Appeal 6003406

The appeal is dismissed and planning permission is refused.

The appeal is made following the failure of the Council to give notice of their decision on the application within the statutory period. The Council has provided a Statement of Case (SoC) which has confirmed that the removal and variation of the disputed conditions would result in significant adverse effects to future occupiers of the proposed development, failing to safeguard their living conditions. I have taken this to be the decision which the Council would have made had it been empowered to do so.

Planning permission was granted in 2024, Ref 23/00199/F (the previous permission), for alterations to the ground floor retail areas of the building and the conversion of the first floor and erection of a new second floor to form 6 self-contained flats. It also included the conversion of a rear cottage to form a ground floor office and a maisonette on the first and second floors.

The proposal seeks the removal of Condition 12 which sought the re-routing of the extraction flue (the pizza outlet extraction flue) of a [name] premises, prior to the occupation of the proposed development, and the variation of Condition 2 to remove the ‘Agreement to [name] document from the list of plans and documents. As such, the removal and variation of the disputed conditions would allow the proposed development to be occupied without the re-routing of the pizza outlet extraction flue.

The main parties suggest that works to implement the previous planning permission have commenced. However, I observed during my site visit that the building was vacant and unoccupied. Accordingly, although the appellant suggests that the appeal is submitted under section 73A of the Town and Country Planning Act 1990 (as amended), as the building is not occupied, there is no suggestion that condition 12 has been breached. I have determined the appeal on that basis.

Taking the above into account, the main issue is the effect that the variation of Condition 2 and the removal of Condition 12 would have on the living conditions of the future occupants of the six self-contained flats and maisonette, with regard to odour.

The appeal site comprises a two storey building (the main building), as well as a three storey cottage building and a [name] pizza premises ([name]), located within Banbury town centre, set amongst other existing retail and commercial premises.

The main building fronts [address], with the cottage located towards the rear, as is [name]. There is a small, enclosed yard area to the rear also, adjacent to the cottage and the building occupied by [name].

[name] fronts [address]. As a consequence, the rear elevation of that one and a half storey building forms one side of the enclosed rear yard area. The rear elevation of the [name] building includes the pizza outlet extraction flue, a fume extraction system for the hot food takeaway.

During my site visit, on a weekday lunchtime, when the takeaway was open, odours from the flue were evident within the rear yard area. Some odours were also experienced inside the buildings. The extraction outlet appeared to be relatively old and there was a consistent rattling noise from the outlet.

A number of windows of the proposed development would be within close proximity to the fume extraction outlet. The windows are proposed to be non-opening, and future occupiers of the proposed flats and maisonette would not be able to open those windows.

My attention has not been drawn to a submitted odour assessment. As such, the level of impact from odours on the future occupants of the proposed development, even with windows fixed shut, is unknown. Likewise, it is not known whether special glazing or mechanical ventilation would be required for the flats and maisonette with non-opening windows.

The inability to open any windows within the proposed flats and maisonette would create an oppressive internal environment for the future occupiers. This would be exacerbated during periods of fine weather, when I consider that there would be a strong desire to open windows during the day and at night. Without this option, the living conditions of future occupiers would be severely compromised to an unacceptable degree.

I am mindful that the appellant has sought continued engagement with the Council’s Environmental Health department (the EH), and it has previously been suggested that there is no statutory nuisance. Nonetheless, there remains an objection to the appeal scheme from the EH.

In the absence of detailed technical assessments, I must take a precautionary approach and therefore find that there is no reasonable assurance that the removal of Condition 12 would not adversely affect the living conditions of the future occupants of the flats and maisonette located within close proximity to the pizza outlet extraction flue.

The Planning Practice Guidance advises that conditions requiring works on land that is not controlled by the applicant, or those that require the consent or authorisation of another person or body often fail the tests of reasonableness and enforceability, but that it may be possible to achieve a similar result using a Grampian condition.

In this case the [name] building is included as part of the red edge application site and a Grampian condition was an appropriate mechanism to protect the living conditions of future occupiers of the flats and maisonette. Without a condition, the development would have been unacceptable.

Despite the appellant’s frustration and endeavours to re-route the pizza outlet extraction flue, in the absence of a suitable alternative which would safeguard the living conditions of future occupiers from odour, for the reasons set out above, Condition 12 remains reasonable and necessary, as does the inclusion of the ‘Agreement to [name] document, listed in Condition 2 of the previous permission.

Reference has been made to a previous planning permission1 for 14 flats (and ground floor commercial units) at land to the rear of 7 and [address], Banbury. However, while the decision notice for that planning permission has been provided, the full details of the case have not, nor have the circumstances which led to planning permission being granted for that development, or the formal consultation comments of the Environmental Health department. In any event, the issue of odour is highly fact sensitive and site specific, turning on the individual circumstances of each case, and my concerns have not been eased.

Consequently, for the above reasons, I conclude that the variation of Condition 2 and the removal of Condition 12 would unacceptably harm the living conditions of the future occupants of the six self-contained flats and maisonette, with regard to odour. Therefore, Condition 2 and Condition 12 remain reasonable and necessary to safeguard the amenities of future occupiers of the proposed development. As such, the proposal would conflict with Policy ESD15 of the Cherwell Local Plan 2011-2031 (CLP), which amongst other things, requires new development to be designed to provide high quality places to live. There would also be conflict with saved Policy ENV1 of the Cherwell Local Plan 1996 (LP 1996), which states that development likely to cause materially detrimental levels of, amongst other things smell, smoke, fumes or other environmental pollution, will not normally be permitted.

The Council cannot demonstrate a five-year supply of housing land. The variation of Condition 2 and the removal of Condition 12 would enable the development to proceed and provide sustainable and highly accessible town-centre housing, which would contribute to boosting the supply of new housing, as referenced in the National Planning Policy Framework (the Framework). Therefore, the proposal would contribute to addressing the current shortfall in housing land supply in the area, making efficient use of vacant buildings. It would also provide mixed-use development which would maintain a commercial activity at ground floor, contributing to the regeneration and economy of the town centre. There would also be social and economic benefits to local services during the construction and occupancy phases of the development.

The appeal site is located within the designated Banbury Conservation Area (the CA). As such there is a statutory duty under Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) to pay special attention to the desirability of preserving or enhancing the character or appearance of the CA.

The Council also identify that the site contributes to the setting of several listed buildings, which form part of a historic street frontage within the town centre. Under Section 66(1) of the Act, I am obliged to have special regard to the desirability of preserving the building or its setting, or any features of special architectural or historic interest which it possesses.

As no external alterations to the building are proposed, over and above those already approved by the previous planning permission, the character and 1 Council reference: 18/00487/F appearance of the CA would be preserved, and no harm would be caused to the significance of the CA or the setting of nearby listed buildings.

In addition, the Council’s SoC sets out that the neighbouring former [name] is also a locally listed building. Again, for similar reasons, I am satisfied that the appeal scheme would preserve the significance of the non-designated heritage asset.

I acknowledge the appellants frustrations with regard to the Council’s handling of the planning application. Nevertheless, I have considered the proposed development on its planning merits.

[name] 12 there would be unacceptable harm to the living conditions of future occupants of the development from odour. This harm would be significant and contrary to the Framework which requires new development to provide a high standard of amenity for existing and future users and be appropriate for its location taking into account the likely effects of pollution on health and quality of life. Therefore, the conflict between the proposal and Policy ESD15 of the CLP and saved Policy ENV1 of the LP 1996 should be given significant weight in this appeal.

At 3.1 years the housing land supply shortfall is considerable and the presumption in favour of sustainable development, as set out at Paragraph 11(d) of the Framework applies. In these circumstances, Paragraph 11(d)(ii) of the Framework states that planning permission should be granted unless any adverse impacts would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having particular regard to key policies which include, amongst other things, securing a high standard of amenity for future users of development.

The mixed residential and commercial development, in an accessible town centre location, which would contribute to regeneration objectives, would provide considerable positive benefits. In these circumstances, taking into account the Council’s housing land supply position, and the objective of the Framework which seeks to significantly boost the supply of housing, despite the small-scale nature of the proposed development, I attach moderate weight to the identified benefits. However, for the reasons given, the adverse impacts of the removal of Condition 12 and the variation of Condition 2 on the living conditions of future occupiers of the development would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole. As a result, the presumption in favour of sustainable development does not apply.

The proposal conflicts with the development plan as a whole and the material considerations, including the Framework, do not indicate that the appeal should be decided other than in accordance with it. Accordingly, I conclude that the appeal should be dismissed and planning permission refused.