Appeal 6001970

The appeal is dismissed.

The description of development in the banner heading above is taken from the application form and the appeal form. It differs from the Council’s decision notice but is sufficient to describe the development proposed.

From the evidence submitted, and from my site visit, the development has commenced. I have dealt with the appeal on a retrospective basis but this has no bearing on my decision.

The main issues are: • whether the proposed development would provide a suitable location for housing, having regard to the development strategy for the area; and • the effect of the development on the living conditions of existing and future occupants, and the effect on the wider environment, from contamination.

The appeal site previously comprised a farmhouse and several outbuildings. There are other houses and farms in the immediate area. However, for planning purposes, the site is within the countryside as it is outside of any of the settlements identified in the Staffordshire Moorlands Local Plan, 2020 (the LP).

Policy SS10 of the LP seeks to resist new housing outside of development boundaries and in the countryside except in certain circumstances. These include allowing the replacement of an existing rural building. Policy H1 of the LP reflects SS10 in only permitting certain forms of housing in the countryside, including redevelopment of previously developed land. Both main parties agree that the previous buildings on site were not of high environmental value and, from the evidence before me, I have no reason to disagree.

The National Planning Policy Framework (the Framework) defines [name] as “land which has been lawfully developed and is or was occupied by a permanent structure and any fixed surface infrastructure associated with it, including the curtilage of the developed land”.

The appellant contends that the outbuildings that were previously on site were used for an industrial engineering business and that the site was, therefore, previously developed land. A Statutory Declaration was submitted with the planning application and has been provided with the evidence for the appeal.

[name] give weight to the [name] there is limited other evidence to support the information provided within it. There is no Lawful Development Certificate to ascertain whether the use of the buildings was lawful and the buildings have since been demolished. Although the appellant refers to Business Rates records these have not been supplied with the appeal. Furthermore, even though I accept that the Council Planning Officer agreed that the site was [name], I cannot be certain, even taking account of the information provided in the [name], that all of the buildings on site were used for the industrial use for the whole period claimed in the document. There is, therefore, some ambiguity over the previous use of the buildings and whether the site would comply with the definition of [name] in the. For these reasons, the proposed development would not comply with the exception set out at criterion 5.e of Policy H1 of the LP.

Moreover, from the evidence submitted the buildings, prior to demolition, were not in active use for industrial uses. Except for the large workshop building they were identified in the sales particulars for the property as agricultural or domestic outbuildings. From the photographs within the sales particulars the buildings appeared as agricultural buildings. The industrial use had not occurred on site for at least ten years and, although there had not been any other use, there is no evidence that the owner intended to use the buildings for industrial uses. Therefore, having regard to the relevant caselaw1, I cannot be certain that the industrial use was not abandoned.

Although whether a use was abandoned or not is not directly referred to in the definition of [name] in the Framework it is a material consideration as to whether the buildings were lawful as industrial buildings at the time of the application to redevelop the site.

For these reasons, the appeal before me is materially different to the development known as [address] as it would not constitute redevelopment of [name]. The appeal proposal would, therefore, be new housing in the countryside and would not provide a suitable location for housing, having regard to the development strategy for the area, contrary to the requirements of Policies H1 and SS10 of the LP. Contamination 1 Hartley v MHLG [1970] 1QB 413, Trustees of [name] v [name] [1985] JPL & Hughes v SSETR [2000] [name] 506

The Council’s reason for refusal relates to potential for ground contamination. The Officer report confirms that the site is at risk of contamination and the Council Environmental Health Officer recommended conditions. Contrary to the Council’s Statement of Case on the appeal the recommended conditions did not include a requirement for an initial ground investigation and risk assessment prior to the commencement of development. The conditions recommended related to procedures in the event of unexpected contamination being found during the construction works and the need for the soils to be used in the garden areas to be tested, prior to the houses being brought into use.

The submitted [name] confirms that asbestos cement sheets have been removed from the site and indicates that this material has been appropriately removed. I also have a copy of a Risk Assessment - Site & [name] which provides procedures for dealing with the asbestos, general demolition waste, and any unexpected contamination.

[name] acknowledge the Council’s concerns regarding the potential for ground pollution and the risk from ground contamination the submitted documents provide procedures for dealing with unexpected contaminants, as recommended by the Council Environmental Health Officer. Moreover, as noted above the contamination conditions recommended by the Council were not pre-commencement conditions and would still be capable of being imposed even though the development has started. I have no compelling evidence that the risk of ground contamination is such that an initial ground investigation and risk assessment would be required prior to the commencement of development.

For the above reasons, I find that there is sufficient information to understand the pre-commencement risk of contamination. Subject to the recommended conditions the potential effect of the development on the living conditions of existing and future occupants, and the effect on the wider environment, from contamination would be capable of being secured. In this regard, and notwithstanding the conclusion reached on the other main issue, the proposal would comply with Policy SD4 of the LP which seeks to protect people and the environment from unsafe, unhealthy, and polluted environments by ensuring that proposals avoid potential adverse effects.

For the same reasons, the proposal would comply with the guidance in the Framework ensuring that a site is suitable for its proposed use taking account of ground conditions and any risk arising from contamination, placing the responsibility of securing a safe development on the developer, and ensuring that development takes into account the likely effects of pollution on health, living conditions and the natural environment.

Both parties agree that the Council is unable to demonstrate a five year housing land supply with the supply quoted in the officer report as 2.95 years, which is a substantial shortfall. Paragraph 11d) of the Framework therefore applies.

Policies SS10 and H1 of the LP are the most relevant in considering the proposal. As far as the policies seek to limit development in the countryside to that which protects its character, they are broadly consistent with the Framework which seeks to ensure that development contributes to and enhances the natural and local environment, by recognising the intrinsic character and beauty of the countryside. Neither policy seeks to prevent all development outside of settlements and both would allow certain forms of development, including redevelopment of previously developed land. Moreover, the adopted policies are broadly consistent with the Framework as a whole in seeking to ensure sustainable development in rural areas by locating housing where it would enhance or maintain the vitality of rural communities.

For the reasons given above, the development would conflict with the development plan as a whole. I have given the conflict with the local policies significant weight in this appeal.

The proposal would accord with the aims of the Framework in boosting the supply of housing. Moreover, the proposal would also provide economic benefits both during and post construction, environmental and ecological benefits, and there would not be unacceptable adverse effects on highway safety or the living conditions of either the existing or future occupants.

However, as a development of three new dwellings these benefits are limited when weighing the merits of the scheme. I therefore afford significant weight to the limited benefit the development would make to addressing the housing shortfall.

On the other side of the balance, the proposal would result in environmental harm as it is not in a location that is accessible to services and facilities without reliance on the private car. There are very limited opportunities for sustainable transport options. This harm is significant and afforded significant weight.

That there are no refusal reasons relating to highway safety, ecology, flood risk, or drainage are neutral factors and would not be significant enough to alter or outweigh my conclusions on the main issues.

The harms when taken together would, therefore, significantly, and demonstrably outweigh the benefits that would arise from the development. As a result, the presumption in favour does not apply.

For the reasons given above the appeal should be dismissed.