Appeal 6000887

The appeal is allowed and planning permission is granted for the demolition of existing buildings and structures, site remediation and the erection of 167 apartments, a new link road, car parking and landscaping at [site address] , [site address] , Newbury [postcode] in accordance with the application Ref 24/02418/FULMAJ without compliance with condition number 5 previously imposed on planning permission Ref 22/00039/NONMAT dated 2 October 2023 and subject to the conditions in the attached schedule.

The development originally permitted was established through the granting of planning permission 15/00319/FULEXT. This was subsequently varied under a S73 application referenced 19/02546/FULEXT for the variation of Condition 2 ([name]) of previously approved application (15/00319/FULEXT). This was then subject to a non-material application referenced 22/00039/NONMAT, under section 96A of the Town and Country Planning Act 1990. There was also a later non-material application referenced 24/00099/NONMAT.

The appeal proposal seeks to remove Condition 5 ([name]) of 22/00039/NONMAT. This condition sought the submission of a [name], which shall include the following: a) Details of the number of car parking spaces within the car park available for the proposed residents and existing [address] residents and b) Details of the entry/exit arrangements for all users of the car park.

My site visit confirmed that the development permitted has been completed1 and temporary parking arrangements were in situ for the [address] residents on land outside of the application boundary but within the appellant’s control. However, under this appeal, the appellant seeks to remove condition 5 to allow the development to proceed without complying with this condition in the long term.

Based on the evidence submitted, I consider that there are 2 main issues in regard to the disputed condition. These are: • whether condition 5 is considered necessary, relevant to the development to be permitted and reasonable, as set out in the National Planning Policy Framework 2024 (the Framework) and the Planning Practice Guidance (PPG); and • the effect that removing the condition would have on highway safety, with specific regard to parking.

The PPG and the Framework confirm that conditions should only be imposed where they meet the six tests of necessity, relevant to planning, relevant to the development, enforceability, precision, and reasonableness.

The disputed condition was attached via a non-material amendment application. That application sought approval for minor changes to the originally approved scheme, including adjustments to building levels and minor design alterations to the podium and car park layout. These changes were technical in nature, intended to regularise the approved plans and improve construction efficiency. Importantly, no alterations were proposed to the quantum of development, the parking provision, or the principle of access arrangements.

Condition 5 required the submission and approval of a [name] for Level 0, introducing new obligations relating to the allocation of parking spaces for [address] residents and entry/exit arrangements. The PPG confirms that non-material amendments cannot be used to introduce new conditions that materially alter the permission.

I consider that the disputed condition was not directly related to the amendments sought and imposed requirements that went beyond the scope of a section 96A application. It would impose an additional requirement not previously considered necessary as part of the original permission and it would also be more onerous than the original permission. 1 Application Form states that it was completed on 1 March 2024.

I note the Council’s position that parking provision for [address] residents has been a consistent concern since the original 2015 permission. Nevertheless, the original approval acknowledged the loss of [address] parking, which was within the E1 (East) [name], to accommodate the link road but deemed this acceptable without a condition. The relevant Committee minutes2 indicate that this issue was raised at the time, but the Council advised that imposing such a condition could jeopardise viability and delay the application. This demonstrates that while the loss of [address] parking was a contentious issue, it was not considered sufficiently harmful to justify withholding planning permission.

I acknowledge that an informative was originally attached, stating that ‘the applicant and Council will use their best endeavours to ensure additional car parking is provided in the vicinity of the application site for [address] residents’. However, the Council used the opportunity of the non-material amendment application to upgrade this informative into a condition, which is unreasonable. There are no new circumstances that justify imposing a condition now.

Having regard to the tests set out in paragraph 56 of the Framework and the guidance in the PPG, I find that imposing a condition via a non-material amendment fails the tests of necessity and reasonableness. The requirement was not necessary to make the development acceptable in planning terms, as parking arrangements had already been addressed under the original permission. Furthermore, the non-material amendment did not alter parking provision, meaning the condition was not relevant to the changes sought. Introducing a new condition through this process also raises concerns of reasonableness, as it materially alters the scope of the permission.

I also consider that Condition 5 fails the tests of precision and enforceability. It is unclear whether the specified parking spaces are to be reserved exclusively for [address] residents or made available to all holders of an E1 [name] permit. If intended solely for [address] residents, there is no mechanism to ensure compliance or prevent use by other permit holders. Consequently, I am not satisfied that Condition 5 provides an effective or enforceable means of securing the intended outcome.

Nevertheless, even if I were to find that the disputed condition was reasonable, necessary and relevant, I am not persuaded that the loss of the nine replacement parking spaces would result in an unacceptable impact on highway safety. I acknowledge that the removal of these spaces would increase oversubscription within the E1 (East) [name], where permits already exceed the number of available spaces, which could lead to inconvenience for residents and some displacement of parking to surrounding streets. However, the evidence before me does not demonstrate that this would result in conditions so severe as to compromise highway safety or the free flow of traffic.

The appellant’s evidence, including independent parking beat surveys undertaken by Phoenix Traffic Surveys Ltd, demonstrates that on-street parking within the wider zone was never fully occupied, even during peak overnight periods, and that there were 22–25 spaces available. The surveys also confirm that many properties have off-street parking and that additional unrestricted spaces exist nearby. 2 DISTRICT PLANNING COMMITTEE - 25 MARCH 2015 - MINUTES

I have considered the Council’s concerns regarding the reliability of the appellant’s parking surveys, including the limited streets surveyed and the inclusion of [address], which contains some private parking. I acknowledge that local observations and photographic evidence indicate that the E1 zone can experience parking stress and that some of the alternative streets offer limited legal parking opportunities.

I also recognise the number of objections from residents in the area who will be immediately impacted by the loss of the parking spaces and that public transport and car club provision do not entirely remove the need for residents’ parking. These objections raised similar concerns to Highways officers and stated how the removal of the condition would detrimentally affect parking provision in the area. Newbury Town Council have also raised objections to the proposal on this basis.

While the Council questions the methodology, I note that the surveys covered streets with lighting, footways, and safe walking routes, and were conducted during periods of peak demand. On balance, I find this evidence to be more persuasive than anecdotal reports submitted by residents.

Although the loss of nine spaces would exacerbate oversubscription within the E1 zone, these concerns were present at the time of the original approval and were not considered sufficient to warrant a condition nor a refusal at this time. The evidence before me does not demonstrate that the removal of these spaces would materially worsen highway safety or the free flow of traffic to the extent that the condition could be considered reasonable or necessary.

Therefore, for the reasons set out above, I conclude that the condition is unnecessary, unreasonable, and not relevant to the development permitted. It therefore fails to meet the tests set out in paragraph 56 of the Framework and the PPG. In addition, I conclude that the loss of the nine spaces would not result in an unacceptable impact on highway safety, particularly in relation to parking provision. [name] acknowledge the inconvenience to residents, this does not amount to a severe residual impact in the context of paragraph 115 of the Framework.

The deletion of Condition 5 attached to planning permission Ref 22/00039/NONMAT, dated 2 October 2023, would allow the development to remain in accordance with Policies CS13 and CS14 of the [site address] [name] (2006–2026). Taken together, these policies seek to mitigate impacts on the local and strategic transport networks, promote opportunities for healthy and safe travel, improve travel choice, and facilitate sustainable movement within and between main urban areas and rural service centres, while also requiring high-quality design that responds appropriately to its context. The approved scheme already satisfies these objectives, and the removal of Condition 5 would not introduce harm or conflict with them.

I note the Council’s argument that the appellant’s submission of application reference 24/00099/NONMAT, which included plans demonstrating a compliance with temporary and permanent parking proposals for the [address] residents, implies acceptance of the legitimacy of Condition 5. However, the appellant explains that this application was submitted solely to resolve purchaser concerns and enable the sale of the site to an affordable housing provider. Compliance with the condition during the sale process was a pragmatic step to avoid delay and does not amount to endorsement of its lawfulness or necessity. Furthermore, the appellant has advised that they have consistently maintained an intention to challenge the condition through the proper statutory route, which is this appeal. For these reasons, I can only attach limited weight to the Council’s argument that subsequent compliance or variation implies acceptance of the condition.

I have carefully considered the concerns raised by local residents regarding traffic, parking, and the expectation that replacement parking would be provided. I appreciate the strength of feeling on this matter and I acknowledge that the development has altered parking arrangements and that the E1 zone experiences some pressure. However, planning decisions must be based on policy and evidence rather than perceived obligations and these matters were assessed and accepted at the time of the original permission. The loss of on-street parking to facilitate the link road was a known consequence of that approval. The original permission did not secure replacement parking by condition, and the disputed condition was introduced through a non-material amendment process that is not intended to impose new substantive requirements. As set out above, it would not be appropriate to revisit those considerations now through this appeal and I do not find the concerns raised justify the retention of the condition.

With regard to traffic and congestion, there is no substantive evidence before me to demonstrate that the development has resulted in severe residual impacts on highway safety or the free flow of traffic, as defined by paragraph 115 of the Framework. The ring road and associated traffic management measures were integral to the approved scheme and remain in place. While some inconvenience may occur, this does not amount to a planning harm sufficient to justify retention of the disputed condition.

The PPG makes it clear that decision notices for the grant of planning permission under section 73 should also repeat the relevant conditions from the original planning permission, unless they have already been discharged. Section 73 allows the decision maker to attach new conditions, to not attach conditions that were previously imposed or to attach modified versions of them.

As set out above, the development is completed. I have repeated the non-disputed conditions from both application reference 19/02546/FULEX and the conditions from the non-material amendment application (22/00039/NONMAT) that appear still to be relevant.

For the reasons given above, I conclude that the disputed condition is not reasonable or necessary, and not relevant to the development permitted. Furthermore, the loss of the nine spaces would not result in an unacceptable impact on highway safety, particularly in relation to parking provision. I shall therefore allow the appeal and grant a new planning permission without the disputed condition.

The dwellings hereby approved shall achieve Level 4 of the Code for [name] (or any such equivalent national measure of sustainability for house design which replaces that scheme). Within 3 months of each phase of dwelling occupation, a final [name] relevant to it, certifying that Level 4 of the Code for [name] (or any such equivalent national measure of sustainability for house design which replaces that scheme) has been achieved, has been issued and a copy has been provided to the local planning authority.

The details of the measures to create at least one dark North-South corridor hereby approved shall be implemented in full and shall be maintained thereafter. Measures will be designed using a qualified ecologist and include those mentioned in paragraph 7.2.5 of the [name] report dated August 2014 by [name] and expanded upon in the e-mail to [site address] Council from [name] and dated 20th August 2014. In addition, the bat sensitive lighting strategy shall be implemented in full and shall be maintained thereafter. Two years after the first occupation of a flat/apartment, a bat survey of the dark North/South corridor through the site which will be suitable for bats will be undertaken in suitable weather conditions in the months of June/July to establish whether the corridor is working or not. A report of the monitoring will be submitted to the local planning authority in writing in the following August.

The detailed reptile mitigation plan hereby approved based on Section 7.6 of the [name] [name] and dated February 2014, shall be implemented in full. In addition, detailed plans hereby approved showing the following shall be implemented in full and the boxes incorporated shall be retained and maintained thereafter: - The incorporation of three groups of 5 woodcrete swift nest boxes; - [address] nest boxes; - 2 bird boxes suitable for [name]; - 3 Blackbird nest boxes; - 6 built in bat boxes and; - 2 woodcrete bat boxes suitable for trees.

The landscaping scheme hereby approved shall ensure; a) Completion of the approved landscape scheme within the first planting season following completion of development. b) Any trees shrubs or plants that die or become seriously damaged within five years of this development shall be replaced in the following year by plants of the same size and species.

The details of the vehicle parking and turning space/areas hereby approved shall thereafter be kept available for parking (of private motor cars and/or light goods vehicles) at all times.

The boundary treatment on the western perimeter of the application site fronting [address] hereby approved shall be impermeable [i.e. no pedestrian entrances or exits]. The development shall be subsequently built out in strict accord with the approved boundary treatment.

The Travel Plan hereby approved (Framework Residential Travel Plan dated March 2015, Issue 04), or any subsequent revision that has been approved in writing by the local planning authority, shall be implemented in accordance with the details set out in that plan, or any subsequent approved revision. The owner/occupier shall take reasonably practicable steps to achieve and maintain the targets developed as part of the plan, or any subsequent approved revision. Any future owner/occupier shall implement the Travel Plan hereby approved or any subsequent revision that has been approved in writing by the local planning authority.

Details of drainage measures to manage surface and foul water within the site hereby approved shall be implemented in full and shall be maintained thereafter.

The Electric Vehicle Charging Points hereby approved shall be retained and kept available for the use of electric vehicles.

Cycle parking shall be provided in accordance with the approved drawings, and these areas shall thereafter be kept available for the parking of cycles at all times.

The finished floor levels for the development hereby approved shall be in accordance with those approved drawings under nonmaterial amendment application 22/00039/NONMAT and shown on the original approved drawings.