Appeal 6004215

The appeal is dismissed.

The fifth reason for refusal concerned whether the description of works provided by the appellant accurately portrayed the lawful use of the existing building which the Council was concerned had led to the application being advertised incorrectly as per the publicity requirements for planning applications stipulated under paragraph (7)(b) of Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (as amended) (the Order).

Article 15(7) requires specified information to be made available on a website maintained by the local planning authority, including, at paragraph (b), a description of the proposed development. It is common ground between the main parties that the description of the development as proposed was correctly stated and that this is the description which was published. The Council’s concern relates instead to the characterisation of the existing use of the building.

However, the requirement of Article 15(7)(b) is directed to the provision of a description of the development for which permission is sought. The purpose of the provision is to ensure that interested parties are given adequate notice of the nature of the proposal so that they may make informed representations. In this case, I am satisfied that the description as published conveyed the substance of the development proposed.

While there is dispute between the parties regarding the lawful use of the building, that is not a matter which falls to be conclusively determined as part of this appeal under section 78 of the 1990 Act. The appeal before me is concerned with the determination of the planning application, rather than the issuance of a formal determination as to lawfulness. Notwithstanding this, I have had regard to the evidence insofar as it is relevant to the considerations before me.

In this instance, I find that the disagreement regarding the existing use does not undermine the adequacy of the description of the proposed development for publicity purposes. Interested parties would have been made aware of the nature and extent of the proposal from the information published.

Accordingly, I conclude that the application was publicised in accordance with the requirements of the Order, and I do not therefore treat this matter as a main issue in the determination of the appeal.

During the appeal, the appellant has submitted a revised biodiversity net gain (BNG) metric and supporting information, including details of proposed off-site provision. This information seeks to address the Council’s concerns in relation to the fourth reason for refusal, and the Council has confirmed that it is now satisfied on this matter.

Schedule 7A to the Town and Country Planning Act 1990 establishes a statutory framework whereby planning permission is deemed to be subject to a biodiversity gain condition. This requires the submission and approval of a Biodiversity Gain Plan prior to commencement, which must demonstrate that the biodiversity gain objective would be met.

On the evidence before me, I am satisfied that there is a reasonable prospect that the development could achieve the required biodiversity net gain, including through off-site provision, subject to the necessary mechanisms being secured. I therefore find that the proposal would not conflict with the objectives of Schedule 7A. Accordingly, I do not regard biodiversity net gain as a main issue in this appeal.

Elements of the development have already taken place, including construction of the outbuilding to the rear of the appeal property. However, this has not been completed, and it is not evident that what has been built accords with the submitted plans. Therefore, I have had regard to the development as proposed.

I have used the description of the proposal as set out in the Council's Decision Notice, which more accurately describes the development than that used on the planning application form, although I have removed ‘[name] as this is not an act of development. The appellant has previously agreed to this change and has used the revised description on the appeal form. As such, I am satisfied that no parties have been prejudiced by my using this description.

Revised plans were submitted with the appeal which rearranged how the outbuilding would be subdivided between the two uses as well as changing what would be installed within each section and the elevation plans were also revised to reflect this. However, given that the proposed uses within the building would remain the same, the revised plans do not fundamentally change the scheme, and proposed amendments do not involve a substantial difference to the application considered by the Council. Additionally, the Council and interested parties had the opportunity to comment on the revised plans in their submissions and as such it would not be procedurally unfair to accept these plans, in this instance.

Taking into account the above matters, the main issues relevant to this appeal are: • Whether the proposal would be a suitable location for tourist accommodation with regard to local development plan policies • The effect of the proposal on the character and appearance of the area; and • The effect of the proposal on the living conditions of the occupiers of the proposed dwelling and nearby occupiers with regard to noise and disturbance.

The appeal property is a two-storey house set back behind a driveway on [address] which is a predominantly residential area. The proposal seeks to convert the ground floor of the building to a one-bedroom dwelling and the first floor to a short-term holiday let as well as approval for an outbuilding located to the rear of the building.

Policy V5 of the Oxford Local Plan (LP) states that planning permission will only be granted for the development of new sites for holiday lets and other short stay accommodation in specified locations, including on main arterial roads where there is frequent and direct public transport to the city centre. The supporting text for the policy identifies the impact of tourist accommodation, including pressure on the highway network, congestion and the land required for parking.

[name] accept that [address] performs a role in connecting residential areas to the wider highway network and benefits from bus services, Policy V5 of the LP provides a specific and finite list of arterial roads. The supporting text and footnote to the policy are unambiguous in this regard.

The function of [address], even if sharing some characteristics with arterial routes, does not alter the fact that it is not identified within the policy. The policy has been through examination and forms part of an adopted development plan.

The policy is specific that holiday lets will only be permitted in these locations and the site is not located within one. Consequently, the proposed holiday let would not be located in an area identified by Policy V5 of the LP as suitable for holiday lets.

The appeal property is one half of a semi-detached dwelling and the properties on this side of [address] are similarly designed and are set behind driveways or gardens. These pairs of dwellings are separated by driveways between the houses and outbuildings are not uncommon within rear gardens. Given the size of the gap between the houses, views of these outbuildings are common and form part of the character of the area. The Council notes that in the case of the outbuildings at 14 and [address] that planning permission was not granted for them. However, it is not evident that these buildings could not have been built using those dwellings permitted development rights, nor is it evident that the Council are pursuing enforcement action to require those buildings to be demolished. As such, they form part of the character and appearance of the area. The consistency in terms of the scale, siting and layout of the surrounding dwellings contribute towards the character of the area.

The proposed development to the house itself externally would be limited, particularly towards the front of the house with a small window proposed on the side elevation which would be modest in size and would not create a cramped appearance on this flank elevation. To the rear a single storey extension is proposed, and this would be modest in depth and height and would extend to around half the width of the house. Taking this into account and the use of similar materials, it would appear subordinate in scale and appearance to the dwelling. Other dwellings nearby have similarly sized extensions and given that it would be sited away from the open driveway between the pairs of semi-detached houses it would be mostly screened from the street. As such, this element of the proposal would not cause harm to the character or appearance of the dwelling or the area.

An outbuilding has been erected to the rear of the appeal property, and this is separated from the house by timber fencing. Access to this building is taken from between the appeal property and the neighbouring semi-detached pair and there would be a separate gated entrance to the ground floor flat and the outbuilding. The outbuilding that has been built is larger than that proposed on the submitted plans and the proposed layout to the rear of the appeal property would also be different to the existing situation. Given that I am determining the scheme as proposed, I have had regard to that scheme, rather than what has been built. The outbuilding would be ‘L’ shaped and would be set back from the rear of the house behind the rear patio area for the ground floor flat. The outbuilding as proposed would be single storey in scale with a mono pitched roof and covered by render similar to the house itself. Whether measured at its highest or lowest point, the building would remain single storey and modest in scale. The proposed outbuilding would extend across effectively the full width of the garden, with a small gap retained between it and the surrounding gardens, but it would be much shallower than the house itself. As such, the building would appear subordinate in scale and appearance to the host building.

Fencing, similar to what has already been erected to the rear of the property would be installed to separate the entrance to the outbuilding for each use. Fenced accesses to the gardens of properties along this side of [address] are common allowing direct access to the gardens without having to go into the houses themselves. As such, views of this would not be uncommon and in the glimpsed views of this fencing, with the outbuilding to the rear, the fact there would be two gated entrances would not be so out of place to appear disruptive to the overall character of the area or the building itself. The gardens for the houses along this side of [address] are modestly sized and the proposed outbuilding would reduce the amount of rear amenity space for the ground floor flat.

However, the scheme as proposed would retain a patio area split between two areas with space for bins, hanging out washing, socialising and typical residential uses within gardens. The size of the space to be retained would exceed that required by Policy H16 of the LP for properties of this type. The compliance with the adopted quantitative standards set out in the policy shows that the space provided by the scheme would be appropriate for the proposed use. Additionally, in light of the modest height of the outbuilding, it would not create an overbearing environment for those using the patio. Taking into account the modest scale of the proposed outbuilding and extension and the space retained for the ground floor flat, the development would not result in an overly cramped form of development.

Therefore, for the reasons given above, the proposed development would not harm the character or appearance of the area. Consequently, the proposal would comply with Policy DH1 of the LP which seeks, amongst other matters, for development to be of high quality.

The appeal site is located in a predominantly residential area with a promenade of shops located nearby on [address]. The proposed short-term holiday let would have single bedroom, bathroom, and a kitchen/diner. The outbuilding to the rear would be subdivided between the two uses. The space within the outbuilding associated with the holiday let would be used as store with a W/C and utility room to be used by the cleaners.

In light of its size, the one-bedroom holiday let is unlikely to attract large groups. Whilst the appellant may seek to minimise disturbance to neighbouring occupiers and implement measures to limit noise between the two uses, the pattern and nature of occupation associated with a short-term holiday let is inherently more transient than that of a house in multiple occupation and may result in increased activity. Furthermore, there is no certainty that occupants of the holiday let would not give rise to noise and disturbance.

The outbuilding is proposed to be used by cleaners servicing the holiday let between occupancies, and there would be limited control over the frequency of such visits. However, the use of the building for cleaning, storage, and bathroom facilities would not be unusual in a residential context. Comparable activities could occur whether the outbuilding was used by cleaners serving a short-term holiday let or as an incidental outbuilding to a single dwelling. Even if such activity were to occur more frequently, the nature of that activity would not, in itself, be likely to result in significant disruption.

As such, noise arising from the use of the outbuilding would be unlikely to be harmful in isolation, although it may occur more regularly due to the transient nature of the short-term holiday let. Any increase in activity would be experienced more acutely by nearby occupiers, including those of the proposed ground floor flat, given their proximity to the holiday let and the outbuilding.

It is common for residential properties, whether occupied as a dwellinghouse (Use Class C3) or as a house in multiple occupation (Use Class C4), to experience a degree of comings and goings associated with day-to-day living. Such activity may arise from occupiers following different routines, as well as from visitors, servicing, deliveries and maintenance. Whilst the pattern of occupation for a short-term let may differ from that of a permanent household, this does not, in itself, indicate that the level of activity would be significantly greater.

There is no substantive or compelling evidence before me to demonstrate that occupants of short-term lets would give rise to noise and disturbance levels beyond those typically associated with ordinary residential use. I therefore find that the general level of activity arising from the proposal would fall within the range that might reasonably be expected from the use of a dwelling, including as a single household or a house in multiple occupation.

Furthermore, from my observations on site, the appeal property is located in an environment where there is already a degree of background activity. [address] appears to be a well-used route, and the nearby parade of shops and traffic movements, including vehicles stopping and starting at the junction with [address], contribute to an existing level of ambient noise and disturbance.

In this context, whilst there may be more frequent comings and goings associated with the proposed use, I find that these would not substantially add to the prevailing noise environment or give rise to significant harm to the living conditions of neighbouring occupiers. This is particularly the case when taking into account the fallback use of the property for residential purposes, which could generate a comparable level of activity.

The use of the first floor as a one-bedroom short-term holiday let would not give rise to materially different effects, in terms of noise and disturbance, than its occupation as a conventional residential flat located above another dwelling. In both scenarios, the accommodation would be occupied by a single individual or a small household, with activity arising from day-to-day domestic living such as cooking, movement within the unit, and arrivals and departures. Some noise would likely travel between the two uses, even taking into account the acoustic measures set out by the appellant, but this in and of itself would not necessarily be harmful. The fact that occupiers of a short-term holiday let may change more frequently does not, in itself, alter the nature of the activities undertaken within the unit, nor does it necessarily result in a greater level of noise than would be expected from a permanent occupier.

It has also not been supported by substantive evidence that those using short-term holiday lets are significantly more disruptive than people living in a property permanently. This is dependent on the behaviour of individuals rather than the use of the building. Similarly, noise from cleaning the holiday let could occur in this residential context and whilst likely to occur more regularly, it is a use that could happen on a regular basis within dwellings and is not something that has been robustly demonstrated to cause significant disruption.

The appellant has also suggested the imposition of conditions to secure acoustic testing and to control cleaning or servicing hours. Regardless of whether such conditions could be imposed if permission were to be granted, my findings on living conditions do not rely on them. Even in the absence of such controls, I am satisfied that the proposal would not result in significant harm to the living conditions of nearby occupiers.

Concern has been raised that occupiers of the holiday let may park on nearby roads, leading to disturbance. However, the presence of parking restrictions in the surrounding area indicates that controls are already in place to manage on-street parking. The extent to which such restrictions are complied with is a matter of individual behaviour and enforcement, rather than the use of the appeal property itself.

In any event, the residential use of the property could similarly give rise to on-street parking by occupiers or visitors. I therefore find no compelling evidence that the proposed use would result in materially different or unacceptable impacts in this regard.

Therefore, for the reasons given above, the proposed development would not cause significant noise and disruption to the nearby occupiers, including the occupiers of the proposed ground floor flat and thus would not significantly harm their living conditions. Consequently, the development would accord with Policies RE7 and RE8 of the LP which seek, amongst other matters, for development to manage noise to safeguard or improve amenity, health and quality of life and ensure that the amenity of communities, occupiers and neighbours is protected.

I acknowledge that [address] is served by bus routes and that there are additional services within a short walking distance. However, the purpose of Policy V5 is not solely to identify locations with reasonable public transport accessibility, but to direct tourist accommodation to specific parts of the city where cumulative impacts on transport and the wider spatial strategy are appropriately managed.

In this case, whilst the site is accessible to public transport, I find that the degree of accessibility does not justify a departure from the spatially specific approach embedded within Policy V5. The evidence regarding bus frequency, whilst informative, does not demonstrate that the site operates at the same strategic level as the identified arterial routes when considered in the context of the development plan as a whole.

A holiday let in this location would undermine the vitality and viability of the city centre and thus conflict with one of the wider objectives of Policy V5. In this context, and in the absence of compelling evidence that the policy is out of date or should be reinterpreted, I afford substantial weight to the defined list rather than a broader functional interpretation.

The proposal would reuse an existing building and would provide a single dwelling, although the existing building is in residential use. There would be short term and long-term economic benefits as well as the associated spending by the occupiers of both the dwelling and the holiday let visitors.

The scheme would conflict with the development plan strategy for the location of tourist accommodation and as a result it would not comply with the local development plan policy. While the scheme may accord with other policies in the development plan, the objectives of the development plan must be read as a whole and the conflict I have identified results in a conflict with the development plan when it is read as a whole. Overall, I find the benefits would not outweigh the harm I have identified and no material considerations, including the Framework, have been shown to carry sufficient weight to indicate that a decision should be taken otherwise than in accordance with the development plan.

Therefore, for the reasons given above, I conclude that the appeal should be dismissed.