Appeal 6000939

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for the change of use from Class E (commercial, business and service) to Class C3 (dwellinghouses) to form one dwelling at [site address] , Essex [postcode] , in accordance with the application ref. 25/00891/COUNOT and the details submitted with it including drawings 0285-A- 001 Rev 00 and 0285-A-100 Rev 01, and subject to the following condition:

No vinyl, film or other such similar product shall be attached to the glazed windows and door of the dwelling hereby approved, except in accordance with details which have first been submitted to and approved in writing by the local planning authority and thereafter retained as approved.

In determining this appeal, I shall have regard to my statutory duty under Section 72(1) of the Planning (Listed Building and Conservation Areas) Act 1990 to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas.

Schedule 2, Part 3, Class MA of the GPDO grants planning permission for the change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) of Schedule 2 to the Use Classes Order to a use falling within Class C3 (dwellinghouses), of Schedule 1 to that Order, subject to specific restrictions, limitations and conditions, which are set out in [name].1. and MA.2.

It is a condition of [name].2. that development under Class MA is subject to an application to the local planning authority for a determination as to whether the prior approval of the authority will be required to those matters set out in MA.2.(2). The procedure for applications for prior approval under Part 3 is set out in paragraph W.

[name].(3) states that the local planning authority may refuse an application where, in the opinion of the authority, the proposed development does not comply with any conditions, limitations or restrictions specified in Part 3 as being applicable to the development in question. In this instance, the local planning authority determined that the proposal would have a harmful effect on the character and appearance of the Frinton and Walton Conservation Area (“the CA”), contrary to [name].2.(2)(e).

Accordingly, the main issue in this appeal is the effect of the proposal on the character of the CA.

The CA encompasses a sizeable area of [site address] that includes the seafront promenade and pier, together with the streets and properties between it and the area around the [address]. This area has the character of a traditional seaside resort with a mixture of traditional commercial and residential buildings of varying styles. There is a recognisable commercial core that is focussed on the [address] and extends along other streets including [address]. Those streets are lined by traditional buildings often with ground floor shop style fronts. Whilst a proportion are vacant the majority are occupied as shops, food and beverage businesses, and other commercial uses.

The wide frontage of the appeal property reads as two separate shop fronts in a traditional style with large windows above a low height stallriser. It is part of the row of ground floor shops on [address] and within a primary shopping area. The appearance of the shop front makes a positive contribution to reinforcing the character and appearance of the CA in the commercial core of the settlement. However, it is the last shop front in the row on this side of the road and is adjacent to the substantial flat block at the corner of the junction with The Parade. As such, it is comparatively less sensitive to change than the buildings with shop fronts that are closer to the [address] and those flanked on both sides by shop fronts.

GPDO Class MA does not permit operational development that would change the external appearance of the building’s shop front. The drawings show the front elevation of the building retained as existing. The privacy of future occupants of the development is not a prior approval matter under Class MA. However, given that passersby would have close distance views through the large clear glazed shop front windows and into the shallow bedroom and living room of the proposed dwelling, some form of device to screen or obscure those views would be needed. Such devices may affect the appearance of the property.

There appears to be no dispute between the parties that the appearance of the property is related to the character of the CA, which is a prior approval matter relevant to the proposed development. It is the Council’s case that fitting internal blinds or obscure vinyl to the glazing to maintain privacy would harm the appearance of the CA.

The appellant has alluded to how privacy might be achieved for occupiers of the proposed dwelling. They have provided photographs of other commercial properties in the area, including shops, dwellings and commercial premises where various types of window blinds, curtains, advert graphics and obscuring vinyl are fitted. However, they have not advanced any firm plans of the devices they intend to fit to the appeal property or how they might affect its appearance. Instead, they appear to rely on the issue being addressed through a future planning application for vinyl to be applied to the windows or for amendments to the exterior of the building.

Attaching vinyl or film (or other such similar product) that was solid in colour to the existing glazed shop front windows and door could result in an oppressive and defensively blank appearance that would harm the character of the CA. There is nothing before me to show that it would be translucent or would cover only a part of the glazing as indicated by the photos of other properties in the area.

Nonetheless, based on the range of examples provided by the appellant, I am satisfied that curtains or blinds would strike a balance between retaining a sufficient degree of permeability through the shop front during daylight hours whilst maintaining privacy for future occupiers at other times. They would be set behind the shop front and would not harmfully obscure the external appearance of its glazing or appear oppressive or defensive. As such, they would not be likely to harm the character of the CA.

For the reasons given above, the imposition of a planning condition to prevent vinyl or film (or other such similar product) from being attached to the glazing, except in accordance with details first agreed by the Council, would be necessary to make the development acceptable. It would enable the Council to retain control over vinyl or film to prevent it harming the CA.

Although attaching vinyl or film to the glazing would not be development, the condition would meet the tests for imposing conditions because it would relate squarely to planning objectives, including the subject matter of the prior approval and the planning permission granted by the GPDO, and it would be justified by the potential impact on the CA. This is broadly analogous to a planning condition requiring soft planting which are commonplace for many developments.

[name] of the GPDO allows for the grant of prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval. Such a condition would strongly align with GPDO paragraph W.(9) which is clear that local planning authorities can require a development to be carried out in accordance with details that set out how the impacts or risks of that development are to be mitigated.

Subject to the imposition of the planning condition set out above, I conclude that the proposed development would not harm the character of the CA, and it would meet the requirements of Schedule 2, Part 3, Class MA of the GPDO, including the disputed prior approval matter in condition MA.2.(2)(e). Neither party considered that the proposal would harm the sustainability of the CA, and I see no basis to disagree, particularly given the precise location of the appeal property. Consequently, the proposal would accord with the Framework in respect of conserving and enhancing the historic environment.

The Council’s appeal statement advises that occupying the proposed development could harm statutorily protected nature conservation sites on the Essex coast, designated under the Conservation of Habitats and Species Regulations 2017 (“the Regulations”) because of their international importance.

Under the Regulations and Article 3(1) of the GPDO, any relevant development that could affect such protected sites is subject to a pre-commencement condition under a separate approval process. The evidence before me indicates that discharging this condition would require a planning obligation securing a financial contribution to a strategic mitigation scheme.

However, because the development cannot lawfully begin until the developer has applied to discharge the condition and received the Council’s written confirmation that it would not harm the protected sites, this step does not need to be completed before prior approval is granted. For the purposes of my decision, I am satisfied that the appeal development would not adversely affect the nature conservation interests of those protected sites.

For the reasons given above I have imposed a condition controlling the attachment of vinyl, film or other such similar product to the glazed windows and door.

As development approved under Class MA is permitted subject to the conditions in paragraphs MA.2.(5) and (6) of the GPDO, they need not be duplicated in my

For the reasons given above, I conclude that the appeal should be allowed and prior approval is granted.