Appeal 6002246

The appeal is allowed and planning permission is granted for tarmac on access area at front of store at [site address] in accordance with the terms of the application, Ref 25/0441/FUL, and the plans submitted with it, subject to the following condition:

The tarmac hardstanding hereby permitted shall be removed and all equipment and materials resulting from the demolition shall be removed within 28 days of the date of failure to meet any one of the requirements set out in i) to iv) below: i) Within 3 months of the date of this decision a scheme for the provision of additional bollards shall have been submitted for the written approval of the local planning authority and the scheme shall include a timetable for its implementation. ii) If within 11 months of the date of this decision the local planning authority refuse to approve the scheme or fail to give a decision within the prescribed period, an appeal shall have been made to, and accepted as validly made by, the Secretary of State. iii) If an appeal is made in pursuance of ii) above, that appeal shall have been finally determined and the submitted scheme shall have been approved by the Secretary of State. iv) The approved scheme shall have been carried out and completed in accordance with the approved timetable. Upon implementation of the approved scheme specified in this condition, that scheme shall thereafter be maintained and retained. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

I saw that the development had already been carried out. I have therefore considered the appeal on a retrospective basis, having regard to the provided plans and the works carried out.

The description of the development within my decision has been taken from the planning application form, however in the interests of clarity, I have removed words which are not acts of development.

The main issues are the effect of the development upon: - highway safety, and; - the character and appearance of the area.

[site address] is a convenience store located within a range of buildings with a demarcated parking area to the front. To the side and rear of the range of buildings is a large area of green open space which includes outdoor play facilities. The parking area is not formally accessible directly from [site address] , from which it is predominantly physically separated by a grass verge and footway, other than in the area of dropped kerb serving an informal pedestrian crossing point.

The appeal site itself is currently an area of hardstanding and forms an extension to the south-eastern end of the original car park. I understand that it formerly comprised an area of footway and open grass. The south-western boundary of this area, was, at the time of my visit demarcated by plastic barriers which the evidence indicates have been installed by the Council following the development. Several permanent metal bollards mark the boundary of the original car park area and the extension, however due to a large gap, these are insufficient to prevent vehicles parking within this area, as I saw at the time of my visit.

The hardstanding area is currently a point of interface between vehicles using the car park and pedestrians approaching the store from the pavement adjoining [site address] . As vehicles can manoeuvre within this area as it is being crossed by pedestrians, it is a point of conflict which is prejudicial to highway safety, particularly as the appellant has stated that it is not intended for use by vehicles.

Clearly, given that it was evidently being used by a vehicle at the time of my visit, the situation is not operating as envisaged. The appellant has suggested that additional bollards at the end of the existing car park could be installed and could be secured by means of a planning condition. This would prevent access to the area by vehicles from the car park, and such a condition would meet the relevant tests, regardless of the Council’s concern in relation to the appellant’s previous level of engagement.

Such measures would not, however, prevent vehicles accessing the area from, most obviously, the nearby dropped kerb at the pedestrian crossing. Concerns in relation to this are said to have resulted in the Council installing the plastic barriers around the hardstanding that remained in place at the time of my visit. However, it was also evident that metal railings have been installed on either side of the dropped kerb and a single bollard situated in the centre of the crossing point.

These measures, even if the plastic barriers were to be removed, would serve as a significant and effective barrier to drivers seeking to access the hardstanding for parking purposes by means of the dropped kerb. To access the area, vehicles would have to mount the full height kerb further to the south-east and drive some distance along the pavement and across grass. [name] cannot rule out this happening, it would require both significant determination and recklessness on the part of the driver. I consider, therefore, that it would be unlikely to occur.

Overall therefore, subject to the installation of additional bollards, the development would not be harmful to highway safety. It is in accordance with [name] (‘MCS’) Policy DC1(d) which states that all development proposals should ensure that there is no impact on highway safety.

The appeal site is situated in an area which includes grassed areas of various sizes, along with pavements and areas of hardstanding. Most notable is the large expanse of green open space to the side and rear of the range of buildings.

As the development has already been carried out, I cannot be certain as to the contribution that the previous area of grass made to the character and appearance of the area. However, the area of tarmac that now occupies the appeal site, while in a prominent location, does not appear incongruous as it integrates with other areas of hardstanding and paved footways in and around the range of buildings which form a modest parade. The setting is unmistakably urban, where larger areas of hard surfacing may be expected, but in any event, the remaining grassed areas of varying sizes mean that a varied streetscene is maintained with a reasonable degree of verdancy.

I therefore find that the development is not harmful to the character and appearance of the area. It therefore accords with [name] CS5 and DC1, which together and among other factors, state that development should demonstrate a high quality of design in terms of contribution to the character and appearance of the area and is well integrated to the immediate and wider context.

The Council has referred to policies within the emerging Middlesbrough Publication Local Plan 2022 – 2041. I understand that this plan has been submitted for examination and has not, therefore, yet been adopted. I have been provided with very little information in relation to this and am unaware as to the extent of unresolved objections, if any, to any of the emerging policies. Based on the evidence which has been put to me, I can therefore only give limited weight to the emerging local plan at this stage.

The Council has made limited reference to concerns in relation to the non-porous nature of the hardstanding and the removal of previous cycle parking facilities. However, no substantive evidence of harm or conflict with development plan policies in these respects is before me. These matters have not, therefore, been pivotal to my decision.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) requires developments to deliver at least a 10% biodiversity net gain (‘BNG’). However, Section 4 of the [name] (Exemptions) Regulations 2024 makes provision for specific categories of development to be exempt from the BNG requirement. This includes when development does not impact an onsite priority habitat, where the development would impact less than [address] metres (sqm) of onsite habitat with a biodiversity value greater than zero, and on less than 5 metres of onsite linear habitat. This is referred to as the de minimis exemption.

It is not a matter of dispute between the parties that the site does not exceed [address] metres in area, and there is no evidence before me which would demonstrate that the appeal site has contained priority habitat at any time. I therefore find that the development benefits from the de minimis exemption and there is no requirement to provide net gain.

In those situations where the development has occurred, it is not feasible to impose a condition precedent or to require that outstanding details be agreed prior to the commencement. Where a condition is imposed which requires further details to be submitted in relation to a development which already exists, it is essential that the condition incorporates an enforcement mechanism in order to ensure compliance if the required details are not submitted or approved.

In this case, the retrospective condition requires the removal of the development permitted should the required details not be agreed and implemented in accordance with the prescribed timetable. This also applies if details are submitted on time but not approved and an appeal against the Council’s refusal to approve the details submitted pursuant to the condition is not made on time or an appeal is dismissed, or the scheme is submitted and approved but not implemented within the prescribed timescale.

In my reasoning above, I identified that the installation of bollards demarcating the appeal site from the adjoining car park would be necessary in the interests of highway safety. I am satisfied that such a condition would be reasonable and enforceable and would meet the relevant tests for conditions in all other aspects. I have therefore attached a condition to this effect.

For the reasons given above, the proposal would be in accordance with the development plan as a whole. There are no material considerations, including the Framework, that indicate that a decision should be taken other than in accordance with it. Therefore, I conclude that the appeal should succeed.