Appeal 6001872

The appeal is dismissed and planning permission is refused for the change of use from A3 to residential conversion of a take-away/retail/cafe outlet to a 1 bed residential flat.

An application for costs was made by [name] against Bristol City Council. That application is the subject of a separate Decision.

The appeal is against the failure of the Council to determine the planning application. The Council initially set out that it would resist the development on the grounds of flood risk and details in respect of waste management. However, within its statement of case, the Council clarifies that it would not have refused the application on waste management grounds as this matter could have been dealt with by condition if the proposal were considered otherwise acceptable.

Therefore, from the information that is before me, the main issue is whether the location of the development is acceptable, having regard to the matter of flood risk.

The appellants submitted Flood Risk Assessment (which is dated September

sets out that the site lies within [name] 3A, which the Planning Practice Guidance (the PPG) states is a zone with a high probability of flooding. The proposal relates to a change of use, and thereby is not required to pass the [name], nor the [name]. The Framework does however state that when determining planning applications, development should only be allowed where, amongst other things, any residual risk can be safely managed, and safe access and escape routes can be included where appropriate. Policies BCS13, BCS15 and BCS16 of the Bristol Development Framework – [name] and Policy BCAP5 of the Bristol Local Plan – Bristol Central Area Plan, seek to ensure that development minimises the risks of, and vulnerability to, flooding, and remains safe.

The application proposes the change of use of a commercial premises to a residential property, thereby a change from a less vulnerable to more vulnerable form of development as set out in Annex 3 of the National Planning Policy Framework (the Framework).

The finished floor level within the development would be 10.00 metres (m) above ordnance datum (AOD). During a flood event, the flood level could reach 10.23m AOD, meaning that the entirety of the unit of accommodation would be flooded to a depth of 0.23m. All of the accommodation, including sleeping accommodation, would be on a single level and as a result there is no place of refuge that would be free from flooding for occupiers to retreat to during any flood event. Furthermore, the surrounding land would also flood and as such there would be no escape route for occupiers through non-flooded routes. As a result of this, the development would not remain safe, and occupiers would have no safe route of escape, during a flood event. Thus, the location of the development is not acceptable, as it presents an unacceptable risk to the safety of occupiers, and would be contrary to both the local policies I refer to above and the Framework.

I note that the proposal has previously gained planning permission, but that permission has now expired without being implemented. While this is noted, I do not have the full details of that permission before me, and I cannot be certain that the considerations in regard to flood risk are comparable. As such, this does not alter my findings above.

There is mention by the Environment Agency that it may be possible that the site would be protected from flooding from 2040 by the successful delivery of the [name]. However, I do not have the details of that scheme and am uncertain in regard to its delivery. Furthermore, that date would lie outside of the normal three-year commencement period for planning permission. Therefore, this matter has little bearing on my decision.

I am aware of comments referring to a purported updated response from the Environment Agency which appears to withdraw its objection to the development. However, that response is dated January 2021 and therefore appears to be in regard to the previously considered application on the site, not this current scheme. As such, this does not alter my findings above.

The benefits of the scheme in terms of providing an additional unit of housing within a central location, and that there are already residential properties at the site, do not outweigh the harm that I have identified above. There is reference to mitigation being put in place, however, there are no details before me of mitigation that would be satisfactory.

The Council is currently unable to demonstrate a five-year supply of deliverable housing sites. However, I have found conflict above with the Framework in respect of flood risk and as such the presumption in favour of sustainable development as envisaged by paragraph 11 of the Framework does not apply.

The proposal conflicts with the development plan and there are no material considerations that indicate that the appeal should be decided other than in accordance with it.

For the reasons given above the appeal should be dismissed.