Appeal 6001509

The appeal is dismissed.

The main issue is whether the proposed reworded condition meets the six tests set out in paragraph 57 of the National Planning Policy Framework 2024 (the Framework).

[site address] is a [name] listed building used as a public house with restaurant and hotel letting rooms. It occupies a prominent position to the west of the B2138 within the village of Fittleworth and the Fittleworth Conservation Area, as well as being located within the South Downs National Park.

The main public house building is a 2-storey structure fronting the street. Behind it are two curtilage-listed single storey buildings, referred to as the Barn and the Stables, which are accessed via the rear courtyard.

Planning permission [name]/23/002028/FUL (the original approval) granted permission for alterations and extensions to the main public house building, including a rear extension to increase the kitchen area, internal alterations to the bar, and changes to the letting rooms and staff living accommodation.

It also granted permission for works to the rear courtyard barn and stable block buildings, including the removal and replacement of their roofs. The condition the subject of this appeal sought to ensure that appropriate tiles are used for these roofing works.

At the time of approval, the Council envisaged that this would comprise re-using the existing tiles wherever possible, and that the details of any tiles needed to make up any shortfall would need to be approved by the council prior to the start of the roof re-tiling works.

The development the subject of the original approval was completed in September

This has included the re-tiling of the barn and stable roofs without using any of the roof tiles which were in place on these buildings at the time of the determination of the original application.

The appellant states that having carefully removed and inspected the existing roof tiles, most of them were found to be unsuitable or incapable of beneficial re-use. As such, the appellant considers that this would have made their re-use both impractical and of no aesthetic benefit.

The appellant’s stated reason for the change of wording of condition 13 is to allow all tiles to be replaced with new high quality handmade tiles, subject to the Council’s agreement. The appellant considers that this comprises a more sensible and flexible re-wording of the condition to facilitate agreement of acceptable tile materials by the Council.

The application which is the subject of this appeal did not specifically seek approval of the details of the proposed roofing materials and the Council’s reason for refusal does not refer to their acceptability or otherwise. It is on this basis that I have determined this appeal.

I have borne in mind the statutory duties contained in sections 16, 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, as well as the purposes of a national park designation. However, in this case, there is no requirement as part of my determination of this appeal for me to consider the merits or otherwise of the existing roofing tiles.

The appellant suggests the following wording: ‘Where possible the reclaimed tiles from the roof of the barn and stable shall be reused. A sample of the roof tile required to make up any shortfall shall be submitted to and approved by the Local Planning Authority prior to re-tiling commencing. In the event that insufficient original tiles are capable of beneficial re-use, all tiles will be replaced with hand-made tiles. Samples of the hand-made roof tiles shall be submitted to and approved by the Local Planning Authority prior to re-tiling commencing. Once approved the works shall be carried out in strict accordance with the approved details’.

Paragraph 57 of the Framework states that conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.

The Planning Practice Guidance (the Guidance) refers to these as the ‘six tests’, and states that each of them needs to be satisfied for each condition that a planning authority (or, by extension, an Inspector) intends to apply. The Guidance also advises that any proposed condition which fails to meet one of these tests should not be used, even if an applicant suggests it.

Neither main party has disputed that the originally worded condition meets these tests, and based on the evidence before me, I have no reason to disagree.

The appellant’s proposed wording of the condition is not substantially different to that of the original wording. Both conditions allow for the possibility that reclaimed tiles from the barn and stable roofs could not be used, and for the details of any proposed alternative tile to make up the shortfall to be submitted to and approved by the Council prior to the start of the re-tiling of the roofs.

However, the proposed condition goes further to state that if there are insufficient original tiles capable of beneficial re-use then all tiles will be replaced with hand-made roof tiles.

I find that, since the original condition does not preclude the re-tiling of the roofs without using any of the original tiles, the proposed wording merely introduces an additional requirement that the tiles used should be hand-made.

Since the original wording of the condition gives the Council control over whether to accept the details of any alternative tiling to that which was originally present on the buildings, I find that it is not necessary to amend the condition to stipulate that the tiles should be hand-made. In the eventuality that this is what the Council considers to be most appropriate, the original condition would allow for this.

Accordingly, I find that, having regard to the requirements of the condition and the reasons for its imposition, the appellant’s proposed revision is not necessary.

The Council’s view is that the proposed condition would not meet the tests of enforceability, precision and reasonableness as set out in paragraph 57 of the Framework because the works have already taken place and none of the original tiles remain on the roofs of the barn and stable buildings.

The appellant’s proposed wording requires the proposed alternative tiles be approved prior to re-tiling commencing. Given that the re-roofing works have subsequently taken place since the grant of the original permission this would no longer be appropriate, and an alternative timescale would be required. The appellant’s view is that this matter could be dealt with by the removal of this part of the revised condition.

However, conditions that require the approval of details must specify when the information should be submitted to the planning authority, otherwise, the condition will be unenforceable. In retrospective cases, such conditions must be adapted to set a timetable for action, and a ‘sanction’ for non-compliance to be enforceable.

With all the above in mind, I find that it is not necessary to replace the existing condition with that proposed by the appellant. I also find that the proposed wording would not meet the paragraph 57 test of enforceability.

For the above reasons, I therefore conclude that the condition should be retained as originally worded and that the appeal should be dismissed.