Appeal 6004238

The appeal is dismissed.

The appellant has set out on the application form what they consider the true address to be. That is a matter in dispute between the main parties and a different address is included on the Council’s decision notice. [name] have used the address provided by the appellant that does not mean I have reached a definitive decision on this matter.

The appellant confirms that the use applied for has already commenced and I have determined the appeal on that basis. There is a disagreement about whether or not planning permission is required as the appellant considers that the existing use and the previous use as a tool hire shop fall within the same use class. However, the question of whether or not permission is required does not affect the validity of the appeal. Within the context of an appeal under section 78 of the Act, it is not within my remit to formally determine whether the development requires planning permission. If the appellant wishes to ascertain whether the development is lawful, they can may make an application to the Council under section 191 of the Act for a Certificate of Lawfulness of [name] or Development (CLEUD).

One of the reasons for refusal related to the lack of sufficient information in relation to flood risk. However, shortly after refusal the appellant prepared a detailed flood risk assessment (FRA). This concluded that although the appeal site is located in [name] 2, the ground floor level of the appeal building is set higher than the design climate change 1 in 100-year flood level providing safe refuge and no internal flooding. Moreover, it found that there was a low risk of groundwater flooding and very low flood risk from surface water and that safe access/egress is available at all times. However, the FRA did recommend additional flood resilience measures including a warning and evacuation strategy, that the occupants register with the Environment Agency’s Flood Warning Direct and prepare a business flood plan. Following receipt of the FRA the Council suggested that in the event that I am minded to allow the appeal I should impose some appropriately worded conditions. For my part, I consider that the appellant has satisfactorily addressed the Council’s concerns in relation to flood risk subject to the imposition of appropriate conditions to ensure that the recommendations of the FRA are implemented. Consequently, this matter is no longer a main issue in the determination of the appeal.

The owner of the appeal property has provided submissions in support of the appeal as an interested party with the appellant’s full approval. There is an overlap of the points made by the appellant and the interested party. In the interests of simplicity, in some instances I have referred to points being made in support of the appeal being made on behalf of the appellant, but in some other instances I have also referred to specific points made by the interested party.

The appellant and the interested party have indicated their preference for a hearing to determine the appeal. However, I am satisfied that the grounds of appeal can be clearly understood from the appeal documents and my site visit and it is not necessary to test the evidence by questioning. Therefore, I am satisfied that the written representation procedure is suitable in this case.

The main issues are: • Whether or not sufficient information has been provided to assess the mixture of uses at the appeal site as well as whether the adjacent property of No [address] can continue to lawfully operate; • Whether or not adequate information has been provided to demonstrate that the development would not result in unacceptable harm to highway safety due to the servicing arrangements and vehicular access to the site; and • Whether or not the development would meet the requirements for the provision of biodiversity net gain.

The appeal site forms part of a larger building which has been sub-divided. The appeal site forms the western part of the building. I understand that the remaining western part of the building is used as a non-digital escape room business. As outlined above, the appellant confirms that the use applied for has commenced and I was able to observe that the virtual reality escape room, bar area, arcade, associated works and patio accessed via steps from the exit doors was already in-situ at the appeal site. The Council accept that the use of the building for these purposes is acceptable in principle. I agree. Notwithstanding that the appeal site is outside the city centre leisure area it is very close to the city centre in a sustainable location with good connections to public transport routes. As a result, the use of the appeal site is entirely compatible with this location.

I appreciate that there has been a long and rather complex planning history associated with the appeal property. Planning permission for the uses that are being carried out on the appeal site was granted for the entire building1 (the 2020 approval). Based on the available evidence it would appear that planning permission was not implemented.

Moreover, there has been enforcement proceedings including some appeal decisions2 which were combined into one decision letter. Those appeals dealt with the entire building, part of which is not included as part of the appeal site. The Inspector in those cases found that there were three separate planning units used for their own primary purposes whereas the enforcement notice had specified that there had been a change of the use of the land, which included the entire building. As pointed out by the Inspector a material change of use brought about by the subdivision of the property is significantly different to the building being put to a mixed use as had been alleged. As a result, she found that there was a defect in the notice that she was unable to correct without causing injustice and on that basis found that the material change of use as alleged had not occurred.

Given that her findings were clearly based on the fact that three separate planning units had been created and that the appeal site in that case included the whole building that other case has limited relevance in the determination of this appeal. Further, it is important to emphasise that the previous Inspector found that there had not been a material change of use as alleged by the Council for the whole building and she did not make any finding in relation to whether there had been a material change of use in relation to the appeal site subject of this appeal as that was not a matter before her.

That said, I appreciate that on the balance of probabilities at some time in the past the building was used for a single use. However, this appeal is in relation to the existing development which uses only part of the larger building. The red line which denotes the appeal site is clear and unambiguous as are the appeal plans which indicate which part of the larger building forms part of the original application and importantly which do not. Also, at the site visit I was able to appreciate which part of the larger building was included as part of the appeal development and importantly which was not. The use of the appeal site is abundantly clear and there is an obvious physical separation between the appeal site and the remaining part of the larger property.

To my mind the use of the remaining part of the larger building is not a material factor in the determination of the appeal as I am satisfied it is an entirely separate entity not included within the appeal site boundary. That said, for the avoidance of doubt I am fully satisfied that the remaining part of the building can effectively function separately from the appeal site as it has a separate access, parking area and service arrangements from [address]. The development at the appeal site does not prevent any uses within the remaining part of the building from functioning as separate entities.

It follows that I have no problem whatsoever in being able to assess the mix of uses within the red line area of the appeal site. Further, I am satisfied that there is no reason why the remaining part of the building not included within the red line boundary cannot continue to operate for its lawful use although it is unnecessary for me to reach a view on what the lawful use of that neighbouring site is. 1 20/00951/U 2 APP/G2625/C/24/3347331; APP/G2625/C/24/3347168; APP/G2625/C/24/3347169; APP/G2625/C/24/3347172.

I therefore conclude that sufficient information has been provided to assess the mixture of uses at the appeal site and that the adjacent property at No [address] can continue to lawfully operate. Consequently, the development accords with Policy DM17 of Norwich Local Plan – Development management policies plan adopted December 2014 (NLPDMP) which seeks to support leisure uses.

As outlined above, the appeal site forms part of a larger building which has been sub-divided. As a result, the appeal site does not have any vehicular access from [address] and consequently any deliveries, refuse collection and other vehicles visiting the site are from [site address] .

[site address] forms part of the Norwich inner ring road and forms part of the principal road network for the city. It has a 30mph speed limit and is a dual carriageway. Notwithstanding that the application form and the appeal statement indicate that there are four parking spaces, the appeal plan titled proposed parking and vision splay (parking and vision splay plan) indicates that there would be off street parking for 3 vehicles.

Policy DM31 of the NLPDMP sets out that to ensure there are appropriate levels of parking and servicing provision should accord with the advice and standards set out in an appendix. Although the appeal site is located outside the city centre leisure area and the late-night activity zone, it is located within the city centre parking area in an area allocated for reduced parking. The Council describe the use of the appeal site as a mixed main town centre leisure use. Due to the age of the NLPDMP, the relevant appendix refers to outdated use classes. However, in my view for the relevant uses associated with the appeal site no allocated parking appear to be permitted. Further it says that servicing may be permitted on street where safe and practicable, otherwise as a minimum a bay capable of holding a rigid 11m vehicle is required.

The Council do not appear to have a concern about the level of car parking, but rather whether the parking arrangement would harm highway safety. From my perspective although it appears there is no requirement to provide on-site parking, I have determined the appeal based on the information submitted.

Having carefully considered the existing traffic conditions, including the speed of vehicles and the fact that traffic is travelling in one direction, the available sight lines, the toucan crossing and the fact that the footway is a shared space for pedestrians and cycles, I do not have a significant concern about access and egress being provided from [site address] . However, if there is such an access it is essential that vehicles entering and leaving the site are able to do so in forward gear.

As outlined above, the parking and vision splay plan shows three spaces. This has a visibility spay set back from the appeal site boundary which provides a y distance of over 17 metres to provide visibility over the joint pedestrian and cycle footway. It also shows a y distance of almost 48 metres along [site address] . However, the appeal site is set down from the road and has planters in the shorter visibility splay, and it is not clear whether it is proposed to remove the planters as part of the appeal proposal. Moreover, this plan does not include a swept path analysis for all parking spaces shown and although it does show some information about how a vehicle may manoeuvre on site from one space, it is far from clear how the vehicles in the other spaces would manoeuvre and safely leave in forward gear without undertaking multiple turns or encroaching onto the footway.

A highway statement of evidence (HSE) has been submitted by the owner of the appeal property as an interested party. This includes a parking layout that is materially different from that shown on the appeal plans as it shows four spaces including a disabled space. The spaces are in a different configuration to that shown on the parking and vision splay plan. This provision is however consistent with the number of spaces indicated on the application form.

The HSE provides an indication of how vehicles would manoeuvre into and out of the four spaces. Notwithstanding that the manoeuvring space is very tight; the layout is far from ideal. Two spaces would be provided in a tandem arrangement meaning that a vehicle parked behind the front space would block the vehicle parked in front and would have to move to allow the front vehicle to exit. That vehicle would then have to wait in an area identified for manoeuvring which could block another vehicle entering or leaving the site and such an arrangement would not create a convenient or safe parking environment.

Further, the two tandem spaces are shown in the area currently occupied by the planters and would encroach within the visibility splay shown on the parking and vision splay plan. It is not clear whether the plans in the HSE have taken account of the visibility splays, but clearly vehicles parked within the visibility splay would block the sight lines which adds to my concerns about the parking arrangements and highway safety.

Moreover, I observed that there are existing cycle parking facilities in the western part of the appeal site. The proposed HSE parking layout does not appear to provide adequate space to allow access to those facilities when vehicles are parked in the allocated spaces. Although the appellant is content to accept a condition to provide covered cycle parking, it is not clear where and how such facilities would be accommodated on the appeal site.

Further, any servicing requirements and deliveries would likely be from [site address] due to the inconvenience involved in having to do so from [address]. The appellant indicates that refuse would continue to be collected by a contracted 7.5 tonne refuse truck. Moreover, deliveries would be necessary to the existing business which includes a bar. Given the existing traffic conditions, I do not consider that it would be safe or practicable to allow delivery and servicing vehicles to stop and load/unload on the busy dual carriageway. No space for deliveries or servicing has been shown on the appeal site.

For both the parking arrangement shown on the appeal plans and that shown in the HSE there would appear to be insufficient manoeuvring space on the appeal site to accommodate delivery/servicing vehicles as well as the parking spaces. Again, I am concerned that delivery/servicing vehicles would either have to stop and load/unload on [site address] or would have to reverse out of the site onto the dual carriageway. Both scenarios would unacceptably harm the safety of pedestrians, cyclists and other road users.

Taking all of these factors into account, to my mind the appellant has provided insufficient information to satisfy me that there is sufficient space on the appeal site to allow vehicles to enter, park and comfortably leave the site in forward gear and as a result I am concerned that vehicles would reverse onto the dual carriageway which would result in substantial safety harm for pedestrians and cyclists using the shared footway and for vehicles using the dual carriageway.

On the parking and vision splay plan, the appellant indicates that the appeal site was historically used as a loading bay for commercial premises and that there is an existing dropped kerb across the pedestrian footway. Conversely, the highway authority indicate there is a full height kerb, and the footway has not been strengthened for vehicular use, and the Council disagree that the appeal site was historically used as a loading bay for a previous use.

I observed at the site visit that there is not a dropped kerb to serve the appeal site. In relation to whether a vehicular access to serve the appeal site was historically used and whether there was a loading bay for a previous use I have received conflicting evidence. However, on balance based on the information provided in the [name] am satisfied that at certain times the area next to [site address] has been used for the parking of vehicles with vehicular access from [site address] . That said, based on the available evidence I am unable to definitively reach a view on whether such access was authorised or not and it is not within my remit to formally determine that matter which is better dealt with under a CLEUD process.

I also note that the HSE refers to a 1996 planning approval3 for refurbishment of the building including raising and re-roofing of the building to the rear of [address]. They say this infers that access was provided from [site address] without requiring any dropped kerb access. However, on balance the conditions cited do not persuade me that is the case as it is unclear without being able to see any of the referenced plans to ascertain which part of the site the conditions relate to.

The HSE also makes the point that the highway authority has not taken action to close the access. However, such inaction or the fact that at certain times access may have been obtained from [site address] does not justify harmful development at the appeal site.

I have taken account of the fact that the appellant has indicated that further details could be provided to ensure an appropriate access design to give priority to pedestrians and cyclists, that swept path tracking plans could be provided to demonstrate vehicles could exit in forward gear and that a road safety audit could be undertaken to support the proposed drop kerb access.

However, as outlined above, although some details have been provided by the appellant and an interested party I do not consider they provide adequate details to satisfy me that safe access can be provided. Given the uncertainty involved it would not be appropriate to attach conditions requiring further details in relation to highway safety matters. I acknowledge that a condition could be attached to ensure appropriate surface treatment of the parking area. However, that would not overcome my concerns about highway safety.

The HSE and the appellant highlight that accident data indicates that the use of the access would not result in highway safety concerns. However, for the reasons set out above, I do not consider adequate information has been provided to satisfy me that the access arrangements associated with this development are safe from a highway perspective. Accident data shows that there have been accidents along [site address] and at the nearby roundabout but not along the stretch of road 3 4/1996/0905 immediately outside the appeal site. However, the lack of accident data does not alter my view on this main issue.

Similarly, the appellant has highlighted a number of other sites which have access from [site address] /[address] including, [name], [name]/Sally Beauty/Formula 1, [name] and [name] & [address]. I visited these sites on the site visit. I observed that none of these other examples are along the same part of [site address] as the appeal site.

Moreover, with the exception of [name] & [address] they all appear to have adequate space off the main road to allow vehicles to exit those sites in forward gear. I do not know the full details about [name] & [address], but I did observe that vehicles parked to the side of this business would likely need to reverse back onto [address] which to my mind would be detrimental to highway safety. However, the fact that this arrangement has been allowed on an alternative site does not justify a harmful arrangement at the appeal site.

Similarly, the interested party has also highlighted that planning permission has been given for two neighbouring flats at [address] (No 87) despite objections from the highway authority on similar grounds. However, although consistency in decision making is important there is a material difference between the two developments, not least as No 87 is an entirely different use located on the corner of [site address] and [address] where any servicing/deliveries could be undertaken from [address]. Moreover, the fact that planning permission has been granted on an adjacent site for residential development does not justify development at the appeal site where I think insufficient information has been provided to demonstrate that it would not unacceptably harm highway safety.

I therefore conclude that insufficient information has been provided to demonstrate that the development would not result in unacceptable harm to highway safety due to the servicing arrangements and vehicular access to the site. Consequently, the development is at odds with Policies DM28, DM30 and DM31 of the NLPDMP which among other things seek to ensure that parking areas create convenient and safe environments, that access points must allow for access and egress in a forward gear and that appropriate provision has been made for parking and servicing of development. I note that the Council’s decision notice made reference to Policy DM2 of NLPDMP which deals with amenity and is not directly relevant to this main issue.

There is now a requirement under Schedule 7A of the Town and Country Planning Act 1990 for developments to provide 10% biodiversity net gain (BNG). There are specific exemptions from this and the general BNG condition does not apply to development subject to the de minimis exemption. This comprises development that does not impact a priority habitat and impacts less than [address] metres of any habitat or 5 metres of any linear habitat. The Town and Country Planning (Development Management Procedure) (England) Order 2015 requires a statement setting out why a permission would or would not be subject to the condition, with reasons for that belief.

The appellant has prepared a detailed biodiversity net gain exemption note which explains that any external works, which represent ground level modifications will be confined to existing hardstanding areas within the site boundary. Having visited the site and having carefully considered the appeal plans I accept that the development does not impact a priority habitat and would impact less than [address] metres of any habitat or 5 metres of any linear habitat. Consequently, I am satisfied that the general BNG condition does not apply as the development is subject to the de minimis exemption.

I therefore conclude that it has been demonstrated that the scheme would meet the necessary requirements for the provision of BNG. Consequently, the development accords with the provisions of Schedule 7A of the Town and Country Planning Act 1990 and the guidance in the National Planning Policy Framework which seeks to ensure development does not result in significant harm to biodiversity.

I note that the appellant has indicated that they feel that the Council gave the impression that planning permission would be granted and feel that they have been treated unfairly. They also highlight that they should be able to continue to operate their business. However, notwithstanding the impression given by the Council previously or how they have acted I am required to determine this appeal on its particular merits and while I acknowledge that the development provides employment in a suitable sustainable location on previously developed land these factors do not outweigh my concerns about highway safety as set out above.

For the reasons given above the appeal should be dismissed.