Appeal 6001014

The appeal is dismissed.

An application for costs was made by [name] and Hebborn and Son Ltd against Tendring District Council. This application is the subject of a separate

I have deleted the term “retrospective” from the description above as this does not describe an act of development. At the time of my site visit the two catering units were present on the site and I was able to view them in place.

As the development lies within a Conservation Area I have had special regard to section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act).

The Council have raised concerns about the colours used in the advertisements located on the units. However, the display of advertisements is controlled through a specific approval process and no application for advertisement consent is before me. The structures on which the advertisements are mounted are, however, integral to the design of the proposal and so I have had regard to their effects. I have determined the appeal on this basis.

The main issues in this appeal are: - • The effect of the development on the character and appearance of the site and the surrounding area, with particular reference to the Frinton and Walton Conservation Area (the CA) and [name] and the [name], which are non-designated heritage assets; • The effect of the development on the living conditions of neighbours, having particular regard to disturbance from noise; and: - • Whether the site is a suitable location for the development having particular regard to policies concerned with development in areas at risk of flooding.

The appeal site (the site) lies within the CA opposite [name] (the Pier). To the west, beyond a substantial residential block known as [address] lies a refreshment kiosk, known as The Beach Hut Kiosk, and a large number of painted beach huts in pastel colours. The ground floor of [address] appears to be occupied by an amusement arcade,

The CA covers an extensive area stretching along the seafront of Frinton-on-Sea (Frinton) and [site address] (Walton), which, in the mid to late nineteenth centuries developed as seaside resort towns. Over this period the expansion led to the built-up areas of the two towns meeting. Nonetheless they retain two distinctly differing characters.

Frinton was planned as an exclusive resort from the late nineteenth century, whilst Walton developed to accommodate the needs of day trippers. Despite later infill development, Walton retains a significant part of its historic building stock and retains much of its seaside character, as evidenced by the Pier, with its amusements and funfair rides.

The significance of the CA is derived from the historic development of the two seaside towns of markedly different characters as they sought to attract their different target clientele. Walton’s character and appearance derive extensively from its context as a nineteenth century seaside resort and destination for day trippers. Insofar as it relates to this appeal, the significance of the CA is primarily associated with the period design of buildings and the public realm.

The Pier is identified as a key unlisted building within the Conservation Area in the [name] and sits directly opposite the development. The pier and beach huts share a setting in which they, together with the sedate Victorian buildings, characteristic of the CA, are dominant features. The length of the pier provides views back towards the town encompassing these.

The current Pier is, itself, of relatively late construction, replacing historic structures of similar function. Nevertheless, the Pier and the [name] are important and prominent features of the sea front, making a major contribution through their use and appearance, to the character of the CA as a seaside resort for day trippers and thereby the significance of the CA.

Given the above, I find that the Pier and the [name] are rightly identified as non-designated heritage assets and their special interest, insofar as it relates to this appeal, is primarily associated with the contribution they make to the character and appearance of the area as a seaside resort for day trippers.

Further, the [name] and [address] by virtue of their traditional form and design as sea front period buildings and association with seaside tourism make a positive contribution to the character and appearance of the CA.

The development introduces two substantial buildings into the street scene. Despite being painted to match the adjacent [address] in colour, their lack of detailing contrasts strongly with its neighbours on that side of the street, This undermines the setting of the non-designated heritage assets. This incongruity is emphasised by the timber decking fronting the site and the signage panels atop the buildings.

The paving of the surrounding area uses harder, impervious materials, such as macadam and concrete, often seen for paving which is exposed to the sea elements. The use of timber decking is incongruous and out of keeping with the more traditional materials that would be anticipated in such a location.

The hoarding above the Fish and Chip unit, in particular, is disproportionately high in relation to the building atop which it sits. Whilst there is a signage panel of similar height opposite, on the frontage of the Pier, that building is of considerably greater massing overall and so, in that case, the hoarding is proportionate. The scale of the signage panels increases the prominence of the development, and they are highly visible from the beach and other areas of the public realm.

Whilst the Council express concern about the unfinished nature of the rear of the hoarding, at the time of my visit, these appeared to have undergone further work to provide a fair rear face. Nevertheless, this does not address the other harm that I have found.

Given the above, I find that the development fails to preserve the special historic interest of the non-designated heritage assets and significance of the CA. Consequently, I give this harm considerable importance and weight in the planning balance of this appeal.

Paragraph 212 of the Framework advises that when considering the impact of development on the significance of designated heritage assets, great weight should be given to their conservation. Paragraph 213 goes on to advise that significance can be harmed or lost through the alteration or destruction of those assets or from development within their setting and that this should have a clear and convincing justification.

Paragraph 216 of the Framework advises that the effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset.

Given that the development does not involve the demolition or removal of a building that makes a positive contribution to the street-scene, but relates to the appearance of additional buildings, I find the harm to be less than substantial in this instance. However, given the prominence of the buildings, the harm would be within the mid point of less-than substantial harm, and, notwithstanding that the harm remains less than substantial, of considerable importance and weight.

Under such circumstances, paragraph 215 of the Framework advises that this harm should be weighed against the public benefits of the development. The appellants are of the opinion that the development is beneficial because it would provide a service in support of local tourism and provide employment in the area. As such it would support regeneration of the area in a location identified as a priority area for such. The employment provided by the catering units would be seasonal and only provide maximum benefit during the holiday season. Although the development would compete against other food outlets in the area, it provides choice for customers. It is, therefore, likely that an increase in economic activity in the area would result, making a contribution to its regeneration, and together with the increase in employment, notwithstanding the seasonality of the enterprise, these are public benefits in support of the development. However, due to the scale of the operation and that seasonality, these benefits would be moderate, at best.

The timber decking provides level access to the units for customers. However, it has not been demonstrated that such access could not be provided by measures less harmful.

The appellants identify that the area formerly suffered from fly tipping and antisocial behaviour, and the development has brought the area back into gainful use, with a commensurate improvement to local amenity.

Whilst the use of the area by the units may have resulted in curtailing antisocial behaviour, including fly tipping, and tidied the area up, I have found that it harms the visual amenity of this part of the CA, offsetting such a benefit. Nor has it been demonstrated that the positioning of the units is the only means of preventing fly tipping.

Given the above and in the absence of any significant public benefit, I conclude that, on balance, the development fails to preserve the significance of the non-designated heritage assets or the character and appearance of the CA.

This would fail to satisfy the requirements of the Act, paragraph 213 of the Framework and conflict with Policy SP7 of the Tendring District Local Plan 2013- 2033 and [name] Strategic Section 1 Plan (2021) (LP1) and Policy SPL3 of the Tendring District Local Plan 2013-2033 and Beyond Section 2 (2022) (LP2) that together seek, among other things, to ensure that new development meets high standards of urban and architectural design and responds positively to local character and context to preserve and enhance the quality of existing places and their environs, and respects or enhances local landmarks and other locally important features.

Policy PPL8 of LP2 also seeks to ensure that new development within a designated Conservation Area is only permitted where it has regard to the desirability of preserving or enhancing the special character and appearance of the area, especially in terms of scale and design, and materials and hard landscaping. Where a development will cause harm to a Conservation Area, PPL8 requires that the relevant paragraphs of the National Planning Policy Framework (the Framework) should be applied dependent on the level of harm caused. As a result, the development would not be in accordance with the development plan.

The site lies close to residential uses in [address] and [address], and these have windows facing towards it. Whilst the opening hours, as cited in their Planning Statement, are somewhat vague, in their Statement of Case the appellants identify that it is intended that the units will operate from 10am to 10pm on a Saturday and Sunday in low season and from 10am to 10pm Monday to Sunday in peak season in line with the operating hours of the pier. No precise dates are given for the start and end of each season. However, as this would vary from year to year, depending on the timings of holidays, that is unsurprising and would be difficult to condition.

The appellants consider that the units operate in line with standard mobile catering practices, using conventional equipment commonly found in similar setups in the immediate area and within the district, but has provided no details of these. However, given the nature of the businesses operating from the units it is likely that they will use some sort of fume extraction, refrigeration and, possibly, others such as air conditioning. From the information provided, this would operate over a prolonged period of the day.

Whilst other fast-food outlets operate from the pier, the units, and the source of any noise, would be significantly closer to the dwellings. Further, third parties have identified that music has been played over speakers associated with the units.

No Noise Impact Assessment (NIA) has been provided to accompany the development. In the absence of such it has not been demonstrated that the use of the units does not have a significant adverse effect on the neighbouring residential uses through noise disturbance.

However, the appellants have identified that, as the development does not involve any unusual or industrial-grade machinery, and is subject to existing regulatory restrictions, the equipment to be used could be controlled through suitably worded planning conditions. Under the particular circumstances of this development, I agree.

I therefore find that, subject to the imposition of appropriate conditions, the development would not have an unacceptable effect on the living conditions of neighbours, having particular regard to disturbance from noise. It would, therefore, comply with the aims of Policies SP7 of LP1 and SPL3 of LP2 in as much as these, together, seek, amongst other things, to protect the amenity of existing and future residents and users with regard to noise, vibration and smell.

There is no dispute between the parties that the location of the site lies within [name] 3. As such, whilst the development is exempted from exception and sequential testing, as set out in the Framework, it still requires a site-specific Flood Risk Assessment (FRA). The Framework, within Annex 3: Flood risk vulnerability classification classifies the use of the units as ‘less vulnerable’.

The purpose of an FRA is to demonstrate that a development in areas of higher flood risk will not be at risk from flooding or increase flood risk elsewhere, identifying mitigation where appropriate. [name] has been submitted to accompany the development.

The appellants have provided photographs to demonstrate that the units are on wheels. However, these are concealed and have other structures, albeit lightweight ones, around them. Further, the units are attached to services. It is, therefore, unclear how long it would take to get the units moving should flooding be imminent.

Any staff within the units would, in all likelihood, have sufficient warning of flood to clear the area, and areas above the identified limit of flood risk lie in close proximity that could be reached quickly. Under circumstances where flood is likely, customers would be unlikely to frequent the vicinity.

The development has not altered the permeability of the underlying surface or permanent ground levels, although it has introduced structures upon it. There would, therefore, be a marginal displacement of water associated with the structures. However, given that the scale of these features is small and that the flooding would be by inundation by the sea, the displaced water appearing in the immediate vicinity of the site on areas of promenade, this displacement would be so small as to be unnoticeable.

I have no substantive details of how the units are anchored to the ground. Should the structures break loose during a flood, there is risk of their uncontrolled movement causing damage elsewhere. However, this matter could be addressed through the imposition of a planning condition requiring that details of anchors for the units be submitted to, and approved by, the Council. This could be inconsistent with the concept of moving the units in the event of a flood event. However, it will be seen above that the presence of the units would have only the most marginal impact on flood levels.

Bringing these matters together, whilst the appellants have not provided a formal FRA, the information provided in their evidence is sufficient to act as such. Thus, while there is a breach of the requirement set out in Policy PPL1 of LP2, in as much as this requires the submission of a formal FRA, and whilst the development may, should either of the units break loose during a flood, increase the risk of flood-related damage, this could be addressed through the imposition of a planning condition. I therefore find that the site is a suitable location for the development having particular regard to policies concerned with development in areas at risk of flooding.

The appellants have identified that part of the land where the units are sited has a lawful use established through the implementation of previous planning permissions.1

Whilst those permissions could be implemented – and there is a realistic possibility, should this appeal fail, that they may be, it has not been demonstrated that they would have a greater harmful impact upon the CA than the units.

I have found that the development would fail to preserve the significance of the non-designated heritage assets or the character and appearance of the CA. I have further found that the public benefits accruing from the development would not outweigh the less than substantial harm to the CA that would result and so there is no justification for that harm. Whilst, subject to the imposition of suitable planning conditions, the development would not result in harm to residential amenity or increase the risk of flood damage, these are neutral matters and the harm which I have found is sufficient to justify the appeal being dismissed. 1 Council Refs: 04/00543/DETAIL and/or 14/01400/FUL

The development conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it. The appeal is, therefore, dismissed.