Appeal 6004216

The appeal is dismissed.

The main issues for the appeal are: • whether the proposal would be suitably located having regard to relevant development plan policies, • the effect of the proposal on the living conditions of the occupiers of No.[address] (No.5) with regard to outlook, • the effect of the proposal on flood risk, • 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 No.5, and whether the proposal would provide suitable living conditions for future occupiers, with particular regard to noise and disturbance.

The appeal site is located within the [name], identified within the [name] and Weymouth & Portland Local Plan 2015 (LP) as a Key Employment Site. This is the case despite the appeal site sharing two of its boundaries with the adjacent Swanbridge Mobile Home Park that comprises a number of single-storey park homes.

LP Policy ECON1 states that ‘Proposals for live-work developments will be supported in locations considered suitable for open market residential development.’ This is supported by paragraph 4.2.3 of the LP that states that ‘Live-work developments provide an opportunity for people to adopt more flexible working practices, and therefore are also encouraged where housing would otherwise be acceptable.’

LP Policy ECON2 relates to the protection of key employment sites, protecting their loss to non-employment generating uses. As a result, residential development, that the proposal partly comprises, is not permitted within the key employment sites.

I have had regard to LP Policy ECON2 supporting employment uses other than B1, B2 and B8 uses, but this is subject to it being proven that the use provides on-site support facilities or demonstrates an economic enhancement over and above B1, B2 and B8 uses. The policy goes on to state that such development will not prejudice the efficient and effective use of the remainder of the employment area.

In relation to this, and although I have limited substantive evidence that the proposal would prejudice the efficient and effective use of the remainder of the employment area given the findings of the appellant’s noise assessments, the proposal would not provide on-site support facilities and I have limited substantive evidence that the proposal would provide an economic enhancement over other employment uses.

Furthermore, access to the unit for occupiers and visitors would be through the trading estate, which is devoid of pavements, unlit and with limited surveillance. As such, I am not convinced that the environment for residential occupiers accessing the site, particularly at night and on foot, would be safe and suitable for residential development.

It follows from the above that the appeal site is not suitably located having regard to relevant development plan policies concerning the location of live-work development. As such, it is contrary to [name] ECON1 and ECON 2, the aims of which I have outlined above.

No.[address] home with a very shallow pitched roof that is positioned in very close proximity to the southern boundary of the appeal site. Part of its outside space adjoins the appeal site.

The proposed building would be positioned in close proximity to the southern site boundary, comprising a live-work unit over two floors. The upper floor is proposed within the roof space that would comprise a pitched roof with gable ends that would be considerably steeper and higher than that to No.5.

By reason of the provision of the upper floor, combined with its height, gable end form and positioning close to No.5 and its boundary and outdoor space, the proposed building would be overbearing and oppressive when viewed from No.5 and its outdoor space. Given that No.5 is orientated end on to [address], which is located a greater distance from No.5 beyond planting, I do not find that the presence of [address] justifies the height of the proposal in such close proximity to one of the main/longer elevations to No.5.

In conclusion in relation to this matter, the proposal would have a harmful effect on the living conditions of the occupiers of No.[address] with regard to outlook. As such, it is contrary to LP Policy ENV16. Amongst other things, this states that development should be designed to minimise their impact on the amenity and quiet enjoyment of existing residents and not have a significant adverse effect on the amenity of the occupiers of properties through overbearing impact.

There is no dispute between the main parties that the site lies within an area susceptible to groundwater flooding, or that the vehicular access to the site as shown on the site location plan falls within [name] 2. [name] acknowledge the appellants arguments regarding the status of the access road and whether it was necessary to include this within the red-line site, I am required to consider the appeal on the basis of the plans before me that show the red-line appeal site comprising the access through the trading estate.

Paragraph 175 of the National Planning Policy Framework (the Framework) states that the sequential test should be used in areas known to be at risk from any form of flooding, except in situations where a site-specific flood risk assessment demonstrates no built development within the site boundary, including access or escape routes would be located on an area that would be at risk of flooding. Paragraph 027 of the Planning Practice Guidance in relation to Flood Risk1 clarifies that the sequential test need not be applied where a site-specific flood risk assessment demonstrates clearly that occupiers and users would remain safe from flood risk without increasing flood risk elsewhere.

While the appeal is supported by a site-specific flood risk assessment and [name] by Wills Design Partnership (FRAs), these identify that the location for the live/work unit is at risk of groundwater flooding with the vehicular access from [address] lying within [name] 2.

Although the FRAs seek to mitigate any flooding from groundwater through the provision of raised finished floor levels, this would not remove the site from being at risk of groundwater flooding and the appeal is not accompanied by substantive evidence (such as detailed site specific calculations and investigations) clearly demonstrating that the proposed raised floor level of 150-300mm would be adequate. As such, and even if I were to find that the proposal does not comprise development within [name] 2 as this is restricted to use of existing accesses, the evidence before me does not clearly demonstrate that the proposed building would not be at risk of flooding without increasing flood risk elsewhere.

In such circumstances, the sequential test needs to be satisfied. In the absence of a sequential test provided by the appellant, I cannot conclude that the sequential test is passed. Furthermore, LP Policy ENV5 and Paragraph 181 of the Framework state that the Council will need to be satisfied, and development should only be allowed in areas at risk of flooding, where it can be demonstrated that safe access and escape routes are included where appropriate. Given that the proposed access is via land within [name] 2, and given that, from the evidence before me, I cannot be sure that future occupiers have the right to use pedestrian routes through the park homes site and footbridges over the river, I cannot be sure that safe access and escape routes would be available.

With regard to surface water run-off, I acknowledge that the appeal site is hard surfaced at present being largely impermeable and does not currently benefit from a formal surface water drainage system, storage or flow-controlled outflow. I further 1 027 [name]: 7-[phone] acknowledge site constraints with regard to its small size and groundwater levels making the provision of attenuation storage less practicable.

In light of this, and given that the extent of impermeable surfacing would not materially increase, with run-off intercepted via rainwater butts, permeable surfacing or conveyed to a discharge point to the adjacent watercourse, I find that the proposal, subject to conditions to secure the final detailed drainage strategy, would provide a small betterment over the existing situation consistent with the National Standards for [name].

Finally, with regard to the location of the appeal site close to the [name] and possible need for a [name] (FRAP), given that no in-channel or bank works are proposed as part of the development, I see no reason why the need or otherwise for a FRAP cannot be dealt with once the final construction details are available.

It follows from the above that although subject to conditions I find no harm to flood risk with regard to surface water drainage, I find that the proposal would harm flood risk by virtue of the location of the site within an area at risk of flooding and where safe access and escape routes are not provided. As such, it is contrary to LP Policy ENV5. Amongst other things, this states that new development should be planned to avoid risk of flooding where possible, with the risk of flooding minimised by steering development towards the areas at lowest risk, ensuring that development will not generate flooding elsewhere with safe access and escape routes provided.

[name] is located to the north of the appeal site in close proximity on the opposite side of the access road. It is single storey in height. The appeal site is adjoined by a single-storey garage block to the east, and by single-storey mobile park homes to its southern and western boundaries. The immediate wider context to the trading estate generally comprises single-storey buildings of varying designs with nearby buildings generally devoid of timber cladding.

By reason of the introduction of a building partly over two floors, with the upper floor roof form comprising a fairly steeply pitched roof with gable ends, and timber cladded finish, it would appear alien and out of character with the immediate surrounding area. [name] acknowledge the height of [address] to the south of the site, this is separated from the trading estate and mobile park homes by a water course and planting. As a result, the appeal site is more closely viewed in association with the mobile park homes and employment buildings that are significantly lower in height.

Furthermore, by reason of the domestic scale and styling of the building comprising window and door openings of a residential scale and appearance, the proposal would appear incongruous when viewed in association with the adjacent mobile park homes, adjoining garages and nearby workshops. While the buildings within the trading estate may be replaced in the future, I am required to consider the proposal in relation to its existing context. Furthermore, there is little information before me demonstrating that the proposal would tidy up the entrance to Swanbridge Mobile Home Park site.

It follows from the above that the proposal would have a harmful effect on the character and appearance of the area. As such, it is contrary to LP Policy ENV12 that seeks to achieve a high quality of design that respects the character of the surrounding area with the general design in harmony with the adjoining buildings and the area as a whole. Living conditions of No.5 and future occupiers

The appeal is accompanied by an Environmental Noise Impact Assessment, Rebuttal Environmental Noise Assessment (the Rebuttal) and Rebuttal-2 Environmental Noise Impact Assessment (the second Rebuttal). These documents seek to demonstrate that noise from the workshop element of the proposal would not harm the living conditions of nearby occupiers, or occupiers of the live element of the proposal.

I acknowledge the close location of the proposed building to No.5, and that by reason of its construction it is likely to be poorer at insulating external noise than dwellings built to modern standards.

In relation to this, I note that the Council’s response to the Rebuttal clarifies that the Environmental Health Officer no longer considers that noise affecting neighbouring residential dwellings should be a reason to refuse the application. This is on the basis that occupiers of mobile homes may not be able to expect the same level of protection from external noise sources compared to permanent built residential form. Nonetheless, the Council are still of the opinion that resultant noise and disturbance would occur to occupiers of the adjacent mobile home.

[name] am not convinced that occupiers of mobile homes should expect less protection from external noise sources simply due to the method of construction of their dwellings, I nonetheless accept the findings of the Rebuttal that the method of construction is irrelevant in the case as the submitted noise assessment is made outside and not inside the dwelling and demonstrate no adverse impact. This is supported by the table within the second Rebuttal, and evidence within the Rebuttal that demonstrates that even with the mobile home windows open, the calculated internal noise level would result in a low impact.

I note the concerns raised by the Council regarding flanking noise but given the limited openings facing the adjacent mobile home, and as I have little substantive evidence before me demonstrating that this would be likely to significantly increase the noise levels experienced by the occupiers of No.5, I give this little weight.

Turning to the noise impacts on the occupiers of the live element of the proposal from the work element, given that the live element could be subject to a condition limiting occupation by the same person(s), and any family members, that occupy the work element, a level of noise transference should be expected and would not be unreasonable. Furthermore, occupiers of the live-work unit would be able to control noise levels and times of operation with some noise transference between live-work units to be expected due to the nature of the uses. This would be the case regardless of whether table 0.1a of Building Regulations Approved Document E Resistance to the Passage of Sound applies or not.

I accept that noise calculations submitted with the appeal demonstrate that future occupiers would not be harmed by reason of the background noise levels from the trading estate. Furthermore, while I note the close location of the appeal building to employment uses off an internal access road, the building would be adjacent to existing residential units with outdoor space screened by the building.

It follows from the above that the proposal would not harm the living conditions of the occupiers of No.5, and would provide suitable living conditions for future occupiers, with particular regard to noise and disturbance. As such, it complies with LP Policy ENV16. Amongst other things, this states that development should be designed to minimise their impact on the amenity and quiet enjoyment of existing and future residents and will only be permitted provided they do not generate a level of activity or noise that will detract significantly from the quiet enjoyment of residential properties.

The Council cannot demonstrate a five-year supply of deliverable housing sites. As such the provisions of footnote 7, paragraph 11 d) ii. of the Framework apply. However, as I have found above that the proposal would harm flood risk, and this provides a strong reason for refusing the development proposed, the presumption in favour of sustainable development does not apply.

Despite this, the proposal would provide a self-build live/work unit, which would contribute towards the supply and mix of housing in the area, reduce travel times for occupiers, and reduce business overheads. It would also provide benefits to the local economy from provision of a live/work unit for a local tradesperson, from construction works, and from occupiers spend in local services and facilities. As such, the delivery of a dwelling would make a contribution towards the area’s housing supply and provide other benefits, and its small scale means it would likely be built out relatively quickly. However, given the scale of the proposal, the benefits, would be modest.

Weighing against this, I have found above that the proposal is not suitably located having regard to relevant development plan policies, would be harmful to the living conditions of neighbouring occupiers and located in an area at risk of flooding. Furthermore, the proposal would harm the character and appearance of the area. Even taking into account the objective to promote the effective use of land and to significantly boost the supply of housing and the Council’s housing land supply position, the conflict between the proposal and the development plan, and resultant harm, should be given significant weight in this appeal.

As a result, I find that the modest benefits do not outweigh the significant harm identified.

The appeal site falls within the catchment of the Poole Harbour Special Protection Area and Ramsar site. However, as I am dismissing the appeal for other reasons, I do not need to consider the related duties under the Conservation of Habitats and Species Regulations 2017 further.

I conclude that the proposal conflicts with the development plan, when read as a whole, and there are no other considerations, including the Framework, that outweigh that harm. The appeal is therefore dismissed.