Appeal 6002072

The appeal is allowed and planning permission is granted for the construction of a care home facility (C2 use class), with demolition of existing office building, and associated access, landscaping and ancillary works at [site address] , Dudley [postcode] in accordance with the terms of the application, Ref P25/0146, subject to the conditions in the attached schedule.

The description of development on the application form includes the words ‘Full planning application’. I have omitted this from the description in the banner heading above and my formal decision as it is not a description of development.

The appellant has provided a copy of a recent appeal decision1 for a development adjacent to the appeal site that was issued after the Council’s Statement of Case was submitted. Given this, the Council were invited to comment on the decision. I have taken into account the Council’s comments on that recent appeal decision, as well as the further response from the appellant, in reaching my decision.

The effect of the proposed development on: • the character and appearance of the area; and • the living conditions of neighbouring occupiers, with regard to privacy, outlook and loss of light.

The appeal site comprises an existing two storey office building, with plant room on the roof, located within an urban environment. The building is set within a spacious 1 Appeal Ref: APP/C4615/W/25/3368014 plot with a parking area and open, overgrown land to the rear. The building fronts [address] with the rear parking area accessed off [address].

The site is surrounded by residential properties to three sides, including a small row of bungalows adjacent to the site which front [address]. The neighbouring dwellings along [address] and [address] have long rear gardens, and the existing building and land are set a significant distance from the rear elevations of those neighbouring dwellings.

Due to its position and scale, the existing building is largely viewed within the context of [address]. [address] is a busy road with a mixed character, comprising a range of residential, commercial and community buildings.

There are tall buildings along [address], some with flat roofs, as well as smaller, single storey and two storey buildings with pitched roofs. Indeed, the buildings range in scale, age, style and appearance. The existing buildings do not reflect high design quality, and the area lacks a built rhythm or design coherence.

The replacement of the existing vacant building, and the redevelopment of the open, overgrown site, which is previously developed land, would make effective use of under-utilised land and buildings.

The front elevation of the proposed building would have a narrow width, similar to the existing building and it would occupy a comparable building line also. It would be set down slightly below the street level, but the decorative front wall and railings would ensure that this aspect of the proposed development would not be contrived or visually awkward. With its flat roof design, which would be similar to a mansard style roof, the scale of the building would be appropriate along the [address] frontage. The appearance of the front elevation would also add visual interest to the street scene, particularly when compared to the existing building and those others nearby.

The use of red brick to the lower aspects of the building, with contrasting slate effect tile and grey vertical cladding to the upper storey, would add visual interest to the building, as would the decorative brick detailing on the elevations, between windows. These aspects of the scheme demonstrate high quality design, as supported by the National Planning Policy Framework (the Framework).

The proposed building would be taller than the existing bungalows that front [address]. The built form of the proposal would also be greater. However, there would be a reasonable separation distance between the bungalows and the proposal. Furthermore, the building would have a stepped height which would break up the solid appearance and mass of the proposed building. As would the mansard style roof and the use of varied facing materials to the walls.

Large parts of the site occupy a backland location, and the rear aspects of the building would be screened from adjacent roads by existing residential properties and the abundance of mature trees along [address]. As such, although large sections of the proposed building would be taller than the existing buildings, notably the adjacent bungalows, and the new building would have a significantly greater footprint and site coverage, within the context of the mixed and varied surroundings, as well as its design, it would not be visually dominant or intrusive. For similar reasons, I am not persuaded that the proposed building would have an abrupt appearance, and from certain vantage points it would be viewed within the context of other larger buildings nearby.

By virtue of its sizeable footprint, the proposed development would offer little opportunity for meaningful soft landscaping. Particularly on the site frontage. However, in the context of the location of the site within an urban environment, and the existing appearance of the land and office building, the lack of soft landscaping on the site frontages would not be visually harmful.

For the reasons outlined above, I conclude that the proposed development would not be harmful to the character and appearance of the area. Therefore, the proposal would accord with Policies CSP4, ENV2 and ENV3 of the Black Country Core Strategy 2011, and Policies L1, S6 and S8 of the Dudley Borough Development Strategy 2017 (the DS), which together, amongst other things, support housing development on previously developed land which is appropriately designed and protects local distinctiveness and the character and appearance of the area.

Surrounded by bungalows and two storey houses to three sides, the proposed care home, with a sizeable footprint and a part two and three storey height, would have a visual presence from the rear aspects of those properties. Also, with 73 bedrooms, as well as communal areas for future occupiers, a number of the proposed windows would have an outlook towards the rear gardens and elevations of neighbouring properties.

The footprint of the building has been designed to ensure that the proposal would be set off the boundaries of the site. Careful consideration has also been given to the scale of the building at the rear of the site, reducing down to two storey, to reflect a similar scale to the houses that front [address]. Likewise, the internal configuration of the proposed accommodation, including bedrooms and communal spaces, seeks to avoid habitable windows in close proximity to houses, where the separation distances are reduced. Proposed site sections also illustrate that parts of the building would occupy a lower ground level than adjacent houses.

Notwithstanding the above, some first and second floor bedroom windows and the windows of communal areas would have an outlook towards the rear communal garden space of the bungalows that front [address]. There would also be some direct and indirect overlooking from proposed windows towards the rear elevations of the adjacent bungalows.

Separation distances between the habitable windows of the proposed building and the bungalows would broadly meet the Council’s Residential Design Guide Supplementary Planning Document, 2023 (the SPD). However, even though some parts of the building would be located on a lower ground level than the adjacent bungalows, the height of the proposal would be taller than a conventional two-storey dwelling, which the distances in the SPD are based on.

[name] accept that the communal gardens may not be used frequently, and in many instances, there would only be indirect views from the proposed first and second floor windows of the care home, there would be overlooking, nonetheless. Due to the juxtaposition of the building and its overall scale, there would be a harmful loss of privacy to the bungalows.

Additionally, but to a lesser degree, due to separation distances, the scale and juxtaposition of the building would have an overbearing effect on the rear communal garden space of the bungalows. Likewise, for similar reasons, and due to the orientation of the proposed development, there would be some overshadowing of the bungalows.

Existing trees within the rear communal garden space of the bungalows would reduce the level of overlooking and soften the appearance of the building. There would also be some, albeit limited, opportunity for tree planting on the site boundaries to further reduce the level of overlooking and soften the mass of the proposed building from the bungalows. As such, the harm to neighbouring living conditions would be tempered and taking all of the above factors into account, I attach modest weight to the identified harm.

It is the case that the existing office building has a similar relationship with the bungalows. However, a commercial office is not occupied in the same manner as the proposed development would be. In addition, although reference has been made to permitted development rights for the conversion of the office building to residential, under Schedule 2, Part 3, Class MA, of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) no substantiated evidence has been submitted which demonstrates that the conditions and limitations have been complied with. In these circumstances, I attach limited weight to this matter.

Consequently, for the above reasons, I conclude that the proposed development would harm the living conditions of neighbouring occupiers, with regard to privacy, outlook and loss of light. As such, it would not accord with Policies L1 and D2 of the DS. These, together and amongst other things, seek development that is appropriate for the locality that would not unacceptably harm the amenities of neighbouring properties. [name]

The Council accept that the most recently published [name] (HDT) results indicate that at 63% the Council’s delivery of housing falls below 75% of the housing requirement over the previous three years.

The proposed development would deliver new housing and with 73 bedrooms the proposal would contribute to addressing the identified need for specialist care accommodation in the area. Notably, it would provide purpose-built accommodation within a sustainable location, with good links to services and amenities as well as public transport opportunities.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) introduced a statutory framework for BNG. Under the statutory framework for BNG, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the condition that the biodiversity gain objective is met (“the biodiversity gain condition”).

The statutory framework for BNG has been designed as a post-permission matter where a Biodiversity Gain Plan (BGP) must be submitted to discharge the biodiversity gain condition, and so development cannot commence until the BGP is approved.

The development demonstrates that at least 10% BNG can be achieved on site, primarily through habitats and hedgerows. Additional enhancements are also proposed via the erection of bat and bird boxes and gaps for hedgehogs within boundary treatments. The enhancements would be secured by a condition for the prior approval of a [name] and Management Plan (BEMP). Likewise, a condition to secure a [name] and Monitoring Plan (HMMP), would ensure the implementation and management of the habitat for a period of at least 30 years.

The Council request a financial contribution of £5000 towards the cost of monitoring compliance with the BGP and HMMP, to be secured via a Section 106 Obligation (s106). No such s106 has been provided. However, this could be secured during the discharge of the biodiversity gain condition. As such, at this stage there is no clear evidence before me that the lack of a financial contribution towards future monitoring of the BGP and HMMP would render the development unacceptable in planning terms.

There were a number of representations in respect of the proposal, which in addition to the main issues included concerns relating to loss of trees, the effect on wildlife, and local infrastructure, and sewerage. As well as concerns about dust, noise and disturbance from comings and goings, the plant room, and the impact of construction and demolition activities from HGV movements and hours of operation. These factors are not in dispute between the main parties and were largely addressed in the Councils delegated officer report, with the Council concluding that there would be no material harm in these regards. No substantiated evidence has been submitted that leads me to any different view. Given my findings above, the robust information submitted and the suggested conditions by the Council, I have found no justification to dismiss the appeal.

Reference is made to the effect of the proposed development on persons with a disability residing at [address]. In particular, potential parking issues. Therefore, in exercising my function on behalf of a public authority, I have had due regard to the Public Sector Equality Duty contained in the Equality Act 2010 (the Act). Since there is the potential for my decision to affect persons with a protected characteristic, I have had due regard to the three equality principles set out in Section 149 of the Act.

The Council and the relevant highway authority have raised no objections in respect of increased traffic generation and parking demand. I have no reason to form a different view, and I am satisfied that the proposed development would achieve acceptable parking arrangements. As such, there would be no harmful parking implications as a result of the proposal. Accordingly, I am satisfied that I have paid due regard to the impact of the proposed development on those persons with a protected characteristic.

Concerns have also been raised regarding property values. However, the planning system does not exist to protect such matters and thus fall outside the scope of this appeal.

The Council has suggested a comprehensive list of conditions, some of which I have amended for the sake of clarity and precision. In addition to the standard time limit condition, it is necessary to impose a condition that requires the development to be carried out in accordance with the approved plans for certainty.

To ensure that the appearance of the development is satisfactory, a condition is imposed to require samples / details of the external materials, hard surfacing and boundary treatments to be approved. To retain and enhance the appearance of the area and to provide possible screening opportunities for neighbouring properties, the prior approval of a soft landscaping scheme is necessary.

A series of conditions to provide on-site biodiversity net gain, habitat enhancements, and the long-term management and maintenance of biodiversity and habitats are necessary to protect, conserve and enhance wildlife, protected species and provide policy compliant bio-diversity net gain.

Conditions to secure appropriate means for the disposal of foul and surface water drainage, as well as a surface water drainage construction management and maintenance plan, are necessary to provide adequate drainage measures in the interests of flood prevention and to protect the environment.

In order to protect neighbouring living conditions a condition for the prior approval of a method statement to control dust and emissions from demolition and construction works is reasonable and necessary. Likewise, a condition which controls the hours of demolition and construction is appropriate to protect the amenity of the area. Similarly, a condition which ensures that noise and disturbance from fixed plant and or machinery associated with the development does not exceed certain levels is necessary. Also, a condition to ensure noise impacts from traffic is not harmful to future occupiers of the building is reasonable and necessary.

In the interests of tree protection, conditions to ensure that the development is carried out in accordance with the measures set out in the Arboricultural Impact Assessment report, as well as conditions for the prior approval of ground levels within root protection areas, and a ‘no dig’ hard surface construction specification for hard surfacing, are necessary.

To support the delivery of low carbon / renewable energy measures, a condition to secure the prior approval of details for on-site renewable energy production, for at least 10% of the site's needs, is reasonable and necessary. A condition to secure bin store details is also necessary to ensure appropriate and convenient measures are in place for waste disposal and collection.

Conditions 3-10 relate to pre-commencement activities. In each case I am satisfied that the conditions are necessary to make the development acceptable in planning terms and that it would have otherwise been necessary to refuse planning permission. The appellant has provided written agreement to the terms of these

The Council has suggested a condition concerning a review of ecological measures should the development not commence within 12 months. However, I am satisfied that the conditions which would secure the Construction Environmental Management Plan for Biodiversity, the BEMP and the HMMP would robustly protect the ecological features and habitats of the site. As such, that particular condition is not reasonable or necessary.

The proposed development would harm the living conditions of neighbouring occupiers. [name] attach modest weight to that harm, the proposal would nonetheless fail to comply with Policies L1 and D2 of the DS. These policies are consistent with the Framework, which seek a high standard of amenity for existing users. Therefore, the conflict between the proposed development and the policies outlined should be given significant weight and the proposal would conflict with the development plan as a whole.

As the HDT results fall below 75%, the presumption in favour of sustainable development, as set out at Paragraph 11(d) of the Framework applies. In these circumstances, Paragraph 11(d)(ii) of the Framework states that planning permission should be granted unless any adverse effects of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole.

The Framework as a whole seeks to significantly boost the supply of homes generally, and I give the proposal significant weight in this regard. The proposal would also increase the supply of older person’s accommodation, as supported by the Framework.

There would also be general economic and social benefits from construction spending and jobs, and the local expenditure from the new residents. Once completed the proposed development would provide full and parttime jobs. It would also provide purpose-built accommodation to meet the operational needs of a modern care facility.

Furthermore, the proposed development would utilise brownfield land in a sustainable location. It would reuse and redevelop the land which is currently vacant and subject to vandalism. The appeal scheme would also have an appropriate design which would not harm the character and appearance of the area. As such, in accordance with paragraph 125c) of the Framework, these factors carry substantial weight in favour of the appeal.

Taking the policies of the Framework as a whole, the adverse impacts of granting permission would not significantly and demonstrably outweigh the benefits.

The proposed development would be contrary to the development plan, but material considerations outweigh this conflict. Therefore, for the reasons given, the appeal should be 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 drawing numbers: • KINCH-STM-ST-ZZ-DR-A-0001 Rev P19 • KINCH-STM-ST-ZZ-DR-A-0002 Rev P02 • KINCH-STM-ST-GF-DR-A-0200 Rev P04 • KINCH-STM-ST-01-DR-A-0201 Rev P04 • KINCH-STM-ST-02-DR-A-0202 Rev P06 • KINCH-STM-ST-RP-DR-A-0203 Rev P04 • KINCH-STM-EL-DR-A-0400 Rev P05 • KINCH-STM-EL-DR-A-0402 Rev P06, and • KINCH-STM-Z1-EL-DR-A-0300 Rev P02.

No development shall take place, including any works of demolition, until a method statement for the control of dust and emissions arising from the demolition and construction of the development has been submitted to and approved in writing by the local planning authority. All works which form part of the approved method statement shall be implemented throughout the construction and demolition phase of the development.

No development shall take place until the details of the final ground levels within the [name] of any of the trees to be retained on site, have been submitted to and approved in writing by the local planning authority. There shall not be any alteration to the land levels within the [name] of the retained trees except in complete accordance with the agreed details.

No development shall take place until details of an Engineer designed no dig hard surface construction specification for any area of hard surfacing that falls within the [name] of retained trees have been submitted to and approved in writing by the local planning authority. The details shall include the proposed materials for the final wearing surface. The development shall be implemented in accordance with the approved details.

No development shall commence until a detailed drainage design, management and maintenance plan for foul and surface water drainage of the site have been submitted to and approved in writing by the local planning authority. All works shall be completed in accordance with the approved details prior to the occupation of the development. The approved works shall thereafter be retained for the lifetime of the development.

Prior to the commencement of the development hereby permitted a Construction Surface Water Management Plan to demonstrate how flood risk will be managed prior to the completion of the approved detailed drainage design shall be submitted to and approved in writing by the local planning authority. The development shall thereafter be carried out in accordance with the approved details.

No development shall take place, including any works of demolition, until a Construction Environmental Management Plan for Biodiversity (CEMP: Biodiversity) has been submitted to and approved in writing by the local planning authority. The CEMP: Biodiversity shall include the following: a) Risk assessment of potentially damaging construction activities. b) Identification of "biodiversity protection zones". c) Practical measures (both physical measures and sensitive working practices) to avoid or reduce impacts during construction, including, but not restricted to, drainage, dust and pollution control measures and sensitive lighting schemes for the duration of the construction phase, an [name] method statement, general precautionary working measures for faunal species, as suggested in the [name] by [name] to limit potential hazards during construction. d) The location and timing of sensitive works to avoid harm to biodiversity features. e) The times during construction when specialist ecologists need to be present. f) Responsible persons and lines of communication. g) The role and responsibilities on site of an ecological clerk of works or similarly competent person. h) Use of protective fences, exclusion barriers and warning signs. The approved CEMP: Biodiversity shall be adhered to and implemented throughout the construction period strictly in accordance with the approved details.

Prior to the commencement of the development hereby permitted, a [name] and Management Plan (BEMP) shall be submitted to and approved in writing by the local planning authority. The BEMP shall include the following: a) Description and evaluation of features to be managed. b) Ecological trends and constraints on site that might influence management. c) Aims and objectives of management. d) Appropriate management options for achieving aims and objectives. e) Prescriptions for management actions. f) Preparation of a work schedule (including an annual work plan capable of being rolled forward over a five-year period). g) Details of the body or organization responsible for implementation of the plan. h) Ongoing monitoring and remedial measures. i) A range of bird boxes, bat boxes and other general faunal enhancements (such as log piles), including their location and appropriate guidance for installation and management. j) an appropriate sensitive lighting scheme concerned with maintaining dark corridors. k) Details of the legal and funding mechanism(s) by which the long-term implementation of the plan will be secured by the developer with the management body(ies) responsible for its delivery. The BEMP shall also set out (where the results from monitoring show that conservation aims and objectives of the BEMP are not being met) how contingencies and / or remedial action will be identified, agreed and implemented so that the development still delivers the fully functioning biodiversity objectives of the originally approved scheme. The development shall thereafter be carried out in accordance with the approved BEMP and retained for the lifetime of the development.

Prior to the commencement of development hereby permitted, a [name] and Monitoring Plan (HMMP), in accordance with an approved Biodiversity Gain Plan (BGP), shall be submitted to and approved in writing by the local planning authority. The habitat retention, creation and enhancement specified within the HMMP shall then be implemented in full and managed for a period of at least 30 years in accordance with the agreed HMMP from completion of the habitat creation and enhancement works, of which the local planning authority should be notified and evidence provided in writing in order to establish a start date for management and monitoring. Monitoring reports shall be submitted to the local planning authority in accordance with the monitoring intervals set out in the agreed HMMP.

No development above ground level shall take place until a landscaping scheme for the site has been submitted to and approved in writing by the local planning authority. The landscaping scheme must include, where appropriate, planting plans, written specifications, a schedule of plants including species, plant sizes and proposed numbers / densities and a programme of implementation. Plans must also include accurate plotting of all existing landscape features. The approved landscaping scheme shall be carried out not later than the first planting season following the substantial completion of the development or the first occupation of the care home building, whichever is the sooner. Any trees or plants which, within a period of five years, die, are removed, or have become seriously damaged or diseased shall be replaced in the next planting season with ones of similar size and species to the satisfaction of the local planning authority, unless written consent has been obtained from the local planning authority for any variation.

No development above ground level shall commence until details of onsite renewable energy production, which shall provide at least 10% of the site's needs, have been submitted to and approved in writing by the local planning authority. The development shall thereafter be carried out in accordance with the approved details and retained for the lifetime of the development.

No development above ground level shall take place until details / samples of the materials to be used in the construction of the external surfaces of the development hereby permitted have been submitted to and approved in writing by the local planning authority. The development shall be carried out in accordance with the approved details / samples.

No development above ground level shall take place until details / samples of the hard surfacing for the development hereby permitted have been submitted to and approved in writing by the local planning authority. The development shall be carried out in accordance with the approved details / samples.

No development above ground level shall take place until details / samples of the boundary treatments within and around the site, for the development hereby permitted, have been submitted to and approved in writing by the local planning authority. The development shall be carried out in accordance with the approved details / samples.

No development above ground level shall take place until a scheme for protecting future residents of the development hereby permitted from road traffic noise has been submitted to and approved in writing by the local planning authority. All works which form part of the approved scheme shall be completed before occupation of the development unless otherwise agreed in writing by the local planning authority. Thereafter, the protection measures set out in the approved scheme shall be maintained for the lifetime of the development.

The rating level of sound emitted from any fixed plant and / or machinery associated with the development shall not exceed background sound levels by more than 5dB(A) between the hours of 0700-2300 at any sound sensitive premises and shall not exceed the background sound level between 2300-0700 at any sound sensitive premises. All measurements shall be made in accordance with the methodology of BS4142: 2014+A1:2019 (Methods for rating and assessing industrial and commercial sound) and / or its subsequent amendments. Where access to the nearest sound sensitive property is not possible, measurements shall be undertaken at an appropriate location and corrected to establish the noise levels at the nearest sound sensitive property. Any deviations from the LA90 time interval stipulated above shall be agreed in writing with the local planning authority.

The development shall not be first occupied until details of bin stores have been submitted to and approved in writing by the local planning authority. The bin stores shall thereafter be provided in accordance with the approved details prior to the first occupation of the development and shall be retained for the life of the development.

Demolition and construction works shall take place only between the hours of 0800 hours and 1800 hours Mondays to Fridays and 0800 hours to 1700 hours on Saturdays and not at any time on Sundays or Public Holidays.

The development hereby permitted shall be carried out in accordance with the tree protection and special construction measures identified in the Arboricultural Impact Assessment report Ref: R3-774-02-AR-01 Dated 15/05/2025, with all identified measures implemented under Arboricultural supervision and in accordance with BS5837:2012 Trees in relation to design, demolition and construction. – Recommendations. ***END***