Appeal 6001604

The appeal is dismissed.

Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 as amended (the Order), permits development consisting of a change of use of a building from a use falling within Class E (commercial, business and service) to a use falling within Class C3 (dwellinghouses).

As detailed within the Order, development under Class MA is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for prior approval. The local planning authority may refuse the application where it considers that the proposal does not comply with the limitations or restrictions that are applicable to such permitted development.

In prior approval cases there is no requirement to have regard to the development plan as there would be for any development requiring planning permission. Nevertheless, national guidance and local plan policies may be material in so far as they relate to prior approval subject matters.

The main issues are therefore: • Whether the proposed development would be permitted development under Schedule 2, Part 3, Class MA of the Order; and • if it is permitted development, whether the development would be acceptable in terms of flooding risks in relation to the building and transport impacts of the development, particularly ensuring safe site access.

The development is not permitted unless the use of the building fell within one or more of the classes specified in this part of the Order for a continuous period of at least 2 years prior to the date of the application for prior approval. The appellant contends that the [site address] of the building was in continuous use as an office, and has submitted, in support of this appeal, non-domestic rate bills related to this part of the property for the period 2023 –

The Council is now content that this demonstrates the 2 year continuous use, and I find no compelling reason to dispute this conclusion. Accordingly, this proposal satisfies this requirement and is permitted development pursuant to this part of the Order.

Development under Class MA is permitted subject to conditions which include the consideration of flooding risks in relation to the building. The evidence shows that part of the building falls within flood zone 2 and 3, where the risk from river flooding is medium to high.

A dwellinghouse is classified as ‘more vulnerable’ in the National Planning Policy Framework (the Framework). Taken account of the risk of flooding in this area, the proposal would introduce a more vulnerable use than currently exists at this part of the building. The Order, in these circumstances, requires that the Environment Agency (EA) is consulted, and the EA appears to direct the Council to its standing advice in this case.

Planning Practice Guidance (PPG) clarifies with regards permitted development rights, in respect of flooding, applications must be accompanied by a site-specific flood risk assessment (FRA) as required by the prior approval process. Also, relevant in this case, due to the circumstances outlined, PPG expects applicants to show in their FRA that users of the development will not be placed in danger from flooding throughout its lifetime.

The appellant highlights that a building has been at this location since the 1800s. Be this as it may, that was a station building as opposed to a dwelling. That said, the lower ground and ground floor of this building already appears to be in residential use. This proposed change to a more vulnerable use would therefore be limited to the [site address] under this scheme.

It is stated that there is no record of flooding from tidal or rain sources. However, the flood risk evidence presented suggests that the river is tidal and that this is the source of regular flood events in this locale. In any event, even if I accept the appellant’s comments on this matter, the Framework requires account be taken of all sources of flood risk. The appellant has calculated that 30% of the building is in zone 2 and approximately 4% in zone 3. At least one third of the building, therefore, would be at a medium to high risk of flooding from river sources.

Also, the Government’s flood map shows that the road access to the property is wholly within flood zones 2 and 3. The consideration of safe access and escape routes for future occupants is therefore relevant in this appeal. Moreover, while the yearly chance of flooding from river sources and the sea over the next 10 years is shown as low, this is predicted to be high after that period; the evidence therefore points to future users of the new residential unit being in danger from flooding, during the lifetime of the development, on an annual basis.

It is suggested that as most of the building is in zone 1 it would not be vulnerable to flooding and this would be the case for the immediate entrance to the property. While this may be so, flood waters, however quick they may recede, could affect services to the property. Indeed, the appellant indicates that drains/and soil pipes at the lower ground floor is a potential weak point. Accordingly, it is advised that non-return valves be fitted to eliminate the risk. Also, there appears to be a recommendation to seal gas, electricity and water services entering the building.

The appellant asserts that none of these recommendations apply to above ground floor level and that services of the proposed unit are self-contained. However, the proposed unit is part of a building, and services for a whole building are usually located at the ground level. No compelling evidence is advanced that this is not so with the appeal property. Moreover, it is unclear whether the above recommended flood resilience measures are already in place for the existing residential units at the property, or, if they are not in place, whether the appellant has control of this matter given that this proposal relates to the [site address] unit only. Without certainty of this control, I am not persuaded that a condition requiring these recommended measures be installed would satisfy the national tests. In turn I have no certainty that these flood risk resilience measures could be secured in this case.

The proposed flat, being at an upper floor level, would likely remain dry during flood events. However, for the reasons set out, there is the danger that services to the new residential unit would be disrupted during flooding, and this could cause safety issues for future users. It is contended that these flooding events would be short lived. But even if I accepted this, these events could occur on an annual basis after 2036. Moreover, reinstatement of services would likely take some time after each event, and I find no certainty that basic utilities for the dwelling would be reinstated rapidly. Consequently, future users could be subject to considerable disruption and dangerous conditions in their dwellinghouse even if they were dry in their property.

The appellant has submitted a flood emergency plan which includes procedures for flood warning and advice in flood events for future users. A secondary dry route has also been suggested in final comments. These are matters that could be conditioned. However, this would not address the flood resilience matters outlined above. On the evidence before me, I am unpersuaded that the proposed unit would be appropriately flood resistant and resilient such that, in the event of a flood, it could be brought back into use or that any residual risk can be safely managed in this case. This proposal would fail to accord with national guidance in respect of this prior approval subject matter.

In light of the uncertainty outlined, I find that the development would not be acceptable in terms of flooding risks in relation to the building. The proposal would fail to satisfy this prior approval condition.

While there is limited outside space for a bike store, I saw some room in the hallway suitable for cycles to be safely stored without inconveniencing existing and future occupants when accessing their dwellings. In any event, the property is adjacent to a railway station, and future users would have good access to transport options other than the car. Regardless of whether a cycle store was provided, sustainable transport options would be available to future users. Given this factor, if the proposal failed to accord with local cycle policies, in my view, the proposal would not lead to unacceptable transport impacts in the area as a consequence of that slight policy conflict.

Also, I saw that there is some space at the side of the building to accommodate bins for this small unit, without interfering with the access to the property and the existing car parking arrangements in this setting. This detail could be secured by condition. I therefore find that the development would be acceptable with regards transport impacts of the development, particularly ensuring safe site access. The proposal would be satisfactory in terms of this prior approval matter.

For the reasons set out above, the proposal fails to satisfy prior approval conditions relating to flood risk. The appeal should therefore be dismissed.