Appeal 6003071

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for change of use and conversion of a building from agriculture to 1no. dwellinghouse at [site address] , [site address] , [site address] , [postcode] in accordance with the application 25/00805/PACU3 and the details submitted with it including drawing [name]-0001 Rev 1 (Location Plan), DR-A-0003 Rev 1 (Proposed Site/block plan), DR-A-2002 Rev 2 ([name]), DR-A-2003 Rev 1 ([name]), DR-A-1003 Rev 2 ([name]), DR-A-1004 Rev 1 (Proposed Roof Plan), subject to the conditions in the attached schedule.

I have taken the description of development above from the application form, removing wording that does not form an act of development.

From 21 May 2024, the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2024/579 came into force, which made changes to Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015, (the GPDO). Transitional arrangements are set out under Article 10 of the amending Order. Where development is permitted by Class Q immediately before 21 May 2024, but not on or after that date, the developer may make a prior approval application in relation to the previously permitted development under Class Q until the end of 20 May 2025.

The application form confirms that the application was made with the intention to use the permitted development right as it stood prior to 21 May 2024. As such, I have considered the appeal against Schedule 2, Part 3, Class Q of the GPDO as it stood prior to 21 May 2024.

The appellant submitted more detailed flood risk information with the appeal that they had provided to the Environment Agency (EA) previously. The additional information provided did not result in any amendments to the proposed scheme. Both the EA and the Council have had the opportunity to comment on the additional information and therefore I do not find that anyone would be prejudiced by me taking it into account.

Under Article 3(1) and Schedule 2, Part 3, Class Q of the GPDO, planning permission is granted for the change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within use class C3 (dwellinghouses), together with building operations reasonably necessary to convert the building to a dwellinghouse, subject to specified limitations and

[name].2(1) requires the developer to apply to the local planning authority to determine whether the prior approval of the authority will be required as to a number of specified matters.

The single reason for refusal provided by the Council related to Q.2(1) (d) which refers to flooding risks on the site. The Council’s Planning Officer Report did not raise any other concerns with either the specified limitations and conditions of Class Q, or any other prior approval matters, and from the available evidence, I have no reason to disagree.

The main issue in this case is therefore whether the proposed change of use is appropriate with regards to flooding risk on the site.

The site is located in [name] 3 which is an area with a high probability of flooding. A Flood Risk Assessment (FRA) was submitted with the application. The FRA estimated the breach flood level at 1.5m OD. It set out that using the [name] data, the ground levels surrounding the building are typically between 0.8m OD and 1m OD. Based on these figures, the FRA identifies a breach flood depth of between 0.5m and 0.7m at the appeal building. The mitigation measures identified in the FRA include a finished floor level 1m above the surrounding ground level and 0.3m of flood resilient construction above the finished floor level.

The EA objected to the scheme stating that the tidal hazard mapping estimates a breach flood level for the development of between 1m to 2m OD, rather than the 1.5m OD identified in the FRA.

Whilst the FRA does set out that EA hazard mapping data identifies that part of the site is indicated as having a breach flood depth between 1m and 2m OD, it does not provide a clear explanation as to why a breach flood level of 1.5m OD is the most appropriate figure to use in this case.

There was therefore discrepancy between the figures set out in the FRA and the EA hazard data, with the FRA not responding to the higher breach flood level of 2m OD. Consequently, it was found that the recommended mitigation measures set out in the FRA were not appropriate given they did not respond to the highest flood level of 2m OD, identified by the EA.

Following the EA objection, Ellingham Consulting Ltd (ECL) wrote to the EA setting out more clearly the approach taken and how a breach flood level of 1.5m OD had been arrived at using the tidal hazard mapping and the LiDAR data. It also reconfirmed that the approach resulted in a flood depth of 0.5m and 0.7m OD for the appeal building, as identified in the FRA. This additional information provided clarification on the approach taken by the appellant.

The Council did not agree to an extension of time in order for the EA to be formally consulted on the additional information provided by ECL. However, the EA has responded to the appeal and set out that whilst the approach outlined by ECL may not be suitable in other cases, it was acceptable in this instance due to the specific conditions of the site.

Whilst it would have been clearer if the FRA had been updated to ensure the methodology used was provided in detail along with an explanation on why a different approach was taken in this case, I am satisfied that taking the two documents together, and considering the response from the EA, that a breach flood depth between 0.5m and 0.7m OD is appropriate for the appeal scheme. As the mitigation measures set out in the FRA responded to these breach flood depths, I find that the identified mitigation measures set out in the FRA would also be appropriate in this case.

In conclusion, based on the evidence before me, I find that the proposed change of use is appropriate with regards to flooding risk on the site and the information submitted is sufficient to deal with the requirements of Q.2(1) (d).

Subject to certain conditions which I will go on to discuss, the Council does not raise objections in relation to the other provisions set out in [name].2(1) in relation to transport and highway impacts, noise impacts, contamination, the location of the site, the design or external appearance of the building, or the provision of adequate natural light. Based on the evidence before me, I find no reason to conclude otherwise.

An interested party has raised concerns regarding the effects on wildlife, water pressure and broadband provision, nevertheless, these matters are not covered by the prior approval matters that are required to be considered. Concerns are also raised about resultant traffic, nevertheless, as stated above the Council has not raised an objection to this prior approval matter and I find no reason to disagree with the Council.

Under paragraph Q.2(3) of the GPDO, development is permitted subject to a condition that it must be completed within 3 years starting from the date of this decision. [name](12) requires development to be carried out in accordance with the details approved. As such and as I have listed the plans in my formal decision, the Council’s suggested plans condition is unnecessary and I have not imposed it.

I have imposed conditions relating to asbestos and what procedure should be followed if unexpected contamination is found as these matters relate to a prior approval matter and are necessary in the interests of the environment and the health of future occupants. One condition requiring a survey specifying the location and nature of asbestos is required prior to commencement so that the development is carried out safely and that human health and the environment is not put at risk. I have imposed an additional condition, requiring that the development is carried out in accordance with the mitigation measures set out in the FRA in the interests of reducing the impacts of flooding.

An informative was suggested by the Council advising that future occupants sign up to the EA flood warning system. I have not imposed this as it would not be binding, nevertheless, I am satisfied that the appellant has had sight of this as it is included in the Council’s Appeal Statement.

For the reasons given above the appeal should be allowed and prior approval should be granted subject to conditions.

Prior to the commencement of the development hereby approved, a survey specifying the location and nature of asbestos containing materials and an action plan detailing treatment or safe removal and disposal of asbestos containing materials shall be submitted to and approved by the local planning authority. The development shall be carried out in accordance with the action plan.

Prior to first occupation of the development hereby approved evidence of the treatment or safe removal and disposal of the asbestos containing materials at a suitably licensed waste disposal site shall be submitted to and approved by the local planning authority.

In the event that contamination is found at any time when carrying out the approved development that was not previously identified it must be reported in writing immediately to the Local Planning Authority. An investigation and risk assessment must be undertaken and where remediation is necessary a remediation scheme must be prepared which is subject to the approval in writing of the Local Planning Authority. Following completion of measures identified in the approved remediation scheme a verification report must be prepared, which is subject to the approval in writing of the Local Planning Authority.

The development shall be carried out in accordance with the [name] set out in the Flood Risk Assessment Final Report ECL1409-3/BIDWELLS dated March 2025.