Appeal 6001317

The appeal is dismissed.

The site address on the application form is different to that on the decision notice and on the appeal form. The address on the appeal form is more precise and therefore I have used this in the heading above.

The description in the heading is taken from the application form. However, the planning permission which is sought is for a four-bed dwelling. The reference to a conversion relates to a planning permission1 for the conversion of a barn which stood on a similar footprint to the development and does not form part of the scheme subject to this appeal. This is discussed further below.

The application form states that the development has been completed. I observed on site that the development was completed and appeared to be occupied. I have therefore considered the appeal on the basis that the development has already taken place.

The appeal is supported by a unilateral undertaking which principally seeks to secure a fallback position through a commitment not to implement a prior approval2 for the conversion of a barn, adjacent to the site, into three dwellings under Class Q of Part 3, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). I address this later in the decision. 1 21/01655/FUL 2 25/00925/PMBPA

The main issues are whether the development is in a suitable location with particular regard to: (i) the Council’s development strategy; and (ii) flood risk.

The development sits within a small cluster of dwellings and agricultural buildings along [site address] .

Policy LP2 of the Huntingdonshire’s Local Plan to 2036 (HLP) sets out the Council’s strategy for development and distributing growth. In particular, it seeks to concentrate development in locations which provide or have the potential to provide the most comprehensive range of services and facilities. The policy also states that small and windfall sites will be permitted on sites which are in conformity with other policies of the HLP. Similarly, Policy LP10 of the HLP states that within the countryside, development will be restricted to limited and specific opportunities provided for in other policies of the HLP. It has not been put forward that the development falls within any of the limited and specific opportunities for new dwellings provided for by policies LP2, LP10 or any other policies of the HLP.

In conclusion, for the above reasons the development is not in a suitable location with regard to the Council’s development strategy, and thereby conflicts with Policy LP2 and LP10 of the HLP.

The Council’s Strategic Flood Risk Assessment 2024 identifies that the site is within [name] 3a. Paragraphs 172-176 of the National Planning Policy Framework (Framework) and Policy LP5 of the HLP require a sequential test to be applied to development within areas at risk of flooding. This requires an assessment of whether there are reasonably available sites at less risk of flooding which could accommodate the development.

No sequential test assessment of potential alternative sites has been supplied. Given the scale of development and the land needed to accommodate it, there are likely to be sites elsewhere in the district at a lower risk of flooding, such as in flood zones 1 and 2, which could accommodate a single dwelling. Accordingly, it has not been demonstrated that there are no sites at less risk of flooding which could accommodate the development, meaning the development will put people and property at unnecessary risk of flooding.

Although the sequential test requirements have not been satisfied, the appellant’s Flood Risk Assessment (FRA) indicates that sleeping accommodation is at the first floor and flood resilient construction has been incorporated to 0.8m above ordnance datum. The FRA states that occupants can register with a flood warning service. The FRA states that a breach of the [name] is the only significant fluvial, tidal or artificial risk of flooding to the site. The FRA considers such a breach extremely unlikely due to the maintenance provided by the Environment Agency to the asset. The FRA states that safe access is available at all times except in the event of a breach of the [name], in which case safe refuge is provided at first floor level. Whilst these measures provide some reassurance, the property and occupants will still be at risk from flooding and therefore this does not overcome the failure to comply with the sequential test.

In conclusion the development has failed the sequential test and is at risk of flooding. Consequently, the development is not in a suitable location in respect of floor risk. It conflicts with paragraphs 172-176 of the Framework and Policy LP5, which amongst other matters, requires the sequential test to be applied to development.

As discussed above, the development sits within a similar footprint of a former agricultural building which had planning permission for conversion but was subsequently demolished. As the barn has already been demolished and the dwelling subject to this appeal built in its place, it is therefore no longer capable of being implemented. Therefore, the planning permission granted for the conversion of the barn does not represent a fallback position and as such does not affect my findings.

Although the barn conversion permission established a principle of residential development on this site and the Council considers it would have closely resembled the appeal scheme and have had a similar visual impact, the permission was on the basis of a conversion which specific policies in the development plan allow for. Conversely, I have found conflict with the specific policies that apply in this case and thus the schemes are not directly comparable.

A barn adjacent to the site benefits from a prior approval scheme as referred to above. Although limited details of the prior approval have been provided, there is sufficient information before me to conclude that it has a real prospect of being implemented.

The aforementioned unilateral undertaking seeks to require that, should permission for the development subject to this appeal be granted, the prior approval scheme will not be implemented. The provision of one dwelling at risk of flooding in comparison to three may be beneficial in terms of reducing the number of properties at flood risk. However, flooding is a consideration under the prior approval process, and no details have been provided as to the flood resilience of these prior approval dwellings or their level of protection in order to conclude the flood risks associated with that scheme would be more harmful than that associated with the development subject to the appeal. Moreover, whereas the sequential test is not applicable to prior approval schemes, the development subject to this appeal has conflict with local and national policy with regard to flood risk in that respect. Furthermore, at present the Council cannot demonstrate a five-year supply of deliverable housing sites and the fallback position of not implementing the prior approval would result in less housing being provided. This weighs against any potential benefits of the fallback in terms of flood risk.

Additionally, if effective, the unilateral undertaking would only prevent the implementation of the extant prior approval scheme. The barn would remain in situ and permitted development rights would remain for its conversion, by means of a new prior approval application. Notwithstanding that there is no certainty that a future prior approval will be sought or approved, it is likely any future application would be granted if it were to have the same characteristics as the one that can currently be implemented. As the unilateral undertaking does not prohibit the future conversion of the barns, the weight which could be attached to its obligation is limited. Furthermore, the unilateral undertaking does not have a site plan appended to it which clearly identifies the appeal site or the site of the barn where the prior approval exists. The absence of this risks the enforceability of the undertaking in any event.

For the above reasons, I afford limited weight to the proposed fallback position

Given the above it is necessary to consider the benefits of the development if it were to be permitted alongside the implementation of the prior approval. Such a scenario has benefits in terms of provision of an additional dwelling and economic benefits associated with the additional population in terms of spending on local services and facilities. However, as this scenario only relates to one additional dwelling, the benefits are therefore modest and attract limited weight. If weight were to be given to the fallback, then there would be a net reduction in dwellings and these benefits would not be realised.

The Preliminary Ecological Assessment Update recommends the provision of bat and bird boxes for compensation of habitat loss and for biodiversity enhancement. This could be secured through a condition and would be a benefit of the scheme. However, given the modest scale of the enhancements this would only attract limited weight in favour of the development.

The appellant argues that the development makes effective use of land in accordance with paragraph 124 of the Framework, but this is not the case given that I have found that the site is not an appropriate location for housing.

A supporting representation indicates that the building enhances the appearance of the area. It is not apparent from the evidence what the site looked like prior to the development, but even if the building does represent an enhancement, there are limited views of the building from public viewpoints and therefore any contribution in this regard is limited. The representation also draws attention to the stress and financial strain the appellant has experienced associated with delays and refusals in obtaining planning permission. [name] understand these concerns, the issues and policy conflicts identified above nevertheless remain.

The Council claim the current supply of deliverable housing sites is 3.68 years. In the context of a lack of a five-year supply of deliverable housing sites, the conflict with [name] LP2 and LP10 with respect to their approach to identifying the locations suitable for housing development is afforded moderate weight given their potential to frustrate the supply of housing. However, Policy LP5 in relation to the sequential test is consistent with paragraph 174 of the framework and therefore the conflict with this policy is afforded significant weight. Overall, the conflict with Policies LP2, LP5, and LP10 of the HLP means that the development conflicts with the development plan when read as a whole.

As the Council cannot demonstrate a five-year supply of deliverable housing sites, paragraph 11(d) of the Framework is therefore engaged. Paragraph 11(d)(i) of the Framework states that planning permission should be granted unless the application of policies in the Framework that protect areas or assets of particular importance provide a strong reason for refusing the development proposed. Footnote 7 states that these policies include those which deal with areas at risk of flooding. Even in the context of the benefits and other considerations identified above, the lack of a sequential test and the residual flood risks at the site lead me to conclude that the application of the Framework’s policies in respect of flood risk provide a strong reason for refusing the development proposed. Accordingly, the presumption in favour of sustainable development does not apply.

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