Appeal 6002248

The appeal is dismissed.

As the appeal relates to the setting of a listed building within a conservation area, I have had special regard to sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act). I have also had regard to the appeal site being located inside the [name] of the Derwent Valley Mills World Heritage Site (the DVMWHS).

Amended plans1 were submitted with the appeal along with a Noise Assessment (the NA) dated 25 November 2025. This evidence was not considered by the Council in determining the application and despite my request to both parties for clarification the Council have not provided comments on its significance. I return to the NA below, but the amended plans show additional annotations and fenestration alterations which seek to address objections relating to the living conditions of neighbouring occupiers.

It has been suggested by the appellant these amendments are not material and could be secured by condition as minor design amendments if the appeal were to be allowed. It is correct this is possible and the changes do appear to be minor. The development is not so changed that to consider the plans would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation. There would be no prejudice to any party from my consideration of the amended plans in determining the appeal and I have therefore taken them into account.

On my reading of the evidence submitted the issue of protected species was capable of being a significant material consideration for my determination of the 1 520-12A ‘proposed elevs’ and 520-13 ‘proposed elevs’. appeal. I therefore gave the parties a further opportunity to clarify their views on its significance and have taken their comments into account in my decision.

It has been brought to my attention since my site visit that the Amber Valley Borough Local Plan 2022 – 2040 (the LP) was adopted on 2 March 2026 and therefore the policies referred to in the Decision Notice have now been superseded. I have been provided with the relevant policies of the LP and both parties have referred to them in their evidence. I am required to determine this appeal on the basis of the development plan and national policy which are in place at the time of my decision and accordingly I have determined the appeal on that basis.

The main issues in this appeal are: • The effect of the proposal on the setting of [address], a Grade II Listed Building. • Whether the proposal would preserve or enhance the character or appearance of the Duffield Bank Conservation Area (the CA). • Whether the proposal would safeguard the Outstanding Universal Value of the DVMWHS. • Protected species. • The effect of the proposal on the living conditions of neighbouring occupiers, with particular regard to outlook, light and privacy. • Flooding and flood risk. • If conflict with the development plan, when taken as a whole is identified, whether such conflict is outweighed by other material considerations.

The site is a modest broadly ‘L’ shaped parcel of land bounded by the [name] to the north and [address] to the west. The site has been used since 1979 as part of the long-established car sales and repair company which operates other sites in the wider area. The Viceroy Restaurant and the [name], which would have historically formed part of the grounds of [address] are sited immediately to the rear. The original grounds have clearly been reduced, not only by the current use on the application site, but also by the sub-division to create those properties.

Vehicular access to the site is from [address]. The site is primarily open at the front with some mature landscaping and contains a large area hardstanding for vehicle parking and storage. The principal building, which may once have been the stables/service buildings of [address], remains at the rear of the site. It is a substantial building with its double gable roof running roughly parallel to [address]. The building dates to around the same time as [address] (early 18th century), or possibly earlier. Across the river and on the corner of [address] and the [address] bridge lies [address] a 2 storey dwelling with its rear garden directly onto the river.

Section 66(1) of the Act requires decision makers to have special regard to the desirability of preserving a listed building or its setting or any features of special architectural or historic interest. This is the case when considering whether to grant planning permission for development which affects a listed building or its setting.

The National Planning Policy Framework (the Framework) advises that significance can be harmed or lost through the alteration or destruction of those assets or from development within their setting. The setting of a heritage asset is defined as the surroundings in which that heritage asset is experienced. The Framework does not protect the view of an old building for its own sake or because the view can be seen from part of the building’s visual setting. What really matters is the extent to which that view contributes to the asset’s significance.

[address] is currently in residential use, subdivided into two units. The principal dwelling is the three-storey element to the south. The secondary dwelling, a holiday let, is two storeys and it abuts the application site. The appeal site was previously associated with [address] and the older buildings may well have been ancillary stables, with perhaps staff/servant accommodation above. I also observed that significant alterations have taken place to these buildings which have obscured much of its previous use/function to the extent where only minor sections of the first floor and roof point to an older use that could once have been associated with [address]. Ultimately, this is not fully evidenced or confirmed by either party and I am unable to be conclusive.

Designed by the eminent [name] of Warwick the core layout of [address] is representative of the standard design of a 17th century country house but incorporates stylistic updates in line with changing tastes combining domestic functionality with impressive external grandeur. The significance lies with its renowned architect and those that occupied it and the architectural, aesthetic, and historic value derived from the traditional forms and materials used and as a repository of past building traditions and technologies. It also has historic cultural significance relating to the evolution of settlement built form and local vernacular craftsmanship which positively contributes to an understanding of how residential buildings have evolved over time in Duffield and are linked to and represent its changing industrial, commercial and agricultural fortunes.

There is evidence of buildings once being sited along the edge of the river, but details are limited and these are likely to have been subservient ancillary buildings to the house. Despite an erosion of significance from the commercial uses behind, the setting is subject to change and the appeal site’s relatively open and spacious character and appearance forms an important part of the setting of the designated heritage asset giving it primacy. I observed it allows for an understanding and appreciation of its significance from within its immediate surroundings both public and private, in particular from the Bridge and [address] and even with the presence of trees and landscaping.

The scheme has sought to reflect [address] in terms of its use of materials and detailing, parapet features and to degree, its form. However, the proposal would not adequately reflect the historically subservient relationship of vernacular outbuildings and would be perceived as a much tighter and larger group of buildings and of such significant size, mass and scale that in such proximity would erode this space and visually compete with [address].

Even with the proposed coursed gritstone to the street facing elevation the eye would be unacceptably drawn to a jarring clash between the proposed chimney, red brick, grey rainwater goods and windows and the appearance and architectural interest of [address]. The ability to experience and understand the buildings significance would be further eroded by the introduction of such overly large and intrusive residential development within its immediate setting.

For these reasons, whilst I agree that in principle a form of residential development could be acceptable on this appeal site, this particular proposal would be not sufficiently considered in its design and the way it deals with the changes necessary for effective re-use of this site in the immediate setting of this particular listed building. I share the view of the Council’s specialist adviser that it is the wrong approach for this sensitive site. It would be a discordant form of development that would cause harm to the significance of [address], in terms of its setting.

The Council have included three other listed building entries2 within their questionnaire but the officer report does not refer to any effects on these buildings, from development within their setting. Having visited the site I consider the proposal would not cause harm to the significance of those buildings, given their location and relationship with the appeal site.

For the purposes of this appeal the significance of the CA largely derives from the historic and architectural interest of the buildings, many of which retain their original form and materials. In addition, their relationship to the spaces within the settlement and the wider landscape and the contribution to an understanding of the evolution of industrial, commercial and domestic architecture and evolution of the built environment.

I observed a number of modern infill and other buildings along with various alterations and extensions utilising modern composite materials such as uPVC windows and cladding. There is also significant variety in the layout, form and appearance of this part of the CA and the proposal would replace a long established commercial use. Industrial and commercial uses are however interwoven into the settlements and perhaps other than in some visual respects from parked vehicles and commercial signage, the current use is not overly harmful in character or appearance terms and no records of complaints about its use or operation are before me.

The appeal site is only a small part of the CA. Nonetheless, because the proposal would harm the special architectural and historic interest of the listed building, from development within its setting and which is a positive contributor to the character 2 43 and 45, and 8 and [address] and 1 and [address] – Grade II Listed Buildings. and appearance of the CA, the proposal would also fail to preserve or enhance the character or appearance of the CA.

A buffer zone (the zone) does not form part of the DVMWHS property but is there to assist in its protection, conservation and management. Although the zone is not itself a heritage asset, its role is to protect the setting of the WHS albeit the features and values of a buffer zone are not included in the assessment of Outstanding Universal Value (OUV) but may be relevant to the assessment of whether a nominated property meets requirements for integrity, authenticity, protection and management. Paragraph 220 of the Framework establishes that not all elements of a world heritage site will necessarily contribute to significance. It is therefore important to consider the appeal site in the context of the DVWHS and whether it currently contributes to its OUV.

The Statement of OUV for the DVMWHS sets out that the Derwent Valley contains a series of 18th and 19th century cotton mills, in what remains an industrial landscape of high historical and technological significance, surrounded by a distinctive rural landscape. The appeal site is located inside the buffer of the DVMWHS and the Outstanding Universal Value is, in part, derived from the presence of industrial developments, typically from the late 18th and early 19th centuries.

The significance of the DVMWHS largely derives from the contribution the buildings and spaces make to the historic and architectural understanding of industrial development over time and their relationship to the surrounding built form and landscape including the juxtaposition of innovative industrial 19th century built form, and its associated provision for housing and recreation, with its spatial, social and functional relationship with the surrounding rural landscape. It is a ‘relict’ landscape with a clearly appreciable connection and importance of the relationship between the vestiges of that former industry and its landscape setting.

The DVMWHS Management Plan (management plan) outlines that the relict landscape is a significant attribute that spills out of the DVMWHS and into the buffer zone, forming the ‘green cradle’ within which the factory system was established. It also states that the buffer zone includes attributes which are functionally linked to the WHS, notably the relict landscape. It is important that this relict landscape is protected from and not undermined by, spreading urbanisation.

Development guidance also requires ‘New development should not dilute the authenticity of the DVMWHS’. The management plan that ‘New development that is ‘dressed- up as, or unnecessarily copies, historic development weakens the authenticity of the WHS and its [name]. Instead, new development should complement its context and be of its time’. This site is within a settlement and views of the DVMWHS from the appeal site and its surroundings are not possible. The proposal would fundamentally change the character and appearance of the site with a design I have found to be unsuitable but its positive contribution to the setting of the DVMWHS within this historic settlement is balanced against the existing car repair workshop uses and buildings and residential use which are historical forms of use in the zone.

The Planning Practice Guidance (PPG) endorses the principle of protecting a WHS from the effect of changes which are relatively minor but which, on a cumulative basis, could have a significant effect. The site is a very small element of the setting of the extensively drawn asset. However, the stock of vernacular buildings within the zone provide a context that make a positive contribution to the asset’s heritage significance, which should be preserved from cumulative harm in accordance with the national advice. That would not be the case here and the proposal would not preserve or enhance the setting of the DVMWHS.

Given the construction and requirements of the LP policies relating to proposals affecting heritage assets and the need to conform to national planning policy, amongst other things, I return to the development plan below.

Derbyshire Wildlife Trust (DWT) commented during the application process that the [name] which accompanied the application is a number of years old and the assessment of the existing buildings as having varying levels of potential use by roosting bats is unlikely to have changed. In line with recommendations in the Preliminary Roost Assessment and current guidance, a recommendation that nocturnal bat surveys should be completed on the buildings prior to determination was given. Should bats be found to be roosting within any of the structures further surveys may be required to classify the status of the roost.

The appellant’s final comments confirms this approach, states that this is not a reason for refusal and that nocturnal surveys could not be carried out due to the time of year and would therefore be invalid. Circular 06/2005 (the circular) advises that it is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. It goes onto state that surveys should be carried out before planning permission is granted and this is reflected in DWT’s response.

There is not a line in the sand relating to time periods for surveys and whether they become outdated, but relevant guidance3 advises that the lifespan of such surveys of more than three years such a report is ‘unlikely to be valid and most, if not all of the surveys are likely to need to be updated, subject to further assessment’. Despite a somewhat unhelpful approach by the Council to addressing this matter and it is correct that the decision notice failed to identify this, as the decision maker it is an important consideration and why I sought clarification on its significance from the parties.

It is suggested that surveys could be conditioned but the circular also advises that this should only be in exceptional circumstances, nothing exceptional is advanced to enable me to conclude this would be an acceptable approach. Paragraph 3.1.2 of the Procedural Guide: Planning Appeals – England states that ‘The person making the appeal (‘the appellant’) should be confident at the time they make their appeal that they are able to make their full case’. That is not the case in relation to this issue and I am not satisfied as the decision maker that protected species would not be adversely affected. In the absence of the appropriate and up to date information the proposal would conflict with Policy EN8 of the LP insofar as it requires protection and management of species and minimisation of impacts on 3 [name] ‘The Lifespan of [name] 2019. biodiversity. The proposal would also conflict with the aims and objectives of the Framework insofar as protecting and enhancing biodiversity.

The decision notice refers to [address], No. [address] and the report to committee to No. [address]. Plot 1 would be positioned with its rear elevation in proximity to the retaining all with the river and directly opposite what I observed as [address]. That property also had a retaining wall with timber and bamboo screening above with some vegetation bordering the river.

There would be a conflict with the relevant distances in the Council’s supplementary guidance, being approximately 6 metres short. However, the often fine grain of development and topography within such a historic environment will often result in a degree of mutual overlooking and effects on outlook because properties are sited within proximity and on intimate and non-uniform plots.

The proposal would be taller than the cottage and the upper storeys and roof would be directly opposite the rooflights and a rear facing habitable accommodation. In having regard to the relevant Building Research Establishment 25 degree guidance I do not agree the effect would be overbearing to the outlook or give rise to unacceptable overshadowing, given the distance and relationship between the relevant properties. However, my visit and the survey drawings indicate to me that there would be potential for overlooking of that property from the upper floor widows of the proposal into [address].

The amended plans seek to address this by including obscurely glazed windows in Plot 1 in the first floor rear and flank elevation, in addition other ‘blind’ windows are proposed. However, this is an attempt to address problems raised through the siting and scale of the proposal in proximity to existing residential occupiers as opposed to being considered and high quality design from the outset. It demonstrates not a compromise but that this is not the correct design approach for this constrained site. Whilst it would mitigate direct overlooking to a degree, some loss of privacy would still occur and there would also be a strong perception of being overlooked for the occupiers of the cottage opposite.

This would result in minor impacts on the occupiers living conditions but nonetheless, the proposal would conflict with Policy EN15 of the LP insofar as such new housing development should not unduly affect the amenities or privacy of adjoining or adjacent properties, including through overlooking.

The appeal site is situated within Environment Agency designated [name] 2 and 3 and the [name] flows along the northern boundary of the site. Alongside the site, the river is constrained between 3.5m high concrete walls which extend to a level of +57.29m AOD along the site boundary, which is a metre above the site ground level. The submitted Flood Risk Assessment (the FRA) provided information as to how the development has been designed to be both appropriately flood resistant and resilient in line with Policy EN3 of the LP and paragraph 181 of the Framework. [name] (the ST) and [name] (the ET) information has also been provided. The Council concluded that the proposal met the ST, which I have no reason to disagree with, but both are required so the ET was applied.

The Council contend that the development does not provide any wider sustainability benefits to the community that outweigh the flood risks that are associated with allowing housing development on the site and in this regard does not meet the requirements of paragraph 178 (a) of the Framework.

There is flood risk, which on the evidence before me would be successfully mitigated for its lifetime, informed by the FRA, in accordance with advice in the Planning Practice Guidance and with no objections from the Environment Agency or Lead Local Flood Authority. I have been provided with no criteria the Council uses to assess such proposals but it would result in the re-use of a brownfield site within an accessible location. The proposal would also provide two family sized homes in an area currently with a 5 year supply of housing land but that is not a ceiling on housing development.

Although it in no way appears to be a bad neighbour and notwithstanding some environmental harm, the removal of a commercial use and possible contamination, and the noise and general disturbance associated with it, could also reasonably be regarded as being a wider environmental sustainability benefit. In this case risk would be outweighed and I do not consider the ET would be failed on part a) grounds. I agree with the Council that subject to the controls suggested, which could be secured by conditions, the development would be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, would reduce flood risk overall. Part b) would also be met along with the relevant requirements of Policy EN3.

The Council have provided no substantive details on the issue of noise or comments on the NA. The NA seeks to address a technical matter which reasonably could have attracted further comments, including from interested parties and consultees such as the Council’s Environmental Health Team. This information should have been resolved proactively by both sides before the appeal was submitted, and it is not appropriate to seek to further a case through the appeal system, regardless of any frustrations with the Councils handling and administration of the application. I have not therefore had regard to it as late evidence and have not taken it into account.

Notwithstanding the Council’s suggestion that further consideration should be given to the impact on the proposed dwellings of external plant noise and cooking odours and any necessary mitigation measures, ultimately neither party has provided the necessary information for this issue to substantiate their case at an appropriate time in order to enable me to reach a reasonable conclusion. Whatever the case may be, given my findings in this appeal even if I had found with the appellant on this matter, it would not have outweighed the harm I have identified and it would not have altered my decision to dismiss the appeal. [name]

In Framework terms the heritage harms I have identified would be less than substantial. As required by the LP and the Framework where development would lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal.

In this case there would be some benefits in heritage terms, so an internal heritage balance first is appropriate. There would be some visual and perhaps aural enhancement from the removal of the longstanding commercial use and associated parking of vehicles and sales/repair activity. However, it is not particularly harmful, a long established workshop building would be lost and in any event, the proposal would not of a sufficiently high quality of design for this constrained historic site causing harm to the significance of designated heritage assets. In my view, the harm to the CA and setting of the DVMWHS would still be less than substantial harm but towards the lower end of the scale. Even in taking account of these benefits the harm to the setting of [address] would still be less than substantial and greater, towards the middle of any scale.

Having carried out an internal balance to conclude on heritage harm and having still found less than substantial harms I now return to the public benefits overall. I have found with the appellant in terms of the balance of flood risk considerations. Paragraph 125 c) of the Framework is relevant in terms of giving substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs. Nonetheless the PPG is also clear that the decision maker will need to take account of it alongside other policies within the Framework taken as a whole. What is required is a clear articulation of how that revised approach has been considered and applied alongside the other policies.

There would also be economic benefits balanced against the loss or re-location of the existing use of which I have little detail. There would be an additional two homes within a settlement that has some local needs but even in the face of further calculations on supply being required4, it would be a small contribution.

In this appeal there would be public benefits but also less than substantial harm to a number of heritage assets which carries considerable importance and weight. When considering a proposal involving a number of heritage assets, if less than substantial harm is found to each, more weight can reasonably be attached in the overall planning balance to a number of less than substantial harms than would be the case if only one asset would be harmed.

The proposal would cause harm to the significance of a listed building from development within its setting, would fail to preserve or enhance the character or appearance of the CA and the setting of the DVMWHS. Drawing everything together, the less than substantial harms would not be outweighed by the public benefits.

Turning back to the LP, the proposal would conflict with Policy EN4 which amongst other things requires that development preserves or enhances the significance of the Borough’s heritage assets and is assessed in accordance with national planning policy, case law and legislation. The proposal would also conflict with Policy EN5 of the LP insofar as it requires development proposals within the [name] to be of an appropriate scale, massing, siting, design and alignment that will conserve the Outstanding Universal Value of the Site. 4 Para 4.27 of [name].

The outcome of the balancing exercise also means that the application of policies in the Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed. Consequently, even if it were engaged, the presumption in favour of sustainable development in paragraph 11 d) ii. would be disapplied by 11 d) i. in accordance with Footnote 7. The proposal would not therefore be sustainable development in Framework terms.

Drawing my conclusions together, despite finding no conflict in terms of flooding and flood risk, the proposal would be in conflict with the development plan, when read as a whole. Material considerations, including the Framework do not indicate that a decision should be made other than in accordance with the development plan.

Having regard to all other matters raised, I therefore conclude that the appeal should be dismissed.