Appeal 6002315

The appeal is dismissed.

The appellant sets out that the accommodation is proposed to be ancillary to the ground-floor Class E unit and not a self-contained dwelling or separate planning unit. It is stated that it would be directly linked to the operational needs of the business, in particular, by providing rest and overnight space for the shop manager who has limited mobility. The appellant further states that the flat would not have a separate postal address, utility metres or lease arrangements. However, the Council validated the application and determined it on the basis of a change of use to residential use (Use Class C3).

For the proposed accommodation to fall within Class E, it must functionally relate to the primary use of the building. This functional relationship should be one which is normally found and not based on the personal choice of the user. Furthermore, the physical and functional separation of the proposal is important in determining whether a change of use would occur. It is a matter of fact and degree, based on the individual circumstances of the case.

The accommodation would provide a space for the manager to stay on site who would benefit from reduced commuting demands and convenient access to the workplace. However, the evidence does not demonstrate that this is not a personal preference and there is limited evidence of any functional link of the proposed accommodation to the commercial operations at the site.

In addition, the proposed accommodation is sizeable, with three separate rooms comprising a kitchen/living area, toilet and shower room and a bedroom. The proposed accommodation therefore has self-contained facilities which would allow it to function independently from the wider commercial business. Furthermore, whilst the accommodation can be accessed through the front of the shop, which is stated to be the primary route, it can also be accessed through a rear shared yard area providing an alternative separate access to the accommodation.

As such, the evidence does not sufficiently demonstrate that the proposed accommodation functionally relates to the primary use of the building, and that the accommodation would not be physically and functionally separated. Therefore, based on the facts and degree of the evidence before me, the Council’s description of development more accurately describes the appeal proposal, which I have therefore used in the banner heading of my decision. In such circumstances, a condition restricting the accommodation to ancillary to the Class E unit, as suggested by the appellant, would be incompatible with the description of development, and therefore would not meet the tests of paragraph 57 of the National Planning Policy Framework, namely reasonableness and relevance.

I have removed the text referring to the development as ‘retrospective’ in the description of development as this is not an act of development. I have dealt with the appeal on the basis that planning permission is being sought for the development reflected in the banner heading, in accordance with the drawings submitted.

The main issues are the effect of the proposal on: • the character and appearance of the host building and area; and • the living conditions of the occupants, with specific regard to external amenity space.

The appeal property is set within the middle of a terrace of commercial buildings situated between the junctions of [address] with [address] and [address]. Whilst the buildings within the area have a wide variety of architectural styles and forms, the small row of shops has consistent features. Of particular relevance to the appeal are the first floor windows which are set at a high level with a horizontal emphasis. This provides regularity and balance in the appearance of the terrace.

Whilst the appeal proposal would not alter the dimensions or footprint of the building, it would introduce large rectangle windows at first floor level with a strong vertical emphasis on the front façade. The proposed windows would be distinctly out of keeping with the style of the fenestration of the wider parade and would harmfully disrupt the established regularity and balance of the property. The proposal would therefore result in moderate harm to the character and appearance of the host building and area.

The building set at the end of the terrace at the junction of [address] and [address] has been brought to my attention and I observed this building on my visit. It has been redeveloped with a more modern architectural style and appearance, including larger windows at first floor level. However, due to its appearance and its principal elevation orientated towards [address], this building reads separately within the streetscene, rather than as part of the row of commercial shops. As such, the existence of this building does not mitigate or otherwise justify the harm to the character and appearance of the host building and area that I have identified.

The Council’s second reason for refusal relating to a lack of external amenity space mentions that this would also be harmful to the character of the surrounding area. However, the absence of an external amenity space on this commercial parade would have no visible effect on the streetscene or host building. Therefore, no harm would arise in this regard.

Nevertheless, the proposed windows would result in moderate harm to the character and appearance of the host building and area for the reasons given. The proposal would therefore conflict with Policies CSTP22 and PMD2 of the [name] and Policies for Management of Development (2015) (CSPMD). These policies, amongst other matters seek to ensure that proposals are of a high design quality that responds to the surroundings of the site and positively contribute to the character of the area.

Policy PMD1 of the CSPMD sets out that development would not be permitted where it would cause unacceptable effects on the amenity and health of future occupiers of the site.

The appellant contends that outdoor amenity space standards are not required for this proposal as it relates to accommodation for the commercial unit, rather than creating a separate residential unit. However, for the reasons that I have set out above, based on the evidence before me, I consider that the proposal would create Class C3 residential accommodation.

No external amenity space is proposed. As such, occupiers of the development could not undertake the usual activities associated with external private space, such as sitting outside or hanging out washing. Therefore, the development would not provide adequate external amenity space which would result in considerable harm to the living conditions of the future occupiers of the development and would therefore conflict with Policy PMD1 of the CSPMD.

The evidence shows that the appeal site is situated within the zone of influence of habitats sites where the Recreational disturbance Avoidance and [name] (RAMS) applies. I have been provided with very limited evidence in this regard. However, since I am dismissing the appeal for other reasons, I do not need to discuss this matter further.

The proposed development is not in accordance with the aforementioned policies of the CSPMD by virtue of harm to the character and appearance of the host building and area along with harm to the living conditions of future occupiers.

However, the evidence shows that the Council cannot demonstrate a five-year housing land supply. The provisions of paragraph 11(d) of the National Planning Policy Framework (the Framework) are therefore engaged. Footnote 8 confirms in these circumstances, the policies which are most important for determining the application are deemed to be out-of-date. Paragraph 232 of the Framework confirms due weight should be given to policies, according to their consistency with the Framework.

The importance of achieving well-designed development is a key aspect of sustainable development, as set out in section 12 of the Framework, where it is clear at paragraph 139 that development which is not well designed should be refused. Paragraph 135(f) promotes health and well-being in developments and achieving a high standard of amenity for future occupiers. Whilst paragraph 124 of the Framework seeks to make effective use of land, this is to be achieved while also safeguarding and improving the environment. As such Policies PMD1, PMD2 and CSTP22 of the CSPMD are highly consistent with the provisions of the Framework.

Therefore, based on the consistency with the Framework, and harms that I have identified above, the conflict with Policies PMD2 and CSTP22 of the CSPMD in relation to character and appearance would carry moderate weight against the proposal, and the conflict with Policy PMD1 in terms of the effect on the living conditions of future occupiers would carry considerable weight against the proposal. Therefore, the development conflicts with the development plan as a whole and with the abovementioned parts of the Framework.

The evidence shows that the proposal would not result in any harm to the living conditions of nearby neighbours and the Council did not raise any concerns relating to flood risk. However, a lack of harm is not a benefit in itself and is a neutral consideration.

The proposal would make effective use of underused floor space within a town centre area by providing an additional housing unit, which would contribute to the Government’s objective of significantly boosting the supply of housing, including through small and medium sized schemes. It is intended for the manager of the existing commercial premises to occupy the unit which would reduce commuting and provide convenient access resulting in some benefit to the business. However, given the small scale of the proposal these benefits attract limited positive weight.

Notwithstanding, whether paragraph 11d)i would be engaged with reference to the unmitigated effect on the footnote 7 habitat sites, the adverse effects of granting planning permission would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework as a whole. Therefore, the presumption in favour of sustainable development would not apply.

The proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Therefore, for the reasons given above, the appeal should be dismissed.