Appeal 3373363

The appeal is allowed and the planning permission Ref 24/00970/FUL for full application for the change of use of land to B8 open storage activities at [address], [name], Thurrock [postcode] granted on 28 March 2025 by Thurrock Borough Council, is varied by deleting conditions 6 and 8 and substituting new conditions 3, 4 and 7 as follows: 3 The maximum height of any materials or items stored at the site shall not exceed 20 metres from the finished site level. 4 Any contamination that is found during the course of any groundworks associated with the development hereby permitted shall be reported immediately to the Local Planning Authority. Development on the part of the site affected shall be suspended until a risk assessment has been carried out and submitted to and approved in writing by the Local Planning Authority. Where unacceptable risks are found, the relevant part of the development shall not resume or continue until remediation and verification schemes have been carried out in accordance with details that shall first have been submitted to and approved in writing by the Local Planning Authority. 7 Prior to the implementation of the use hereby permitted, a detailed site layout plan shall be submitted to and approved in writing by the Local Planning Authority. It shall include details of the location of storage areas and of any service road(s), footway(s), loading, parking and turning areas. Thereafter, the use shall take place strictly in accordance with the approved details and the parking spaces shall be kept available at all times for the parking of vehicles.

I have taken the site address from a combination of the application form and appeal form as collectively they more clearly identify the site.

This appeal principally seeks the removal of conditions 3, 4, 6 and 8 which relate to storage heights, contamination, noise and on-site parking layout. Section 79(1) of the Town and Country Planning Act 1990 allows me to allow or dismiss the appeal or reverse or vary any part of the decision (whether the appeal relates to that part or not) and I may deal with the proposal as if it had been made to me in the first instance.

The main issue is whether the conditions are reasonable and necessary having regard to the nature of the proposed development and the site’s context.

The appeal site is an open area of land which is hard surfaced and enclosed by metal palisade fencing. The surrounding area is of an industrial nature comprising various sites and compounds occupied by a variety of buildings, structures and equipment. There are a number of electricity pylons which are prominent in views to the east of the site. To the west are large storage tanks and beyond them the [name] Bridge. The appellants also note that more recent planning permissions near the site to construct an asphalt plant and an Innovation and [name] include elements well in excess of 8m high.

Large and prominent buildings and structures are therefore a characteristic feature of the area. There is little uniformity or formality in how they are positioned or how individual sites are laid out. Similarly, there is no consistency in their heights and there is no substantive information before me to indicate that either individually or collectively there is a restriction on the heights of such features.

I understand that the 8m restriction on the height of open storage is a relaxation of the previously imposed 4m limit for the site. Part of the reason for the condition is in the interests of visual amenity but there is no indication from the Council as to the rationale or assessment basis which led them to these figures.

The appellants have produced visual assessments which discuss the site’s sensitivity and the likely impact of allowing open storage above 8m. The overall level of impact is concluded to be low given the site’s context and scale of surrounding buildings, plant and machinery. The Council has not directly commented upon these findings, nor does it directly reject them. Furthermore, it has not produced any clear assessment of its own, setting out the nature of any harm or to what extent the character and appearance of the area would be harmed by allowing storage above 8m.

However, this is a prominent, not insignificantly sized corner site. Elsewhere in the vicinity, the Council does have some agency over matters such as heights and appearance when planning applications are being considered for new or additional structures and buildings. Aside from matters of general appearance, such controls also ensure that land in the area is used efficiently and does not unduly prejudice neighbouring sites. Therefore, whilst I do not doubt the appellants’ need for flexibility, I do not consider it unreasonable for there to be an upper limit to create some certainty for all concerned, including occupiers of nearby or adjacent sites.

The appellants suggest that if I am minded to set a maximum height, 20m would be appropriate. The Council has not commented upon this suggestion but given the evidence before me, including the appellants’ [name] and my own observations on site, I do not consider this to be unreasonable.

This does not mean that storage has to be at this height nor that a higher limit must be rejected by the Council if it is subsequently necessary to seek an increase. It does though provide the Council with an opportunity to consider the matter further and in the context of the environment prevailing at that time.

Therefore, in relation to condition 3 and the limitation on the height of the storage, I agree that it is currently unreasonable and so propose to vary it by allowing storage to a height of 20m.

The first part of the condition requires the site layout to be agreed prior to occupation. This also dovetails with conditions 7 and 8 which seek to control other aspects of the site layout such as parking, footway and loading areas. I consider these matters below. Condition 4 – Contamination

It appears that the impetus for a condition addressing contamination stems from the observations of the Council’s Environmental Protection Team (EPT). Their comments from 10 October 2024 suggest that there was a need for a watching brief, if groundworks were to be undertaken. Given the site history this is not an unreasonable approach. The condition itself does not relate to groundworks, instead referring vaguely to whether contamination is found to be present at the site. I also find the reference to ‘the developer’ to be imprecise.

The proposal itself is for the change of use of the site to open storage. It does not involve any new buildings or structures per se. Therefore, requiring measures to deal with contamination to be agreed prior to occupation if no ground works are proposed could make compliance with such a condition difficult to achieve. As a result, I do not find the condition as worded to be reasonable or precise.

However, I am mindful that there are potentially works associated with the development such as car parking, footways and drainage. Whilst these may not necessarily involve any ground works, I cannot entirely rule out the need arising if for example kerbing or drainage channels need to be installed.

Therefore, whilst the officer report suggests that issues of contaminated land are not expected on site, there is an element of uncertainty as to whether works would occur and whether they would encounter contamination. In the circumstances, a condition which requires the reporting and risk assessment of any unexpected contamination arising from groundworks would be appropriate.

The Council refer to having expressed flexibility to the appellants in relation to the condition’s wording but have not provided any revised wording as part of their appeal submissions. In amending the wording, I have had regard to the appellants’ suggested revisions, and I have limited the condition to taking effect only if contamination is found and to the extent of the area affected. Condition 6 - Noise

There is disagreement between the main parties as to whether or not the use of this condition had been mutually agreed. However, regardless of that, the condition requires noise from fixed plant to be in accordance with a 2023 noise assessment. I have not been provided with a copy of that assessment. However, the Council do not dispute the appellants’ explanation that it was commissioned as part of an application to remove previously imposed conditions, by demonstrating that site activities would not cause harm to noise sensitive receptors. That application was approved by the Council.

I note that the officer report in relation to the current proposal similarly does not identify any issues in relation to neighbouring occupiers or their amenity. However, the condition requires noise from fixed plant to be in line with the 2023 noise assessment, in the interests of the amenity of surrounding occupiers. However, the appellants indicate that the assessment did not set any fixed plant noise levels. The Council does not dispute this point of clarification.

The Council acknowledge that no fixed plant is proposed as part of the current proposals. I am also mindful that by its very nature fixed plant is likely to be permanently installed and so could require planning permission in its own right. Furthermore, the Council offers no indication or insight as to what sort of fixed plant might be required in relation to an open storage use that would justify the precautionary approach they suggest is required.

In the circumstances, I find the current condition to be unreasonable and not related to the proposed development. Although the Council indicate that the condition could be reworded to accord with the tests for a planning condition, no suggested wording is provided. I shall therefore delete the condition. Condition 8 – Parking Area

The erroneous reference to a ‘building’ in this condition and the typographical error (which for completeness is repeated in the main header to this decision) are in themselves relatively minor matters which could be corrected without too much difficulty. However, it is the appellants’ contention that car parking is not proposed, and the condition as a whole is unnecessary.

The appellants do though suggest that condition 7 could be reworded to secure parking details and ensure the requirements of the condition are retained on an ongoing basis. Condition 7 currently requires the submission of details pertaining to service road(s), footway(s), loading, parking and turning areas.

The reason for condition 8 is to ensure that sufficient car parking is provided on site. [name] saw on my site visit, which is only a snapshot of a weekday afternoon, that there are instances of overspill parking from other sites, with cars currently parked on the road adjacent to the site. I have no reason to doubt that the site would generate a requirement for car parking but have not been presented with any evidence to support the contention that it should not be provided on site or that there is capacity elsewhere to accommodate further overspill car parking.

In view of the above, the need to provide on-site parking details and for them to be implemented and subsequently made available and retained on an on-going basis is reasonable and necessary. Having regard to the first part of condition 3, I see no reason why one condition (condition 7) cannot be amended to encompass all matters relating to the layout of the site. Details would require the Council’s approval and adherence to the approved details would be required.

I shall therefore delete condition 8, remove the reference to site layout from condition 3 and amend condition 7 to encompass the various elements relating to the layout of the site.

For the reasons I have given, conditions controlling height and contamination are reasonable and necessary, but the current wording to those conditions requires amendment. I have not found conditions 6 and 8 to be reasonable or necessary and so they can be deleted. As a corollary of deleting condition 8 and amending condition 3, it is reasonable and necessary to substitute in a new condition 7, to address matters of site layout more fully. All other aspects of planning permission 24/00970/FUL remain unaltered. The appeal is therefore allowed on this basis.