Appeal 3345216

The appeal is allowed and the planning permission Ref 20/08547/FU for Change of use of land for the siting of 8 glamping units for holiday use, storage building and ancillary works at [site address] granted on 8 February 2024 by Leeds City Council, is varied by deleting conditions 15 and 39 and substituting for them the conditions set out in [name] - Schedule of Conditions.

The Council granted permission for the development referred to in the banner heading above subject to a number of conditions. The appellant seeks to vary or delete 14 of those conditions as set out above. Those conditions were applied for several reasons relating to sustainable transport options; visual amenity; landscaping; highway safety; protection of trees; ecology/biodiversity; amenity; drainage; biodiversity; and to ensure access for all.

The appellant points Part 5 (B) of the General Permitted Development Order (GPDO) which states that development required by the conditions of a caravan site licence is permitted development. However, planning permission has been sought by the appellant and I must consider the scheme as a whole. Furthermore, it is not for me to consider the matter of whether planning permission would be required. If the appellant wishes to ascertain whether certain aspects of the proposed development would be lawful, he may make an application under section 191 or 192 of the Act for a Certificate of Lawful Development. Moreover, I am not aware that the appeal site has a Caravan Site License at present. Nevertheless, I have considered the potential permitted development rights as a material consideration which I have taken into account in my reasoning below.

Taking into account the above, the main issues in this case are: • Whether conditions 12, 15, 18, 20, 23, 39, 41, 43 are reasonable and necessary in order to protect the character and appearance of the area; • Whether conditions 15, 16, and 20 are necessary in the interests of highway safety; • Whether conditions 11 and 43 are reasonable and necessary to provide sustainable transport options and ensure access for all; • Whether conditions 18, 34 and 35 are reasonable and necessary in the interests of ecology and biodiversity; • Whether condition 24 is necessary to protect the amenity of neighbouring occupiers; and • Whether condition 25 is necessary to ensure the provision of adequate drainage.

The appeal site lies close to the eastern edge of the village of Walton. It comprises an agricultural field set back around 90 metres from [site address] . The field is open, relatively flat and is enclosed by hedgerows and trees. The adjoining fields to the south and west are owned by the appellant and are also grazed. A small pond is situated between fields 2 and 3. The site is surrounded by agricultural fields to the north and east of the site. Neighbouring dwellings are visible within the context of the entrance of the site. Access will be provided from [site address] , traversing the intervening field. A pedestrian access will be provided to the west linking to a nearby footpath, [address], a non-definitive bridleway.

Condition 12 requires details of the gates to be installed at [address] in the interests of visual amenity. I acknowledge that there is an existing gate and that gates are subject to permitted development rights; however, planning permission has been sought by the appellant and I must consider the scheme as a whole. Furthermore, it is not for me to consider the matter of whether planning permission would be required for the gates. Moreover, the area is semi-rural in character and the gate would be situated in a prominent position. Consequently, the condition is necessary to protect the character and appearance of the area. In any event, condition 23 removes permitted development rights.

Condition 15 requires details of the proposed geo-grid system for the access road and car parking area including the specification/model, weight loading capacity, colour finishes and infill material. The landscape scheme approved by the Council (MR20-042-102_[name]), as specified on the decision notice shows the proposed vehicle access track and car parking area to be a grass stabilisation product. In addition, the technical specification for the geo-grid system was provided by email (8 December 2021) together with the weight loading data of the system. Furthermore, the geo-grid system is only available in black. Consequently, I consider that the requirements of the condition have already been fulfilled. I have, therefore, deleted the condition and replaced it with a condition to require the access road to be constructed in accordance with the details provided and retained thereafter.

Condition 18 requires full details of a low impact lighting scheme, including lighting type, specification, luminance levels and positioning. Lighting is proposed to be low height which would point towards the ground to limit spillage. Whilst some details have been provided; only approximate locations of the proposed lighting are shown on a plan which is not to scale. Furthermore, no information has been provided as to the intensity of the lighting, the degree of light spill or its impacts for sensitive light species such as bats which could be present in the area. Given the semi-rural location of the site any lighting scheme could have the potential to have an adverse impact on the character and appearance of the area. Consequently, I consider that condition 18 is necessary to protect the character and appearance of the area.

Condition 20 requires details of the proposed waste collection and storage. Whilst the approved plan shows the location of a bin store next to the car park; no details of the design of the bin store have been provided (in terms of the list of plans on the decision notice). Given the semi-rural location of the site it is necessary to ensure that the design of the bin store reflects the character and appearance of the area. Whilst details of refuse collection contractors are required by the Caravan Site License, these details are not before me. In any event, as the appellant has applied for planning permission, I must consider the scheme before me as a whole. Furthermore, it is important to ensure that the refuse collection and storage details/arrangements are compatible with other aspects of the scheme. Taking into account the above, I consider that the condition is necessary to protect the character and appearance of the area.

Condition 23 withdraws permitted development rights under the provisions of the Town and Country Planning (General Permitted Development) (England) Order (2015) under Part 2 “Minor Operations Class A – Gates, fences, walls etc” for fences, gates, walls or other permanent means of enclosure in the interests of visual amenity. The Planning Practice Guidance (PPG) (paragraph 017: 21a-[phone]) states that conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. Area-wide or blanket removal of freedoms to carry out small scale domestic or non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness or soundness.

Development permitted under Part 2, Class A includes a gate, fence wall or other means of enclosure to up to 1m adjacent to a highway or 2m above ground level otherwise. I acknowledge that the appeal site is an established field with some mature planting on the field boundaries. Nevertheless, there are gaps in vegetation both on the southern field boundary of the appeal site together with gaps in the roadside hedgerow along [site address] . In addition, the proposed new access would open up some views of the appeal site. Consequently, glimpses of the site would be available from [site address] , particularly in winter months. In addition, there is some intervisibility from the rear of properties along [site address] . Furthermore, the red line boundary extends to [address] which is utilised by residents.

Whilst the appellant owns other fields closer to the road which would retain their permitted development rights, the proposal for the glamping units could result in greater pressure for new means of enclosure on the appeal site. In the worst case scenario there could be a proliferation of such development which would be visible from public vantage points. This could be harmful to the character and appearance of the area. Consequently, I consider that condition 23 is necessary to protect the rural character of the area.

Condition 39 requires the submission of details of both hard and soft landscaping works, including an implementation programme. Some details of landscaping have been provided on approved plans MR20-042/101H and MR20- 042/102F in terms of hard and soft landscaping works. The condition is comprised of component parts which I will assess in turn. In terms of criterion a, the creation of the access road traversing across a gently rising field could result in an alteration of ground levels and so it is important to require finished levels/contours to protect the semi-rural character of the area given that the access will be visible from [site address] and as these have not yet been provided. However, there are no bunds proposed in the development and so this aspect of criterion a is not necessary.

In relation to criterion b, whilst boundary details and means of enclosure are indicated on the approved plans details of the proposed stock proof fencing for example have not been provided. Hence this aspect of the condition is necessary to protect the character and appearance of the area. However, no retaining structures are proposed and so this reference is not necessary. Details of the car parking layout and materials (criterion c), vehicle and circulation areas (criterion d) and hard surfacing areas (criterion e) have been provided in terms of the use of the geo-grid grass stabilisation product. In addition, the first 20m of the access is indicated as tarmac on the Plan [MR30- 042/101 rev H]. Consequently, c and e are not necessary. Condition 11 requires details of the pedestrian link to [address] and condition 43 requires details of the footpath link to the car parking area and also ‘other paths’ and so reference to ‘pedestrian access’ is not necessary. Consequently, criterion d is not necessary.

Details of minor artefacts and structures have not been provided and so criterion f is necessary. The appellant has not disputed the need for details of soft landscaping works. I have deleted condition 39 and replaced it with a new one to reflect the changes outlined above.

Condition 41 requires a plan showing the extent of tree protection area to be submitted to and approved by the Local Planning Authority. It also requires existing trees, hedges and bushes shown to be retained to be safeguarded with protective fencing and ground protection together with other measures relating to tree protection. I acknowledge that the appellant has submitted an Arboricultural Impact Assessment which shows the extent of the tree protection areas. However, the statutory undertaker indicates that changes are required to the drainage scheme and that these can be considered via a condition. As any changes to the drainage scheme may have the potential to impact on the trees. I consider the first sentence of the condition as worded is necessary to protect the character and appearance of the area.

Condition 43 requires that at least one of the glamping units to be wheelchair accessible from the car parking area. It also requires details of the wheelchair accessible unit, including scale elevation and floor plans/specification/ramp gradient/materials/finish and details of the link to the car parking area. The approved DDA Compliance Block Plan shows the unit, which is to be the DDA unit, the access path from the car park to the unit and the access path from the unit to the pedestrian link. The appellant considers that the requirement for a DDA compliant unit and associated footpaths is excessive on a proposal of this scale and nature. As such he considers that the condition should be deleted or if not, reworded to refer to the DDA Plan and that full details, including elevation and floor plans, ramp access, materials and finish to be submitted to and approved by the LPA. The appearance of the accessible unit may differ from the other units and the access ramp and could have a visual impact on the character and appearance of the area. Consequently, it is necessary and reasonable to have a condition requiring those details to protect the character and appearance of the area.

Taking into account, I consider that conditions 12, 18, 20, 23, 41 and 43 are necessary to protect the character and appearance of the area. I have deleted conditions 15 and 39 and substituted them with new ones taking account of the above.

A private access road would extend from [site address] into the glamping site. The access would be situated within the 30mph zone of the village; however, there is no footpath or lighting along this stretch of road.

Condition 15 requires details of the access road or car parking area including full details of the proposed Geo-grid system. As stated in the first main issue, I consider that the requirements of the condition have already been fulfilled. I have, therefore, deleted the condition and replaced it with a condition to require the access road to be constructed in accordance with the details provided and retained thereafter.

Condition 16 requires that full construction details of the access road including materials, cross sections, gradients and access radii shall be submitted to and approved. It requires the first [address] to be hard surfaced. I acknowledge that the scale of the development is small and seeks to provide low impact tourism in a rural area. However, the proposed access road would have to traverse a significant section of the field known as ‘field 3’ to reach the appeal site. A shorter section of hard surface (10m) as suggested by the appellant could result in vehicles utilising the access taking mud onto [site address] which would be dangerous to highway safety. There is no evidence before me to demonstrate that a shorter access would not result in harm to highway safety. Furthermore, the approved plans show the first 20m as hard surfaced. Consequently, I consider that the condition is necessary to mitigate the potential harm to highway safety.

Condition 20 requires details of the proposed waste collection and storage. Whilst the approved plan shows the location of a bin store next to the car park; no details of the waste collection arrangements have been provided. Given that the refuse lorries would need to access the site and utilise the proposed access road, it is important that details are provided in the interests of highway safety. Consequently, the condition is necessary in the interests of highway safety and to make the development acceptable.

Taking into account the above, I consider that conditions 16 and 20 are necessary to protect highway safety. I have deleted condition 15 and substituted it with a new condition reflecting the changes set out above.

Condition 11 requires full details of the proposed pedestrian link to the west of the site (linking field [address]), including siting; footpath widths, details of the connection point to [address]; and path materials. The appellant agrees that details of the siting of the footpath link is necessary but considers that details have otherwise been provided on the approved plans. He also considers that the use of the proposed [name] is unnecessary and that a simple mown grass path is adequate for the scale of the proposal.

In terms of footpath widths, the DDA Plan shows the footpath width for the links to the DDA unit of 1.2m. However, these are not shown for the pedestrian link to [address]. Whilst challenging the use of [name] for the footpath; it is, nevertheless, shown on the plans determined by the Council. [name] would allow grass or plants to grow through and would, therefore, be consistent with the semi-rural character of the area. It would also provide a firmer surface, less likely to become muddy than a mown grass path and would, therefore, be more appealing to occupiers of the scheme thus encouraging walking. Whilst the appellant states that details of the [name] were submitted to the Council; these details are not provided as part of the appeal. The Caravan Site License is a separate process and does not negate the need for details to be secured through planning. Furthermore, it is important that the proposed footpath link is considered in the context of the wider scheme. Consequently, I consider that the condition is necessary to facilitate sustainable transport options and make the development acceptable.

Condition 43 requires that at least one of the glamping units to be wheelchair accessible and be accessible from the car park. Details of the unit and footpath link to the car parking area and other paths are required. The location, scale and nature of the development does not negate the responsibility of the decision maker to have due regard to the needs of groups protected by the Equality Act and ensure access for all. Wheelchair users and those with mobility issues should have the opportunity to access and experience such developments. Policy P10 of the [name] requires development to be accessible to all users which is consistent with paragraph 135 of the Framework which seeks to ensure that developments create places which are safe, inclusive and accessible. Furthermore, the requirement for around 12.5% of the units to be accessible is proportionate to the scale of the development. Consequently, I consider that the scheme should make provision for at least one DDA compliant unit.

If the condition is not removed, the appellant suggests that it be altered to require that prior to the siting of the accessible unit, as identified on the DDA plan, full details of the unit and ramp access be submitted and approved by the LPA. However, the condition as worded provides the flexibility to provide more than one DDA compliant unit should the appellant so wish. In addition, details should be provided prior to the installation of the 8 units on site to ensure that the DDA unit is considered as part of the overall scheme. Furthermore, the suggested condition by the appellant does not address the need to provide details of the link to the car park.

Taking into account the above, I consider that conditions 11 and 43 are reasonable and necessary to provide sustainable transport options; ensure access for all; and, for it to be in accordance with Policy 10 of the [name].

Policy G8 of the [name] seeks to avoid development which would seriously harm any sites designated of national, regional or local importance for biodiversity importance or would cause harm to the UK or West Yorkshire Biodiversity Action Plan [name] and habitats. The site and surrounding fields are designated within the [name] as semi-improved acid/neutral grassland, scrub and hedge line. The pond to the south-west of the site is also recognised within the network and [name] have been recorded in the pond. Policy G9 of the [name] requires development to demonstrate that there will be an overall net gain for biodiversity commensurate with the scale of the development.

Condition 34 requires a [name] and Management Plan to be submitted to and approved in writing by the LPA whilst Condition 35 requires a [name] and [name] to be carried out prior to the occupation of the glamping units in order to ensure the [name] are delivered as agreed in the approved [name] and Management Plan (BEMP).

I acknowledge that the application was submitted and approved prior to the introduction of legislation making [name] a mandatory requirement. However, Paragraph 185(b) of the Framework seeks to secure measurable net gains for biodiversity. The Council utilised the pre-statutory version of the Natural England/[name] in the transition period to mandatory BNG. The Council has not insisted on 10% BNG and the amount of biodiversity units has been at the discretion of the appellant. The appellant is proposing a positive score for both Habitats and [name] (11.28% and 0.43% respectively) using version 2.0 of the [name]. Under the [name] would have required a minimum 10% uplift.

The Ecological Impact Assessment (ECiA) and Biodiversity Net Gain Assessment (BNGA) set out the ecological baseline and describes the impact of development. They also propose mitigation measures and assesses the residual effects of the development. However, they do not demonstrate how this would be achieved or the timescales for doing so.

Condition 34 is based on the suggested wording in BS 2020:2013 [name] of Practice for Planning and development, together with refined wording to include reference to the proposed minimum number of [name] put forward by the appellant. This standard wording pre-dates the mandatory BNG and the [name] measuring tool. Reference to the minimum number of biodiversity units in the condition allows the Council and appellant know if the implementation of the management plan is successful when the habitat monitoring reports are carried out over the lifetime of the application. Consequently, the BEMP required by condition 34 is necessary and reasonable to secure the delivery of BNG on the site in the longer term.

In relation to condition 35, the appellant considers that the information provided in the BNGA was adequate and sufficient to demonstrate that the development can provide a 10% uplift. The appellant considers that the condition is, therefore, unnecessary and unreasonable and wishes it to be removed.

The ECiA identifies the mitigation requirements for the scheme including a Construction Environmental Management Plan ([name]:42020); creation of new areas of native scrub and wildlife grassland; and hedgerow enhancement and reinstatement. In relation to monitoring, the ECiA states that the CEMP will detail the role of an ecological clerk of works in overseeing protection measures and that the legislation to protect the [name] will have requirements for monitoring during site construction. Whilst the ECiA identifies the mitigation measures, there is no mechanism for securing appropriate monitoring for biodiversity net gain in the longer term. Consequently, without Condition 35 there would be no mechanism to ensure that the biodiversity units would be achieved over the lifetime of the proposal to mitigate the effects of the proposal and secure compliance with Policy G9 of the [name]. Consequently, Condition 35 is necessary and reasonable to make the development acceptable in planning terms.

The intensity of the lighting and potential light spill may have impacts on light sensitive species such as bats which are present in the area. As insufficient details have been provided for the proposed lighting scheme, Condition 18 is necessary in order to protect ecology and diversity.

Taking into account the above, I consider that conditions 18, 34 and 35 are necessary and reasonable to protect ecology and wildlife and to be in accordance with policies G8 and G9 of the [name].

Condition 24 requires that any log burners (or similar heating devices), within the development to only utilise smokeless fuel. The appellant considers that this is unnecessary as it is covered by other legislation outside of the planning system, although he does not state the specific legislation to which he refers. Consequently, I cannot be certain that it would prevent fuels being burnt which would generate smoke. Given the proximity of residential properties on [site address] , I consider that condition 24 is necessary to protect the living conditions of existing occupiers and indeed those utilising the proposed development.

The proposal includes an indicative drainage layout which connects all 8 of the proposed glamping units and drains sewerage and grey water to a pumping station within the application site. This pumping station is proposed to then connect to the public sewer along [site address] with the connection point to be agreed with the statutory undertaker. The statutory undertaker considers that the drainage layout plan requires some amendments and further details but that those can be secured by way of a planning condition.

Condition 25 requires the completion of a feasibility study to understand the impact of the proposal on the sewerage system, together with any upgrade works being implemented prior to the commencement of the development. Condition 26 requires details of the means of disposal of foul water drainage, connection points etc whilst Condition 27 requires details of the surface water drainage system.

The appellant considers that condition 25 is not necessary as the latest consultation response of the statutory undertaker does not require a feasibility study. The Council considers that this is due to its recognition of the [address] case of Barratt Homes Limited v [name] [2009] (UKSC13). However, the [address] acknowledged that the Local Planning Authority has a role to play as planning permission is conditional upon there being an acceptable drainage solution in place prior to the commencement of a development. In this case, the connection of the scheme to the sewerage system could result in an unacceptable strain on the sewerage network. Without the proposed condition, there would not be an acceptable drainage solution in place prior to the commencement of the development. Consequently, condition 25 is necessary to secure an acceptable drainage solution.

I have found that the requirements of condition 15 have already been fulfilled in terms of the provision of the details of the geo-grid system. I have, therefore, deleted the condition and replaced it with a condition to require the access road to be constructed in accordance with the details provided and retained thereafter in the interests of highway safety and visual amenity.

I have deleted condition 39 and replaced it with a condition which reflects that some of the requirements for details of the hard landscaping works are not relevant to this scheme to make it more precise. Condition 39 is necessary to protect the character and appearance of the area.

These replace existing conditions 15 and 39 on the planning permission that is subject of this appeal. The other conditions on this permission remain unaltered and should be read alongside my decision.

For the reasons set out, the appeal should be allowed, and the planning permission varied in the terms I have explained.