Appeal 6003543

The appeal is allowed and the planning permission Ref 2025/1044 for change of use of agricultural barn to mixed uses and associated works. Retrospective: loose boxes, haystore, tackroom with change of use of outdoor space to mixed livestock grazing including equestrian, retention of bunding and new parking area at [site address] granted on 10 September 2025 is varied by substituting conditions 5, 7, 8, 9, 10 and 13 as set out in the attached schedule and deleting condition 11.

The Council has granted permission for the change of use of agricultural barn to mixed uses and associated works. Retrospective; loose boxes, haystore and tackroom with change of use of outdoor space to mixed livestock grazing including equestrian, retention of bunding and new parking area. Amongst other things, that permission included conditions relating to the hours of operation, highway requirements and landscaping.

The development had been implemented, albeit in breach of conditions. The appellant has applied under s73 of the Town & Country Planning Act 1990 for development to be carried out without complying with conditions imposed on a planning permission. If approved, the result is the grant of a new planning permission.

It is common practice to impose conditions on planning permissions requiring implementation in accordance with approved drawings. It is possible to amend these drawings via an application made under a s73. The practical consequences of discharging or amending a condition(s) is a material consideration.

Paragraph 57 of the National Planning Policy Framework (the Framework) advises that conditions should only be imposed where they are necessary, relevant to planning and to the development, enforceable, precise and reasonable in all other respects. The Planning Practice Guidance (the PPG) refers to this as the ‘six tests’. It also emphasises that clear and precise reasons must be given for the imposition of every condition.

Taking the above into account, the main issues are: i) the effect of varying condition 5 on the living conditions of existing occupiers of nearby residential properties; ii) whether condition nos 8, 9, 10 and 11 are reasonable and necessary having regard to highway safety; and iii) whether condition no 13 is reasonable and necessary having regard to character and appearance.

The appellant wishes to vary condition 5 to extend the opening hours from those originally imposed to between 08.00 – 19.30hrs Monday to Saturday and 10.00 – 16.00hrs on Sundays, bank holidays or public holidays.

Interested parties have raised concerns regarding noise and disturbance due to the proximity of nearby residential dwellings. I observed residential properties opposite the appeal site that are generally set behind landscaped frontages. The shop and associated facilities at the appeal site are set back within the site a considerable distance away from existing dwellings. Nonetheless, I recognise that extended opening hours would result in additional vehicle movements later in the day than currently experienced. Having regard to the physical separation between the existing residential properties and the appeal site, along with the duration of the additional hours and the nature of the use I am satisfied that the living conditions of existing occupiers would not be materially harmed.

The Council do not object to the additional business hours and for the reasons stated, I have no reason to reach a different view. Accordingly, I shall vary condition 5.

Notwithstanding the Local Planning Authority’s (LPA) decision notice that states there is insufficient information for the local planning authority to accept varying conditions the Highway Authority (HA) statement of case sets out that it does not have an objection to the variation of the highway related conditions subject to revised wording of those conditions. The HA does, however, maintain its objection to the removal of Condition 11. I shall discuss the conditions in turn as follows. Condition 7 – Details of the access junction

The condition required the access to be upgraded within 4 months of the decision notice. The existing entrance has been provided with a stone surface formation which is understood to be breaking up due to both vehicular turning movements and weather conditions. The HA concur that a formation that provides a macadam surface together with a construction specification that caters for the number and type of vehicle movements generated by the development is required. Consequently, in the interests of highway safety, the HA has no objection to the revision, and I have no reason to conclude otherwise. I shall therefore vary condition 7 (now condition 6). Condition 8 – Visibility splays

The condition required the visibility splays, as indicated on the approved plans, to be provided within 3 months of the decision notice. The HA is satisfied that appropriate vision splays have been provided. In the interests of highway safety, it is necessary for the visibility splays to be maintained in perpetuity and accordingly, I shall vary condition 8 (now condition 7). Condition 9 - Parking/servicing/unloading

The condition required the access and on-site parking to be provided within 6 months of the decision notice.

Vehicular parking has been shown on the site plan and for the majority in the same manner as the originally approved plan with the exception of the overspill area not been defined on the revised plan. The Council states that a reduced parking provision has not been robustly justified, and that there are numerous anomalies between the provision on site and the approved plan.

Although the individual spaces are not denoted or marked out, each aisle and set of parking bays are separated by grassed banks. I concur that in the interests of character and appearance of this semi-rural location, the parking spaces do not need to be individually marked.

The HA advise that the parking, turning and servicing arrangements provided on site are satisfactory, and I have no reason to conclude otherwise. Nevertheless, it is necessary in the interests of highway safety that the parking/servicing and turning areas are to be maintained throughout the life of the development. I shall therefore vary the condition accordingly. A ‘sanction’ clause is also necessary for non-compliance in order to be enforceable. Condition 10 - Cycle parking

The condition requires a scheme for cycle parking to be submitted within 3 months of the decision and for the implemented scheme to be maintained in perpetuity. The appellant’s statement advises that the cycle stands will be installed once an extension to the building has been completed. However, I am advised that an application for a retrospective two storey front extension and porch, single storey rear extension with first floor terrace, and infill single storey side extension for commercial units is still pending consideration.

Irrespective of the outcome of the application for the extension at the premises, I have no reason to find the quantum or location of the ‘Sheffield’ cycle stands proposed to be unacceptable. Consequently, I shall vary the condition for compliance with the submitted plan (drawing 2594/03 Rev L05.03.2023 - Site Plan Updated). A sanction clause is also necessary for non-compliance in order to be enforceable. Condition 11 – off-site highway works

Condition 11 required within 3 months of the grant of permission detailed construction drawings for the off-site highway improvement works indicated on drawing No 210575-002B to be submitted to and approved in writing by the local planning authority and that the agreed scheme to be implemented with 12 months of the grant of permission.

There is dispute between the parties as to the extent of the works required. The Council have confirmed that they do not seek a TROD footway for a distance of 1km along the north side of [site address] but that a TROD footpath is provided between a point opposite the site entrance up to the junction with [address] where there are formal kerbed footways, which is a distance of approximately 215m.

The appellant submits that the requirement of Condition 11 for the highway works goes beyond what would be regarded as necessary as well as reasonable to make the development acceptable. The Council maintains that the TROD footway is necessary to mitigate against the impact of the development. They advance that it was intended to provide an important pedestrian link between the site and the local community necessary in the interests of promoting sustainable travel options to and from the site, namely by linking the appeal site to the nearby bus stop and that it was pivotal in the acceptability of the proposal.

I recognise the Framework encourages walking, cycling and public transport use and reference to the need to maximise opportunities for sustainable transport solutions. However, the condition did not include a sanction should the scheme not be provided or implemented. As a result, it is unclear how this condition would be enforced.

The condition would require off-site works that are outside of the control of the appellant. I therefore have reservations as to whether it is reasonable to require off site works via a condition of this type. The appellant questions whether it would be viable to provide the TROD. Although there is limited evidence relating to that, this would also go against the reasonableness of the condition.

Whilst the condition may have been necessary in the interests of promoting sustainable travel options, given that no approval was secured and works have commenced, the condition is unenforceable. I therefore find that the condition fails the tests of enforceability and does not meet the tests set out in the Framework and the PPG. I note this reflects the advice of the Council’s Compliance Officer1. The condition should therefore be deleted. Condition 13 – Landscaping

Condition 13 required a landscaping scheme to be submitted to and approved in writing by the Local Planning Authority within 3 months of the date of the decision (by 25th February 2023) and then to be carried out no later than the 2023/2024 1 email dated November 26th 2024 planting season November to March, or such further period as the Local Planning Authority may allow in writing.

Although the Council state that it is not clear how the appellant is seeking to vary the condition a landscaping scheme is shown on the amended site plan ([name]) submitted with the 2025/1044 application.

The Council states that the plans only show additional planting to the frontage boundary, and a lack of planting to the south of the site, from that previously shown. However, the revised plan indicates proposed trees and hedging along the southern boundary. I shall therefore vary condition 13 requiring the implementation of the landscaping scheme in the interests of the satisfactory appearance of the development.

The proposal lies within the Zone of Influence (ZoI) of one or more protected European designated sites (European sites). In this particular case the relevant ZoIs are those of The Broads, Valley Fens, [name] and [name]. The Habitat Regulations require Local Planning Authorities to ensure that new development does not cause adverse impacts to the integrity of protected habitats such as the [name] or the Broads prior to granting planning permission. This site is located outside of the catchment area but would drain into the catchment area of one or more of these sites as identified by Natural England and as such the impact of the of the development must be assessed. The Council state that the principle of the development has already been established and this variation of condition application does not the create additional overnight accommodation. As such it is not likely to lead to a significant effect as it would not involve a net increase in population in the catchment and is not considered a high-water use development. This application is therefore not likely to have a significant effect on the conservation objectives either alone or in combination with other projects and there is no requirement for additional information to be submitted to further assess the effects.

I concur with this reasoning and am satisfied that the appeal can, with regards nutrient neutrality, be safely determined with regards the Conservation of Species Habitats Regulations 2017 (as amended). I also concur that the proposal is not liable for Green Infrastructure Recreational Avoidance Mitigation Strategy (GIRAMS) as it does not propose any overnight accommodation.

In allowing this appeal a new grant of planning permission is created. The guidance in the PPG makes clear that decision notices for the grant of planning permission under section 73 should also restate the conditions imposed on earlier permissions that continue to have effect. [name] have no information before me about the status of the other conditions imposed on the original planning permission, I shall impose all those that I consider remain relevant. In the event that some have in fact been discharged, that is a matter which can be addressed by the parties. However, as the development has already started it is unnecessary for me to attach the commencement of development condition.

There is a strict timetable for compliance with condition no’s 6, 8, 9, and 11 because permission is being granted retrospectively, and it is not possible to use a negatively worded condition to secure the approval and implementation of outstanding matters before the development takes place. Conditions will include a sanction to ensure that the development can be enforced against if the requirements are not met.

Although not applied to be varied, as a consequence of my decision, I have updated the plan reference in conditions 1 and 2 to reflect the plans submitted and approved. This is in the interests of certainty.

Conditions 3 and 4 are necessary regarding the nature and extent of the uses permitted in the interests of character and appearance and protecting the living conditions of existing occupiers.

A condition regarding any access gates (5) is reasonable and necessary in the interests of highway safety.

Conditions regarding external plant (10), flues (12) and lighting (13) are reasonable and necessary in the interests of character and appearance and protecting the living conditions of nearby residential occupiers.

A condition for the storage and disposal of horse manure (14) is reasonable and necessary in the interests of protecting the living conditions of nearby occupiers from pollution.

For the reasons set out, the appeal should be allowed, and the planning permission varied in the terms I have explained.

The development hereby permitted shall be carried out in accordance with the application form, plans and drawings and other documents and details received as listed below: Location Plan, [name]: 2765/03, received 6 December 2021 [name] and Elevations, [name]: 2765/04 [name], received 14 November 2022 First Floor Plan, [name]: 2765/05 [name], received 6 December 2021 Email from the agent to the officer dated 7 October 2022 Site Plan Updated Dwg No. 2594/03 [name] L05.03.2023 Site Plan Layout & Visibility Assessment Dwg No 314/2025/201 Rev P1 Contour Plan, Longitudinal Section & [name] 314/2025/202 Rev P1

The barn and adjacent undercover areas as shown on the Site Plan Updated Dwg No. 2594/03 [name] L05.03.2023 as '[name] shall be used as set out on the [name] ([name]: 2765/04 [name] and 2765/05 [name]) as a [name] / Florist, Butchery / Deli, [name] and Sales, Teaching Area, a Cafe and Associated uses only and for no other purpose (including any other purpose in [name] & F; of the Schedule to the Town and Country Planning ([name]) Order 1987 (as amended), or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification) unless otherwise prior agreed in writing with the Local Planning Authority.

At least 50% of the total retail floor area within the building (including the [name] / Florist, Butchery / Deli and [name] and Sales areas) [name] ([name]: 2765/04 [name]) shall be sourced from the application site or from the operator's agricultural holding unless otherwise agreed in writing with the Local Planning Authority. The operator or any successors to the premises shall maintain a register that contains information on the type and origin of produce sold and this register shall be made available for inspection by the Local Planning Authority at all reasonable times.

[address] Shop / Florist, Butchery / Deli, [name] and Sales, Teaching Area, Cafe shall not operate other than between the hours of 08.00 – 19.30hrs Monday to Saturday and 10.00 – 16.00hrs on Sundays, bank holidays or public holidays.

Any access gates / bollard / chain / other means of obstruction shall be hung to open inwards, set back, and thereafter retained a minimum distance of 8 metres from the near channel edge of the adjacent carriageway. Any sidewalls / fences / hedges adjacent to the access shall be splayed at an angle of 45 degrees from each of the outside gateposts to the front boundary of the site.

Within 90 days of the date of this permission the access shall be implemented in accordance with [name] 314/2025/201 Rev P1 and 314/2025/202 Rev P1. It shall be upgraded/widened to a minimum width of 5 metres in accordance with the Norfolk County Council light commercial access construction specification. Notwithstanding the submitted drawings, the macadam construction shall be provided for a minimum of 10 metres as measured back from the near channel edge of the adjacent carriageway. Arrangement shall be made for surface water drainage to be intercepted and disposed of separately so that it does not discharge from or onto the highway carriageway. If the scheme in accordance with this condition is not implemented in full the use of the site, as described in the description of development, shall cease until such time as the scheme is fully implemented. Upon implementation of the scheme specified in this condition, it shall thereafter be maintained throughout the life of the development.

Visibility splays measuring 2.4 metres x 120 metres to each side of the access where it meets the near edge of the adjacent highway carriageway shall be maintained at all times free from any obstruction exceeding 1.05 metres above the level of the adjacent highway carriageway.

Within 90 days of the date of this permission the access/on-site car parking/servicing/loading/unloading/turning/waiting areas shall be laid out, demarcated, levelled, surfaced and drained in accordance with drawing number 2594/03 [name] L05.03.2023 - Site Plan Updated and retained thereafter available for that specific use. If the scheme in accordance with this condition is not implemented in full the use of the site, as described in the description of development, shall cease until such time as the scheme is fully implemented. Upon implementation of the scheme specified in this condition, it shall thereafter be maintained throughout the life of the development.

Within 90 days of the date of this permission cycle parking shall be installed in accordance with drawing no 2594/03 Rev L05.03.2023 - Site Plan Updated. The hereby approved scheme shall thereafter be maintained for the use intended in perpetuity. If the scheme in accordance with this condition is not implemented in full the use of the site, as described in the description of development, shall cease until such time as the scheme is fully implemented.

Within 3 months of the grant of planning permission, full details of the external lighting including the time these lights shall be switched on and off, shall be submitted to and approved in writing by the Local Planning Authority. The external lighting shall then be installed in accordance with the approved details.

The landscaping scheme as shown on drawing number 2594/03 [name]: 05.03.2023 - Site Plan Updated shall be carried out no later than the 2026/2027 planting season (November to March). If the scheme in accordance with this condition is not implemented in full the use of the site, as described in the description of development, shall cease until such time as the scheme is fully implemented. If within a period of ten years from the date of planting any tree or plant or any tree or plant planted in replacement for it, is removed, uprooted or is destroyed or dies, [or becomes in the opinion of the Local Planning Authority, seriously damaged or defective] another tree or plant of the same species and size as that originally planted shall be planted at the same place, unless the Local Planning Authority gives its written consent to any variation.

No generator, compressor, chilling unit or cooling fan shall be installed without precise details of the equipment being submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in accordance with the approved details and shall be retained as such thereafter.

No external flues / ducting shall be installed until full details of arrangements for internal air extraction, odour control, and discharge to atmosphere from cooking operations, including any external ducting and flues, has been submitted to and approved in writing by the Local Planning Authority. The development shall be carried out and operated in accordance with the approved details and shall be retained as such thereafter.

Horse manure shall be stored and disposed of in accordance with the details set out in the email from the agent to the officer dated 7 October 2022. ***End of Schedule***