Appeal 6000933

The appeal is dismissed.

I have taken the description of development from the Council’s decision notice as it corresponds to the development considered by the Council.

The main issues are the effect of the proposed development on a) highway safety in relation to parking provision and deliveries; and b) the living conditions of future occupiers.

The site currently comprises a large retail showroom on the ground floor with the upper floor comprising associated office space. Although currently vacant, there is nothing to suggest that the building could not be reused for these existing purposes. Furthermore, it currently has no on-site parking provision or delivery bay.

The proposal makes no provision for on-site parking. However, it would generate a different demand for parking from that of the existing use, as it would likely be required continually during the day and at other times when a retail use would not generally be operating.

The proposal would generate a requirement of 9 - 11 parking spaces although local guidance suggests that this could be reduced in certain circumstances. Indeed, although the site is marginally beyond the threshold of 1km walking distance from the railway station, the officer report acknowledges the site to be well located for sustainable transport options and proximity to services and facilities.

The information before me also suggests that car ownership levels in the area and the nature of the flats and the tenants who might be likely to occupy them could be further factors that might reduce the demand for car parking. These latter factors cannot be guaranteed or controlled but offer some support to the suggestion that the proposal could potentially benefit from a reduction in the overall parking requirement.

Despite the demand for parking spaces in the surrounding streets being high, parking surveys suggest that the additional demand from the development could be accommodated on street. However, this spare capacity is within controlled parking zones and residents of the proposed development would not qualify for permits. Therefore, even applying a reduced parking requirement, there would be a likely demand for on-street parking which cannot easily be accommodated.

Given the limited on-street parking options the parking demand could become an on-going and long-lasting problem. Inconsiderate or inappropriate parking can very easily cause highway safety issues. The appellant has not disputed this as a likely outcome and has put forward a draft legal agreement with the appeal. This agreement is designed to provide the Council with a £20,000 contribution towards extending the controlled parking zone, thereby allowing future occupiers to benefit from residents’ parking permits.

The agreement is in draft, unsigned and undated. Furthermore, I have no details as to whether the level of contribution is fairly and reasonably related in scale and kind to the development, given that the officer report suggests the extended controlled parking zone would encompass more than just the appeal site.

The Procedural Guide: Planning appeals – England (2025) makes clear that the appellant must ensure that the Planning Inspectorate receive an executed and certified copy of the planning obligation at the time of making their appeal. Furthermore, it advises that the Inspector will not delay the issue of a decision to wait for an obligation to be executed unless there are very exceptional circumstances. I have not been presented with any evidence to suggest that very exceptional circumstances exist in this case. In view of the above, I am therefore unable to attach any weight to the draft agreement.

Overall, and in the absence of a satisfactorily executed legal agreement, I cannot be sure that the proposed development would provide the required mitigation to offset the impacts on highway safety arising from insufficient parking provision.

The appeal site is positioned on a bend in the road. There are currently double yellow lines in front of the building and which extend for some distance back along [address] and [address]. Beyond the site, on Broadway, there are single yellow lines, with a 8am – 6pm restriction.

The former occupier of the appeal site appears to have been a kitchen and bedroom showroom, suggesting that deliveries would have involved bulky items. It is therefore reasonable to assume that any delivery vehicles would have parked close to the site and would have been sizeable vans or lorries.

The proposal comprises two retail units. Combined, their floorspace would be less than that of the existing retail unit. Whilst two separate units would generate different delivery schedules, they could be served by smaller vehicles than the previous user, with the vehicles likely to be stationary for relatively short periods given the size of the proposed units.

Although my site visit was only a snapshot on a weekday afternoon, the nature of the road and the vehicles that use it suggest that traffic moves quite slowly in front of the appeal site. I also noted that few other commercial units in the vicinity appeared to benefit from on-site parking/delivery bays. I have no substantive information before me to indicate that the area suffers from a particularly bad accident record. Thus, units being serviced directly from the road appears to be an inevitable part of the traffic/parking profile of the area.

Based on the evidence before me and my own observations there is nothing to suggest that the proposal would have a negative impact over and above the current situation. I do not entirely rule out the possibility that it may actually result in a slight improvement when compared to the previous occupant.

I am also mindful that the Highway Authority has not raised a highway safety objection to the delivery situation and there is a lack of substantive evidence to support the Council’s concerns. As such, there is little to suggest that there would be an unacceptable impact on highway safety from deliveries, taking into account all reasonable future scenarios.

Concerns were raised regarding the possible use of the units as fast food take-aways and the associated collection of orders/parking. These are sui generis uses and so fall outside the scope of Class E, which covers commercial, business and service uses. As such, it would require a separate grant of planning permission for a takeaway use to occupy one or both of the proposed units. The Council would therefore be able to consider all the various issues such a use might generate, were a subsequent proposal to come forward.

I have found the delivery arrangements to generally be acceptable for the retail units and so would not cause harm to the road network in terms of movement and accessibility. In this respect the proposal would accord with Policy PMD 9 of the [name] and Policies for Management of Development 2015 (CSPMD).

However, the absence of sufficient on-street parking provision or a signed legal agreement to address the issue mean that even applying a reduced parking requirement, there would be harm to highway safety. It is for this reason that the proposal would be contrary to [name] 2 and PMD 8 of the CSPMD which, amongst other things, require developments to respond to a site’s surroundings and adopt an appropriate approach towards parking provision.

There are no local or national requirements for a particular level of provision of private outdoor space. However, the Framework does seek to ensure developments provide future users with a high standard of amenity and this is reflected in Policy PMD1 of the CSPMD which seeks to avoid unacceptable effects on the amenity of future occupiers. It is therefore a matter of planning judgement as to whether the level of outdoor space provision is acceptable in this case.

The ground and second floor flats are each provided with some outdoor space, either in the form of a balcony or courtyard. The upper floor balconies would be small but they serve one bedroom flats. They would appear to be of sufficient depth to, for example, accommodate a small table and a couple of chairs.

However, the ground floor flat is a two-bed unit with a courtyard served off the main bedroom. It would be to the rear of the building and is likely to be an enclosed and a somewhat uninviting space with no scope for landscaping to help make it a more pleasant environment. Despite being comparable in size and position to the outside area serving the adjoining flats, it seems unlikely that it would be space in which future occupiers would wish to spend much time. As such, this would be a negative feature of the scheme.

The three first floor flats would each have two bedrooms but no outdoor space provision. They would exceed the [name], but the amount of internal accommodation would not compensate for the lack of outside space. Given that these units could be occupied by families I find that the proposed arrangements for these units to be a detractor of the scheme. The proposal would therefore be detrimental to the wellbeing and the living conditions of these future occupiers.

I acknowledge that there are areas of public amenity space in reasonably close proximity to the site. Whilst this would offer some form of alternative option, these spaces would not provide private space for future occupants of the flats. I also appreciate that large areas of private amenity space serving flatted development would be unlikely to reflect the urban character of the area. However, there is nothing before me to indicate that the layout as proposed is the only way to redevelop the site for this mix of uses or that a better provision of amenity space cannot be provided on site, particularly for the larger units.

As the proposal would be unlikely to provide satisfactory living conditions for all future occupants, I find that it would be contrary to [name] 1 and PMD 2 of the CSPMD which, amongst other things, require developments to provide appropriate amenity space and not cause unacceptable effects on the amenity of future occupiers.

The Council does not dispute the appellant’s claims of the local 5 year housing land supply being 1.02 years as of April 2024. The appellant also references an appeal decision where the figure was considered to be even lower. This all weighs positively in favour of the proposal.

The appeal site falls within the Zone of Influence (ZoI) of the [name] and Marshes Special Protection Area (SPA) and Ramsar site. These sites provide wetland and important habitat that is subject to statutory protection under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations). These sensitive areas are easily disturbed by recreational activity from people living within the ZoI.

Whilst the effects of the development alone would be limited, when considered in combination with other plans or projects, additional recreational visitors to the protected areas would be likely to have significant effects.

The Habitats Regulations require me to consider any avoidance or mitigation measures that would be capable of addressing the adverse effects and to be certain that they would be effective. The Essex Coast Recreational disturbance Avoidance and [name] (RAMS) considers that the impact on the sensitive areas could be monitored and managed to a satisfactory level through a tariff-based system that would fund various measures.

The appellant has already made a financial contribution towards mitigation and the Council confirms that this has addressed their concerns regarding the matter. As the competent authority, the Habitats Regulations require me to carry out an Appropriate Assessment. It is a matter I return to below.

Some concerns have been raised by interested parties regarding the design and appearance of the proposed building. Buildings in the area have a variety of different designs and ages. Newer buildings in the vicinity of the appeal site generally offer three storeys of accommodation, as does the appeal scheme. The proposed building would have a flat roof which is not the prevailing style but the position and finish of the top storey helps to mitigate some of that impact. I am also mindful that the Council did not raise this as a reason for refusal and overall, I see no reason to disagree with their conclusion on this particular issue.

The proposal is contrary to the development plan as it would be likely to raise highway safety issues and provide a poor level of outside space for some future users.

Whilst it is possible that the highways issues could be overcome with an appropriate planning obligation, the level of conflict with the development plan at this point in time means that I must ascribe significant weight to this harm. Given the proposal provides adequate internal accommodation, and some external space to the smaller units, I attribute moderate weight to the harm arising to the living conditions of some future occupants.

Based on the information before me regarding the housing supply position, Paragraph 11 of the Framework is engaged.

The proposal would be aligned with the objectives of the Framework to boost the supply of homes. This is particularly important in an area which is not providing a sufficient supply of housing to meet national policies. The proposal could be built out relatively quickly, generating economic benefits both during construction and upon occupation. There may also be some social benefits alongside them. The proposal would also utilise a brownfield site in an accessible location. However, even taking into account that cumulatively numerous small developments can make a contribution, due to the scale of the development, the weight to be given to these benefits is modest.

On the other hand, highway safety is a key aspect of sustainable development. This position is supported by the Framework at paragraph 116, which seeks to prevent development that would have an unacceptable impact on highway safety. As such, I attribute significant weight to harm arising from the failure to show that the scheme would not lead to inappropriate parking on the public highway.

Furthermore, whilst I recognise the need for a diverse range of housing options, that should not include housing with unacceptable living conditions for future occupiers. Indeed, the need to protect the living conditions of residents is perennial and in direct compliance with Framework paragraph 135 (f), which, amongst other things, seeks to ensure that new development provides a high standard of amenity for future users. I attribute moderate weight to this harm.

Therefore, I find that the adverse impacts of the development would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole. Therefore, the presumption in favour of sustainable development does not apply in this case.

[name] am dismissing the appeal on the basis of other identified harms, an Appropriate Assessment is not required. Therefore, it is not necessary for me to consider further the effects of the development and proposed mitigation on the SPA.

The proposal conflicts with relevant policies of the development plan. There are no other material considerations, including the Framework, to indicate that the decision should be made other than in accordance with the development plan taken as a whole. Consequently, for the reasons given above, the proposal is unacceptable and so the appeal should be dismissed.