates Ltd
Respondent: Carlisle City Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.
Background
An appeal was submitted by Citadel Estates Ltd against the decision of Carlisle City Council for the refusal of permission for the demolition of redundant factory buildings and replacement with 50 new terraced dwellings.
The Inspector identified the three main issues for consideration as:
- Whether the site is appropriate for housing development having regard to local and national policies relating to development in areas at risk of flooding
- Whether the proposal would represent good, accessible and inclusive design with particular reference to its effect on existing and future occupiers’ living conditions
- The effect the proposal would have on the habitats and biodiversity of the River Eden
In dismissing the appeal, the Inspector made the following points:
Flood Risk
The appellant had not provided appropriate evidence in the Flood Risk Assessment to show that the Robert Ferguson School catchment area is an appropriate one over which to conclude that there are no sequentially preferable sites, particularly in light of the Council’s evidence to show that there are sites of lower risk of flooding within the district.
Design
The overall design approach of the site would create a more contained arrangement contrary to the arrangement of the adjoining streets. In reviewing separation distances, there were clearly issues of overlooking and loss of outlook and privacy. The Inspector also noted that the orientation of the proposed building would limit opportunities for daylight and the overall development would create an oppressive scheme.
The proposed layout was identified as failing to create an accessible and inclusive development which would be well integrated into its surroundings nor avoid adverse effects on the living conditions of existing and future occupiers.
The cumulative harmful effects arising from the layout of the development would result in poor design that fails to take the opportunities for improving the character and quality of the area and the way it functions, circumstances in which the Framework indicates that permission should be refused.
Habitats and Biodiversity
With regards to the third point for consideration, the Carlisle City Council advised that they no longer wish to pursue an objection. On the basis of their third refusal reason in light of evidence to show that there would be no significant effects subject to mitigation measures during construction and in the design of the surface water drainage scheme, on the River Eden Special Area of Conservation and the River Eden and Tributaries Site of Special Scientific Interest. The inspector stated that in this case the avoidance of harm does not amount to a positive consideration.
The proposal would result in the redevelopment of previously developed land in an accessible location and would deliver a considerable number of new houses. This is supported in principle by policies in the CDLP and by the Framework’s core planning principle of encouraging the effective use of land and its aim to boost significantly the supply of housing. These are matters which carry considerable weight in favour of the proposal. The benefits however, are significantly outweighed by the harm of locating housing within an area at risk of flooding unsupported by a Sequential Test. It was therefore held that, the development was not sustainable development and contrary to the environmental role the Framework.
Conclusion
The Inspector noted that although there were benefits to the Scheme proposed, it did not display the high quality of design and layout required by development plan and national policies. The benefits were therefore significantly outweighed by the harm of locating housing within an area at risk of flooding unsupported by a Sequential Test. It was therefore held that, the development was not sustainable development and contrary to the environmental role the Framework.
8 Appellant failed to provide evidence to demonstrate that the proposal would not impact archaeological assets
Creedwell Orchard, Milverton, Somerset TA4 1PL
Appeal Ref: APP/D3315/W/16/3148085
Appeal Decision Date: 20 January 2017
Appellant: S Notaro Limited
Respondent: Taunton Deane Borough Council.
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.
An appeal was made by S. Notaro Limited against the refusal of permission for 70 new homes at Creedwell Orchard, Milverton replacing extant permission for 72 homes.
The appeal was dismissed by the planning inspectorate and in considering the application the issues were:
- Whether the proposed development would provide a suitable site for housing, having regard to development plan policies
- The effect of the proposal on the character and appearance of the surrounding area including the setting of the Milverton Conservation Area
- The effect of the proposed development on potential archaeological interests
- Whether appropriate provision is made for affordable housing
- Whether future occupiers of the development proposed would be provided with adequate opportunities to travel by means other than the private car, so contributing to sustainable travel patterns
- Whether appropriate provision is made for children’s play spaces
In dismissing the appeal, the inspector made the following pertinent comments.
Character and appearance of the surrounding area including the setting of the Milverton Conservation Area
The appeal site was outside of the defined settlement boundary and as such contrary to policies SP1 and SADMP Policy SB1 which seek to prevent residential development outside of settlement boundaries. The appeal site whilst not within the Conservation Area but was closely related to it. Development on the site was considered to conflict with the Conservation Area and the wider countryside.
Archaeological Interest
Taunton Deane Borough Council had asked for additional evaluation to assess the potential for archaeological remains, which was not addressed by the appellant and could not be dealt with through condition, and as such was identified as being the key to the acceptability of the scheme.
Affordable housing
The appellant proposed to provide contributions in lieu of on site affordable housing and indicted that on site provision was not viable. No evidence was provided to support this claim.
Travel Plan
The Travel Plan would not provide appropriate measures to reduce the need to travel by car as reliance on a car park is not a sustainable option.
Children’s Play Space
The open space provision proposed falls below policy requirements would not be in an accessible location. An extant permission exists on the site which the inspector considered in terms of whether a fallback position existed. The inspector took into account the impact of both proposals:
“Consequently, I find that the proposed development would result in very significant conflict with the up to date development plan and that the extant permission as a fallback does not carry such weight as to justify granting planning permission contrary to the development plan.”
Conclusion
Proposals for 70 dwellings at Creedwell Orchard, Somerset were dismissed due to the impact of development on the adjacent Conservation Area. The Appellants did not provide the evidence to show that the development did not impact on remaining archaeological assets. The Inspector indicated that the proposals did not justify a reduction in affordable housing and would not implement measures to reduce the need to travel by car through a Travel Plan.
9 Through the application of Article 3(4), a condition set out by Epping Forest District Council excludes rights under Class Q of Part 3 of Schedule 2 of the GPDO
Greensted Wood Farm, Greensted Road, Ongar, Essex CM5 9LE
Appeal ref: APP/J1535/W/16/3146745
Appeal Decision Date: 20 January 2017
Appellant: Mr Robert J Cameron
Respondent: Epping Forest District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.
Background
An appeal was submitted by Mr Robert J Cameron against the decision of Epping Forest District Council to refuse approval for change of use and conversion of agricultural storage barn and curtilage to single dwelling house and curtilage at Greenstead Wood Farm in Ongar.
This appeal related to an application made under Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO).
In dismissing the appeal, the main issue in this application was whether the proposals met the criterion of the permitted development.
The application form was not specific in detailing the proposed development. The appellant argued that a determination was not made within the statutory time frame. However evidence was produced which showed that the Council advised the appellant that the proposed application falls outside the remit of the prior approval process.
The main issue therefore for the inspector to consider was whether Condition 1 was sufficient to exclude permitted development under Class Q:
- Whether the proposal would be inappropriate development within the Green Belt and the effect on the openness of the Green Belt
- The effect on highway safety under Article 5(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015
- If the development is inappropriate, whether the harm, by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. If so would this amount to the very special circumstances necessary to justify the proposal
This condition was imposed due to the site’s location within the Green Belt.
The building the subject of the appeal being granted planning permission in 2011 was subject to a number of conditions, including No 1 which required the barn building to be used only for agricultural purposes. The condition also stated that the building shall not be used for ‘any other purpose’ including a dwelling or domestic storage:
“The barn building hereby approved shall only be used for agricultural purposes in connection with the agricultural use of the unit at Greensted Wood Farm. It shall not be used for any other purpose, including as a dwelling or as an annexe to the existing dwelling on this unit or for domestic storage.”
Article 3(4) of the GPDO states:
“Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part 3 of the Act otherwise than by this Order.”
The Appellant’s argument was that because the GDPO post-dates the 2011 permission, the details of the 2011 permission does not exclude any permission granted by the GDPO, therefore the proposals represented permitted development. It was also contended that as Article 3(4) makes no reference to restrictions in respect of planning permissions granted after/before the relevant provision of the GPDO came into force, it could equlisly apply o permissions granted before that date.
The Inspector noted that it was not necessary for the GPDO to be specifically referred to – a condition can prevent something which is not ‘development’, such as landscaping even though it does not necessarily require planning permission. The issue in question was whether, objectively, the condition would restrict the use of the building so that the rights under the GPDO did not apply.
Conclusion
The Inspector concluded that through the application of Article 3(4), the condition excludes the rights under Class Q of Part 3 of Schedule 2 of the GPDO and as a result the development would be contrary to the condition in question and therefore the proposed change of use was not permitted development.
The condition in stating that the building can only be used for agricultural use and “shall not be used for any other purpose” results in the exclusion of the use as a dwelling given the duty to protect the green belt. As such the appeal was dismissed.
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