Appeal 6002843

The appeal is dismissed.

The appellant describes the proposal on their application form as a ‘road’ and the Council has done likewise on its decision notice and consultation documents. Therefore, despite it being referred to as a track in some of the appeal documents, for consistency I have referred to it as a ‘road’ in my decision.

The appellant contends that the proposed access road can be constructed as a permitted development under The Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”), which they say should be treated as a fallback development. Within the context of an appeal under section 78 of the Town and Country Planning Act 1990 as amended (“the Act”), it is not within my remit to formally determine whether the proposed development requires planning permission. However, so far as it is material to this appeal, I shall consider the evidence as to whether planning permission is required for the appeal development in my other matters.

It has transpired that the appendices to the Landscape and [name] (LVA), which are listed in the contents page, were not before the Council when it determined the appeal planning application. Therefore, the Council and interested parties have not had an opportunity to consider them. The appellant has now submitted those missing appendices as late evidence. The Council is aware of their existence and raised no objection to them being considered in this appeal. As a number of the appendices include drawings and material already before the Council, including landscape character areas and the extent of Green Belt, taking them into account would not result in any unfairness, nor would it alter the substance of the proposed development.

The appendices also include photographs of the appeal site taken from each representative viewpoint and a map showing their locations. Whilst the Council and interested parties may not have seen them, the precise location of each viewpoint is described accurately within the viewpoint analysis section in the LVA, including by reference to their coordinates using a geocoding system. The Council and interested parties have had the opportunity to visit those viewpoints as they are located on publicly accessible land. Consequently, in having regard to the established principles of fairness and natural justice, I am satisfied that taking account of the LVA appendices in determining the appeal would not unfairly prejudice the interests of those parties.

The main issues in this appeal are (i) the effect of the proposed development on the character and appearance of the area, and (ii) if harm arises, whether this would be outweighed by the benefits of the proposal.

The appeal proposal is to construct a concrete surfaced access road stretching across agricultural fields located roughly to the north of the settlement of [site address] . It would provide vehicular access between the public highway of [address] and the appellant’s plant growing nursery and anaerobic digestor (AD) at [site address] , including the fields between them. The proposed road would have passing bays, and it would be lined on both sides by verges and raised earth bunds with hedgerows on top. Gates would be provided where the proposed road crosses the existing Public Rights of Way (PRoWs) 036 and 037, and for access to the fields along its route.

The appeal site is within the Perry Green Uplands Landscape Character Area (LCA) in the East Herts District Landscape Character Assessment 2007. The evidence before me indicates that the LCA consists of a distinctive undulating landscape of large arable fields in the area of the appeal site, often bordered with native hedgerows, together with some small woodland blocks and belts of trees.

The appeal site is part of a large and predominantly open arable field in the open countryside that is highly visible in a range of views from those PRoWs, from [address], and from some nearby properties, where it is seen as a component part of the undulating arable landscape of the LCA. Consequently, whilst not covered by any statutory or non-statutory landscape or heritage designation, the baseline condition of the appeal site contributes positively to the character and appearance of the area.

Compared to the baseline situation the hard surfaced access road would contrast markedly with the surrounding fields. Covering an extensive tract of land stretching across the arable field, it would be a visually intrusive and urbanising form of development in the landscape. It would erode the positive contribution that the existing arable field makes to the character and appearance of the area. Even if planted to follow historic field boundaries, as encouraged by the LCA, the long lines of hedgerow planted on top of raised earth bunds would emphasise the length of the road corridor and its horizontality within the open, undulating landscape.

Of the viewpoints assessed in the LVA, the greatest visual effects of the proposed development would be experienced by users of the PRoWs from viewpoints VP1 to VP5. Those users are considered to be sensitive receptors to visual change as they would be expected to be using the PRoWs for recreation and enjoyment of the countryside.

The LVA concludes that the visual effects of the proposed development will reduce to neutral (neither positive nor negative visual effects) after the proposed native hedgerows along both sides of it have reached sufficient maturity to provide substantial screening. However, the mitigation planting indicated would take several years to grow sufficiently tall and thick to provide any meaningful screening or softening of the appeal development or vehicles using it, particularly given the size of a large [name] (HGV) that is shown in the evidence before me.

Given the significant lengths of mitigation planting being proposed, there would be more than a degree of uncertainty as to whether it would establish to the height and thickness indicated by the appellant. Planting can evolve and change over time, including through being thinned or reduced in thickness, and its longevity can be adversely affected through factors such as disease.

Even if I was to take the best-case scenario for the appellant that the mitigatory hedgerow would provide the substantial screening effect intended and would remain so in perpetuity, the ability of the hedgerow to screen or soften views of the proposed development would likely significantly diminish for several months of the year around winter. Furthermore, there would be gaps in the proposed planting where the PRoWs cross the proposed access road and where field gates would be located. It is expected that users of the PRoWs would be able to obtain some longer distance glimpse-like views through those narrow gaps of the proposed road and the vehicles travelling along it.

Moreover, when seen in close distance views from where the PRoWs approach and intersect with the proposed access road, the mitigation planting would be expected to have a negligible effect in screening or softening the appearance of the proposed road or the vehicles travelling along it. In those views the users of the PRoWs would have relatively unobstructed views across a large part of the proposed road and of any vehicles travelling along it.

In my judgement, the intrusive, urbanising appearance of the proposed road would have significant adverse visual effects when seen in those views from the PRoWs. Whilst views of the proposed road from its junction with [address] would be obtained by less sensitive road users, its appearance would still be visually harmful when assessed against the baseline. Therefore, even if the mitigatory planting reached maturity, the totality of the visual effects of the proposed development would be harmful and could not be considered neutral.

The appellant’s calculations indicate that HGVs would spend only a small proportion of time travelling along the proposed access road each day. However, this does not necessarily mean that users of the PRoWs would not observe any HGVs or other vehicles using the road. Vehicles, and particularly HGVs travelling along the route of the proposed access road would also be expected to generate noise and disturbance, signifying its presence. This would be at odds with the tranquil landscape resulting in harm to the character of the area.

The LVA refers to the proposed road as being not dissimilar to other roadways in the area, including roads that extend through rural landscapes. There are some broad similarities between the appearance of the proposed road and other roads/tracks that are shown on the appellant’s photographs. However, none of those examples appear to have any intervisibility with the appeal site.

The determination of the planning applications for those other access roads/tracks would have been determined based on a number of site and context specific judgments, having regard to the merits of the evidence placed before decision makers and their experiences at a site visit. Full details of those other access roads/tracks are not before me, including the balance of considerations that led to them being approved. Consequently, I cannot be satisfied on the evidence before me that those examples are comparable to the appeal scheme in terms of their effects and benefits. As such, limited weight attaches to them.

In taking account of all the above, I conclude that the proposed development, even taking account of the proposed mitigation, would be visually intrusive when seen in the context of the existing arable field and it would have a harmful urbanising effect on the rural landscape. In having regard to the methodology in the appellant’s LVA, which requires a series of site and context specific judgements to be made, it is my judgement that the proposed development would, in totality, result in a moderate level of harm to the character and appearance of the area.

For those reasons, the proposed development would be contrary to Policies DES2, DES3 and GBR2 of the East Herts District Plan 2018 (“the EHDP”) insofar as proposals must demonstrate how they conserve, enhance or strengthen the character of the landscape, and be compatible with the character and appearance of the rural area beyond the Green Belt.

The evidence indicates that [site address] hosts multiple greenhouses for the purposes of growing and producing salad crops. There is also an AD which produces green energy and to fertilise crops grown on the surrounding agricultural land to assist the farm business. The application form states that the business employs the equivalent of 15 full time employees. Most interested parties support the proposed development and have suggested several benefits of the appeal scheme which I have considered. Construction of the proposed development would deliver modest economic benefits, such as employing construction workers and purchasing materials.

The appellant considers that the proposal would bring economic benefits to the business and the wider rural economy, notwithstanding its significant capital cost, and that it would contribute to streamlining operations and increasing profitability. Several interested parties, including businesses involved in its operation and associated supply chains, along with individuals who purchase crops grown at the site, consider that the proposal would have significant economic and sustainability benefits to the appellant’s enterprise and to theirs. However, there is no quantitative analysis of the total costs and benefits of the proposed development to the appellant’s business operation. There is nothing of substance before me to indicate that the enterprise, which has operated in its current form without the proposed access for a number of years, would now be unviable without it.

The appellant states that the access road is necessary to provide access to fields that are cultivated for crop growing. I saw at my visit that the agricultural fields over which the proposed road would cross can be accessed through [site address] and from an existing field access off [address], indicating that access to the land for farm vehicles and machinery is achievable. I saw that vehicle or vehicles had formed wheel tracks crossing the land.

As there is no means of storage for silage on the site, the appellant states that HGVs need to be driven onto the fields to remove silage after being cut. Photos show that HGVs can access the fields, most likely in good weather and when ground conditions are firm. Even if driving HGVs across fields is a normal farming practice, there no substantive evidence to show that being unable to do so when ground conditions are unsuitable threatens the viability of the farming enterprise.

There is little to show that HGVs could not be loaded with silage by farm machinery when parked on hard surfaced ground a short distance away at [site address] , or that a hard surfaced loading area elsewhere could not be provided. Given the availability of land, including around the existing buildings, there is little to indicate that the appellant has pursued options for providing silage storage to avoid it needing to be transported off site after being cut. A building was under construction at the time of my visit.

Some degradation of the agricultural fields by farm vehicles and machinery being driven across them seems to be an inevitable consequence of normal farming activity. The appellant has tabulated the costs for reseeding the fields damaged in that way. However, those costs appear to relate to a land area of more than half of the total agricultural holding. I am not satisfied on the evidence before me to that over half of the total land area is being damaged by vehicles and machinery. Even if I were to agree with those figures for reseeding there is nothing to suggest they pose a significant risk to the viability of the overall enterprise. It seems to me that permanently removing a sizeable area of arable agricultural land from production for the proposed development would also have negative effects on crop yields and I am not aware that those effects have been quantified by comparison.

On the evidence before me, the economic benefits of the proposal to the farming business should carry only modest weight in its favour.

The appellant identifies several ‘problems’ with large HGVs of the maximum size permissible travelling through [site address] . They are shown by aerial imagery and include pinch points, a blind corner, some damage to the surface of the ground by vehicles bypassing that part of the facility, and several overhead pipes preventing HGVs from travelling along a route between the glass houses. Interested parties who support the proposal include comments from hauliers who drive HGVs through [site address] .

However, there is nothing of substance to show that the problems identified with the existing access route have prevented HGVs from accessing the AD plant or moving through the site over the several years since it was granted planning permission by the County Council. The existing access appears to be part of an approved development, and the evidence indicates that the number of HGV movements associated with the AD are restricted. None of those problems, which may result in a modest level of inconvenience to drivers and the operators of the enterprise, appear to have prevented the approval of those land uses in the past.

There is no substantive evidence to indicate that circumstances have materially changed in the intervening period or that the current situation with accessibility for vehicles at [site address] is breaching any health and safety regulations. There is no documentary evidence before me to show that any accidents or incidents have occurred which can be sourced back to any of those problems identified by the appellant. There is nothing before me to indicate that the appellant has explored other options to resolve those problems, such as reconfiguring the layout of [site address] .

For instance, there is nothing to indicate that reconfiguring the dung heap, which appears to be constructed from potentially moveable precast concrete panels supported by a metal frame, to ease the pinch point for large HGVs and the blind spot for drivers, has been explored. There is nothing to indicate that the appellant has explored whether the route that vehicles have taken to bypass the area around the dung heap could be formalised with hard surfacing.

Consequently, I am not satisfied based on all that I have read and seen that the stated problems with accessibility for larger HGVs poses anything more than a minor inconvenience to drivers and the operators of the enterprise.

[site address] is served by a wide hard surfaced access that joins the road that runs through the settlement of [site address] . There is no intention to close that access, which appears to serve HGV traffic servicing the AD, traffic from agricultural workers and agricultural machinery. The evidence indicates that HGV movements associated with the AD are restricted by the planning permission granted by the County Council as the Waste Planning Authority. The main parties agree that the existing access to the public highway operates safely and I see no basis to disagree.

Even if I were to agree with the expectation that the proposed development would reduce the number of vehicles, including HGVs, driving through [site address] , those vehicle movements appear to be associated with land uses that were found to be acceptable through the grant of previous planning permissions, including by the County Council who are also the Local Highways Authority.

A significant number of residents in the area would welcome a reduction in traffic through the settlement, particularly HGVs. Several refer to the danger they pose to road users, particularly walkers and cyclists, including when functions are being held at the public house. However, there is nothing of substance to demonstrate that those vehicle movements are now unacceptably harmful to highway safety.

Although just a snapshot in time, the flow of traffic through the settlement during my visit was at a low level. The road through the settlement appears to be sufficiently wide in the most part to allow vehicles travelling in opposite directions to pass one another. [name] saw evidence of damage to grass verges by vehicles, there is little to indicate that it is harmful to highway safety or that the proposal would prevent such occurrences in the future.

There is little evidence before me to indicate that mud and debris being deposited onto the public highway by farm vehicles and machinery from the appeal site causes any real harm to the safety of road users, or that the proposed access would be the only practicable means for preventing or minimising it.

There is no substantive evidence to show that farm machinery being operated in the fields within the appeal site poses an unacceptable safety risk to users of the PRoWs. In my experience it is not unusual for PRoWs to cross arable and pastoral fields. The openness of the fields would appear to provide good levels of visibility for users of the PRoWs and operators of farm machinery to see one another and react to avoid any conflict between them. Even if the proposed access was to improve the safety of users of the PRoWs, given the baseline situation, I am not satisfied that it would amount to anything more than a very small benefit. The proposal would result in users of the PRoWs crossing a road being used by traffic, including large HGVs, potentially at speeds higher than those crossing cultivated fields.

I have taken account of the representations made by residents of homes in the area regarding the effects of road traffic in the area. However, there is no substantive evidence before me to show that traffic associated with the appellant’s existing land uses, including HGV movements, are causing unacceptable harm to the living conditions of the occupants of properties in the area, through noise, disturbance, vibration or the release of atmospheric pollutants. Therefore, I am not satisfied that the anticipated reduction in the number of vehicles travelling through the settlement as a result of the proposed development would have anything more than a very small beneficial effect on the living conditions of the occupants of those properties.

The proposal would deliver a sizeable gain in the biodiversity value of the site which carries modest weight in its favour.

Even if the proposed access road was reasonably necessary for agriculture, it would be subject to prior approval under the GPDO. Based on the evidence before me and my findings on the main issue, I cannot be satisfied that prior approval would be likely to be granted and therefore the proposed access could not be constructed as a permitted development. Accordingly, based on all that I have read and seen, the GPDO does not provide a fallback position against which the appeal development should be assessed. However, my decision is not a formal determination on that matter, and the appellant may wish to obtain one through a prior notification application under the terms of the GPDO and/or to apply for a lawful development certificate.

Even if I were to agree that the proposal would cause no harms other than those set out in this decision, including in respect of highway safety, an absence of harm is a neutral consideration that weighs neither in favour nor against the appeal.

I have had regard to the appellant’s concerns over the Council’s processing of the planning application and the list of errors it considers were made in its determination. Having considered the scheme on the evidence before me and my experiences at my site visit, none of those matters have any real bearing on the planning merits of the scheme and they do not alter the conclusions that I have reached.

The proposed development would cause moderate harm to the character and appearance of the area. This brings the development into conflict with [name] DES2, DES3 and GBR2, the requirements of which are set out above. The conflict with those policies brings the development into conflict with EHDP Policy ED2, which supports the sustainable growth and expansion of existing businesses in the rural area, including farm diversification, subject to there being no conflict with other policies within the EHDP.

The proposal would comply with some policies in the EHDP, such as those relating to highway safety. However, the harm to the character and appearance of the area that would arise from the proposed development is an important matter. It brings the proposed development into conflict with the policies referred to above and the development plan as a whole. I give significant weight to the conflict with the

The proposal’s harm to the character and appearance of the area would also bring it into conflict with the National Planning Policy Framework insofar as it requires decisions to ensure that developments are sympathetic to local character and contribute to and enhance the natural and local environment by recognising the intrinsic character and beauty of the countryside.

The appeal proposal would deliver several public benefits, including to the appellant’s farming enterprise and the wider rural economy, and to the environment and the living conditions of occupants of properties in the area. Those benefits broadly accord with the National Planning Policy Framework’s objectives for the planning system to, amongst others, build a strong economy, support healthy communities and enhance biodiversity. However, whilst the proposal would contribute to the rural economy, it would not be sensitive to its surroundings as required for such development by paragraphs 88 and 89 of the National Planning Policy Framework.

Cumulatively, the public benefits of the proposed development carry only modest weight in favour of the appeal, and they are insufficient to outweigh the harm it would cause to the character and appearance of the area.

For the reasons given above the proposed development would be contrary to the development plan as a whole. The material considerations, including the provisions of the National Planning Policy Framework, do not indicate that the appeal should be decided other than in accordance with the development plan. The proposed development is therefore unacceptable, and the appeal should be dismissed.