Appeal 6001022

The appeal is dismissed.

I have taken the description of development from the Council’s decision notice as it more accurately describes that for which permission is sought.

The main issues are the effect of the proposed development on a) the character and appearance of the area, with particular regard to the Margate Conservation Area; b) the living conditions of future residents with particular regard to outside amenity space; c) highway safety; and d) the [name] and Sandwich Bay Special Protection Area (SPA), and [name] and Hacklinge Marshes Site of Special Scientific Interest (SSSI)

The Planning (Listed Buildings and Conservation Areas) Act 1990 requires me to pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. Paragraph 212 of the National Planning Policy Framework (the Framework) states that, when considering the impact of a proposed development on the significance of a designated heritage asset, such as a conservation area, great weight should be given to the asset’s conservation. Policies SP36 and HE02 of the Thanet Local Plan 2020 (TLP) broadly accord with this approach.

The appeal site is located within the Margate Conservation Area (MCA), which extends over much of the town. It seems to me that the special interest and significance of the MCA, is in part derived from the variety and architectural value of its historic buildings and spaces. These denote the town’s evolution as a settlement and seaside resort and respond to the topography of the area. As such, there is variation in size and form of buildings within and around the MCA.

The appeal building forms part of a terrace of buildings. They are of varying heights, generally of 3 to 4 storeys, with some top floors being accommodated within a mansard type roof. Despite there being some differences in design, the buildings in the terrace display some similarities, with regular window patterns and spacing as well as simple detailing on the upper parts of the building and commercial/retail uses on the ground floor. Their relative simplicity and uniformity make a positive contribution to the character and appearance of the MCA.

The proposal principally involves two additional floors to the building, with some associated and consequential changes to the front and rear elevations. The Council has not objected to the principle of the existing three storey building being increased in height and there is nothing before me which leads me to a different conclusion in this respect.

The extended building would be noticeably taller than the buildings either side or elsewhere in the terrace. Whilst the proposed upper floor would be stepped back from the front and sides, this would not noticeably negate the impact of the additional height. The overall height and form of the proposal would add significantly to the bulk and massing of the building, particularly at roof level. The overall effect would be to create a building whose visibility and appearance would jar with the rest of the terrace.

There are taller structures to the east and west of the terrace. To some extent they bookend these 3 - 4 storey buildings along this stretch of the seafront. In contrast, the proposal would introduce an incongruous five storey structure that would be unduly dominant and visible from both [address] and [address]. Even accepting that there is some variety in the style and height of buildings along [address] and that change has occurred in the surrounding area over time, I have not found the proposal to have sufficient affinity with the prevailing terrace or townscape of the MCA. The proposal would not therefore successfully assimilate into the prevailing environment.

The additional storeys would be less impactful when viewed from the rear. Nevertheless, when taken as a whole, the height and scale of the proposal would erode the existing building’s relationship with the rest of the terrace. This relationship currently contributes positively to the character of the MCA and the proposed change would be at odds with it. It would thereby fail to preserve the character or appearance of the MCA as a whole.

The Council has also raised concerns regarding the treatment of the proposed front elevation. The appellants have presented revised external detailing as part of the appeal to address these aspects of the Council’s concerns. The Council has objected to their introduction on the basis that it would cause prejudice albeit they have not identified how or where prejudice would arise. However, even if I were to accept these revised details and were to consider them acceptable, they do not overcome the concerns outlined above regarding the overall height and scale of the works. Thus, they would not alter my findings in relation to this main issue.

For the reasons given above, I consider that the proposed development would represent an incongruous and discordant feature which would fail to preserve or enhance the character or appearance of the MCA. Overall, I find that the proposal would harm the experience and appreciation of the significance of the Conservation Area. This would be contrary to the requirements of section 72(1) of the Act and the provisions within the Framework which seek to conserve and enhance heritage assets.

When considering the impact of a proposed development on the significance of a designated heritage asset, paragraph 212 of the Framework requires that great weight should be given to the assets’ conservation. This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.

Given the extent and nature of the proposal, I find that the harm to the heritage asset in this instance would cause less than substantial harm to the significance of the MCA, within the mid-point of that spectrum of harm. Under such circumstances, paragraph 215 advises that this harm should be weighed against the public benefits of the proposal.

It is common ground between the main parties that the Council is unable to demonstrate a five-year supply of housing land. The proposal would provide 13 new housing units, a net increase of 9 over the existing provision on site. In numerical terms this would be a relatively small number in the context of the current deficit but nonetheless a useful contribution to the Council’s under supply of housing. This attracts moderate weight.

There would also be some economic benefits during the construction phase and upon occupation. Given the scale of the works the public benefit accruing from this would be relatively small.

There would be some improvements to the fabric of the existing building. However, buildings in general need on-going maintenance and repair, particularly when in an exposed location. Therefore, this should not be considered an unexpected or unreasonable part of owning a building such as this one. As such the weight attributable to this as a public benefit is limited.

The proposal would retain the existing commercial use on the ground floor but it is not clear the extent to which this would be at risk or to what extent a non-commercial use would be compliant with the development plan. Therefore, this similarly attracts only limited weight as a public benefit of the scheme.

Taken overall, the weight attributable to the public benefits would be insufficient to outweigh the considerable importance and weight I attach to the less than substantial harm to the MCA. Given this and the above, I conclude that the proposal would be contrary to Policies SP36, HE02 and QD02 of the TLP. These collectively, amongst other things, seek to ensure that proposals relate to surrounding development and do not cause harm to a Conservation Area.

Policy GI04 sets out a requirement for amenity green space for new residential developments. New family dwellings (which are defined in the policy as units with two or more bedrooms) will also be expected to incorporate garden space to provide safe ‘door step’ play area for young children. This is further explained as being immediately adjacent to, closely visible and safely accessible from the dwelling. The policy goes on to state that in exceptional circumstances, where it would be impractical to provide such play space, then a financial contribution may instead be acceptable.

The officer report refers to the raised location of the balconies serving units on the first, third and fourth floors and did not consider them to provide suitably located or safe play space for children. A lack of contribution towards off site play space is also noted. The decision notice itself refers to a lack of an adequate amount or suitable quality of doorstep play space and was thus considered contrary to Policy GI04.

The main parties disagree on the extent to which safety forms part of the considerations of outside space in this case, providing me with differing appeal decisions to support their position. I note that Policy GI04 does not specifically rule out balconies forming doorstep space but does refer to such provision as needing to be safe. Furthermore, it seems self-evident to me that the safety of such space would inherently form part of any overall qualitative assessment of its size and location.

The proposed units on the first floor would be family sized accommodation. They would have access to outside spaces, which in the case of Flat 2 would have a large area to the rear; and Flat 4 would have areas to the front and rear. However, none of the units on the proposed second floor have access to private outside space. Three of the four flats on this floor would be two-bedroom units and thus fall within the policy definition of being family units. This weighs against the proposal.

On the proposed third floor, the 2No. two-bed units would be provided with regular shaped outside areas. Both would be accessed via a bedroom and only overlooked by these rooms and windows in internal/communal hallways, making it a less practical arrangement.

The outside space on the fourth floor would be narrow and accessed via doors which open out into the space, thereby restricting its usability further. The space to the side of the two-bedroom flat would only be overlooked by a kitchen window whose size and position would limit the ability to see children using this area. The amount and configuration would not provide a good quality or usable area of outside doorstep space.

Therefore, even if I were to conclude that the balconies serving the first and third floors were of sufficient size and shape to not undermine their qualitative value, the arrangement on the proposed fourth floor would be restricted and at four storeys above the ground level at the front of the building would not provide a suitably located or safe play area for children. The provision of space elsewhere within the development does not overcome the absence of space serving the family units on the second floor.

The proximity of the site to the beach means that the flats would be readily accessible to a large area of public open space. Indeed, the appellant refers to an appeal from 2018 where this was considered to mitigate a lack of amenity space at a nearby site. However, that decision predates the current development plan and in my opinion the beach does not provide private space for future occupants of the flats. Moreover, it does not directly compensate for the absence of adequate doorstep play space for children, which is a requirement of the development plan.

I acknowledge that the existing flats would be classed as family accommodation, but not all have access to outside space. However, I do not consider that this provides sufficient basis to allow a scheme which increases the number of family units that would not have access to suitable outside space.

There is no information before me to suggest that there would be a financial contribution towards off-site play space.

Overall, I find the scheme to be deficient in the amount and quality of the doorstep play space provided. As the proposal would be unlikely to provide satisfactory living conditions for all future occupants, I find that it would be contrary to Policy GI04 of the TLP which, amongst other things, require developments to provide an appropriate amount and quality of amenity space to serve new residential developments.

The appellants have provided revised drawings of the basement level. This omits the vehicular parking provision from the scheme in order to overcome any potential concerns regarding vehicular or pedestrian conflicts on Hall by the [address]. The Council has objected to the introduction of this revision as part of the appeal process but not elaborated on exactly how or why prejudice would arise.

It is clear from the information before me that both the Council and the Highway Authority would be content with the development being car-free and there are no other parties whose interests might be prejudiced. Overall, I find that the development would not be substantially different nor that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of consultation. Thus, I do not consider that accepting this amendment for consideration would lead to procedural unfairness. Furthermore, in these particular circumstances, there would seem to be little practical merit in me not accepting the revisions.

I have therefore considered the appeal on the basis of the revised basement plans and the vehicle parking being omitted from the development. In view of the information before me and my own observations on site, I find that the proposal would not cause significant harm to pedestrian and vehicular safety. As such, the proposal would accord with Policy TP06 of the TLP which acknowledges that in certain town centres new development proposals will not be required or expected to provide onsite car parking spaces. Furthermore, there would be no conflict with the Framework’s policies for safe access or highway safety. [name] and Sandwich Bay Special Protection Area (SPA), and Sandwich

These sensitive sites provide, amongst other things, wetland and important habitat which is subject to statutory protection under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations). These areas are easily disturbed by recreational activity from people living within a ‘zone of influence’ of the protected areas. The appellant does not dispute that the appeal site lies within the zone of influence.

Whilst the effects of the development alone might be limited, the Habitats Regulations require me to consider them in combination with other plans or projects. As such, additional recreational visitors to the protected areas from new developments, including from the appeal site, would be likely to have significant effects.

I am therefore required 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 Council indicate there to be a tariff-based system in place which would provide the necessary mitigation. Any financial contributions would usually have to be secured through a legal agreement. A draft unilateral undertaking has been submitted by the appellant.

[name] do not doubt the appellants’ intentions to provide the necessary contribution, the Habitats Regulations require me to consider whether the mitigation has been secured at the point of decision. A draft, unsigned agreement does not secure the mitigation and thus I cannot afford it any weight in my decision. Consequently, planning permission could only be granted in this case if there are reasons of overriding public interest and that suitable compensatory measures are secured. As this case does not reach that high bar, permission cannot be granted.

Accordingly, I find that the proposed development could result in harm to the integrity of the SPA and would conflict with both the Habitats Regulations, and Policy SP29 of the TLP. This requires, amongst other things, that developments adequately mitigate the effects of a development on important internationally protected sites.

The development would also conflict with the Framework which requires development to protect and enhance the natural environment and sites of biodiversity value, improve biodiversity, and that where significant harm to biodiversity cannot be adequately mitigated, permission should be refused.

Both parties acknowledge that the Council is unable to demonstrate a 5 year housing land supply. The appellants refer to a 3.18-year supply as does the officer report although the Council’s appeal statement subsequently refers to it being 3.78 years. There is no dispute between the parties that the 2023 [name] was 67%. Therefore, even if the situation has improved since the application was refused, it is clear that local policies are not delivering the houses required by national policy. Overall, the housing land supply situation weighs in favour of the proposal.

A Noise Impact Assessment (NIA) has been submitted with the appeal. The issue of noise and disturbance from nearby commercial operations on the new residential units was not a reason for refusal but was noted as an area of concern in the officer report. I am mindful that the Council’s Environmental Health Department has not had an opportunity to comment upon the NIA and so there may be some aspects which require further clarification, discussion or survey. However, based on the information before me, it seems probable that there would be construction techniques and technical specifications which would enable any potential impact upon the living conditions of future occupiers to be sufficiently mitigated. It is therefore a neutral factor in my decision.

The proposed development would cause less than substantial harm to the character and appearance of the MCA and would create unacceptable living conditions for some future residents with regards to the provision of amenity space. There would also be a lack of mitigation to the SPA site. These harms bring the scheme into conflict with the development plan as a whole and attract significant weight.

However, the Framework is an important material consideration. The Council cannot demonstrate a sufficient supply of deliverable housing sites as required by the Framework. I acknowledge that the proposed development would provide benefits. This includes a net increase of nine additional homes contributing to the supply, mix and range of housing in the district. These could be built relatively quickly. The proposal would also represent an upgrading of the existing fabric of the building and internal accommodation. Economic benefits would arise from the construction and occupation of the development. The proposal would also utilise a brownfield site in an accessible location. However, even taking into account that cumulatively numerous small developments make a contribution, due to the small scale of the development, the weight to be given to these benefits is moderate.

Whilst there are benefits of the scheme, the presumption in favour of sustainable development contained within paragraph 11d) of the Framework does not apply in this instance. This is because the application of policies in the Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed. As identified in Footnote 7 of the Framework this includes designated heritage assets and Habitats sites. Given my findings above, this means that there would be strong reasons to refuse the development proposed.

Furthermore, the proposal would result in harm to the living conditions of some future occupiers. The Framework at paragraph 135 expects development to have a high standard of amenity for future users. Given the nature and scale of these deficiencies, I attribute moderate weight to this harm.

[name] have not found harm in relation to highway safety, this represents an absence of harm and so is a neutral matter within my overall balance.

Even if adequate mitigation of the likely effects on the Habitats sites were secured, the harm to the heritage asset and the living conditions of future occupiers would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole.

The proposal would conflict with the development plan as a whole and there are no other material considerations, including the provisions of the Framework which outweigh this finding. Therefore, for the reasons given, I conclude that the appeal should be dismissed.