Appeal 6003692

The appeal is dismissed.

The appeal is dismissed.

The proposed advertisements for Appeal B would be an integral part of the proposed development for Appeal A. As such, to avoid repetition I have provided one reasoning section, detailing my findings for both appeals. Notwithstanding this, each proposal and appeal has been considered individually, and on its own merits.

The appeal site is located within the Upton Conservation Area (conservation area). Of relevance to both appeals, the Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended) provides at s72(1) that with respect to any buildings or other land in a conservation area, special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.

Of relevance to Appeal A, the Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended) provides at s66(1) that in considering whether to grant planning permission for development which affects a listed building or its setting, Appeal Decisions 6003692, 6003693 special regard shall be had to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

The 2007 Regulations specify that control may be exercised only in the interests of amenity and public safety. In relation to Appeal B, the relevant policies of the development plan have been taken into account so as they are material, but they have not been determinative.

The main issues with respect to Appeal A are the effect of the proposed development on: • the character and appearance of the area, including the conservation area and the settings and thereby the significance of nearby listed buildings; • highway safety; • crime safety; • the living conditions of neighbouring occupiers; and • climate change.

The main issues with respect to Appeal B are the effect of the proposed advertisements on amenity and public safety.

The appeal site comprises an area of footway located close to the junction between [address] and [address] in Torquay. The site is situated just beyond [address] House, a large multi-storey building, in which the entrance to Subway restaurant is situated. The local area consists of a mix of uses, including units in commercial use opposite the site, some of which lead towards the key shopping destination of [address] to the south-east of the site. Further up [address] is a [name] and some dwellings (one of which has been (at least partially) converted into a barbers).

Opposite the site is The Town Hall (a [name] listed building), the heritage significance of which is derived in part from its attractive early 20th century municipal architecture in the Edwardian baroque stye, and [address] (also a [name] listed building), the heritage significance of which is derived in part from its bold, clearly legible, and well-preserved [name] architecture.

Despite the presence of [address] House and a mature tree on a traffic island (opposite the site), the width of the carriageways in this location and the overall size of the junction itself ensure that The Town Hall and [address] are prominent buildings in the street scene. The settings of these listed buildings contributes to their significance mainly due to the sense of space around them, the varied mix of uses nearby (including commercial and residential), and the busyness of the area (facilitated in part by the carriageways and footways which pass them). Appeal Decisions 6003692, 6003693

The Upton Conservation Area Character Appraisal explains that the conservation area lies at the heart of Torquay, and that it includes a number of areas characterised by function: civic and commercial, and residential, and that the historic built environment is entirely a product the 19th century, either alongside the earlier road pattern itself determined by the natural topography, or of later-19th century planned design. Hence, the significance of the conservation area derives in part from the remaining distinctive architectural features and details of its key individual buildings, and from its association with past lives and events, especially from the 19th century and early 20th century.

I observed that the existing BT kiosks referred to by the appellant have already been removed. Accordingly, the proposed development would not reduce street clutter in the locality.

Apart from a traffic signal, a number of unobtrusive low-lying bollards, and 2 narrow poles containing signage, the wide semi-circular area of footway which spans in front of Subway is presently very spacious in appearance. Although it would be shorter than many surrounding buildings, the proposed [address] Hub would be located near to the end of this spacious area of footway and would be set apart from [address] House, the bus shelter adjacent to [address] House, and the retail units on the other side of [address].

At almost 3 metres high and approximately 1.2 metres wide, the proposed [address] Hub would be a tall and solid structure located in a prominent position in the street scene. Being larger in scale than most of the existing items of street furniture around it, it would appear as an overly-dominant and conspicuously out-of-scale feature in its context.

The Inspector in appeal decision [name]/Z4310/W/18/3205104 referred to long-range views of the upper floors certain listed buildings in Liverpool, rather than making a wider statement about how heritage assets are viewed in general. In this case, even taking account of the presence of [address] House and the mature tree referred to above, the proposed [address] Hub would be clearly visible in the foreground of views of The Town Hall and [address] from several viewpoints on [address]. Given its dimensions and design the proposed [address] Hub would be a bulky structure with a monolithic appearance which would impinge on views towards the listed buildings. In turn, this would undermine the appreciation of their historic architecture. It would also reduce the sense of openness referred to above which forms an important part of the settings of these listed buildings.

Subway has a large glass frontage through which the internal lighting of the restaurant is visible from the street scene, but illumined signage is not a common feature in the street scene. Importantly, no internally-illuminated advertisements of a similar scale to that proposed are present on the footway on nearby sections of [address]. The advertisements would change approximately every 10 seconds, which would draw further attention to the proposed [address] Hub.

As such, the proposed 2 large digital display screens would appear as visually intrusive elements in the street scene, which would cause further harm to the character and appearance of the area, over-and-above the adverse impacts referred to above. They would also detract from the distinctive architectural qualities of the above-mentioned listed buildings. As this harm would persist even with the proposed 2 digital display screens having a reasonable level of brightness Appeal Decisions 6003692, 6003693 relative to their surroundings, condition(s) limiting the luminance of the proposed 2 digital display screens would not be sufficient to overcome these adverse impacts.

Hence, in contrast to the scheme considered by the Inspector in appeal decision [name]/P4605/W/22/3311746, the proposed [address] Hub would not assimilate with local character over time. As a discordant element in the street scene which would harm the character and appearance of the area, it would not preserve the character and appearance of the conservation area, nor the settings of the listed buildings. Harm to the significance of the conservation area and the listed buildings as designated heritage assets would result.

No plans / drawings illustrating the context of the local area have been provided in relation to appeal decision [name]/P4605/W/22/3296193, APP/P4605/H/22/3311746, and APP/Y5420/W/22/3311428, which related to sites in Birmingham and London. Appeal decision [name]/G3110/W/22/3308266 and APP/G3110/H/22/3308267 did not involve sites in a conservation area, nor in the setting of any listed buildings. As such, it has not been demonstrated that the site-specific circumstances involved in those appeals are directly comparable with the proposals now before me. None of these appeal decisions alter my findings on this

The localised harm caused would result in a limited degree of less than substantial harm to the significance of the above-mentioned heritage assets. The National Planning Policy Framework (the Framework) requires such harm to be weighed against the public benefits of the proposals.

The public benefits of the proposed [address] Hub include (amongst other benefits) free ultrafast Wi-Fi, free phone calls, wayfinding, device charging, an emergency 999 call button, and public messaging capabilities. The appellant has an [name] license and a [name] governed by Ofcom to provide and maintain publicly accessible call boxes on the street, which is intended to benefit people without a land line or a mobile telephone or those away from home, who cannot use their mobile. In this regard, Policy IF1 of the Torbay Local Plan 2012-2030 (adopted 2015) (Local Plan) provides that, amongst other things, the introduction and installation of the most up-to-date and fastest telecom and other Information and [name] (ICT) will be supported by the Local Plan.

However, it has not been demonstrated that any particular local need for additional internet connectivity exists (including free Wi-Fi), nor that internet speeds are prohibitively slow in the local area. Nor has it been shown that 5G connectivity is presently lacking in the local area. Hence, the evidence does not indicate that the scale of the identified benefits to the local area would be substantial, including with respect to assisting Torbay’s tourism offer (which is supported in principle by Policy TO1 of the Local Plan). Mention has been made of the [address] Hub providing a platform for interactive technologies on the streets (such as air quality monitoring), but it has not been shown that this technology would in reality be used by the relevant authorities.

Planning law requires that each individual incidence of harm to a designated heritage asset must be given considerable importance and weight. Considering the great weight which must be given to the conservation of each of the designated heritage assets, the totality of the public benefits would not outweigh the combined Appeal Decisions 6003692, 6003693 harms identified to the significance of the conservation area and to significance of the listed buildings.

In relation to Appeal A, I therefore find that the proposed development would have an unacceptable and harmful effect on the character and appearance of the area, that it would not preserve or enhance the character or appearance of the conservation area, and that it would harm, and therefore fail to preserve, the settings and thereby the significance of the identified listed buildings. It would conflict with Policy DE1 of the Local Plan which provides that, amongst other things, development should be well-designed, respecting and enhancing Torbay’s special qualities, and with Policy TH8 of the Torquay Neighbourhood Plan (adopted 2019) which provides that development must be of good quality design, respect the local character in terms of height, scale and bulk; and reflect the identity of its surroundings.

In relation to Appeal A, the proposed development would conflict with Policies SS10 and HE1 of the Local Plan which collectively provide that, amongst other things, development will be required to sustain and enhance those monuments, buildings, areas, walls and other features which make an important contribution to Torbay’s built and natural setting and heritage.

In relation to Appeal B, I find that the proposed advertisements would have an unacceptable and harmful effect on amenity. In accordance with Regulation 3(1) of the 2007 Regulations, material to my findings are the same policies mentioned with respect to Appeal A. Whilst not determinative, the proposed advertisements would conflict with these policies. Whilst not determinative, conflict would also arise with part 1. of Policy DE6 of the Local Plan which provides that advertisements will not be permitted where they would harm visual or aural amenity.

The proposed [address] Hub would be located close to a pedestrian crossing and a bus lay-by. The pedestrian crossing is part of a junction which is often very busy. Vehicles turning left from [address] traveling across the pedestrian crossing would be separated from vehicles travelling in the opposite direction along [address] due to the segregation of the carriageway at this point, meaning that no interference with the sight lines to the opposite carriageway would occur for vehicles turning left.

Although the [address] Hub would be sited approximately 2 metres from the carriageway, it would be a tall and prominent structure in the street scene, and would contain 2 large digital display screens, one of which would be partially orientated towards [address]. Given its proximity to the pedestrian crossing, it would unduly distract drivers who should be focussing on the traffic signals serving the pedestrian crossing and the crossing itself.

The large size of the illuminated advertisement, facing the bus lay-by at close proximity, would also draw the attention of bus drivers pulling out of the bus lay-by. This would likely reduce their concentration on the road, at a point where particular care is required due to the likely presence of oncoming vehicles (and potentially cyclists) travelling alongside the bus lay-by. Hence, the proposed [address] Hub would unacceptably increase the risk of a collision between buses and other road users, including cyclists. Appeal Decisions 6003692, 6003693

The appellant has submitted a copy of The Guidance for [name] and [name] (Transport for London) (2013). Whilst the proposed advertisements comply with certain aspects of this guidance, as no visibility splays or other detailed technical evidence relevant to highway safety has been provided, the proposed advertisements are at odds with its advice that adverts in proximity to pedestrian crossings require detailed analysis to ensure that no conflict occurs. This guidance does not alter my findings above.

Appeal decision [name]/Y5420/W/22/3311428 related to a site in London. Although the Inspector referred to a signalised pedestrian crossing and to bus stops, no plans have been provided relating to that appeal. Thus, it has not been demonstrated that the site-specific circumstances, such as the curvature of the carriageway and the siting of that development in relation to the pedestrian crossing and any bus stop, are directly comparable with the proposals now before me.

Similarly, no plans showing the siting of the development in relation to the layout and geometry of the carriageway have been provided for appeal decision [name]/L5240/H/21/3285399. As no plans have been provided, based on the information before me, the siting of the proposed installation relative to the decision-making points referred to by the Inspector appeal decision [name]/R0335/H/25/3365045 is unknown. Hence, the degree to which the site-specific circumstances in these cases are comparable with the proposals now before me is unclear. These appeal decisions do not alter my findings on this main issue.

In relation to Appeal A, I find that the proposed development would have an unacceptable effect on highway safety. It would conflict with Policy DE1 of the Local Plan which seeks to, amongst other things, provide public space and routes that are safe.

In relation to Appeal B, I find that the proposed advertisements would have an unacceptable effect on public safety. In accordance with Regulation 3(1) of the 2007 Regulations, material to my findings is the same policy which I have referred to with respect to Appeal A, above. Whilst not determinative, the proposed advertisements would conflict with this policy, and also with part 2. of Policy DE6 of the Local Plan which provides that, amongst other things, advertisements will not be permitted where they would undermine public safety.

The Police have mentioned that the proposed [address] Hub would be situated in an anti-social behaviour hotspot policing area which results in extra patrols to reduce anti-social behaviour. On my site visit I observed groups walking up [address] engaging in intimidating behaviour, including shouting aggressively. However, there is little substantive evidence before me that the services offered by the proposed [address] Hub, including free ultrafast Wi-Fi, would appreciably exacerbate this situation. Nor has any substantive evidence been provided to demonstrate that the proposed [address] Hub would undermine the operation of CCTV in the area.

The Police have raised concerns that the ability to make free calls could allow abuse of that service, including the proposed [address] Hub being used to Appeal Decisions 6003692, 6003693 facilitate the distribution of drugs or nuisance calls, particularly for domestic abuse / stalking victims.

The submitted [name] Plan (Version 3) details how a proprietary algorithm provides for automatic anti-social call restriction based on a range of factors. Whilst this would not immediately prevent ‘one-off’ malicious calls, I am mindful that any mobile telephone connected to the telecommunications network could used to make such calls, with the only difference being that the proposed [address] Hub would allow for calls to be made free of charge. Importantly, the Management Plan allows for the blanket prevention of calls to mobile telephone and landline numbers, should this be warranted in the circumstances. As such, I concur with the Inspector’s finding in appeal decision [name]/L5240/W/21/3285401 that a planning condition requiring adherence to the Management Plan would reduce the risk of the [address] Hub being used for crime to an acceptable degree.

I therefore find that, in relation to Appeal A, the proposed [address] Hub would have an acceptable effect on crime safety, and in relation to Appeal B, the proposed advertisements would have an acceptable effect on public safety. No conflict would arise with Policies DE1, DE6, and SS11 of the Local Plan which collectively seek to, amongst other things, help to reduce and prevent crime and the fear of crime whilst designing out opportunities for crime, antisocial behaviour, disorder and community conflict.

The appellant has clarified that the default setting is for the [address] Hub, including its Wi-Fi and phone call elements, to operate throughout the day and night. The proposed maximum daytime luminance for the 2 digital display screens of 5000 cd/m2 would fall within the recommended parameters set out in [name] 05/23: The Brightness of [name] (PLG 05/23). Additionally, the proposed [address] Hub would incorporate controls which would change the brightness of the screens depending on the time of day / weather conditions. Moreover, the proposed 2 digital display screens would not be directly facing the windows of any neighbouring buildings.

If the proposals were acceptable in all other respects, potentially conditions could be imposed to ensure that the proposed 2 digital display screens would not exceed the maximum night-time permitted values of display luminance recommended in PLG 05/23. Considering this, and taking account of my findings above in relation to crime safety, the proposed [address] Hub would not cause a nuisance to neighbours by attracting anti-social and criminal behaviour and due to their level of illumination.

I therefore find that, in relation to Appeal A, the proposed [address] Hub would have an acceptable effect on the living conditions of neighbouring occupiers, and in relation to Appeal B, the proposed advertisements would have an acceptable effect on amenity. No conflict would arise with Policy DE3 of the Local Plan which seeks to ensure that all development should be designed to provide a good level of amenity for future residents or occupiers and should not unduly impact upon the amenity of neighbouring and surrounding uses. Climate change Appeal Decisions 6003692, 6003693

The design of the proposed [address] Hub incorporates energy efficient features, including LCD screens that consume approximately 60% less power than [name], screen filters and industrial-grade components and passive design for cooling that reduce the need for cooling systems, and high-efficiency power supplies. Controls on the luminance levels of the 2 proposed advertisements, including automatic dimming at night (which could be secured by way of conditions) would further minimise energy consumption. All these factors would ensure that the proposed [address] Hub would not be energy intensive.

At the appeal stage, the appellant has explained how the proposed [address] Hub would be powered by 100% renewable electricity. This would minimise carbon emissions. Although concerns have been raised by interested parties as to the effect of the proposed [address] Hub on climate change, no substantive evidence is before me which indicates that the proposed [address] Hub would be harmful in this regard. Accordingly, no conflict would arise with Policy SS14 of the Local Plan, which promotes low carbon development and adaptation to climate change.

I therefore find that, in relation to Appeal A, the proposed [address] Hub would have an acceptable effect on climate change. No conflict would arise with Policy SS14 of the Local Plan, which seeks to, amongst other things, minimise carbon emissions and the use of natural resources expected to arise during the lifetime of the development.

The findings above in relation to crime safety, living conditions, and climate change are neutral matters, which do not weigh in favour of the proposed development for Appeal A. As Policy ES2 of the Local Plan relates to renewable and low-carbon infrastructure, such as new renewable and low-carbon energy generating systems, which are not proposed, Policy ES2 is not directly relevant to these appeals. As mentioned above, the existing kiosks referred to by the appellant have already been removed. No fallback position exists, and for this reason appeal decision [name]/P4605/W/18/3202341 does not lend support for Appeal A. None of these matters alters my findings on the main issues above.

In relation to Appeal A, having considered the development plan as a whole and all matters raised, I find that the benefits of the proposed development would not be sufficient to outweigh the significant weight given to the conflict with the policies of the development plan cited on the main issues above. None of the relevant material considerations, including the provisions of the Framework, indicate that Appeal A should be decided otherwise than in accordance with the development plan.

The 2007 Regulations make clear that advertisements should be subject to control only in the interests of amenity and public safety. Appeal B has been assessed on this basis. Therefore, in relation to Appeal B, none of the other considerations raised alters my findings on the main issues above.

For the reasons given above, I conclude that Appeal A should be dismissed and that Appeal B should be dismissed. [planning inspector] INSPECTOR