Appeal 6002422

The appeal is allowed and planning permission is granted for demolition of commercial properties and erection of 4 no. dwellinghouses and 1 no. bungalow with on site parking at [site address] , Filey, Scarborough, [site address] [postcode] , in accordance with the terms of the application, Ref SCAZF24/01929/FL, subject to the conditions in the attached schedule.

The description of the proposed development provided on the application form differs from that used on the Council’s delegated planning report. I have used the description used on the delegated report for the banner heading above and my formal decision as this more accurately describes the proposed development and appears to have been used for public consultation. The appellant has also relied on similar wording on the appeal form, which along with their submission of the Council’s letter validating the planning application, appears to suggest there was no objection to the amendment. I am satisfied that the cases of the parties would not be prejudiced by use of the above description, and I have determined the appeal accordingly.

The appeal follows the Council’s failure to determine the application within the prescribed period. However, the Council has confirmed in its statement that it does not contest the appeal and had it determined the application, it would have granted planning permission subject to conditions.

The planning history for the site indicates that planning permission has previously been refused and dismissed at appeal1 for two applications for the demolition of commercial properties and the erection of six and seven dwellings respectively. Notwithstanding these decisions, the Council has not raised concerns regarding 1 Planning appeal refs: APP/H2733/W/22/3312612 and APP/U2750/W/24/3341367 the proposed land use, the amount of development, effects on the character and appearance of the area, nor on matters of ecological impact and drainage when responding to the appeal. From my observations on site and the evidence before me, there is nothing that would lead me to reach a different conclusion on such matters.

There are objections to the proposed development from interested parties. Having regard to the representations received, I consider that the main issues are: • the effect of the proposed development on highway safety and whether there would be sufficient parking provision; and • the living conditions of neighbouring residents, with particular regard to noise and disturbance.

The appeal site comprises commercial buildings on [address] and to the rear of dwellings on [address] with associated land that did not appear to be in use at the time of my visit. [address] is a short cul-de-sac predominantly featuring residential properties to either side with on-street parking, and the rear of a commercial building at one end. The Council’s evidence indicates that only part of [address] is adopted as public highway with a section to the frontage of the appeal site in this area not being adopted highway. Commercial buildings on the appeal site front onto part of [address], and a large roller shutter opening and pedestrian door appear to provide access to the buildings at this point. There is an existing vehicular access to the appeal site from [address]. A low fence separates a footway from the access track running adjacent to the rear of properties on [address] and to the side of [address].

[address] features predominantly residential properties to either side, although a school is situated opposite the entrance to the appeal site with road markings restricting on-street parking to its frontage. A number of surrounding streets are also accessed from [address]. At the time of my visit, I observed moderate levels of vehicular traffic and pedestrian activity along [address], although these will likely fluctuate at different times of the day. The submissions indicate that no vehicular access to the development is proposed from [address], with the existing access from [address] proposed to serve the dwellings and their parking areas. The evidence indicates that only pedestrian access would be provided to the proposed dwellings fronting the unadopted section of [address].

The access track from [address] to the proposed development is narrowed by the existing fenced footway. A footway would be retained in this area and the Highway Authority comments state that a minimum distance of 4.1m should be retained by the access track to allow two vehicles to pass and ensure no vehicles reverse onto the public highway. The Council states that the minimum width of the access track would be achieved, and from the information before me I have no reason to disagree that this would be satisfied. From my observations on site and the information before me, there is no compelling evidence to suggest that the proposed development would not achieve a safe and suitable access for all users.

The submissions do not indicate the levels of use associated with any current or previous commercial activity at the appeal site and how this may compare to the likely use of the proposed development. Even if there was a material increase in activity and use of the vehicular access, having regard to the proposed scale of development at the site, this would not likely result in significant levels of vehicle movements and consequent adverse effects on [address]. I also have no compelling evidence to suggest that there would be an unacceptable impact on highway safety from any increase in vehicles using [address].

The proposed development would make provision for 12 car parking spaces within the appeal site, which would satisfy the Council’s parking standards for the size of the dwellings. The four proposed dwellings fronting [address] would have car parking to their rear that would be reasonably close to these properties with pedestrian access from a footway to the rear gardens. Given the amount of parking and its proximity to the proposed dwellings, there is a reasonable likelihood that future residents would use these spaces rather than seek to park on [address] or elsewhere. Therefore, there would be sufficient and suitable parking provision within the appeal site for the proposed dwellings.

For the above reasons, I conclude that the proposed development would not result in adverse effects on highway safety and there would be sufficient parking provision to serve the development. The proposed development therefore accords with Policy DEC1 of the Scarborough Borough Local Plan (July 2017) (the SBLP). Amongst other things, this policy seeks that proposals provide suitable and safe vehicular access and suitable servicing and parking arrangements.

The appeal site is surrounded by existing residential development on [address], [address] and [address]. Whilst there is limited information before me, any existing or previous commercial use and activity on the site would likely have had some effects on the living conditions of neighbouring residents due to the close proximity. Notwithstanding this, the layout of the proposed dwellings, access and parking areas would have sufficient separation from neighbouring properties to mitigate any potentially adverse effects from use of these areas. I note the comments of another Inspector in a previous appeal decision2 regarding effects from vehicles passing the rear of some properties on [address]. However, the proposed development would retain a footway to the rear of the existing properties on [address], which would ensure the access track remains set off from their rear boundaries and external amenity spaces. Alongside the reduced amount of proposed development in comparison to the previous schemes, the proposal would not result in significant or unacceptable levels of noise and disturbance to neighbouring residents in these respects.

Given the proximity to existing housing, the demolition and construction work associated with the development would be likely to have some effects in terms of noise and disturbance. However, these effects would be limited to the demolition and construction periods rather than longer-term disturbance. Despite some reference to comments from Environmental Health ([name]) in the submissions, the Council has not suggested that conditions would be necessary in 2 Appeal decision ref: APP/H2733/W/22/3312612 this respect. In any event, potential adverse effects that may arise during construction could also be considered under other legislation if necessary.

The Council has not raised any concerns on other matters regarding potential effects on the living conditions of existing neighbouring residents, such as effects on outlook, privacy, daylight and sunlight. Following my site visit, and on the basis of the information before me, I have no reason to disagree. Conditions have been suggested regarding the potential for contaminated land and noise in relation to future occupants of the development. Due to the existing and former use of the appeal site, as well as the proximity to commercial premises and a railway line, suitable conditions would mitigate potential effects from these sources on the living conditions of future occupants.

For the above reasons, I conclude that the proposed development would not result in unacceptable effects on the living conditions of neighbouring residents, with particular regard to noise and disturbance. The proposed development therefore accords with Policy DEC4 of the SBLP, which amongst other things aims to ensure that existing and future occupants of land and buildings are provided with a good standard of amenity, and proposals avoid unacceptable impacts of disturbance arising from noise and other activities.

As referenced above, the submitted plans indicate a footway to the rear of the existing and proposed dwellings on [address]. A neighbouring resident comments that a footpath to the rear of the existing buildings may be infringing on the boundary of existing dwellings. The footways would be within the appeal site and there is no further detail before me of any likely unacceptable effects that may arise from this arrangement, therefore this does not alter my conclusions on the

The Council has suggested a number of conditions, including differing versions, which I have considered against the tests set out in the National Planning Policy Framework and Planning Practice Guidance. In some instances, I have made minor changes to wording to improve precision and enforceability.

A condition specifying the approved plans is necessary in the interests of certainty. A condition securing suitable materials is necessary with regard to the character and appearance of the area.

Due to its location and proximity to commercial development and a railway line, a condition securing a noise assessment and suitable mitigation is necessary in the interests of the living conditions of future occupants of the development. This can be submitted prior to construction works on the dwellings rather than on commencement of any development. Given the risk associated with potentially contaminated land, conditions are necessary to assess this risk, which can be secured following demolition work in this instance. Having regard to the comments from [name], I have imposed a condition to ensure that a suitable scheme of foul and surface water drainage is achieved.

A condition securing compliance with the measures and recommendations of the submitted ecological assessment is necessary to avoid harm to protected species and ensure there is suitable mitigation. A condition regarding car parking is necessary to ensure there is sufficient provision to serve the development. To promote the use of sustainable transport, a condition is reasonable and necessary to secure appropriate cycle parking provision, which can be provided prior to occupation of the dwellings.

The Council states that the minimum information requirements for [name] (BNG) have been met. There is no indication as to whether BNG would be delivered via on-site landscaping, off-site or by purchasing biodiversity credits. The Council highlights the loss of habitat is not significant, whilst it would also not result in the loss of irreplaceable habitat. It therefore raises no objection to the proposed development in this regard and refers to the deemed condition of Schedule 7A of the Town and Country Planning Act 1990 (as amended) (the Act) being imposed on any grant of permission. From the information before me, I have no reason to take a different view that any additional conditions would be necessary in respect of BNG in this instance, or that the BNG requirements could not be satisfied through the submission of a biodiversity gain plan. Due to the provisions of Schedule 7A of the Act, and as none of the statutory exemptions appear to apply in this case, the development may not be begun unless a biodiversity gain plan has been submitted to and approved by the local planning authority.

For the above reasons, the proposal would comply with the development plan taken as a whole and material considerations do not indicate a decision should be made other than in accordance with the development plan. I therefore conclude that the appeal is allowed, and planning permission is granted.

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 nos: Location Plan received 03 December 2024; [name] 00/05 'Proposed Block Plan of Site' received 03 December 2024; [name] 00/06 '[name] received 03 December 2024; [name] 00/06A '[name] received 03 December 2024; [name] 00/07 '[name] received 03 December 2024; [name] 00/08 '[name] received 03 December 2024; [name] 00/09A '[name] of Buildings' received 03 December 2024; [name] 00/09 '[name] of Buildings' received 03 December 2024; [name] 11/10 '[name] received 03 December 2024; and [name] 00/11 '[name] of Existing Building Profiles' received 03 December 2024.

The red brick and roof slate materials to be used externally for the continuation of the terrace on [address] to create four dwellings shall match those of the existing terraced dwellings (on the western side of [address]) in colour, size, shape and texture. Notwithstanding any proposed materials specified on the approved drawings or in the submitted application form, samples of the external materials to be used for the dormer bungalow shall be submitted to and approved in writing by the Local Planning Authority prior to its construction. The development shall be carried out using the approved materials.

Prior to the commencement of any construction of the dwellings above ground level, excluding demolition, a noise survey to confirm external noise levels and recommend any required mitigation to protect residents of the development from noise shall be submitted to and approved in writing by the Local Planning Authority. The development shall be completed in accordance with the approved details prior to the occupation of the permitted dwellings. The protection measures in the approved scheme shall be maintained throughout the life of the development. The scheme shall ensure that the noise level in the gardens of the proposed dwellings shall not exceed 55 dB LAeq (16 hours) between 0700 hours and 2300 hours and all works which form part of this scheme shall be completed before any part of the development is occupied. The scheme shall ensure that the building envelope of each plot is constructed so as to provide sound attenuation against external noise. The internal noise levels achieved shall not exceed 35 dB LAeq (16 hour) inside the dwellings between 0700 hours and 2300 hours and 30 dB LAeq (8 hour) and 45 dB LAmax in the bedrooms between 2300 and 0700 hours. This standard of insulation shall be achieved with adequate ventilation provided. The scheme shall ensure that the cumulative level of sound associated with nearby commercial premises, when determined externally under free-field conditions, shall not exceed the representative background sound level at nearby sensitive receptors. All noise measurement/predictions and assessments made to determine compliance shall be made in accordance with [name] 4142:2014: Methods for rating and assessing industrial and commercial sound, and/or its subsequent amendments.

Prior to the commencement of development, excluding demolition, an investigation and risk assessment (in addition to any assessment provided with the planning application) shall be undertaken to assess the nature and extent of any land contamination. The investigation and risk assessment shall be undertaken by competent persons and a written report of the findings shall be submitted to and approved in writing by the Local Planning Authority. The report of the findings must include: (i) a survey of the extent, scale and nature of contamination (including ground gases where appropriate); (ii) an assessment of the potential risks to: human health, property (existing or proposed) including buildings, crops, livestock, pets, woodland and service lines and pipes, adjoining land, groundwaters and surface waters, ecological systems, archaeological sites and ancient monuments; (iii) an appraisal of remedial options, and proposal of the preferred option(s). This shall be carried out in accordance with [name]: 10175: Investigation of potentially and contaminated sites – Code of Practice and the Environment Agency, [name] (or equivalent [name] and [name] if replaced).

Where remediation works are shown to be necessary in respect of land contamination, no development shall commence, excluding demolition, until a detailed remediation strategy has been submitted to and approved in writing by the Local Planning Authority. The remediation strategy must demonstrate how the site will be made suitable for its intended use and must include proposals for the verification of the remediation works. The report shall be prepared by a suitably qualified and competent person. The scheme must ensure that the site will not qualify as contaminated land under Part 2A of the Environmental Protection Act 1990 in relation to the intended use of the land after remediation.

Prior to first occupation of the dwellings, the approved land contamination remediation scheme shall be carried out in accordance with its terms and a verification report that demonstrates the effectiveness of the remediation carried out shall be submitted to and approved in writing by the Local Planning Authority.

In the event that unexpected contamination is found at any time when carrying out the approved development, it shall be reported in writing immediately to the Local Planning Authority. An investigation and risk assessment shall be undertaken and where remediation is necessary a remediation scheme shall be submitted to and approved in writing by the Local Planning Authority. Following completion of measures identified in the approved remediation scheme, a verification report shall be submitted to and approved in writing by the Local Planning Authority.

No development, excluding demolition, shall commence until a scheme for foul and surface water drainage works has been submitted to and approved in writing by the Local Planning Authority. No dwelling hereby permitted shall be occupied until the foul and surface water drainage works have been completed in accordance with the approved scheme.

All of the measures and recommendations contained within the submitted [name] report ( [site address] : [name] by Wold Ecology Ltd, dated September 2024, received 04 December 2024): including provision of at least 2 bat roosting features (section 8.2.5); timing of site clearance and provision of 3 Swift nesting boxes (section 8.4.7); precautions for Hedgehogs and [name] (8.7.4); removal of invasive Cotoneaster (paragraph 8.8.2.4); tree protection (section 9.2); and the precautionary [name] set out in Section 7.2 of the [name] report ( [site address] , Filey: [name], May 2025 by Wold Ecology Ltd, received 14 May 2025), shall be implemented in full during the course of the development and prior to first occupation of the buildings hereby permitted. The Method Statement shall be provided to all contractors involved with the demolition of the buildings.

No dwelling hereby permitted shall be occupied until the areas as shown on the approved plans for parking and manoeuvring of vehicles for that individual dwelling have been constructed and laid out in accordance with the approved plans, and thereafter such areas shall be retained solely for such purposes.

Prior to first occupation of the dwellings hereby permitted, details of cycle parking areas, including means of enclosure, shall be submitted to and approved in writing by the Local Planning Authority. No dwelling shall be occupied until the cycle parking areas and means of enclosure for that individual dwelling have been provided in accordance with such approved details, and these areas shall not be used for any purpose other than the parking of cycles. **** END OF CONDITIONS ****