Appeal 6002034

The appeal is allowed and planning permission is granted for change of use from Office/Retail (Class E) to 2no new dwellings (Class C3) on the 1st and 2nd floor including self-contained stairwell at [site address] , Devon [postcode] in accordance with the terms of the application, Ref 25/0809/FUL, subject to the conditions in the attached schedule.

The appeal results from the Council’s failure to determine the application within the prescribed period. There is no formal decision on the application, as jurisdiction over that was taken away when the appeal was lodged. However, I note the officer report that the Council prepared for the appeal, which advises that it would have refused the application as it is of the view that insufficient information has been provided to adequately demonstrate that the safety of future occupants can be achieved during a flooding event.

Accordingly, a main issue for the appeal is whether the site is suitable for the proposed development having regard to the risk of flooding.

An additional main issue is whether there would be likely to be a significant effect on the internationally important features of the Exe Estuary Special Protection Area (SPA) and [name].

The proposal is to reinstate the residential use to the first and second floors of the appeal building, in the form of two self-contained flats. The building is located within flood zones 2 and 3 and is therefore subject to a higher risk of flooding.

As the proposal is for a change of use it should not be subject to the sequential test or the exception test, with reference to Paragraph 176 of the National Planning Policy Framework (Framework). It is however necessary to provide a site-specific Flood Risk Assessment (SSFRA), and this has been submitted.

The SSFRA establishes that the appeal building is within the natural drainage catchment of the river Otter, which is over 10 metres lower in elevation and 300 metres to the east. Immediately to the south is the [name] culvert, which has been subject to significant upgrades. The SSFRA sets out details of mitigation measures upstream that were carried out in 2019 and 2020 that has reduced peak flows.

Although the Environment Agency flood map shows that it is within an area with a high risk of flooding, during recent flood events in 2019 and 2026 the site did not flood. Previous tenants of the building who have occupied it for 40 years report that the stairwell has not flooded in that time. Indeed, the most significant flooding event recorded was in 2008 where flood waters reached a height of 0.2 metres at the building, which is below the level of the entrance door to the proposed flats. Accordingly, the SSFRA suggests that the actual risk of flooding at the site is very low.

If a flooding event did occur at the site and on the basis that climate change is likely to exacerbate the frequency and intensity of flooding events, the Council is concerned that the SSFRA does not include a flood warning and evacuation plan to ensure the provision of safe access and escape routes. This is with reference to Paragraph 181 e) of the Framework.

The proposal is for the reinstatement of two residential flats to the first and second floor. They would utilise an existing access onto the road. Planning Practice Guidance1 (PPG) advises that where it is not possible to provide safe access routes that are located above design flood levels, limited depths of flooding may be acceptable. The evidence before me suggests that if flooding did occur it would be at a low level and would not be fast flowing. It would be reasonable to expect most occupants to be able to exit the building and walk a short distance of 10 metres to dry ground, noting that the dry area would be visible from the flats and the entrance door. This distance is much less than the strategy suggested for the [address] Gallery application.

As an alternative, large sash windows at the front of the building would make rescue from a higher level relatively straightforward, and the layout suggests that the first floor utility room window would be accessible to both flats. There is no reason to conclude that a future occupant who requires rescue would need to wait for several hours, as the Council suggests, especially as the building is not isolated and the severity of flooding outside the building is likely to be low. Furthermore, unlike the situation at [name], flood water at the site would be likely to recede quickly due to its direct drainage path into the river Otter. In any case, the flats would be self contained and well above the potential flood level, such that they would provide a safe refuge if egress is not possible. Awaiting rescue would not therefore put future occupants of the proposed dwellings at risk, and the modest size of the flats and relatively low level of risk would not place an unreasonable demand on emergency services. 1 Paragraph: 047 [name]: 7-047-20220825

The PPG2 establishes that an emergency plan will be needed wherever emergency flood response is an important component of making a development safe. For the reasons given I am not satisfied that this would be the case for the

In terms of the other relevant parts of Paragraph 181 of the Framework, the SSFRA refers to raising the height of electrical fittings on the ground floor, and the traditional construction and tiled floor surface means that the area could be brought back into use quickly and without significant refurbishment if it did flood.

The SSFRA refers to the Environment Agency flood warning service, and recommends that all future occupants sign up to ensure they are notified of any predicted flooding events. I accept that there is no way that this can be enforced however the PPG recognises this provision as a method of managing residual risk. In any case, even if an occupier was not aware of the potential for a flooding event, for the reasons given I am satisfied that the actual risk to safety is low. Therefore, whilst recommending the use of the flood warning service will be beneficial, it is not essential to make the development safe.

Based on the straightforward characteristics of the site, the low level of flooding that could occur at the site and the close proximity between the site and land that should not flood, I am satisfied that the provision of an emergency plan is not necessary to make the development acceptable. The reinstatement of the residential use to the upper floors of the building does not create an unsafe environment for future occupants or put others at risk. The proposal thus accords with Local Plan Strategy 6, which seeks to ensure that development proposals do not adversely affect risk of flooding.

The Council refers to Policy EN21 of the East Devon Local Plan 2013 to 2031 (LP). It is however clear that this Policy should not be determinative as it excludes proposals for a change of use where the size of the building is not increased.

The appeal site is close to the Exe Estuary Special Protection Area (SPA) and [name]. The Exe Estuary supports overwintering bird populations and an internationally important assemblage of birds. The Pebblebed Heaths is an important area of lowland heath that supports populations of breeding Nightjar and [name], which are both ground nesting birds.

The Exe Estuary is small and there is limited space for people and birds. Human presence and activity associated with the [name] can lead to physiological impacts, such as increased stress, the redistribution of birds, the reduced intake rate of food as a response to disturbance, and increased energy expenditure as birds react to disturbance. The South-east Devon European Site [name] (the Strategy) advises that such disturbance can be considered similar to habitat loss, and where significant effects cannot be ruled out or avoided, measures to mitigate for any potential impact are required. For the [name] the impacts of recreational pressure include disturbance to ground nesting birds that can negatively impact on breeding productivity, and risk of wildfire. 2 Paragraph: 043 [name]: 7-043-20220825

The proposal would result in the permanent increase of persons residing at [address]. This increase could have a significant effect on the protected habitats and interests of the protected sites because persons residing at [address]. On this basis, either alone or in combination with other plans and projects, the proposal would be likely to have a significant effect on the integrity of the [name] and their relative features.

The Strategy sets out detailed mitigation measures and areas within which mitigation would be required where residential development is clearly linked to recreational use. The East Devon District Council – [name] (Valid from 1st April 2021) clarifies that the appeal site falls in the contribution zone for the [name], where a charge of £196.81 per new dwelling applies. The proposal is for two new dwellings, so a payment of £393.62 is required. The appellant has made a payment of this amount by way of an undertaking pursuant to S. 111 of the Local Government Act 1972 to cover this.

Natural England (NE) as the Statutory Nature Conservation Body was consulted during the appeal. NE is content that the financial contribution ensures that the development would not adversely affect the integrity of the sites and their relevant features, and that the method of payment that has been made is adequate. I am satisfied that this is an appropriate way to make the payment as only a single payment is required rather than a commitment to covenant on an ongoing basis. The undertaking specifies that the money is a mitigation contribution and to be used solely for such purposes.

On this basis the proposal would be unlikely to have a significant effect on the protected sites and would accord with Strategy 47 of the LP, which seeks to provide mitigation measures to offset adverse impacts on [name].

The appeal building stands within the [site address] conservation area (CA). Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special attention to be paid to the desirability of preserving or enhancing the character or appearance of the conservation area. The proposal is for the change of use of the upper floors. The only change referred to in the submissions is to replace the existing single glazing with double glazing, which is specified on the application form. This was amended to secondary glazing before the appeal was lodged. This would safeguard the external appearance of the building and ensure that the change of use would preserve the character and appearance of the CA.

I have had regard to the conditions suggested by the Council. I have considered these against the tests in the Framework and the PPG. I have imposed condition 2 to specify the approved plans and the amendment to secondary glazing, to give certainty.

I have imposed condition 3 to ensure that appropriate facilities are provided for the storage of refuse, recycling and cycles to safeguard the character and appearance of the area, promote sustainable transport options and secure good living conditions for future occupants of the dwellings.

I have imposed condition 4 to ensure the safety of future occupiers of the dwellings.

I note that a condition is suggested by a consultee to cover construction hours, as the site is close to other residents who may be impacted during the construction phase. However, the changes are internal only and limited. I am not therefore satisfied that such a condition is necessary.

For the reasons given above the appeal should be allowed, and planning permission granted.

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: Location Plan (TQRQM25085100002201), drawing nos. AR155_PE_01 and AR155_PL_01 [name], and the email from [name] dated 05.07.25 that specifies secondary glazing to the windows that will serve the dwellings hereby approved rather than the double glazing originally proposed.

The facilities for the storage of refuse, recycling and cycles shown on drawing no. AR155_PL_01 [name] shall be provided prior to the first occupation of the residential accommodation hereby permitted. These shall thereafter be retained for these purposes in perpetuity.

The development hereby permitted shall be carried out in accordance with the measures for the mitigation of flood risk set out in the Flood Risk Assessment Ref: AR155_FRA_02 dated October 2025 prepared by Arnold Ramos Ltd.