Appeal 6001355

The appeal is dismissed.

The description of development in the header is different to that on the planning application form. However, there is a record of the appellant’s agent agreeing to the revised description. The Council has based its decision on the description above and I have taken the same approach.

The application form indicates the appeal site is currently vacant wasteland although it was last used for agricultural purposes. I have borne this in mind when carrying out my assessment. On my visit I saw large parts of the land roughly covered with surfacing and a number of cars on the plot. However, there was no indication that the vehicles were for sale and no sales office was on the site. Therefore, it would seem the development has not yet commenced.

The main issues are (i) whether the proposal would constitute inappropriate development in the Green Belt, (ii) its effect on biodiversity, (iii) whether it would increase the risk of flooding on the site or elsewhere, and (iv) if the scheme would constitute inappropriate development in the Green Belt, whether the harm by reason of inappropriateness and any other harm is clearly outweighed by other factors so as to amount to the very special circumstances necessary to justify it.

The appeal site is in designated Green Belt. Policy SD5 of the Gloucester, Cheltenham and [name] 2017 (the JCS) states that inappropriate development as defined under the terms of National Planning Policy Framework (the Framework) is not allowed unless very special circumstances exist. Policy GRB4 of the Tewkesbury Borough Plan 2011-2031 (the LP) lists types of development that would not be inappropriate in the Green Belt. The Framework sets out the types of development that are not inappropriate in the Green Belt under paragraphs 154 and 155. These exception categories are similar although not entirely consistent with those identified under LP policy GRB4.

Under sub-paragraph 154(h)(v) of the Framework, a material change in the use of land may not be inappropriate in the Green Belt. However, this exception refers to changes of use for outdoor sport or cemeteries with no mention of changes to car dealerships.

Moreover, a change of use of land within the Green Belt must preserve its openness and not conflict with the purposes of Green Belt policy to be not inappropriate development. The introduction of a sales cabin, even for a temporary period, would cause a loss of spatial openness on the site compared to it being vacant land. Also, the appeal plans indicate the parking of up to 37 cars on the site. Whilst these would not be permanent features, it is highly likely that a car dealership use would lead to parking on a large part of the site for most of the time. This parking would also erode spatial openness.

The site lies to the back of a complex of commercial buildings. The development would not be easily seen from the road nor from the car park area to the front of the complex due to the screening effect of the buildings. However, on my visit I saw that there are clear views of the site from a public footpath that leads from the highway across a field to the west. From this public vantage point, the sales cabin and the vehicles would be visible and so there would be harm to the visual openness of the Green Belt. The development would be near to the other buildings within the complex and it would not be prominent. Also, I note the close proximity of the site to the edge of the Green Belt and the housing area on the other side of the road. Nonetheless, the proposal would not preserve the spatial and visual openness of the Green Belt but instead it would cause a modest level of harm.

Also, the proposal would not safeguard the countryside from encroachment and so it would conflict with the purpose of Green Belt policy as set out at sub-paragraph 143(c) of the Framework. Consequently, the scheme would not accord with the exception category of development at sub-paragraph 154(h)(v) of the Framework.

Large parts of the site are covered by fixed surface infrastructure and so the plot includes previously developed land as defined in the Framework. Under sub-paragraph 154(g) of the Framework, the partial or complete redevelopment of such land, including a material change of use to residential or a mixed use including residential, could be deemed as not inappropriate development within the Green Belt. However, the appeal scheme represents the change of use of the land rather than its redevelopment and the proposed use includes no residential element. As such, it would not fall within the exception category at sub-paragraph 154(g) of the Framework. I also find no other part of paragraph 154 of the Framework is relevant to the appeal scheme.

Paragraph 155 of the Framework defines commercial development in the Green Belt as not inappropriate where it would utilise grey belt land. Even if the appeal site is deemed as grey belt, there is a requirement under sub-paragraph 155(b) for a demonstrable unmet need for the type of development proposed. There is no evidence before me to show any such need for a car dealership. As such, the proposal would not accord with the provisions of paragraph 155 of the Framework.

The scheme would not fall within any of the categories of development outlined under paragraphs 154 and 155 of the Framework. Also, it would not fall within any of the types of development set out under LP policy GRB4. Accordingly, I conclude the proposal would be inappropriate development within the Green Belt. Effect on biodiversity.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) introduces a statutory framework for biodiversity net gain (BNG). However, an exemption applies if the development would affect less than 25m2 of onsite habitat and therefore it would have a de minimis effect. The application form states that BNG requirements would not apply as most of the site is covered in hardstanding and less than 25m2 of the site is not hard surfaced. The Council contends there is more than 25m2 of land on the site that is vegetated and of biodiversity value.

On my visit I saw most of the site was surfaced but there was a strip of ruderal and other vegetation on the edge of the ditch on the rear boundary of the plot as well as a wider patch including trees in one corner. The plans indicate the ditch as lying outside albeit near to the defined site boundary. They also show in an illustrative manner the location of greenery and trees on and near to the site. However, I am unconvinced the plans accurately show the full extent of vegetation that exists. It is clear from the drawings that areas of habitat would be affected by the proposal as the parking spaces are shown to extend onto vegetated parts of the site. However, I am unable to establish with any confidence the amount of land that currently has a biodiversity value and that would be impacted by the proposal.

The Planning Practice Guidance states that when providing reasons for a de minimis exemption, an applicant should provide sufficient evidence to support their justification. Where it cannot be clearly demonstrated, applicants are encouraged to provide a completed biodiversity metric identifying the nature and size of pre-development onsite habitat that would be impacted by the proposal1. No such information has been provided.

The minimum information requirements as set out under Article 7(1A) of the Town and Country Planning (Development Management Procedure) Order 2015 (as amended) have not been met. Without such information there is significant uncertainty over whether the proposal would meet the BNG aim.

For these reasons, I conclude the development would have an unacceptable effect on biodiversity. In these regards, it would go against LP policy NAT1 and JCS policy SD9. These require development to deliver biodiversity net gain where applicable and to avoid harm. The Council’s refusal reasons also refer to LP policy NAT3 but this includes no provisions relevant to this issue. Flooding.

The Council advises the appeal site is located in flood zone 1 as shown on the Environment Agency’s Flood Map for Planning. However, it also says parts of the site are at high risk of surface water flooding. This is not disputed by the appellant. 1 Planning Practice Guidance, Biodiversity net gain section, Paragraph: 004 [name]: 74-004-20240214

The Framework requires a sequential risk-based approach for proposals known to be at risk of flooding. However, paragraph 176 and footnote 62 of the Framework explain that the sequential and exception tests as would generally be applied are not required for change of use schemes such as the appeal proposal. Even so, paragraphs 181 and 182 of the Framework require development to include sustainable drainage systems to control flow rates and reduce volumes of runoff.

New permeable surfacing would be provided as part of the development. There is limited information before me on the permeability qualities of this surfacing or on the ground below. However, it would seem likely that the surfacing would avoid additional water runoff as most of the site is already hard surfaced. Moreover, the development works would provide an opportunity for ground conditions beneath any proposed surfacing to be assessed and for suitable surface water drainage systems to be provided if permeability is an issue. Such drainage systems could include measures to trap contaminants before surface water is discharged to the ditch on the rear boundary of the site. Therefore, the development would provide an opportunity to secure benefits in terms of a more permeable surfacing and a new drainage system if deemed necessary. If the appeal were allowed, it would be reasonable to impose a planning condition that requires the submission and approval of information on the permeability of the proposed surfacing, on ground conditions and on any proposed surface water drainage systems.

The Council also suggests further information is required on the proximity of any new surfacing to the ditch and on any boundary treatment to be provided. However, the submitted plans indicate the extent of surfacing and there is no mention of any new boundary feature. As such, I find no reason to require the submission of any further information in these regards.

Therefore, I conclude the proposal would not increase the risk of flooding on the site or elsewhere. In these respects, it would accord with JCS policy INF2 and LP policy ENV2. Amongst other things, these policies look to ensure development reduces the risk of flooding and incorporates sustainable drainage systems. Other factors.

The site as wasteland detracts from the appearance of the area but so too would the stationing of cars and a sales cabin as proposed. Therefore, the development would not enhance the appearance or the character of the locality as claimed.

It is suggested that a new agricultural building and access could be provided on the site under permitted development rights. However, there is little evidence to indicate that any such development is likely if this appeal is dismissed. There is no more than a theoretical possibility of agricultural development being carried out and so the suggested fallback position attracts little weight in my overall assessment.

The proposal would allow a more effective use of wasteland that could help support farming and rural activities on the wider holding. Also, the proposal would allow the opportunity to improve the management of surface water runoff compared to the existing situation. These benefits attract significant weight. Green Belt balance.

The appeal scheme would represent inappropriate development in the Green Belt. Under the terms of paragraph 153 of the Framework, planning permission should not be approved except in very special circumstances. These would only exist where the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations. In this balancing exercise, the Framework dictates that substantial weight is given to any harm caused to the Green Belt.

The proposal would cause a minor level of harm to the openness of the land and it would not safeguard countryside from encroachment. Also, insufficient information has been provided to show the development would have an acceptable effect on biodiversity. The factors in support of the scheme are significant but they fail to clearly outweigh the harm that would be caused by the development.

The appellant suggests that a temporary planning permission could be granted for the whole development and not just the sales cabin. Given the nature of the proposal, it would be reasonable to impose a planning condition that requires the development to cease after a specified period. However, even if temporary, the development would still impact on the openness of the Green Belt, albeit the effects would not be permanent. Furthermore, a temporary permission would not address the potential harmful impacts of the proposal on the biodiversity value of the site. Also, the benefits of the scheme would reduce if the development were temporary. Therefore, I find the advantages of the development on a non-permanent basis would be outweighed by the harm caused.

Very special circumstances necessary to justify the scheme do not exist. Therefore, I conclude the development would be contrary to JCS policy SD5 and LP policy GRB4, as well as the Framework.

For the reasons given above, I conclude the appeal should be dismissed.