Appeal 6001156

The appeal is dismissed.

The proposal is for permission in principle. Planning Practice Guidance (PPG) advises that this is an alternative way of obtaining planning permission for housing-led development. The permission in principle consent route has two stages: the first stage (or permission in principle stage) establishes whether a site is suitable in-principle and the second (‘technical details consent’) stage is when the detailed development proposals are assessed. This appeal relates to the first of these two stages.

The scope of the considerations for permission in principle is limited to location, land use and the amount of development permitted1. All other matters are considered as part of a subsequent technical details consent application if permission in principle is granted. I have determined the appeal accordingly. However, given that the amount of development is not contested and does not form part of the reasons for refusal, I have focused my consideration on matters pertaining to location and land use, which are reflected in the main issues below.

The appellants submitted additional evidence with the appeal that was not before the Council when it determined the application. This included a further appeal decision2; letters of support; additional transport information and pub trading and viability data, some of which was redacted. None of the redacted evidence has been provided to me. I have taken the submitted evidence into account as it constitutes additional information to support the appellants’ case and does not directly alter the substance of the proposal on the ground. Moreover, the Council and interested parties had the opportunity to comment on the evidence during the appeal. Accordingly, I am satisfied that no party has been prejudiced by my consideration of this information. 1 [name]: 012 [name]: 58-012-20180615 2 APP/J1860/W/23/3316818

The main issues are whether the site is suitable for residential development, in respect of: (i) its location, with particular regard to the Council’s development strategy and access to services, facilities, and sustainable modes of transport; and (ii) land use, with particular regard to loss of a public house.

The site comprises the Fox & Hounds public house and its car park, outbuildings, beer garden, and amenity space at the end of a modest ribbon of a small number of buildings and is part of the loose knit settlement of Lulsley. It is adjacent to the road running between the A44 and Alfrick which is designated as a category three settlement in the South Worcestershire Development Plan (the SWDP). Just beyond the A44 is Knightwick, which is also a category three settlement.

Policy SWDP2 of the SWDP sets out the Council’s development strategy. Amongst other things, it seeks to ensure the delivery of sufficient housing; safeguard and, wherever possible, enhance the open countryside; encourage the effective use and re-use of accessible, available and environmentally acceptable brownfield land; and focus development on the urban areas where both housing needs and accessibility to lower-cost public services are greatest. It does this by strictly controlling development in the open countryside other than for defined exceptions.

Lulsley is not a designated settlement in the SWDP, and the main parties agree that the site otherwise lies outside any designated settlement boundary. It is therefore in open countryside for policy purposes. While at least part of the site constitutes brownfield or previously developed land for the purposes of the SWDP and the National Planning Policy Framework (the Framework), the proposal nevertheless falls outside the defined exceptions in SWDP Policy SWDP2C. Accordingly, there is conflict with that policy.

The appellants argue that the proposal should be assessed on the basis that Lulsley and Alfrick together form a Designated Neighbourhood Area. They also point to the fact that the two villages form a joint parish and share a range of functions including services, governance, transport, infrastructure, and a common community identity, and therefore contend that the appeal should be determined with these factors considered collectively. However, this does not constitute a designated settlement for the purposes of the SWDP and hence nor does it overcome the conflict with SWDP Policy SWDP2. Moreover, as I set out below, I have assessed the proposal’s location with regard to its accessibility to facilities, services, and transport. [name] and Alfrick are perceived by some as one settlement does not materially assist in that analysis.

Together with other considerations, SWDP policy SWDP4 specifies that proposals must offer genuinely sustainable travel choices. The supporting text to that policy explains that to minimise transport movements, the development strategy seeks to focus new development largely within the urban areas and in villages and settlements that have good access to local services, or where services can be enhanced through development.

The nearest settlements with facilities and services are Knightwick and Alfrick. They are small villages and as category three settlements they have at least one key service (other than a parish/village hall) and access to an at least daily bus service to a designated town, according to the SWDP. The appellants refer to the SWDP Village Facilities & [name] 2019 which classifies Alfrick as a category two settlement although Lulsley is not referred to. The study postdates the adopted SWDP and may lead to Alfrick’s change of classification in the emerging plan. However, as I focus on the specific services, facilities and transport modes available to future occupiers of the site below, the category of settlement has little bearing on my assessment in any event.

[name], available services and facilities include a community shop (including a post office), village hall, church, tennis club, and football and cricket facilities. Knightwick provides a doctors’ surgery, butcher, and a public house. Both settlements also have bus stops offering services to Worcester, including two earlier services than those available from the stop closest to the site which I discuss below. Primary school transport is available from Alfrick, and additional secondary school bus transport is available from Knightwick. The Knightwick bus stop provides routes to other destinations such as Hereford and Bromyard, enabling access to a wider range of services and facilities, including education and employment.

Knightwick and Alfrick are both over one kilometre away from the site. The Worcestershire County Council Streetscapes [name] is said by the appellants to indicate that cycling can be a substitute for short car trips particularly those under five kilometres, and that walking is a viable choice up to two kilometres.

Alfrick and Knightwick are located in opposite directions from the site. Consequently, it would not be convenient for future occupiers to access the full range of services and facilities they offer within a single walking or cycling trip. Moreover, access to them would require future occupiers to walk or cycle along narrow rural lanes with bends in places and without footways or street lighting. The road past the site has a speed limit of thirty miles per hour but beyond the buildings in Lulsley it is then unrestricted travelling to either Alfrick or Knightwick. The appellants rely on data showing only two incidents in twenty years on the road between the Knightwick junction and the shop in Alfrick. However, whether a route is regarded as suitable for walking or cycling nonetheless needs to be informed by physical characteristics along the route.

The attributes of the routes would significantly deter walking and cycling to Alfrick and Knightwick, particularly during darkness, low light, or poor weather. In any event, the limited facilities in those settlements would not meet all day-to-day needs, and access to other essential services would involve longer journeys. Consequently, it is unlikely that many future occupiers would find walking or cycling an attractive or practical means of accessing facilities and services from the site.

According to the appellants’ appeal statement and the Council’s officer report, the nearest bus stop to the site is located three hundred metres away. The evidence indicates that there are four services a day (Monday to Saturday) to Worcester about half an hour away. This is not a frequent service and will not necessarily be at convenient times for travelling to work or appointments, albeit the appellants’ evidence also indicates there is a service from this stop to a secondary school. Though the walk to the bus stop is no more than three hundred metres and within the thirty miles per hour restriction, it would involve walking along a country lane with no footway or street lighting to an unsheltered bus stop which would deter future occupiers from doing this. The appellants point out that Worcestershire County Council’s Streetscape Design Guide does not require that a walking route to a bus stop must be lit nor that a bus stop must be sheltered, and that these are urban benchmarks rather than rural sustainability tests. Nevertheless, that does not alter the deterrence effect of those factors.

The appellants’ appeal statement cites an interested party who suggests that informally the bus may stop outside the site but there is no official bus stop in that location, so I give that limited weight. To access additional bus services future occupiers could travel to the bus stops in Knightwick or Alfrick. As set out above, walking or cycling to those locations would be an undesirable and unlikely prospect for future occupiers of the proposed dwellings.

Alternative transport options have been drawn to my attention. These include a local volunteer community car scheme, a Worcester based community transport service, electric bike loan schemes and a Malvern based car club. These schemes may support people in the area who do not have access to a private motor vehicle, but they would not significantly reduce the overall reliance on private cars. Moreover, the car schemes still rely on private motor vehicles albeit driven by volunteers and would increase journeys given they need to travel to pick up users before travelling to the desired destination and returning. The electric bike schemes require travel to a pickup point said to be accessible by bus, and the car club would require travel to Malvern by bus and train. For these reasons, those transport options do not lead me to alter my conclusions.

The site is currently in use as a public house and as such can be expected to generate trips by private vehicles. However, while I have had regard to that, I must assess the site for its suitability for residential development and the need for future occupiers to travel to access work, education, and services.

Paragraph 110 of the Framework recognises that, while significant development should be directed to locations that are or can be made sustainable, the scope to maximise sustainable transport options will differ between urban and rural areas. Notwithstanding this, and although some sustainable travel choices would, in principle, be available to future occupiers, as discussed above, they would not have good access to local services and would be highly likely to depend on private motor vehicles for most day‐to‐day trips. I therefore find that the proposal would fail to offer genuinely sustainable travel choices, in conflict with Policy SWDP4 of the SWDP.

Considering the policy conflicts I have discussed above, the site would not be suitable for residential development in respect of its location, with particular regard to the Council’s development strategy and access to services, facilities, and sustainable modes of transport.

Policy SWDP37 of the SWDP addresses built community facilities specifically including public houses. It sets out criteria that should be met where a proposal would result in the loss of a site or building currently or last used as a community facility. At least one of the criteria in paragraph B(i) to (v) of the policy should be satisfied, as well as both of criteria B(vi) and B(vii). In chapters 6 and 8, the Framework also advises that decisions should enable the retention of accessible local services and community facilities including public houses and should guard against the unnecessary loss of valued facilities and services.

The public house is currently in use. The appellants and interested parties argue that matters relating to its loss and viability fall outside the scope of a permission in principle application and should instead be considered at the technical details consent stage. The description of the proposal refers to a change of use of the public house into six apartments, and the appellant’s evidence seeks to justify the complete loss of the public house with no suggestion of any part being retained. As such, the loss of the public house is a fundamental part of the proposal rather than a matter of technical detail. Land use is one of the matters to be determined at the permission in principle stage, and the change from a public house to residential use is a consideration that affects whether the site is suitable “in‐principle.” It therefore should be assessed at this stage to determine the basic suitability of the site for the proposed land use.

The existence of other public houses in the wider area is not evidence that an alternative community facility is meeting local needs to at least the same extent as the Fox & Hounds in an equally or more accessible location as required by criterion B(i). The nearest alternative facilities are the licensed village hall in Alfrick and the public house in Knightwick. Access to both from Lulsley would be likely to be by private motor vehicle as discussed above.

Similarly, the existence of other public houses in particular the [address] at Knightwick, does not persuade me that there is an excess of similar provision in an appropriate catchment area as required by criterion B(ii). In their appeal statement, the appellants submit that the two public houses cannot reasonably co-exist due to the small number of residents in their respective settlements, and the closure of the Fox & Hounds would make the Talbot a stronger facility for the community. However, both have been public houses for a considerable time, and the Fox & Hounds has been more successful during periods of the appellants’ ownership as indicated by the sales particulars. It does not follow that recent financial difficulties referred to in the appellants’ statement must mean there is an excess of provision. Accordingly, criteria B(i) and B(ii) are not satisfied.

Turning to criterion B(iii), evidence would be needed for this commercial facility to demonstrate it is not economically or operationally viable to retain the facility for community use. The appellants’ appeal statement provides a detailed overview of the running of the business and asserts it is not viable. There are redactions within the supporting evidence on the basis of financial or personal sensitivity with a note that those details can be made available to the Inspector. In accordance with the appeal regulations, there is no provision within the appeals process for financial information to be restricted to only certain parties. The Framework at paragraph 59, and the PPG indicate that viability evidence should be publicly available. Evidence provided to the Inspector should be provided to other relevant parties in the interests of fairness. Therefore, I have only taken account of the evidence that has been provided publicly.

The tables, charts and diagrams provided in the appellants’ statement and appendices show some operating and net profit/loss numbers, and show trajectories of revenue, profit and loss and utility costs, but the charts and diagrams do not contain figures. It is not possible to assess what costs apart from utilities are set against the turnover to produce the net profit/losses. The appendices to the appeal statement purport to address customer data, monthly turnover, and turnover/gross profit, but all are redacted. I have no reason to disagree with the appellants’ case that considerable effort has been put into running the business but on the evidence before me I am unable to conclude that it has been demonstrated that it is not economically or operationally viable to retain the facility for community use in accordance with criterion B(iii) of policy SWDP37.

[name](iv) is not relevant as it relates to non-commercial community facilities. However, criterion B(v) may be met if the community facility could not be provided or operated by either the current occupier or by an alternative occupier (e.g. by a local community body, public-private partnership) and it has been marketed in accordance with [name] to the SWDP.

Information about the efforts to market the Fox & Hounds has been provided. However, [name] sets out specific requirements that are not satisfied. A marketing report has been prepared which includes marketing material, adverts, confirmation of an agreed (but subsequently abortive) sale, and auction details. However, it does not cover an evidence-based assessment of the market for the existing and proposed use of the property or details of all prospective occupiers or purchasers who have contacted the agent together with the reasons they did not pursue their interest in the property.

[name] further requires that the rental and asking price are realistic when compared to other similar properties. I have no reason to doubt that the commercial agents instructed have provided a professional service. However, to satisfy this requirement it would be reasonable to expect information relating to other comparable properties for sale and for valuations from other commercial property agents for comparison and corroboration purposes. The submitted marketing report does not address this. Finally, the main parties agree that the public house was not marketed for at least twelve months immediately prior to the submission of the planning application, although it had undergone earlier periods of marketing and an unsuccessful auction, and has now been on the market for twelve months.

[name] notes that it will not be necessary to comply with all of the marketing requirements on all occasions. However, given the extent of the matters identified above, I am unable to conclude that the market conditions, or the individual characteristics of the property mean that it is unlikely to be re-let or indeed sold, for the approved use as required by [name]. Therefore, I find that the marketing requirements in [name] have not been complied with. As such criterion B(v) of policy SWDP37 has not been met.

There is no dispute between the main parties that as far as is relevant, criterion B(vi) which requires existing facilities to be scoped and consideration given to whether their rationalisation is appropriate, has been satisfied.

[name](vii) requires that appropriate community consultation be undertaken prior to the submission of a planning application where the redevelopment or conversion of a community facility is proposed. Although the comments submitted in response to the planning application indicate that many members of the community became aware of and engaged with the proposal once the application was lodged, I have no evidence before me of any consultation process having been conducted beforehand. Such a process could reasonably be expected to identify how and when consultation took place, with whom, and what feedback was received.

Taking all these matters into account, I conclude that the proposal would conflict with policy SWDP37 of the SWDP.

The appellant’s evidence refers to policy SWDP8F which applies to the change of use to non-employment generating use of premises which are currently or last used for uses within B1, B2, and/or B8 use classes. As these use classes do not apply to public houses, it is not relevant to this scheme.

I have carefully considered the representations concerning the Fox & Hounds as a community facility. Some interested parties assert it does not have a long‐term future as a public house, and the site would be better used for housing. As the only facility in Lulsley and given the SWDP’s objective to safeguard community facilities that support the social infrastructure of [name], its role is acknowledged. While actual usage by the small local population would necessarily be limited, to some the public house contributes to the identity and perceived importance of Lulsley and I conclude that its loss would be harmful.

Drawing these matters together, I conclude that the site is not suitable for residential development in respect of land use, with particular regard to the loss of the public house.

I have had regard to the appeal decisions cited by the appellants. However, the schemes to which those decisions relate are not directly comparable to the proposal before me. One of the decisions3 relates to traveller caravans and thus required an assessment of gypsy and traveller policies. In another case4, the location and accessibility considerations differ. Therefore, they have limited relevance in determining this appeal and do not lead me to alter my findings.

The appellants have referred to other permission in principle decisions issued by the Council, alleging inconsistency in decision‐making and a failure by the Council to accept evidence or engage constructively during the application process. They contend that these procedural concerns weigh in favour of the appeal. However, the manner in which the Council processed the application or engaged with the appellants is not material to the planning merits before me. My assessment is based solely on the specific facts, impacts, and benefits of the proposal as it relates to this particular site. As such the appellants’ concerns regarding earlier engagement do not alter the conclusions I have reached on the substantive planning issues. 3 APP/J1860/W/23/3316818 4 APP/J1860/W/24/3355129

The appellants highlight that Worcestershire County Council’s highways service did not object to the proposal. Although they note additional trips would be likely as a result of the proposal, highway capacity is considered to be sufficient. This does not address the concerns about accessibility and as such it is neutral in the

The appellants and interested parties suggest that the proposal would deliver modestly sized affordable homes. While it is possible that some of the dwellings particularly the proposed apartments would be modestly sized and commensurately more affordable, the precise details of the proposed dwellings are not currently for consideration and would instead be dealt with at the technical details consent stage.

Policy SWDP15 of the SWDP would require twenty percent of the proposed dwellings on site to be affordable. The appellants suggest up to six of the dwellings could be affordable which would exceed this policy requirement. It has been drawn to my attention that the Council’s Strategic Housing Market Assessment indicates a significant under delivery of affordable homes and that the Council is seeking to support the delivery of affordable housing particularly in rural communities to address this. In addition, it is submitted by the appellants that Alfrick and Lulsley Parish Council supports the delivery of affordable homes. While it is not possible to secure affordable housing by attaching conditions or a legal agreement to a permission in principle, this could be dealt with at the technical details stage should permission in principle be granted.

The appellants note that the South Worcestershire Development Plan Review Regulation 19 [name] identifies a neighbourhood housing requirement of twenty‐four dwellings for Alfrick and Lulsley, yet no allocations are proposed in the emerging policy and there are no adopted or submitted neighbourhood plans with any allocations. While the appeal scheme would clearly contribute to housing delivery within the neighbourhood area which is an outcome that weighs in its favour, the development plan review has not yet been adopted, which limits the weight I can ascribe to it. In any event, the suitability of the site must still be assessed on its own merits in relation to the development proposed.

The Council is currently unable to demonstrate a five-year supply of deliverable housing sites with both main parties referring to a 2.06-year supply. Therefore, the presumption in favour of sustainable development, as set out by paragraph 11(d) of the Framework, is applicable.

The application of policies in the Framework that protect areas or assets of particular importance do not provide a strong reason for refusing the development proposed. Accordingly, the Framework sets out that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having particular regard to key policies that it specifies.

The Framework seeks to significantly boost housing supply and recognises that small and medium‐sized sites, including windfalls, can make an important contribution in this regard. The provision of nine additional homes in the district attracts moderate weight having regard to the extent of the Council’s housing supply shortfall. Additionally, while it cannot be secured at this stage, the site could provide some affordable housing which would contribute to the shortfall of provision in the district as discussed above. There would also be economic benefits arising from the construction process.

The Framework advises that great weight should be given to the use of suitable windfall sites within existing settlements. However, for the reasons set out above for the main issues, I have found that the site is not suitable for the development proposed. As a result, I do not attach the great weight envisaged by the Framework to this being a windfall site. Nonetheless, the proposal would make use of previously developed land as supported by the Framework, as well as Policy SWDP13 of the SWDP.

Although it is likely that journeys to services and facilities would mainly be made using private motor vehicles, future occupiers of the proposed dwellings would contribute to the vitality of the settlements through expenditure in, and engagement with, Alfrick, Knightwick and surrounding villages consistent with paragraph 83 of the Framework. However, this benefit would be tempered by the loss of the public house on the site.

Overall, I accord the scheme’s benefits moderate weight.

Given that SWDP Policy SWDP2 has a restrictive approach to housing in the countryside when compared to paragraph 83 of the Framework, and a rigid adherence to the policy would only further depress housing supply, the conflict with it insofar as it relates to the Council’s spatial strategy attracts limited weight. However, notwithstanding the Framework’s acknowledgement that sustainable transport solutions will vary between urban and rural areas, the high degree of dependence on private motor vehicles and associated conflicts with SWDP policies SWDP2 and SWDP4 weigh heavily against the proposal insofar as they relate to matters of accessibility.

Furthermore, the loss of the public house would conflict with chapters 6 and 8 of the Framework as far as they seek to avoid the loss of local and community services and facilities. This also weighs significantly against the proposal.

Drawing these matters together the harms that would arise from the proposal attract significant weight. Accordingly, I find that the adverse impacts would significantly and demonstrably outweigh the benefits that would arise from the proposed development, when assessed against the policies in the Framework as a whole having particular regard to the key policies relevant to the proposal, including for directing development to sustainable locations, making effective use of land, and providing affordable homes.

The proposal conflicts with the development plan taken as a whole. Material considerations do not indicate that the appeal should be decided other than in accordance with the development plan. Therefore, the appeal is dismissed.