Appeal 6001814

The appeal is allowed and planning permission is granted for Alteration to replace existing canopy over site with new fuel pumps, islands and offset fillers, new underground fuel tanks and vent pipes, alteration to kerbing and grass areas at [site address] , Rutland, [postcode] in accordance with the terms of the application, Ref 2025/0243/FUL, subject to the conditions in the attached schedule.

An application for an award of costs has been made by the appellant against Rutland County Council. This is the subject of a separate decision.

The evidence indicates that a revised plan1 was submitted during the application process and was considered by the Council and the highway authority (HA). This is the plan upon which I have based my reasoning.

The main issue is the effect of the development on highway safety.

The existing garage has a section of forecourt which directly abuts the running lanes of [site address] (A47) and which also houses a diesel pump close to the road. The plan showing the extents of highway estates land (highway land) indicates that it extends as far as the drainage channel that runs parallel to the carriageway a few metres to the north of the existing northernmost line of fuel 1 Dwg. No 2024/328/006 [name] pumps. As such, part of the land belonging to the HA is being used for purposes associated with the garage which, at my visit, included parking for unloading goods for the shop and refuelling from the outlier diesel pump, as well as refuelling from the petrol pumps, as well as access and egress.

The proposals include the creation of a new island along the frontage, allowing access and egress to the forecourt between the island and the existing verge areas. The diesel pump would be removed. The proposed layout would give sufficient clearance on the northern side of the pumps for one vehicle to allow parking or refuelling between the new pumps and the island. This lane would straddle the drainage channel and consequently refuelling would take place on land that falls partly within the highway land. The revised layout of the eastern and western access points would also sit largely within highway land, as is currently the case.

The highway authority (HA) has raised a concern that refuelling on highway land is intrinsically unsafe. The concerns arise from potential collisions on the forecourt, or from errant vehicles on the A47. However, given that the area of highway land being used for refuelling would be separated from the A47 by a grassed island, it is unclear to me how vehicles using the A47 could pose a hazard to refuelling operations within the confines of the forecourt. The likelihood of errant vehicles entering the forecourt would be significantly diminished as a consequence of the new island. This scenario, where garage forecourts are separated from a road by a verge, is commonplace. In any case, even if this was confirmed to be a residual hazard, the installation of barriers on the island could provide mitigation.

Attention has been drawn to the depiction of a fuel tanker on the southern side of the northernmost pumps on the proposed layout. There is a suggestion that there is insufficient turning space for a tanker to reach this position and that there could be conflict with other vehicles if it was parked in this position. However, this may be drafting licence and I see no reason why tankers could not park on the northern side of the northernmost pumps, particularly as the proposed layout shows that part of the existing verge area to the east would be cut back to increase the circulation area within the forecourt.

The Council states that the proposals would impair visibility and create pedestrian conflict. However, the layout indicates that vehicles on the northern side of the northernmost pumps would be more than 4.5 metres from the edge of the A47, which is the X dimension suggested by the Council for the visibility splay condition. Moreover, the island would contain a pedestrian footway. The passage of pedestrians across the site’s frontage would be considerably safer than the current situation and no different from many other petrol forecourts where footways and verges are punctured only by access and egress points.

The sole concern appears to stem from the HA’s ownership of land that would remain within the functioning forecourt area. Apart from pedestrian safety and visibility, as noted above, no other concerns have been raised in relation to the proposed layout of the forecourt. Although there are no swept path analyses before me, there is nothing to suggest that the proposed layout would lead to an unacceptable degree of risk of collision from vehicles going about their normal refuelling function. Nor is there compelling evidence that vehicles frequenting the car wash or the car sales areas, located to the sides of the forecourt, would be obstructed.

The HA has suggested that stopping up of the highway would provide a solution and remove its objection to the development. However, a change of ownership would not alter the development’s layout, the proximity to moving traffic on the A47 or circulation within the forecourt. As such, I conclude that the HA’s objection is a matter of principle, namely that refuelling should not take place on highway land. This seems to be rigid adherence to the guidance rather than a response to the reality of the application. Furthermore, no case law or primary legislation has been provided to support this objection. As such, there is nothing before me to indicate that the proposals would pose a hazard sufficient to warrant dismissing the appeal.

The Council has also suggested that it would not enter into a Section 278 agreement to allow private infrastructure on highway land, but it is unclear what private infrastructure is being referred to or whether it would be required. Moreover, this appears to be an argument predicated on the HA’s continued ownership of the land. Given that I have found no harm in relation to the HA’s ownership of land within the forecourt, it is unclear to me why the HA would refuse permission for features on its land that enhanced highway safety.

During my short visit, undertaken out of peak hours, there was a constant stream of vehicles using the forecourt. Vehicles entered the pump area from both directions, large vehicles were parked next to the diesel pump and obstructed visibility for vehicles leaving the premises, and vehicles drove through the pump area from the east to park outside the car sales showroom. There were also vehicles queuing at times to use the pumps as there is space for one vehicle only between the two northernmost lines of pumps. The development would increase the spacing between the pumps, but would also reduce the circulation area adjacent to the forecourt. I do have concerns that the current random movement of vehicles in the forecourt would need to be controlled for the purposes of highway safety, but this could be controlled by condition. Notwithstanding my concern in relation to future circulation, the development overall would represent a significant improvement to highway safety, which carries considerable weight in my reasoning.

In the light of the above, I conclude that there is nothing before me to indicate that the development would have an adverse effect on highway safety. As such there would be no conflict with Policy SP15 of the Local Plan or Paragraph 115 of the National Planning Policy Framework, which are concerned with highway safety.

There is a debate between the parties concerning the legality of the existing diesel pump, but I have not found this to be determinative and as such have not considered it further.

I have taken the Council’s suggested conditions into account, and have amended them where required, in the interests of precision and brevity.

In addition to the standard time commencement condition (condition 1), I have specified the approved plans as this provides certainty (condition 2).

I have imposed several pre-commencement conditions. These include the submission and approval of a construction management plan (CMP) (condition 3), the approval of details for the pedestrian footway across the frontage details (condition 4), details for permanent lighting and surface water drainage (condition

and permanent signage (condition 6). Temporary lighting is included in the CMP so reference to temporary lighting is omitted from the Council’s suggested condition concerned with lighting. I have also omitted the reference to an existing one-way system in the CMP as there did not seem to be a one-way system when I visited the site. Given the proximity of the A47, pre-commencement conditions are required to ensure the safety of road users during construction and for the lifetime of the development.

Condition 7 is concerned with the approval of further details for works on highway lane, again for highway safety.

The appellant has objected to the Council’s suggested condition regarding details of the removal of underground fuel tanks. However, the existing site plan does not show the existing fuel tanks, nor is the removal of below-ground infrastructure shown on the proposal drawing that forms the basis of this decision. In the absence of any information regarding their location and/or whether they would need to be removed, it is appropriate to require further detail of works that might affect the stability of the nearby A47. I have however amended the working so that it refers only to underground infrastructure within 5 metres of highway land. I see no reason why the removal of above-ground infrastructure that is not on highway land should require approval from the HA. Five metres also seems a reasonable distance to me to ensure that the stability of the carriageway is retained. The appellant did not agree to a pre-commencement condition in this regard, and as such I have changed the trigger point so that it is no longer a pre-commencement condition. I am satisfied that this is a reasonable approach which allows the development to proceed but which also safeguards highway safety. Condition 8 is therefore imposed for highway safety.

The appellant argues that the imposition of the suggested condition requiring a one-way system would be unreasonable as the proposals represent a significant improvement on the existing layout in safety terms. However, the proposals would result in the creation of two designated access points to replace a wide frontage that extends to the carriageway. [name] appreciate that there are businesses to the east and west of the pump area, it would not be reasonable to allow two-way traffic through the pump area. At my visit, vehicles were accessing the pumps from both directions, but the area is not particularly spacious and a large area of hardstanding that currently allows direct access to the A47 would become the grassed island. As such the area available for circulation would be diminished. [name] see no issue with vehicles using the car wash to enter and exit through the eastern access point, I have concluded that there does need to be signage to indicate that access at the western end is for the car showroom only and to indicate that there is no entry to the pump area from the western end. I see no reason why this could not be required by condition, and I am satisfied that such a condition (condition 9) would meet the required statutory tests. Its imposition would also be necessary to make the development acceptable in planning terms.

I have omitted a requirement for visibility splays as I see no reason why the development would alter visibility at the retained access points. Moreover, when vehicles are no longer able to park alongside the carriageway beside the diesel pump, the impairment to visibility arising from the current layout will be removed. As such there is no compelling evidence to indicate that such a condition is necessary.

The Council has suggested a condition requiring the scheme to be redesigned. As this decision gives permission for the submitted scheme to be implemented, imposing a condition to require its redesign would be in direct conflict with that permission. Moreover, I have no means of knowing what such a re-designed scheme might be. This suggested condition would fail to meet the legal tests and has therefore been omitted. Moreover, in order to ensure that there is certainty in this regard the condition requiring the Council’s further approval of details on highway land (condition 7), references the relevant drawing.

The development would accord with the local development plan and the National Planning Policy Framework. The appeal is allowed.

The development hereby permitted shall begin not later than three years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following drawings: 2024/328/010 – Block Plan 2024/328/010 [name] – Block Plan 2024/328/001 – Site Layout Plan 2024/328/002 – [name] 2024/328/004 - [name] 2024/328/002 – [name] 2024/328/006 [name] – [name] 2024/328/008 – [name] 2024/328/009 – [name] 2024/328/002 – [name], 2024/328/006 [name] – [name].

Construction Management Plan No development shall take place, including demolition work, until a Construction Management Plan has been submitted and approved in writing by the Local Planning Authority, which will include the following:- a. A scheme for monitoring, reporting and control of construction noise and vibration including hours of working and scope for remedial action b. A scheme for the control of dust and scope for remedial action in the event that dust is identified as an issue or any complaints are received c. Measures to ensure that vehicles can access the site immediately upon arrival to ensure there is no park, waiting, loading/unloading or queuing on the public highway d. Details of site compounds, welfare units, materials and equipment storage areas and contractor parking/turning to ensure all vehicles can enter and leave the site in forward gear e. Details of the site enclosure including temporary fencing or hoarding including any decorative displays or part thereof and gated site security f. Confirmation that any demolition will be carried out in accordance with the ecological assessment g. Details of site notice with contact details and a scheme for dealing with complaints h. Details of any temporary lighting which must not directly light or adversely affect the public highway and/or its users i. Programme of works including the highway works and phasing plans where necessary j. A scheme for recycling/disposing of waste resulting from the demolition and construction works k. Detailed traffic management plans for any continued access to the adjacent businesses on site, i.e. car wash and car sales, during the construction period. The development shall thereafter be carried out in accordance with the approved Construction Management Plan.

Prior to commencement of the development hereby permitted, a scheme for the provision of a safe pedestrian route of a minimum width of 2m along the site frontage within the public highway for the duration of the development’s implementation shall be submitted to and approved in writing by the Local Planning Authority. The development will be carried out in strict accordance with the approved details.

Prior to commencement of the development hereby permitted, details of all surfacing to the access and forecourt areas, together with details of surface water drainage, and permanent lighting, shall be submitted to and approved in writing by the Local Planning Authority. The works shall be carried out in strict accordance with the approved details and maintained as such thereafter.

Prior to commencement of the development hereby permitted, details of proposed signage shall be submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in strict accordance with the approved details and maintained as such thereafter.

The works approved within the public highway, as shown on drawing number 2024/328/006 [name], shall not commence until such time as precise details have been submitted to and approved in writing by the Local Planning Authority. The works shall be carried out in strict accordance with the approved details.

Prior to the breaking out and removal of underground tanks or any other below-ground infrastructure, below or within 5m of the public highway, details of excavation, removal, reinstatement and shoring up shall be submitted to and approved in writing by the Local Planning Authority. The works shall be carried out in strict accordance with the approved details.

Prior to first use of the development hereby permitted, details of proposed signage to restrict access to the pump area from the west shall be submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in strict accordance with the approved details and maintained as such thereafter.