Appeal 6003626

The appeal is dismissed.

The application subject of this appeal is for outline permission, with the matters of access, layout and scale to be considered at this stage and other matters reserved for future consideration.

However, the proposal involves a change of use of the appeal site from a [address] to residential development. An outline application cannot be used to consider or determine a proposal for a material change of use, as the definition of ‘outline planning permission’ in the Town and Country Planning (Development Management Procedure) Order 2015 (as amended) applies only to the erection of a building, subject to later approval of reserved matters.

There is a discretion to process an appeal and accept it as valid, despite breaches of procedural requirements, if it is appropriate to do so. This discretion should only be exercised following full regard to all the circumstances, including whether any prejudice would arise1.

I have sought the views of the main parties on this matter, and it was proposed that the description of development be amended to reflect the hybrid nature of the application.

In these circumstances, although the original description was procedurally inaccurate, it was not wholly unclear. The application was supported by indicative layout and housing type plans, as well as a Design and [name], all of which illustrated how the site could be developed and are suitable for use in assessing the proposal. The development scheme has not changed, it is the same scheme that was considered by the Council and interested parties at application stage, and no amendments have been proposed during the appeal process. 1 Maximus Networks Ltd v SSHCLG & Others [2018] EWHC 1933 (Admin)

Having regard to the merits of the case, I am satisfied that determining the appeal on the basis of the clarified description would not prejudice any party. This is notwithstanding that the application was not originally determined on this precise basis and may not have been subject to the correct application fee. I have therefore determined the appeal on this basis.

For the avoidance of doubt, I have treated the submitted plans as illustrative only.

The Council failed to determine the application within the prescribed period. Following the submission of the appeal, the Council has prepared an appeal statement that advises that had it determined the application, planning permission would have been refused. I have had regard to the Council’s appeal statement, in so far as it provides clarity in terms of the reasons why it would have refused planning permission had it been able to do so. The main issues below are taken from this document.

The main issues in this appeal are: • whether the loss of the public house is justified having regard to the development plan policies; • the effect of the proposal on highway safety; and • the effect of the proposal on the living conditions of neighbouring occupants, with specific regard to outlook and privacy.

Policy SC1 of the Herefordshire Local Plan Core Strategy 2011-2031 (2015) ([name]) states that existing social and community facilities will be retained, unless it can be demonstrated that an appropriate alternative facility is available, or can be provided to meet the needs of the community affected; or it can be shown that the facility is no longer required, viable or is no longer fit for purpose; and where appropriate, it has been vacant and marketed for community use without success. Viable alternative facilities must be equivalent to those they replace, in terms of size, quality and accessibility. The text supporting Policy SC1 clarifies that evidence of marketing for 12 months should be provided with any proposals involving the loss of community facilities.

CF1 of the Colwall Neighbourhood Development Plan 2021-2031 (NDP) reflects this approach. It requires proposals leading to the loss of a specified community and social facility, as listed and including the appeal property, to demonstrate that appropriate marketing has taken place, for at least a continuous period of 12 months as a minimum, in line with the justification to Policy SC1 of the [name].

The appeal property was previously in use as a public house, known as The Crown, but has been vacant since 2019. Representations from local residents indicate that the public house was valued by the local community. I note that a nomination in 2024 to include it on the Council’s list of assets of community value was unsuccessful, which the Council attribute to the length of time the pub has been closed.

From the evidence before me and my observations on site, it is apparent that trade at the former public house declined to a point where the owner, at that time, was unable to sustain the business. The appeal property has not been adequately maintained for some time and is now in a deteriorated condition. Also, I understand that the bar fixtures and fittings have been removed. Nonetheless, taken either individually or cumulatively, and notwithstanding the sustained interest in redevelopment for residential use, these matters do not amount to conclusive evidence that the public house use is no longer viable.

I do not doubt that returning the appeal property to public house use would require investment and would involve a degree of financial risk. However, there is no technical evidence before me to demonstrate that the use of the appeal property as a public house would not now be viable.

The appellant draws attention to a previous permission granted at the appeal site in 2021 for improvements to the public house (2021 permission). In granting that permission, the Council recognised that the works would enhance the site, increase visitor accommodation and improve the viability and offer of the facility. While this may suggest that intervention was considered necessary to support the business at that time, the permission was never implemented. As a result, there is no evidence of the extent to which those, or similar, works would have affected the viability of the use. I therefore attach only limited weight to this matter.

Although the presence of other villages in the county that support two public houses does not, of itself, establish the viability of the appeal property as a public house, Policy SC1 of the [name] does not place the burden on the Council to demonstrate viability or identify a funded, deliverable or secured scheme for the reopening of the public house. Rather, the policy requires the appellant to demonstrate that the facility is no longer viable, and, on the evidence before me, that has not been done.

On my visit I noted that the Colwall Park Hotel and the [name] offer some facilities comparable to those of a public house and are located not far from the appeal property. However, I have limited information before me regarding the precise nature and extent of these facilities. In any event, even if they were to be regarded as appropriate alternative facilities, Policy SC1 of the [name] and Policy CF1 of the NDP require the appeal property be marketed for 12 months.

There is no dispute between the parties that, in this case, the appeal property was marketed for only four weeks prior to being offered at auction. This falls well short of the policy requirements. Moreover, it appears that the property was not proactively marketed for community use, and that the auction process may have failed to capture or pursue interest from parties seeking to retain the use as a public house. Consequently, from the evidence before me, the marketing cannot be regarded as adequate or robust, and the proposal would therefore conflict with Policy SC1 of the [name] and Policy CF1 of the NDP in this regard.

The Block Plan, drawing no. 1435.02A (Block Plan), indicates four vehicular access points to serve parking for the proposed dwellings: two onto [address], including one new access; one onto [address]; and one at the junction of [address] and [address].

[address] is narrow, with little street lighting and no footways. During my visit, vehicle movements were limited and speeds low. By contrast, [address] and its junction with [address] are wider, lit and include a footway on one side. Vehicle movements are more frequent, and in the absence of parking restrictions, on-street parking occurs opposite the appeal site. A moderate level of pedestrian activity was evident along both [address] and [address].

On the day of my visit the former public house car park was closed, albeit a couple of vehicles remained parked within it. It did not appear to be used by patrons of the nearby hairdressers and the evidence before me does not indicate that it serves that purpose. The Block Plan indicates that a dedicated parking space would be provided as part of the proposal for the occupants of [address]. There are few parking restrictions in the immediate area and, while several vehicles were parked on-street, additional spaces were available near the appeal site that could accommodate any vehicles displaced from the former car park by the proposal.

Nonetheless, there is insufficient evidence to demonstrate adequate intervisibility at the access points. Visibility splays are shown only for the new proposed access to Plot 1, and the right-hand splay is not plotted to the nearside kerb line, with no justification provided. Even if vehicle movements would be modest, and despite the absence of recorded accidents, it remains necessary to demonstrate that adequate visibility splays are available.

Inadequate visibility would increase the risk of conflict between vehicles leaving the site and other road users. This risk is exacerbated on [address] by the limited street lighting and lack of footways, and, in relation to the proposed access to Plot 1, by the entrance to [address] opposite.

In the absence of any substantive evidence to demonstrate that the proposal could achieve adequate visibility splays, it would not be reasonable for me to secure this requirement by condition.

The appellant refers to the Council’s earlier view that the access arrangements were sufficient for the works approved under the 2021 permission. However, that permission related to a significantly different scheme from that now proposed. As such, it attracts only limited weight in the determination of this appeal.

Overall, based on the evidence before me, I am not satisfied that the proposal would avoid unacceptable harm to highway safety. It would therefore conflict with Policy MT1 of the [name], which requires development to provide safe and suitable access, with appropriate visibility and manoeuvring space.

Although illustrative, the submitted Block Plan and House Type Proposal, drawing no. 1435.03, clearly indicate the proposed layout of the development and the scale of the dwellings, both of which are matters for consideration at this stage.

The Block Plan shows that the proposed dwelling on plot [address] to the shared boundary with [address] and the adjacent hairdressers, which includes accommodation at first-floor level. While relationships between buildings in village-centre locations are often tighter than those on the edge of the settlement, in this case, the resulting separation distance between the rear of these properties and the proposed dwelling would be very limited.

Consequently, the proposed dwelling would have an appreciable impact on the outlook from the rear of these properties, particularly [address] and the rear garden serving the occupants of the accommodation above the hairdressers. It would dominate the outlook from the rear-facing windows of [address] and increase the sense of enclosure to the rear garden space behind the hairdressers. As a result, it would likely appear oppressive and overbearing to these occupants, causing moderate harm to their living conditions in this regard.

This resulting harm, which arises from the layout and scale of the development, could not be satisfactorily mitigated through matters of design or appearance reserved for later approval. Notwithstanding this, it is likely that concerns regarding overlooking and privacy could be addressed at the reserved matters stage.

For the reasons above, the proposal would conflict with Policy SD1 of the [name] and Policy CD2 of the NDP, which seek to ensure that all development proposals safeguard residential amenity for existing and proposed residents.

In terms of benefits, the proposal would bring a vacant building back into use, uplifting its appearance, and provide four new dwellings in a sustainable location. The Council does not currently have a five-year supply of deliverable housing sites. It has been put to me by the appellant that the current supply position is 3.2 years. This is a significant shortfall, which is not disputed by the Council. Given this, although the scale of the proposal would be reasonably modest, the new dwellings, in this case, would make an important and much needed contribution to the district housing supply. I afford this significant weight in my decision.

There would also be some modest economic and social benefits associated with the conversion of the appeal property, construction of the houses and the subsequent occupation of the four dwellings.

Given the shortfall in housing supply, paragraph 11d) of the National Planning Policy Framework (the Framework) falls to be considered. Permission should therefore be granted unless any adverse impacts of the proposal 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 for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.

I have found that the proposal would conflict with Policy SC1 of the [name] and Policy CF1 of the NDP, which seek to protect community facilities. It would result in moderate harm to the living conditions of the occupants of [address] and the accommodation above the adjacent hairdressers, contrary to Policy SD1 of the [name] and Policy CD2 of the NDP. In addition, it has not been demonstrated that the proposal would avoid unacceptable harm to highway safety, and it would therefore be contrary to Policy MT1 of the [name]. As such, the proposal would conflict with the development plan, read as a whole.

Policy SC1 of the [name] and Policy CF1 of the NDP are broadly consistent with the aim of paragraph 88 of the Framework, which seeks to retain accessible local services and community facilities, including public houses. Policy MT1 of the [name] reflects paragraph 115 of the Framework, which requires development to provide safe and suitable access for all users, and paragraph 116, which confirms that an unacceptable adverse impact on highway safety is a justified reason for refusing development. Policy SD1 of the [name] and Policy CD2 of the NDP are also consistent with the objective of paragraph 135 of the Framework to ensure developments create places with a high standard of amenity for existing and future users. I therefore attach considerable weight to the identified adverse impacts.

The proposal would support the objective of the Framework in boosting the supply of homes in an area where there is currently a significant shortfall in the supply of deliverable housing sites. Although the scale of the development is reasonably modest, small sites such as the appeal site are often capable of being built out relatively quickly, and the proposed dwellings would therefore make a timely and meaningful contribution towards addressing the shortfall.

Overall, while the proposal would deliver housing in a sustainable location, the loss of the public house has not been robustly justified and therefore it has not been demonstrated that the proposal would represent an efficient use of land in line with Paragraph 129 of the Framework. Moreover, the proposal would fail to secure a well-designed place. Consequently, when assessed against the policies in the Framework taken as a whole, I conclude that the adverse impacts of the proposal would significantly and demonstrably outweigh its benefits.

Furthermore, the Colwall Neighbourhood Development Plan was made part of the development plan less than five years ago and contains policies and allocations to meet its identified housing requirement. In these circumstances and where the presumption at paragraph 11d applies to applications involving the provision of housing, Paragraph 14 of the Framework indicates that the adverse impact of granting permission for development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits.

Accordingly, in this case, material considerations do not indicate that a decision other than one in accordance with the development plan is justified

Having had regard to the development plan as a whole and all relevant material considerations, I conclude that the appeal should be dismissed.