Appeal 6002230

The appeal is allowed and planning permission is granted for development and operation of a [name] and associated infrastructure including access at [site address] , Goring [postcode] in accordance with the terms of the application, Ref P24/S4058/S73, and the plans submitted with it, subject to the conditions in the attached schedule.

An application for costs was made by Biogas Technologies Ltd against South Oxfordshire District Council. This application is the subject of a separate Decision.

The appeal site occupies part of an agricultural field west of [address], adjoining an agricultural building to the north and the Goring wastewater treatment works to the west. The wider field includes a seasonal pick‐your‐own farm. Existing trees define the northern and western boundaries, with the Bristol mainline railway further west. The appeal site also forms part of the Chilterns National Landscape.

The development, now operational, comprises a transitional hybrid energy facility with containerised generators, a battery unit and associated electrical and welfare equipment within a secure fenced compound, accessed from the east. The original scheme allowed on appeal, included planted earth bunds on three sides to provide landscape screening. The application seeks to regularise the development following early implementation to meet National Grid contractual deadlines.

Most of the disputed conditions required approval before development commenced. The absence of their discharge does not determine whether the permission lawfully began. A failure to comply with a pre‐commencement condition may amount to a breach of condition, but it does not invalidate the permission once a material operation has taken place. While some of the conditions are framed using the wording “No development shall take place...”, case law recognises that only certain true pre‐commencement conditions, those that are expressly prohibitive and fundamental to the control of the development, have the potential, in limited circumstances, to prevent works from lawfully constituting commencement.

The conditions in this case, which relate principally to drainage, levels and landscaping, are not of that nature. Their non‐compliance is a matter of enforcement rather than affecting the validity of commencement. Section 73A of the Town and Country Planning Act 1990 (as amended) provides a statutory mechanism for considering applications where development has already begun, including in circumstances where pre‐commencement requirements have not been met.

The three‐year commencement period attached to the original permission, which was granted on appeal, sets the latest point by which development must begin. It is not an expiry date for the permission once commencement has occurred. The evidence indicates that a material operation has taken place and that the works carried out correspond with the description of development in the original permission. In these circumstances, the permission remains extant notwithstanding the passage of the three‐year period.

Whether the proposed variations fall within the scope of section 73 depends on whether they would result in a fundamentally different form of development from that originally approved. The amendments sought relate principally to drainage / landscaping and associated conditions and do not alter the description of development. They therefore fall within the scope of section 73A and can be considered on their planning merits.

The Council does not object to the submissions made in respect of Condition 8 (The requirement for a Construction Transport Management Plan); Condition 10 (Foul water details), Condition 12 (Hard landscaping details) and Condition 14 (External materials details). I have no reason to disagree and my Decision reflects this.

The main issue is whether the proposal, as shown on the amended submissions is acceptable with regard to drainage and landscaping.

The appeal site lies within [name] 1 and is therefore at low risk of flooding. The submitted drainage strategy identifies groundwater and surface‐water flood risk as low to negligible, with all other sources of flooding also assessed as negligible. The proposed approach makes use of shallow infiltration features, supported by raised finished floor levels and the positioning of electrical equipment above surrounding ground levels. Although the development introduces areas of hard surfacing, this is mitigated through an infiltration‐based sustainable drainage system, to accommodate at least the 1‐in‐30‐year storm. A maintenance plan has been provided to ensure the system continues to function as intended. Taken together, the information demonstrates that an appropriate drainage solution is achievable and that the development would not increase flood risk elsewhere.

The Council’s concerns rely on the Local Lead Flood Authority’s (‘LLFA’) comments from January 2025, which raised several technical matters relating to modelling inputs and the range of storm events simulated. These points relate to the detail of the modelling rather than to any in‐principle concern with the proposed infiltration‐based approach.

The appellant explains that further drainage information was submitted in February 2025 and that, following this, the LLFA withdrew its objection. [name] have not been provided with the LLFAs confirmation, the appellant’s position is that the drainage details now before me are those previously submitted at appeal, including the detailed design and calculations in the NPPF: [name], which were not questioned at that time. They also confirm that the specification aligns with the approved scheme and that the extent of hardstanding has been reduced, such that the approved design remains capable of accommodating the revised layout. Nothing before me indicates that the approved drainage solution is no longer appropriate.

I also note that another drainage consultee, ‘Drainage (South & Vale)’ raises no objection to the scheme other than a standard precaution regarding tree planting over the soakaway. This supports the view that the proposed approach is acceptable in principle.

In this context, the outstanding matters identified by the LLFA relate to refinements to the modelling rather than to the underlying suitability of the drainage strategy. The evidence before me demonstrates that the approved infiltration‐based system remains appropriate for the revised layout and that the development can be drained safely without increasing flood risk on or off the site.

The submitted details therefore confirm that an infiltration‐based drainage solution remains appropriate and that the development has been implemented consistently with this approach. Given the value of the infrastructure on site, it is plainly in the appellant’s own interests to ensure adequate protection from flooding. Moreover, as the site lies on lower ground relative to its surroundings and is generally enclosed by landscaped areas, it is unlikely that the development would give rise to any increased risk of flooding elsewhere.

Accordingly, the proposal complies with Policy EP4 of the South Oxfordshire Local Plan 2035 (‘LP’), which requires developments to provide safe and sustainable drainage solutions, and with Policy 15 of the Goring Neighbourhood Plan (‘NP’), which seeks to ensure that new development does not increase flood risk on or off the site. Condition 11 – [name]

In respect of Condition 11, this requires details of existing and proposed ground levels so that the development can be properly understood within its landscape setting. The appellant has provided several iterations of section drawings, which show both the compound levels and the form of the surrounding bunds. These indicate that the compound sits between 47.0m and 47.5m [name] (‘AOD’), which aligns with the original scheme, where levels were shown at around 47.0m AOD.

From my own observations, the compound itself exhibits only minor level changes, although the bunds do show some appreciable variation in height. The key question is whether the information provided allows me to understand the final landform with sufficient clarity. On the evidence before me, the section drawings give a reliable picture of the ground levels. The Council’s request for a contour plan appears procedural rather than arising from any substantive deficiency in understanding the landform. I am therefore satisfied that there is sufficient information to determine levels associated with the development and its surroundings. Condition 13 – [name]

This condition requires the full soft‐landscaping details, including proposed tree and shrub planting, together with a timetable for its implementation. Whilst the [name] has requested an establishment survey and an as‐built survey of planting depths, the appellant advises that this request was made late in the process and required the survey to be undertaken while the trees were in full leaf, which was not possible within the time available.

The Council’s concerns also relate to inconsistencies within the submitted plan, including labelling errors and discrepancies in the plant schedule. However, and notwithstanding that the overall extent of the bunds has been reduced, these appear to be drafting matters rather than evidence of any material shortfall in planting.

My observations indicate healthy establishment of the landscaping, and the Council has not identified any specific planting failures or deficiencies. Therefore, I am satisfied that the soft landscaping details are sufficient to meet the requirements of Condition 13. Condition 17 – [name]

Condition 17 requires details of the long‐term management and maintenance of the landscaping. The proposed planting has been undertaken in accordance with the [name]. While that document focuses on implementation rather than long‐term management, it nonetheless ensures that planting has been carried out to an appropriate standard, including the use of high‐quality nursery stock and compliance with BS8545:2014. This provides a sound foundation for the longer‐term care of the scheme.

A Planting Management and Maintenance Plan has also been submitted, prepared by a qualified arboricultural professional and based on BS3998:2010, a recognised national standard for tree work. Although it does not address every aspect raised by the Council in the level of detail sought, such as the full range of management operations or longer‐term structural interventions, it does set out a structured approach to routine inspection, maintenance and intervention, and provides an appropriate professional framework for the ongoing management of the planting.

The Plan includes measures for the replacement of failed planting, cyclical operations such as coppicing where relevant, and the use of fertiliser where required to support establishment. When read alongside the safeguards already secured through Condition 13, I am satisfied that the submitted information provides a proportionate and workable basis for the long‐term management of the landscape scheme.

In considering the Council’s position, I note its reference to the need for a 20‐year management and maintenance plan. However, Condition 13 is framed in the conventional way, requiring the replacement of any failed planting for a period of five years. In my view, this reflects the general purpose of such a condition, which is to secure the successful early establishment of the landscaping rather than to prescribe detailed management over several decades. The submitted maintenance plan, together with the implementation measures already in place, provide sufficient clarity on the long‐term care of the scheme. Against this background, I am satisfied that the landscape specification is appropriate and acceptable. Condition 2 – [name]

Condition 2 secures compliance with the approved plans. The Council’s concerns relate principally to the soft‐landscaping information, including the form and profile of the bunds that provide landscape mitigation. Based on my findings in respect of Conditions 13 and 17, the remaining matter is whether the constructed bunds represent a material departure from what was approved.

The evidence shows that the bunds have been re‐profiled, with narrower forms and steeper side slopes than originally shown. The original bunds were intended to form a shallow, naturalistic landform; however, the technical submissions indicate that the original broad, flat‐topped design would have required imported material and could have created depressions capable of retaining water, with implications for stability. The revised profiles avoid these issues while maintaining the approved screening height on the southern, eastern and western boundaries. Although the Council suggests that the engineering constraints arise only because the bund form was altered, the calculations provided offer a clear rationale for the amended design. The northern bund has been omitted, but the adjacent agricultural building and landscaping provide effective screening of this boundary.

Concerns have been raised about the altered profiles, including the potential for a more engineered appearance, reduced planting depth, and the creation of drier conditions due to increased shedding of water. The available section drawings indicate that, in part, the screening height is higher than that shown on the approved scheme. From my own observations, the bunds are not readily perceptible from public viewpoints, and even in winter views are likely to be filtered by intervening landscaping such as the roadside hedgerow. The planting appears to be establishing well, and no specific failures have been identified that would indicate that the revised profiles have undermined the effectiveness of the landscaping.

From closer viewpoints, the compound is readily perceived due to its limited extent and broadly square form. Therefore, whether the bunds are constructed with steeper, narrower profiles or with shallower gradients and broader, flatter tops, the resulting landform would still appear, to some degree, an engineered feature rather than a naturally occurring one.

Furthermore, the development sits within a landscape already influenced by substantial infrastructure, including the sewage treatment works, a large agricultural building and the railway embankment. In this context, the revised bunds do not alter the overall relationship of the development to its surroundings, nor do they expand its visual envelope. While the bunds introduce a new landform, their proximity to the railway line and its pronounced banking means they do not appear out of keeping with the wider landscape. Over time, the bunds and associated planting would screen the compound and provide additional filtering of existing built form when viewed from certain directions. Accordingly, the revised profiles would result in no greater landscape harm to the Chilterns National Landscape than the original scheme.

There is no substantive evidence that the revised bunds undermine the mitigation strategy or conflict with the purposes of the National Landscape designation, and I therefore consider the variations acceptable.

Taking all matters into account, I am not persuaded that the re‐profiled bunds give rise to any materially greater landscape or visual impact than the approved scheme. The screening function is retained, the development remains assimilated within its infrastructure‐dominated context, and the planting is establishing well.

I am also satisfied that the revised landscaping scheme, supported by the submitted management and maintenance information, would integrate the development into its surroundings and secure the long‐term establishment of the planting. Taken together, the submitted information is sufficient to meet the requirements of the relevant conditions, which can therefore be discharged.

For the above reasons, while the appeal site lies within the Chilterns National Landscape, there is no substantive evidence that the variations in relation to soft landscaping, land levels or the altered bunds materially diminish natural beauty or undermine the mitigation strategy that formed part of the original scheme. On the basis of the information available, the variations do not give rise to landscape harm of a nature or degree that would justify withholding approval.

As such, the variations reflected in the changes required under Conditions 2, 11, 13 and 17 would not result in harmful encroachment into the countryside or conflict with the purposes of the designation. They therefore accord with Policies ENV1 and DES2 of the LP and Policy 11 of the NP, which together seek to conserve landscape character, protect the rural setting and respect local distinctiveness.

[name] 1 replaces disputed Condition 2 and includes the amended drawings. This is necessary in the interests of certainty.

Based on my findings, disputed Condition 9 is no longer necessary. However, to ensure that the drainage scheme is maintained for the life of the development, I have specified Condition 5.

Because the land levels are acceptable disputed Condition 11 is not necessary.

Given my findings in respect of disputed Condition 13, this is no longer necessary. Nevertheless, a condition requiring that any new planting which fails is replaced (Condition 6) is necessary in the interests of the character and appearance of the area.

The details for the management, maintenance and upkeep of the development and surrounding landscaping, as submitted under disputed Condition 17 are acceptable and this condition is no longer necessary.

Based on my observations, the parking, turning areas and access are in accordance with the approved plans. Therefore, the original conditions requiring these elements (Conditions 15 and 16) are not necessary. Even so, I have specified my Condition 7, requiring that these areas are retained for their intended purposes.

In respect of any other conditions on the original permission, the Planning Practice Guidance makes clear that when granting planning permission under section 73A of the Act they should be repeated on decision notices unless they have already been discharged. In this case Condition 1 of the original permission relates to the time-limit for implementing it. As the development has been started, it is not necessary for me to impose this condition. Nonetheless, my Condition 2, reflects that the original permission was for a limited period of 25 years.

The original Condition 4 requires a site restoration scheme to prevent the long‐term retention of structures that are only justified on a temporary basis and to ensure that the site is restored to an appropriate condition once the temporary permission expires, including the timely removal of all associated buildings, plant and equipment. This is necessary to safeguard the character and appearance of the surrounding designated landscape and is retained as Condition 3.

It appears that the archaeological [name] of Investigation (‘WSI’) was approved under condition discharge application P23/S3407/DIS. As the development has now been completed, I have imposed Condition 4, requiring the full archaeological report for publication to be submitted to the Council within 12 months of this permission. This is necessary to ensure that the results of the investigation are properly analysed, archived and made publicly accessible, as required by the approved WSI and national guidance. Where the required information has already been provided in accordance with any discharged condition this could be agreed between the main parties.

Although the Council has suggested a condition requiring that the development takes place in accordance with the approved tree protection scheme, as the development has been constructed, such a condition is not necessary.

Based on the ‘Background and main issue’ section of my Decision, and because the development has been completed, the following conditions from the original permission are not necessary: Condition 8 (The requirement for a Construction Transport Management Plan); Condition 10 (Foul water details), Condition 12 (Hard landscaping details) and Condition 14 (External materials details).

I have also restated the undisputed external lighting condition which is still capable of taking effect. My reasons for restating this condition are the same as those specified on the original permission.

For the above reasons, I conclude that the appeal should be allowed and planning permission be granted.

The development hereby permitted shall be carried out and retained in accordance with the attached schedule of details and drawings: Location plan - GN001-GOR-010 - Aerial plan - 045 - PL - [postcode] - 002 [name] - Proposed plan - GN001-GOR-051 - Proposed access road – GN001- GOR-062 - Drainage strategy - 101 - Proposed elevation - AA - GN001- GOR-002 [name] - Proposed elevation - BB - GN001-GOR-003 [name] - Proposed elevation - CC - GN001-GOR-004 [name] - Proposed elevation - DD - GN001-GOR-005 [name] - [name] proposals - GN001-GOR- 061 - [name] proposals - GN001-GOR-013 - Landscape and visual impact assessment (ref: YLEM1392lvia) - Landscape specification (ref: ENZ1160spec) and Management and [name] ref: YLEM1535man [name].

The permission is for a limited period until 1 February 2049.

No later than 12 months before the end of this permission, a site restoration scheme shall be submitted to and approved in writing by the Local Planning Authority. The scheme shall include a programme of works to remove the buildings, plant and related equipment. The scheme shall be fully implemented in accordance with the approved details within 12 months of the expiry of this permission.

A full archaeological report, suitable for publication and archive, shall be submitted to the Local Planning Authority within 12 months of the date of this permission.

The approved surface water drainage scheme shall be maintained in accordance with the NPPF: [name], for the life of the development hereby permitted.

Any trees or plants which, within a period of 5 years from the date of planting, die, are removed or become seriously damaged or diseased shall be replaced no later than the next planting season with others of similar size and species.

The approved access, parking and turning areas shall be retained for their intended purpose for the life of the development.

External lighting will only be permitted in accordance with a lighting scheme which has been submitted to and approved in writing by the Local Planning Authority prior to installation. Any such lighting shall be implemented and maintained in accordance with the approved scheme.