Appeal 6001694

The appeal is dismissed.

The use has commenced, however the full extent of development proposed has not been undertaken such as the proposed hardstanding. I have therefore considered the scheme as partly retrospective but based on the proposed plans before me.

The main issues are: • The effects of the proposed development on highway safety along [address]; • Whether the site is in a suitable location for the proposed use, having regard to relevant development plan policies for development in the countryside, and the effects of the proposal on the character and appearance of the countryside; • Whether the site is in a suitable location for the proposed use, having regard to the accessibility of the site; and • The effects of the proposed development on biodiversity.

The appeal site is a small field located on the corner of [address] and [address]. The proposed access is positioned onto [address] at a point where a track also joins the road. From the access, visibility is restricted by hedgerows in both directions when leaving the site to join [address]. This restriction includes hedgerows, based on the plans and evidence before me, that lie outside of the land controlled by the appellant and are not proposed to be removed.

The change of use would involve regular comings and goings as customers drive to the site to exercise their dogs. This could, based on the evidence before me, involve two cars every hour during day light hours which is, in my view, likely to result in a significant increase in vehicular activity than would be the case as an agricultural field. In this regard, even if the new field entrance is in a safer position than the previous position, when linked with the proposed change of use, and the increase in vehicular movements, it would result in an increased risk of collisions overall. The potential consequences from such collisions would be significant and unacceptable.

I therefore conclude on this main issue that the proposed development would have an unacceptable effect on highway safety along [address]. As such, I find conflict with the requirements of Policies ITCR10 and ITCR11 of the Council’s Local Plan and paragraphs 115 and 116 of the National Planning Policy Framework (the Framework), when taken together and in so far as they relate to this main issue. These say, amongst other things, that development should only be prevented or refused on highways grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network, following mitigation, would be severe, taking into account all reasonable future scenarios.

The appeal site is located in open countryside. The provision of a large field to enable dogs to run safely off the lead requires a large open area. There would likely be limited availability of such land in an urban area and this would most likely have to involve a field in a countryside location. As such, and given the size of site, its restrictions to the number of users, hours of operation and recreational use I am satisfied that the proposal would amount to a small scale employment use related to a recreational use in accordance with criterion C) of Policy SS9 of the Local Plan.

The appeal site, as a grassed agricultural field, with hedgerow planting and fencing makes a small but positive contribution to the character of this part of the open countryside beyond Palterton. Most of the appeal site would remain a green field and the existing hedgerow would be retained, in the plans before me, and supplemented with additional planting. In this regard, despite the small area of hardstanding proposed, this would not preclude the site from being used for agricultural purposes again in the future.

Moreover, the light-weight appearance of the stock netting fencing proposed and its location behind the existing and proposed hedgerow would ensure that it would not be unduly dominant in views from the surrounding area despite its maximum height of 1.8m. Even where used at the entrance gate without hedging it would not be unduly prominent due to its size and light-weight appearance.

The proposed parking area would occupy a small area and its location close to the boundary would ensure it would not be unduly dominant or encroach significantly into the open field. In my view it would not be dissimilar to an area of hardstanding that one might expect to see off an agricultural field entrance. Accordingly, and having found that this type of recreational use would not be unusual in a countryside location I do not consider the scheme to have an unacceptably urbanising effect on this rural area.

I therefore find that the site is in a suitable location for the proposed use, having regard to relevant development plan policies for development in the countryside, and the effects of the proposal on the character and appearance of the countryside. As such, I do not find conflict with the requirements of Policies SS3, SS9, SC2 and SC3 of the Local Plan, when taken together and in so far as they relate to this main issue. These say, amongst other things, that in all cases, where development is considered acceptable it will be required to respect the form, scale and character of the landscape, through careful location, design and use of materials.

The site is near Palterton and the larger settlement of Bolsover. However, there is no footpath or public transport connections and there is no opportunity to improve the scope for access on foot, by cycling or by public transport. As such, there would be a reliance on private vehicles to access the facility. However, trips from these settlements would be short.

The Council acknowledge that users of the site would likely prefer to access the site via private vehicle rather than utilising sustainable modes of transport. Moreover, the appellant highlights that dogs that use these types of facilities are generally not able or suitable to walk in public places and would not therefore use public transport. I have no reason to disagree with these positions and therefore even if alternative more sustainable transport options were available it strikes me that users with their dogs would still likely arrive by private vehicle. I am also mindful that many dog walkers would regularly drive into the countryside to exercise their dogs with or without such a facility.

In this regard, paragraph 89 of the Framework recognises that sites to meet local business and community needs in rural areas may have to be found adjacent to or beyond existing settlements, and in locations that are not well served by public transport. It also says that it would be important that developments exploit any opportunities to make a location more sustainable (for example by improving the scope for access on foot, by cycling or by public transport). This does not, in my view, mean it precludes developments where there are no opportunities to make a location more sustainable such as the case with the appeal site.

Considering that this type of use is typically found in a rural location, the short distances to these settlements and considering the modest scale of the operations, and user preferences, I find that the environmental effects of private car travel arising from the scheme would be limited.

The proposal would not be supported by Policies SS1 and ITCR10 of the Local Plan, when taken together and in so far as they relate to this matter. These say, amongst other things, that planning permission will be granted where new development and the provision of services are located so as to support sustainable transport patterns and the use of the District’s sustainable transport modes. However, drawing the above together and in the particular circumstances of this proposed use and location, I find that the site is in a suitable location for the proposed use, having regard to the accessibility of the site.

The government’s planning practice guidance sets out which planning permissions are in scope and which are exempt from the statutory biodiversity net gain (BNG). It confirms that BNG does not apply to retrospective planning permissions made under section 73A of the Town and Country Planning Act 1990 (as amended) (the Act). S73A(1) states on an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application. The application in this case was stated to be partly retrospective, with the development commencing in November 2024 and thus is covered by s73A. Accordingly, the BNG requirement does not apply. This does not mean that the impact of development on biodiversity should not be considered. Indeed, Policy SC9 of the Local Plan confirms that development proposals should seek to conserve and enhance the biodiversity and geodiversity of the District and to provide net gains where possible.

There is no dispute between the parties regarding the baseline mapping submitted as part of the appellant’s [name]. However, the Council’s concerns centre on the proposed enhancements, and specifically the inclusion of two trees entered in the Metric as ‘Medium’, whereas the Council consider this should be ‘Small’ according to The Statutory Biodiversity Metric User Guide. Mindful that the scheme does not, in my view, fall to be assessed against the [name] requirements, there is no indication in the evidence that biodiversity enhancements can not be achieved. In this regard, I see no reason why the final number and size of trees, or any other biodiversity enhancements, proposed could not be resolved through a condition attached to the consent were I minded to allow the appeal. It would then be for the Council to consider the final scheme of enhancements as part of the discharge process.

Overall, I am satisfied that the proposed development would not have a harmful effect on biodiversity and would accord with the requirements of Policy SC9 of the Local Plan, in so far as it relates to this matter.

The facility would give dog walkers a safe and secure environment in which to walk and exercise their dogs off the lead, particularly for dogs with behavioural issues and with some members of the public being anxious of dogs being exercised in public spaces. In this regard, the proposal promotes healthy lifestyles though the provision of safe and accessible green infrastructure as well as improves public access to the countryside. It is therefore understandable that there is support locally for the scheme. Moreover, there would be the potential for some biodiversity enhancements. The absence of harm in relation to other considerations weighs neither for nor against the proposal.

To conclude, the proposed development would have an unacceptable effect on highway safety along [address]. The proposal therefore conflicts with the development plan and the other material considerations are not sufficient to indicate that the appeal should be decided other than in accordance with it. For the reasons given above the appeal should be dismissed. Mr [planning inspector] INSPECTOR