Appeal 3287734

The proposal for planning Ref 211085 is described on the planning application form as “Application Submitted Under Section 73 of the Town and Country Planning Act 1990 (as amended) for an Amendment to Planning Application Reference: 192018 for the Change of Use of [name] into Events Area Relating to the [name].” On the Notice of Approval of Planning Permission the Council described the proposal as set out in the banner heading above. The proposal for planning Ref 211086 is described on the planning application form as “Application for continued temporary change of use to garden shop with additional outdoor display and sales area for trees and shrubs.” On the Notice of Approval of Planning Permission the Council described the proposal as set out in the banner heading above.

It is the conditions set out on the Notices of Approval of Planning Permission that are disputed so I have used the descriptions from them in my Decisions below although to avoid discrepancy I have removed the reference to two years in respect of Appeal A (see discussion below).

There are two Conditions No 3 on the Notice of Planning Permission Ref 211085. It is clear from the evidence that Appeal A relates to the Limitations of [name] and that the [name] should be numbered 2 so I have considered Appeal A in this way.

Appeal A is allowed and the planning permission Ref 211085 for “Application to vary condition 1 of planning consent 192018 for the full application for the change of use of three existing nursery glasshouses into events area relating to the existing nursery. Condition 1 refers to temporary permission” at [site address] Nursery, [site address] , Twyford, [postcode] granted on 12 August 2021 by Wokingham Borough Council, is varied by deleting [name] 3e) and [name] g) and substituting for them the 2020 Condition 3e) and the appeal Condition 3g) as set out in the attached Schedule.

Appeal B is allowed and the planning permission Ref 211086 for “Full application for the continued use of existing sales area permitted temporarily under 173316 and change of use to include an additional sales area” at [site address] Nursery, [site address] , Twyford, [postcode] granted on 13 August 2021 by Wokingham Borough Council, is varied by deleting Condition 3.

A joint application for full costs in respect of both appeals has been made by [site address] . Those applications are the subject of a separate

There are two appeals relating to different parts of the [site address] Nursery (the HHSN). I have considered each proposal on its individual merits. However, to avoid duplication I have dealt with the schemes together, except where otherwise indicated.

There have been a number of proposals relating to HHSN: a somewhat piecemeal approach to the HHSN site as a whole. On 9 March 2022 the Planning Committee resolved to grant planning permission Ref 214108 for the redevelopment of HHSN as a new garden centre including replacement cafe, demolition of existing glasshouses, and retention of existing farm shop and site office/toilet block. I am advised that draft conditions and the terms of a legal obligation have been agreed and it is anticipated that planning permission will be granted in early August. As a result there now appears to be a very real prospect of the redevelopment of HHSN and this is a material consideration.

Paragraph 56 of the 2021 National Planning Policy Framework, (the Framework) advises that conditions should only be imposed where they are necessary, relevant to planning and to the development, enforceable, precise and reasonable in all other respects. The Planning Practice Guidance (the PPG) refers to this as the ‘six tests’. It also emphasises that clear and precise reasons must be given for the imposition of every condition.

For both Appeal A and Appeal B the main issue is whether the disputed Condition(s) meet the six tests for imposing conditions.

The PPG advises that it is the disputed conditions that are to be considered not the whole development. However, the background is helpful in understanding the necessity or otherwise of the disputed Conditions. The HHSN is within the Metropolitan Green Belt and the countryside for planning policy purposes. There is an extensive planning history for the overall HHSN site which comprises a large collection of greenhouses and buildings, originally a horticultural nursery but which now also includes a café, events area, garden and farm shop and it is evident that retail has become more dominant. A car park and service yard dominate the centre of the site.

New development is strictly controlled in the Green Belt. I consider the range and extent of events and sales referred are not ancillary or incidental to the horticultural nursey use. The outdoor element of the sales area with the items sold thereon result in a slight reduction in openness. The sales area and events also make HHSN busier manifesting in increased car parking associated with visitors, staff, event exhibitors and more deliveries also adversely affecting openness. I find that both the events use and the sales use would constitute inappropriate development in the Green Belt although because of the history of the site there would be a limited effect on openness and the erosion of the countryside.

The permissions granted for the events use and the sales use recognised this and sought to limit the effect on the Green Belt both by imposing time limits on the uses and by seeking to restrict the proliferation of retail uses. Appeal Decisions APP/X0360/W/21/3287734 and APP/X0360/W/21/3282720

Planning permission was granted Ref 192018 on 12 March 2020 for an events area subject to conditions including a requirement to discontinue the use on or before 14 March 2022 and, amongst other things, Condition 3e) which stated that “No retail nursery sales associated with the existing nursery use are permitted within the red hatched area in the approved site plan SK-005 [name].” (the 2020 Condition 3e)).

In granting planning permission Ref 211085 the Council imposed a Condition requiring the discontinuation of the events use on or before 14 March 2023 subject to a revised Condition 3e) (the disputed Condition 3e)) and an additional Condition 3g) (the disputed Condition 3g)).

The disputed Condition 3e) states “No goods for sale shall be displayed and no retail sales shall take place anywhere on the site other than from within the approved retail areas ...” In terms of display and sales this overlaps with the disputed Condition 3g) which states “The use is for events only and this permission does not permit the display or sales of goods within the events floor area.”

Incremental changes from a wholesale nursery in 2002 to a mixed use have taken place at HHSN. I acknowledge the Council’s wish to regulate events and retail uses that would not normally be acceptable in Green Belt and countryside locations and the intention of seeking to clarify the planning position for the HHSN site as a whole.

Nevertheless, and notwithstanding the letter dated 5 September 2019 which sought to explain the types of events envisaged, I consider it highly improbable and unreasonable to suppose that many exhibitors would wish to attend events with no goods being displayed for sale and no retail sales being possible. It would also be very difficult to enforce a distinction between the display of goods and the sale of goods. [name] conclude the disputed Condition 3e) and the disputed Condition 3g) would fail the tests of reasonableness and enforceability.

Moreover, I consider that the phrase “anywhere on the site” in the disputed Condition 3e) is somewhat vague given that “the site” is not defined. I also consider that the imposition of restrictions at the disputed Condition 3e) relating to the wider HHSN site would not be directly relevant to the events development. Accordingly the disputed Condition 3e) would also fail the test of precision and relevance.

As part of its case for Appeal A the Council proposes that the wording of Condition 3e) reverts to that of the 2020 Condition 3e), with which the appellant has no dispute. The Council also proposes a substitute Condition 3g) “No retail sales are permitted unless they are ancillary or incidental to the specific event being held.” (the appeal Condition 3g)). Whilst to some extent this states a lawful position in my view it serves the planning purpose of linking any sales to the specific event and is therefore necessary although as drafted it would lack precision in not defining the area to which the limitation applies.

The appeal decision [name]/X0360/W/18/3193969 (the 2019 retail appeal) allowed “a temporary change of use of part of glasshouse and small outdoor Appeal Decisions APP/X0360/W/21/3287734 and APP/X0360/W/21/3282720 area from plant growing to nursery related restricted sales”. This was subject to, amongst other things, a condition requiring the use to cease on or before three years from the date of that Decision.

The appellant subsequently sought to extend the temporary permission. In granting planning permission Ref 211086 the Council permitted an extension of the temporary permission, until 14 March 2023 and added Condition 3 requiring a Business Plan (the disputed Business Plan Condition 3) as set out in the banner above.

I concur with my colleague’s findings in the 2019 retail appeal that customers visiting a nursery expect to be able to buy related products and that a sales area selling these items would help safeguard the existence of the nursery and help the business grow. The Council is concerned that the additional financial information provided does not demonstrate that the horticultural business would grow or that the future of HHSN had been properly reviewed with the Council as envisaged at the time of the 2019 retail appeal Decision. Accordingly the Council imposed the requirement for a Business Plan.

As above I acknowledge the Council’s wish to regulate events retail uses that would not normally be acceptable in Green Belt and countryside locations. In my experience in the case of new ventures a requirement for a Business Plan can serve a planning purpose of seeking to ensure that only viable enterprises become established in what would otherwise be inappropriate Green Belt and countryside locations.

However, I consider the requirement of the disputed Business Plan Condition 3 to demonstrate that a viable horticultural business can be operated from the site prior to 14 March 2023 without any retail floor space to be imprecise in terms of not explaining the extent of “the site” and unreasonable given the history of the HHSN and the permitted, ancillary and incidental sales that could take place. In addition the requirement that “In the absence of the submission of such a report and plan the retail use hereby permitted shall discontinue by 14 March 2022” would conflict with the period under Condition 2 for which permission has been granted.

Moreover, the reason for the imposition of the condition includes “...to allow a review of financial viability of the [site address] business on the surrounding properties” the meaning of which is unclear and imprecise particularly as the Committee Report indicates that the HHSN does not have a significant impact on surrounding properties. [name] find the disputed Business Plan Condition 3 would fail the tests of precision and reasonableness.

I have considered the alternative Condition 3 proposed by the Council during the appeal: “A full financial report and business plan for [site address] shall be submitted to and agreed in writing by the Local Planning Authority on or before 14 March 2023. The report shall detail income and expenditure and future income forecasts and the business plan shall demonstrate that in conjunction with the lawful café and farm shop uses (and any other temporary uses) within the [site address] site, there is re-investment and re-establishment in an ongoing horticultural use on the site. In the absence of any meaningful attempt to re-invest and re-establish a horticultural use of the site the temporary retail use shall cease.” (the appeal Business Plan Condition 3). Appeal Decisions APP/X0360/W/21/3287734 and APP/X0360/W/21/3282720

Given that plant and garden shop stock for the spring season is ordered in the preceding year the business is unlikely to be able to respond quickly to changing circumstances as stock will already have been ordered. Permitting a retail use but then requiring it to cease if another use is not viable, before the expiration of the permission, would create a significant degree of business uncertainty which would be unreasonable. In any case by virtue of being a temporary permission the retail use would have to cease in a set period of time unless further permission were to be granted. [name] find that the appeal Business Plan Condition 3 would fail the tests of reasonableness and necessity.

I conclude that for Appeal A the disputed Condition 3e) and Condition 3g) are not enforceable or reasonable and Condition 3e) is not precise or relevant. Accordingly the disputed Conditions do not meet the tests set out in the Framework and the PPG. I will allow Appeal A and substitute the 2020 Condition 3e) for the disputed Condition 3e) and the appeal Condition 3g) for the disputed Condition 3g) amended to refer to the approved plan as set out in the attached Schedule.

I conclude that for Appeal B the Business Plan Condition 3 is not necessary or reasonable and does not meet the tests set out in the Framework and the PPG. Appeal B should be allowed with the condition deleted. For the reasons given above I have not imposed the appeal Business Plan Condition 3.

The appeals do not relate to the Conditions specifying the length of time for which temporary permission is granted but I am empowered to attach modified versions of previously attached conditions. I acknowledge the Council considers a time limit until 14 March 2023 to be appropriate in both cases. However, in respect to application Ref 211085 there is a discrepancy between the description of development on the Notice of Approval of Planning Permission which refers to “...variation is to extend temporary permission for two years” and the time limit imposed by Condition 1. The appellant sought until 14 March 2024 and during the appeals requested a time limit that would coincide with the implementation period for the proposed re-development under planning Ref 214108.

Given the time that has elapsed since the applications were submitted I consider a longer time period than 14 March 2023 would be appropriate. As permission for planning Ref 214108 has not yet been issued the relevant dates could not coincide. I will allow two years from the date of these Decisions for Appeal A and Appeal B.

For Appeal A I have corrected the numbering of the conditions and removed duplication at Condition 3f). [name] have imposed the conditions that were previously imposed on planning Refs 211085 and 211086 respectively.

The use hereby permitted shall be discontinued, all events associated with this permission shall cease and equipment associated with the events removed from the site on or before two years from the date of this Decision.

This permission is in respect of the site plan numbered SK-005 [name], dated 15 August 2019. The events use shall be carried out in accordance with the approved plans unless other minor variations are agreed in writing after the date of this permission and before implementation with the Local Planning Authority.

The events use, hereby approved, is limited by the following: a) A maximum of 24 (consecutive or non-consecutive) days in any 12- month period b) Events shall take place only between the hours of 8:30am and 5:30pm on any Monday to Saturday and between the hours of 10:30am and 4:30pm on Sundays c) Except where events are proposed over two or more consecutive days, preparation is not to commence earlier than 90 minutes before opening, and all items are to be removed no later than 90 minutes after closing d) It shall be carried out only in the red hatched area outlined in the approved site plan SK-005 [name] e) No retail nursery sales associated with the existing nursery use are permitted within the red hatched area in the approved site plan SK-005 [name]. f) The types of events are limited to the following: a. [name] including: Haworthias and Gasterias National Collection; Cacti Thames Valley Orchid Show; [name]; Reading Fuchsia Society Show b. [name] including: Supervised planting and gardening activities for children as part of National Children’s Gardening Week; [name]; [name] (story telling etc), Wild animal visits c. [name] including: RG10 [name] event; Twyford in Bloom event; [name]; [name] event; [name] event and art installation; Pumpkin event d. [name]; Food and [name]/Tastings other seasonal events and charitable fundraisers. g) No retail sales are permitted in the red hatched area outlined in the approved site plan SK-005 [name] unless they are ancillary or incidental to the specific event being held.

The part of the building hereby permitted shall be used only for community events specified in Condition 3 and for no other purpose, including any other purpose in Classes A1 or D1 of the Schedule to the Town and Country Planning [[name]] Order 1987 (as amended by the Town and Country Planning ([name]) (Amendment) (England) Regulations 2020) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order [with or without modification]. End of Schedule Appeal Decisions APP/X0360/W/21/3287734 and APP/X0360/W/21/3282720

This permission is in respect of the plans numbered HH-GS-01 [name] and HH-GS02 [name], both dated 15 March 2021 and received by the local planning authority on 26 March 2021. The development shall be carried out in accordance with the approved details unless other minor variations are agreed in writing after the date of this permission and before implementation with the Local Planning Authority.

The use hereby permitted shall be discontinued and all goods and paraphernalia associated with the retail use shall be removed from the site on or before two years from the date of this Decision.

Deleted

No goods shall be displayed or sold within the indoor floorspace other than the following: a) Bought in plants for immediate sale – including bedding plants, shrubs, trees, house plants etc b) Tools and equipment - including forks and spades, hedge shears, loppers, secateurs, gloves, boots etc c) Growing media - including composts, grits, sands, bark etc d) Fertilisers and chemicals – including fertilisers, pesticides, herbicides, lawn treatments, woodcare, salt etc e) Irrigation - including micro watering systems, hose pipes, watering cans, accessories etc f) Landscaping and design - including plant supports, fencing, garden arts and ornaments, stones, aggregates, solar lights, etc g) Containers including - pots - indoor and outdoor (plastic and terracotta), seed trays, hanging baskets, patio tubs, accessories (pot feet, plant caddy's) etc h) Seeds and bulbs - including seeds, bulbs, seed potatoes, vegetable sets etc i) Bird/bee/wildlife care - including insect habitats, bird food, hedgehog houses etc j) Grow your own – including netting, vegetable troughs, vegetable beds, plastic growing units (mini greenhouses), greenhouse accessories, allotment accessories etc k) Christmas trees, decorations, and Santa’s grotto (seasonal) No goods shall be displayed or sold within the (182m2) outdoor space other than the following: l) Plants for immediate sale – including shrubs, trees, and house plants. End of Schedule