Appeal 6000603

The appeal is allowed and planning permission is granted for the erection of a replacement dwelling and new outdoor manege at [site address] , [site address] , Wickhamford, Evesham [postcode] in accordance with the terms of the application, Ref W25/00876/FUL, subject to the following conditions:

The development hereby permitted relates to drawing nos. C/110/01/7 and C220/02/8A.

Parking space at the site for a minimum of three motor vehicles shall be retained.

Prior to the menage hereby approved being brought into use, details of the surface materials to be used in its construction of the manège shall be submitted to and agreed in writing by the Local Planning Authority. The manège shall be constructed and maintained in accordance with the approved details.

No farm effluent or contaminated surface water from impervious areas shall be discharged into any ditch or watercourse.

No floodlighting shall be erected on the site, except in accordance with a scheme that has first been submitted to and approved in writing by the Local Planning Authority.

The site address, description of development and date of the permission in the banner heading above are taken directly from the original decision notice for permission W/03/00670/PN.

Planning permission (reference W/03/00670/PN) was approved in 2003 for a replacement dwelling and new outdoor menage (sic) at the appeal site. The dwelling has been built and subsequently occupied. The permission was subject to a condition (no. 11) that removed permitted development rights for the erection of buildings, walls, fences or other structures within the curtilage of the dwellinghouse or any alterations or extensions to the approved dwellinghouse. This condition does not prevent future extensions or alterations to the property, but it allows the Council to control them through the planning application process. The Council deemed the condition necessary on visual amenity grounds.

The main issue is whether the condition is reasonable and necessary in the interests of the character and appearance of the area.

The removal of the disputed condition would allow for several types of alterations to the property under permitted development rights (PDR). These would include the enlargement, improvement or alteration to the dwellinghouse, additions to the roof, the addition of porches or outbuildings, installation of hard surfaces, chimneys or flues, as well as walls, fences, and microwave antenna. All are subject to certain limitations as expressed under the Town and Country Planning (General Permitted Development) (England) Order 2015, as amended (“the Order”).

The National Planning Policy Framework (the Framework) sets out that planning conditions should only be imposed where, among other things, they are reasonable and necessary. The Framework further states that planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so.

The Planning Practice Guidance (PPG) is also clear that conditions restricting the future use of PDR may not pass the test of reasonableness or necessity. It goes on to add that the blanket removal of freedoms to carry out small scale domestic and non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness or necessity.

The appeal dwelling is situated in a rather open rural landscape on the outskirts of a village. The dwelling is accessed via a long vehicular track from the main highway that runs through the village. It is therefore somewhat secluded, albeit it is situated near other large buildings and structures.

Despite the immediate setting of the appeal site being rather open, the dwelling is not highly visible from public vantage points. This is due to a combination of topography, the presence of existing built form, and vegetation. Furthermore, where public views of the appeal dwelling are available, it tends to be seen in the context of other large buildings or structures nearby, as well as a variety of dwellings within the village that vary considerably in their scale and design.

The appeal site is in the open countryside as identified under the South Worcestershire Development Plan (SWDP) (adopted 2016). Policy SWDP18 allows for the replacement of dwellings in the open countryside in certain circumstances. Of pertinence to this appeal is criterion iii) of the policy; this requires that the replacement is not disproportionately larger than the existing dwelling and would not exceed the size of the original footprint by more than 30%. The policy and its supporting text do not provide a definition of ‘disproportionate’, and notwithstanding the dictionary definition provided by the appellant, I find it is therefore a matter of planning judgement.

The original permission, and condition subject of this appeal, was granted prior to the adoption of the SWDP. Nonetheless, the appeal proposal must be considered against the current development plan position.

The appeal dwelling is of an alternative design and appearance to that it replaced. Notably, it is larger including in respect of its height and overall floorspace, but not disproportionately so. The evidence before me, meanwhile, indicates the footprint of the appeal dwelling is approximately 18% greater than that it replaced, and therefore well within the threshold established under Policy SWDP18.

The appellant’s submission indicates that, even if exercising PDR, the 30% threshold under Policy SWDP18 would not be exceeded; whilst also highlighting certain limitations on the scale of development that would be enabled. The Council has not directly refuted this claim.

Furthermore, the relevant condition does not only prevent the increase in the size or footprint of the proposed dwelling but instead removes the ability to undertake any alterations to the property. The Council has not provided a detailed analysis as to why minor alterations to the property, for example, the addition or porches or antenna, or alterations to windows would be inappropriate in this instance.

Given the advice of the Framework and PPG, and that the condition was imposed by the local planning authority, I find the onus is on the Council to demonstrate what special circumstances exist to justify the condition being upheld. The appellant not indicating the nature of the alterations that may be pursued under PDR, as well as the lack of a landscape visual impact assessment to consider the potential effects that may arise, therefore does not weigh against her in this instance.

The appeal dwelling’s location in the open countryside, outside any designated development boundary, as identified within the adopted development plan is a situation that would be equally applicable to many other dwellings. Nor am I convinced that a disproportionately sized dwelling compared to that originally found at the site would arise through the removal of the condition. Accordingly, I do not find these matters to represent circumstances that justify the removal of permitted development rights.

Having regard to the wider surroundings, including the variety in scale and appearance of the nearby built form, I am also not persuaded there would be harm to the character and appearance of the area, even if the property were to be significantly extended or altered as may be capable under PDR. Indeed, I am content that the GPDO provides for sufficient safeguards to prevent over-development of the appeal site.

Bringing the above together, I find that the Council’s blanket ban approach of alterations to the appeal dwelling under PDR is inconsistent with national policy and guidance. Additionally, I do not find the condition to be reasonable or necessary in the interests of the character and appearance of the area. Nor has any conflict with Policies SWDP18, SWDP21, and SWDP25 been identified. Together these policies seek to promote development that is of a high-quality design appropriate to its surroundings including its landscape setting.

Reference has been made to other appeal decisions involving the reinstatement of PDR but given the contextual differences in location and specific planning policy contexts, they have not been determinative to my findings.

By allowing this appeal a new planning permission is created. The PPG advises that, for clarity, decision notices for the grant of planning permission under Section 73 of the Town and Country Planning Act 1990 (as amended) should restate the conditions on earlier permissions that continue to have effect, unless they have been discharged.

I have made some minor amendments and omissions to the Council’s original conditions in the interests of clarity and to ensure compliance with the Framework and PPG.

As the development has already been implemented it is unnecessary for me to attach the commencement of development condition. A condition specifying the approved plans remains reasonable and necessary in the interests of clarity and certainty.

[name]/03/00670/PN was granted in 2003. The dwelling has subsequently been built and occupied for some time. Accordingly, it is not reasonable or necessary to attach several of the previous pre-commencement or pre-occupation conditions to this current permission. Conditions in respect of the approval of finishing materials, parking for site operatives and visitors, storage of materials and equipment on the site, provision of landscaping, demolition of the previous dwelling at the site, and details of foul and surface water drainage have therefore not been re-imposed. I have also not found it necessary to re-instate a condition requiring the provision of vehicle parking and turning space. I have though included the requirement for vehicle parking spaces at the site to be retained, this is to ensure an acceptable form of development and in the interests of highway safety.

It is unclear from the information before me whether the manège that was approved as part of the previous permission has been brought into use. I have therefore re-attached a condition requiring approval of the surface materials for the manège. If this information has previously been discharged, it is a matter that can be resolved between the main parties.

I have re-attached conditions preventing the discharge of effluent and surface water into any ditches or watercourse and preventing the erection of floodlighting at the site. These conditions are reasonable and necessary in the interest of water quality and the character and appearance of the area respectively.

For the reasons given above, the appeal is allowed.