Appeal 6001432

The appeal is dismissed.

The Council alleges that the land within the site that would host the proposed building has been cleared and engineering operations have taken place without planning permission and that these works have resulted in the loss of trees protected by Tree Preservation Order. These latter matters are outside of the scope of this s78 appeal and are matters solely for the Council. I have therefore assessed the scheme based on the description of development and the submitted plans before me.

Main issues are: • whether the proposal would be inappropriate development in the Green Belt, including whether the appeal site is grey belt land with particular reference to whether flood risk provides a strong reason for refusing or restricting the proposed development; • the effect of the proposal on biodiversity; and, • would any harm by reason of inappropriateness, and any other harm, be clearly outweighed by other considerations, so as to amount to the very special circumstances required to justify the proposal.

The parties dispute the flood zone classification of the site. The appellant challenges the most recent flood map, which identifies the site as lying within [name] 2 and 3, as well as the Council’s earlier Strategic Flood Risk Assessment mapping that places part of the site within [name] 3b (functional floodplain). Instead, the appellant maintains that the site should be considered within [name] 1. In support of this, reference is made to the similarity between the finished floor level of the existing building (80.8mAOD) and a nearby spot height at the [address]/[address] junction (80.5mAOD), which the Environment Agency flood map shows to fall within [name] 1.

The fact that the finished floor level accords with a condition of the planning permission, requiring it to be set above the 1 in 100-year flood level identified in 2006, does not have a direct bearing on the current flood zone classification of the wider site. Ground levels across the site, as shown on the topographical survey at [name] of the November 2011 Flood Risk Assessment, appear to underpin the levels illustrated on the Existing Topography Site Plan (DWG 07). These indicate variations in ground levels from 80.05mAOD at the top of the riverbank to 80.61mAOD at the corner of the existing building.

The Environment Agency’s appeal statement introduces reference to 2019 model data that is not cited in either of the flood risk assessments submitted with the planning application. It explains that, from a technical standpoint, the appropriate basis for defining [name] 3b is the 3.33% annual exceedance probability (AEP) flood extent. For two model node points located within the site, the 2019 modelling predicts this to occur at 78.746mAOD and 78.81mAOD respectively.

The ground levels shown on the appellant’s topographical survey indicate that the footprint of the proposed building would not be affected by flooding associated with what would ordinarily be regarded as functional floodplain ([name] 3b). However, the Environment Agency’s LiDAR data records levels ranging from approximately 78mAOD to 80.7mAOD around the footprint of the proposed building.

The March 2021 Flood Risk Assessment also refers to LiDAR-derived levels, which are cited as being between 78.55mAOD and 79.16mAOD. While the appellant maintains that the topographical survey is accurate, Given its role as a statutory consultee, I attach significant weight to the Environment Agency’s evidence.

Notwithstanding the dispute on ground levels across the site, footnote 63 of the Framework requires the proposal to be supported by a site-specific Flood Risk Assessment. On my reading of the evidence, the two [name] submitted with the planning application, both dated 2021, relate to an earlier scheme featuring a larger building footprint than that now before me.

The March 2021 assessment is also based on 2011 modelling data and does not incorporate allowances for climate change. Although the Environment Agency has provided updated information, I have not been supplied with any analysis demonstrating whether the proposed development would increase flood risk elsewhere, nor any assessment of the appropriateness of measures to manage such effects in the context of the current scheme. These are requirements of the Framework at paragraph 181 and in the absence of such evidence, it is not possible to determine whether they would be met, even if parts of the site may presently lie above the levels associated with [name] 3b.

In light of the above it has not been satisfactorily demonstrated that the site is a suitable location for the proposed development having regard to flood risk. The proposal would therefore conflict with Policy CLP13 of the Local Plan which, amongst other things, seeks to ensure that development is made safe for its lifetime without increasing flood risk elsewhere. Inappropriate development

The site boundary encompasses existing commercial units and their associated curtilages, all of which lie within an Established Business Area designated under Policy CLP6 of the Local Plan. The proposed building would be sited immediately adjacent to an existing unit, on a strip of undeveloped land running alongside the bank of the [name] that the Council contends has been altered through engineering operations. It would have a floorspace of approximately [address] metres and a maximum height of 6 metres.

The parties disagree on whether the site lies within the Green Belt, and each has provided policy map extracts in its submissions. The fact that a building within the wider site was not previously assessed against Green Belt policy does not determine the outcome of the proposal before me. Indeed, the Council’s mapping indicates that only a relatively small portion of the overall site falls within the Green Belt and on the evidence before me, it appears that approximately half of the proposed building would be located within it.

Policies CLP1 and CLP15 of the Chesterfield Local Plan (Local Plan) broadly conform to the general thrust of national Green Belt policy. Paragraph 153 of the National Planning Policy Framework (Framework) explains that inappropriate development in the Green Belt should not be approved except in very special circumstances, with exceptions to inappropriate development detailed at paragraph 154.

The Council’s calculations suggest that, in addition to a previous extension, the proposed development would result in an 86% increase in the footprint of the original building that the proposal would adjoin. This would be a substantial increase that would result in a disproportionate addition over and above the size of the original building. Notwithstanding the proportion of the proposed building that would fall within the Green Belt, criterion c) of paragraph 154 of the Framework would therefore not be met.

Paragraph 154(g) relates to ‘limited infilling or the partial or complete redevelopment of previously developed land (including a material change of use to residential or mixed use including residential), whether redundant or in continuing use (excluding temporary buildings), which would not cause substantial harm to the openness of the Green Belt’.

By reason of its scale, the proposal would not constitute limited infilling for the purposes of paragraph 154(g) of the Framework.

The approved block plan associated with the planning permission for the existing building1 indicates an area of 4.5m to the rear of the building. However, at some 1 Planning application reference: CHE/05/00803/FUL unspecified point an extension to the riverbank by approximately 5.5.m along the western elevation has taken place. The Council view the extended land within which around half of the proposed building would be located, as not meeting the definition of previously development land on the basis it is outside the previous application’s site boundary.

However, the definition at Annex 2 to the Framework provides that previously developed land refers to land which has been lawfully developed and is or was occupied by a permanent structure and any fixed surface infrastructure associated with it, including the curtilage of the developed land. There is no evidence before me of the works, and ultimately whether planning permission was required for what appears to have been engineering works or other operations requiring planning permission to reconfigure the river bank. Accordingly, there is no substantive evidence to enable me to be conclusive that the extended land should be regarded as being lawfully developed.

Therefore, criterion g) of paragraph 154 of the Framework is not capable of being met as I do not regard, on the evidence before me in this particular appeal, that the land in question should be regarded as previously developed land.

The Framework’s definition of ‘grey belt’ land explicitly excludes land where the application of the policies relating to the areas or assets in footnote 7 (other than Green Belt) would provide a strong reason for refusing or restricting development. Flood risk is listed in footnote 7. In light of my conclusion above in respect of flood risk matters, this should be regarded as strong reason in this particular appeal and the site would not be capable of according with the definition of ‘grey belt’ land.

Openness has both spatial and visual aspects. In this case the introduction of the proposed building and associated surface parking area would have a greater impact on openness spatially. In visual terms, the prominence of the development would be limited by its position next to an existing unit, the overall height and appearance of which would be replicated. Further, views to the proposal from outside of the site would be very limited and it would likely appear subsumed in the wider business park. The openness of the Green Belt would therefore be reduced in both spatial and visual terms, but overall, this harm would be limited.

Drawing the above findings together, I conclude that that the proposed development would be inappropriate development in the Green Belt and the appeal development would reduce openness of the Green Belt.

The River Rother forms a substantial part of the site’s boundary. The proposed building would sit close to the riverbank and would adjoin an existing building along much of its eastern elevation. The submitted plans show that, at its nearest point, the new structure would be approximately 5.5 metres from the water channel. The appellant also states that there would be a clearance of around 8–9 metres from the only section of the riverbank where vegetation is present.

Notwithstanding the preliminary remarks outlined above, it is agreed between the Council and the Environment Agency that most of the site presently has limited wildlife or habitat value. The appellant maintains that the site has no biodiversity value, but this position overlooks the small area of wet woodland located within the site boundary. Although a Local Wildlife Site and [name] designation do not intersect with the appeal site, these features lie in close proximity to it.

An Ecological Impact Assessment was submitted with the original planning application, although it has not been provided as part of the appeal documentation. The Council refers to this assessment in its officer report and acknowledges that the application was submitted prior to the introduction of the statutory [name] requirements. Nevertheless, the Council raises concern that there is insufficient information to demonstrate that a measurable net gain in biodiversity would be delivered, as required by Policy CLP19 of the Local Plan and paragraph 187 of the Framework.

Whilst the provision of bat or roosting boxes and the planting of 75 trees is proposed, it is not clear how this level of provision directly relates to the impacts of the development. Nor is it demonstrated that such a volume of tree planting would be appropriate given the physical constraints of the site, or that it would align with the identified opportunities and priorities within relevant local action plans and strategies, including the Derbyshire Local Nature Recovery Strategy. Notwithstanding the broadly supportive representation made by the Wildlife Trust in response to the planning application, the imposition of a condition requiring the planting of 75 trees, or a planting scheme based on the 1999 aerial photograph would not be appropriate in these circumstances.

I have been referred to a development on the site that was approved in closer proximity to the river than the scheme before me. However, no substantive details of that permission have been provided. In any event, the circumstances of that scheme would be unlikely to demonstrate that the current proposal is acceptable in terms of its effects on the riparian habitats or its potential to deliver biodiversity enhancements related to this particular proposal.

Consequently, and in the absence of sufficient evidence to demonstrate otherwise, the proposed development would not appropriately enhance or contribute to biodiversity on the site. The proposal would conflict with Policy CLP16 of the Local Plan, which, among other things, requires development to deliver a measurable net gain in biodiversity. I also find harm as a result of the conflict with Policy CLP19 insofar as it requires development proposals adjacent to a river corridor to investigate the creation and management of ecological buffer strips and corridors to preserve and enhance the biodiversity of the area.

The Council acknowledges that the site is located within an employment land allocation and accepts the principle of the proposed building for B8 use, which weighs in favour of the proposal. The additional 3 jobs generated by the development would be a benefit to which I accord moderate weight.

The proposed development would be inappropriate development in the Green Belt resulting in a limited loss of openness. The Framework establishes that substantial weight should be given to any harm to the Green Belt. It would also be harmful in respect of flood risk and biodiversity. Very special circumstances will not exist unless the harm to the Green Belt and any other harm are clearly outweighed by other considerations.

Given the substantial weight to be given to Green Belt harm combined with the other identified harm and the moderate weight of the benefits of the proposed scheme, the harm is not clearly outweighed by other considerations. Therefore, very special circumstances do not exist.

For the reasons given above, the proposal would conflict with the development plan policies, when read as a whole.

Material considerations, including the Framework do not indicate that a decision should be made other than in accordance with the development plan and having considered all other matters raised, I therefore conclude that the appeal should be dismissed.