Appeal 6002729

The appeal is dismissed.

As part of the appeal, the appellant has submitted a revised parking plan indicating twenty-six parking spaces which seeks to overcome the Council’s concerns relating to the provision of parking. This amended plan represents a change to what was considered by the Council at the application stage. Although it was available to the Council at the appeal, they have not provided detailed comments on the information submitted.

On this basis, having regard to the judgment in Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin), I consider that the amended plan is a substantial and fundamental change to result in a different application.

Consequently, I have not accepted the amended parking plan for the purposes of this appeal. In the interests of natural justice, I have determined the appeal on the basis of the information submitted to the Council.

The main issues are: • whether the proposed development would preserve or enhance the character or appearance of the Great Malvern Conservation Area; • whether the proposed development would provide acceptable living conditions for the future occupants of the property, with regard to privacy and outlook; • whether the development would provide safe and suitable access and sufficient parking for the appeal proposal and for the occupants of Malvernbury; • the effect of the development on biodiversity; and • whether the proposed drainage scheme would be appropriate and whether it would increase the risk of surface water flooding.

The appeal site lies within the Great Malvern Conservation Area (the Conservation Area). The Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended) provides, at section 72(1), that with respect to any buildings or other land, in a Conservation Area, special attention shall be paid to the desirability of preserving or enhancing the character, or appearance of that area.

An understanding of the importance of the Conservation Area is supported by the Great Malvern Conservation Area Appraisal and [name] which details the historic development of the settlement and the characteristics which are of special architectural or historic interest. In so far as it is relevant to the appeal, I consider that the significance of the Conservation Area is mainly derived from the town’s origins as a spa town and its subsequent development through the Victorian period. The appeal site lies within the [name] sub-character area where individual designed properties are a particular feature.

Many of the houses immediately around the appeal site, including Malvernbury, are of the Arts and Crafts style. I noted other recent developments in the area also reflected the Arts and Crafts features and proportions and have been sympathetically added to the area. Moreover, from the evidence before me, the previously approved scheme on the appeal site included proportions and design details that reflected the Arts and Crafts movement.

Contrary to the appellant’s assertions in [name] the appeal before me proposes a different building in terms of its shape and design. Although the front and rear elevations would have gable projections and there is a chimney proposed on one end, these only provide limited asymmetry. The overall form and shape of the building, and the use of large windows of the same size and shape in all three floors of the front elevation, run counter to the Arts and Crafts design of the surrounding area and would substantially reduce the limited asymmetry provided by the gables and chimney.

The additional plan, showing the proposed front elevation alongside Malvernbury, provided as part of the appeal, highlights that the design and shape of the proposal would not reflect the architecture or form of the building next to the appeal site, or the Arts and Crafts features and characteristics.

Although the appeal scheme would not be prominent in views from [address], part of the character of the area is the glimpsed views of the buildings and the interest that those views provide to observers. The proposed development would be viewed from the road, albeit limited, and the limited asymmetry and the size and shape of the windows would result in a development that would be visually discordant and out of keeping with the character and appearance of the area.

For the above reasons I find that the proposal would fail to preserve or enhance the character or appearance of the Great Malvern Conservation Area. It, therefore, follows that the proposal would be contrary to [name] 6, SWDP 21 and SWDP 24 of the South Worcestershire Development Plan 2016 (SWDP) which, taken together, seek to conserve and enhance heritage assets, ensure that all development is of a high design quality, integrates effectively with its surroundings, reinforces local distinctiveness, complements the character of the area, responds to the surrounding buildings, distinctive features or qualities that contribute to the visual and heritage interest, and safeguards the distinct identity and character of the settlement.

For the same reasons, the proposal would also fail to comply with Policy MD1 of the Malvern Town Neighbourhood Plan 2015-2030 (MTNP) which requires development to achieve high quality design, fully integrated into the existing area, which responds to and reflects the local character and integrates positive attributes within the area into their design.

The proposal would also not align with the National Planning Policy Framework (the Framework) which aims for new development within Conservation Areas to enhance or better reveal their significance. The harm to the Conservation Area as a whole would be less than substantial. In accordance with the Framework, this harm should be weighed against the public benefits of the proposal.

The development would provide six additional dwellings with the associated social and economic benefits both during and post construction. It would also accord with the Framework aim to boost the supply of housing. The site would be located so that occupants of the appeal scheme would have access to the services and facilities of the settlement by foot or bicycle and, therefore, would not be dependent on the private vehicle for all journeys. Furthermore, the development would make efficient use of the site. The works could be undertaken by a small builder, would add dwellings to the stock reasonably quickly and would add to the mix of the housing in the area. However, as only six flats would be provided, even in an area where the Council is unable to demonstrate a Framework compliant supply of housing land, I attach limited weight to the public benefits.

The Framework advises that any harm to the significance of a designated heritage asset should require clear and convincing justification and that great weight should be given to the asset’s conservation, irrespective of the level of potential harm. The public benefits of the proposal are afforded limited weight and, therefore, would not outweigh the harm to the conservation area and its significance.

The proposed building would be built behind a tall retaining wall due to the change in ground levels. The entrance would be at the first floor via an elevated walkway. This walkway would result in occupants and visitors to the property having direct views into the living rooms of the flats at both the first floor and the lower ground floor. The windows to these flats are large areas of glazing and are shown as bi-fold glazed doors. The opportunity for overlooking would be significant and would adversely affect the privacy and, therefore, the living conditions of the occupants of the four flats at these two levels.

Furthermore, the living rooms to the two lower ground floor flats would only have the bi-fold glazed windows at the front. Due to the change in the ground levels these windows would be wholly below the ground level of the site and behind the retaining wall.

Even if these windows would be positioned more than five metres away from the retaining wall, so as to not adversely affect daylight entering those rooms, the position of the windows and the retaining wall would result in the outlook from the two flats in the lower ground level being of the wall. This would result in the outlook from the main habitable living spaces for these two flats being visually oppressive and enclosed. This would constitute poor living conditions for the future occupiers of the two flats.

The current appeal is materially different to the previous approval on the appeal site which provided storage in the lower ground level rather than habitable rooms and smaller windows on the ground floor restricting the overlooking from the access. The previous approval would, therefore, not justify the current scheme. Furthermore, that the appeal proposal would not adversely affect the living conditions of neighbouring properties would not overcome the harm I have identified to the living conditions of the future occupants of the development.

For the above reasons, the appeal proposal would not provide acceptable living conditions for the future occupants of the property, with regard to privacy and outlook. It would, therefore, be contrary to Policy SWDP 21 which, amongst other matters, requires development to provide adequate level of privacy and outlook.

The proposal would also be contrary to the requirements of Policy MH2 of the MTNP which supports infill housing development providing it does not significantly harm the amenity of occupiers.

Fourteen parking spaces are proposed. The appeal scheme, therefore, proposes more parking than is required in the Worcestershire County Council Streetscape Design Guide, July 2022 (the SDG) for six two-bedroom flats. However, this is at the expense of the car parking currently provided for Malvernbury.

The SDG requirement for both buildings would be for twenty-three parking spaces to be provided. The appeal scheme would fall significantly short of this figure and would, therefore, not provide sufficient parking for the appeal scheme and the existing property. On-street parking in the immediate area is limited and would be severely affected by the poor levels of on-site parking proposed. As a result, the development would adversely affect highway safety.

Furthermore, although the plans indicate some of the manoeuvring arrangements within the site it would not provide sufficient certainty that cars can enter and leave each of the parking spaces without risk of conflict with other vehicles. There is no turning area indicated for spaces 11-13 and manoeuvring for these spaces would, therefore, cross the vehicle access point. The four spaces between the two buildings are shown as tandem spaces which, although could be associated with the same flat, restrict the space within this area for a vehicle to wait while another moves out of a space. The provision of parking spaces 1-6 would also remove the ability for cars to pass each other on the drive which would result in a vehicle having to reverse either up or down the steep driveway and around the wall on the bend.

Therefore, in addition to the lack of on-site parking, the appeal scheme would not provide sufficient certainty that there is appropriate space for parking and manoeuvring within the site so as to ensure that the development would provide safe and suitable access.

For the above reasons, the proposal as considered by the Council, would not provide safe and suitable access, nor would it provide sufficient parking for the appeal proposal and for the occupants of Malvernbury. It would, therefore, be contrary to the requirement of Policy SWDP 21 which requires development to incorporate the required parking facilities and provide satisfactory access and provision for the parking, servicing and manoeuvring of vehicles.

For the same reasons, the proposal would not create a safe and accessible environment for all highway users, contrary to Policy MD1 of the MTNP.

The appellant contends that a full [name] (PEA) and [name] (BNG) Assessment were submitted and which confirm that there is no evidence of badgers and that the development would provide off-site credits for BNG.

However, the document submitted with the appeal is a short email and a section of the BNG metric. I have not been provided with the full PEA or the BNG assessment. I also have no evidence of the outcome of the meeting the appellant notes was held on site with the planning officer and Council ecologist. I, therefore, am not able to fully understand the pre-development value of the habitat on site and cannot be certain that the proposal would comply with the requirement for BNG. Therefore, insufficient information has been provided and I cannot be certain that the development would not adversely affect biodiversity.

For the above reasons, and based on the evidence provided at the appeal, I cannot be certain that the proposal would not adversely affect biodiversity which would be contrary to Policy SWDP 22 of the SWDP which seeks to resist development that would compromise the favourable condition of protected species and requires all development to, where practical, enhance biodiversity and take opportunities to enhance biodiversity corridors.

The appellant relies on a statement from their drainage consultant which advises that the drainage design would be the same as proposed for the previous consent on the site. However, I do not have the details of the drainage design and I must consider the appeal as submitted, based on the evidence before me.

Moreover, there is no evidence that the appellant has consent from [name] to discharge surface water to the mains drainage system and the consultation response, from the drainage provider, confirms that discharge of surface water to the system would not be accepted.

I, therefore, cannot be certain that the drainage scheme is capable of being implemented. Without consent to discharge the surface water to the mains system there is no detail of how the surface water would be dealt with on the appeal site. This would, therefore, significantly increase the risk of flooding both within the site and within the surrounding area.

For the above reasons, I cannot be certain that the proposed drainage scheme would be appropriate and whether it would increase the risk of surface water flooding. Any increase in flood risk would be contrary to [name] 28 and SWDP 29 of the SWDP which, taken together, require all development to ensure no increase in flood risk, explore opportunities to reduce flood risk, ensure the development is safe from flooding, ensure that developments manage surface water through sustainable drainage systems, and not increase the surface water run-off rate or surface water flood risk.

The appeal proposal would harm the character and appearance of the area, including the Conservation Area and would also harm the living conditions of the future occupants. I also cannot be certain that the development would be provided with sufficient parking and would not adversely affect biodiversity and not increase surface water flooding. I consider that the harm and policy conflict would be such that the proposal would conflict with the development plan as a whole. This is a matter to which I attach substantial weight.

The Council has confirmed that it is unable to demonstrate a five-year supply of deliverable housing land. Paragraph 11d of the Framework sets out the presumption in favour of sustainable development. This includes, in summary, that where the policies which are most important for determining the application are out of date, permission should be granted unless the application of policies in the Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed. The policies referred to in this part of the Framework are set out in footnote 7 and include designated heritage assets.

In this case, I have found that the harm to the significance of the Conservation Area, a designated heritage asset, would not be outweighed by the public benefits and this provides a strong reason for refusing the proposal. Consequently, the presumption in favour of sustainable development as set out in paragraph 11d of the Framework does not apply in this case.

For the reasons given above I have found that the proposal would be contrary to the development plan as a whole, including the Neighbourhood Plan and the Framework. There are no other material considerations that would indicate that the proposal should be determined other than in accordance with the development plan. Therefore, I conclude that the appeal should be dismissed.