Appeal 6004480

The appeal is allowed and the prior approval [name]/25/00361/PA for change of use to a dwelling at [site address] , Chesterfield [postcode] , granted on 7 August 2025 by Chesterfield Borough Council, is varied by deleting Condition 3 and substituting for it the following condition: 3A: The development shall not be occupied until a scheme of flood resistance and flood resilience measures has been implemented, in accordance with details to be submitted to the local planning authority and approved in writing. Thereafter, the flood resistance and resilience measures thus implemented shall be retained as approved, throughout the life of the development.

In the Local Plan1, Policy CLP13 states that flood risks should be managed in a way that is commensurate with the scale and impact of the particular scheme, so that the development is made safe for its lifetime without increasing flood risks elsewhere. Within flood risk zones 2 or above, developments should demonstrate through a flood risk assessment (FRA) that the safety of users can be secured, with no increase in flood risks, either off or on the site.

In the National Planning Policy Framework (the NPPF), paragraph 181 states that, within areas at risk of flooding, developments should be appropriately flood resistant and resilient, so that in the event of a flood, the building can be brought back into use quickly, without the need for significant refurbishment. Safe access 1 The Chesterfield Borough Local Plan, adopted July 2020 and escape routes should also be provided where appropriate. The Planning Practice Guidance (PPG) points out that changes of use can provide the opportunity to improve flood resistance and resilience within existing buildings, and gives further advice on the types of measures available2.

In the present case, the appeal site lies within a Zone 2 area3, where the overall probability of flooding is classed as ‘medium’. The River Rother is some 110m to the north of the site, and flooding in this section is controlled to a degree by walled defences. The appellant’s FRA records that river flooding has occurred nearby on three known occasions since 1932, but there is no evidence of the site itself being affected. In the most recent case, in 2007, the flood water came to within 21m from the site. In addition, with regard to surface water flooding, the FRA states that whilst the risk from this source is currently rated as ‘low’, by the year 2040 this is estimated to increase to ‘medium’. The development to which the appeal relates, the change of use of the appeal premises to a dwelling, is classed for planning purposes as a ‘more vulnerable’ development. The previous use, as a shop, was within the ‘less vulnerable’ category.

The appellant’s FRA identifies a range of possible mitigation measures. Under the heading ‘[name], the report states that the following should be considered; flood resistant external doors; flood gates; sandbags; and anti-flood airbricks and covers. Under ‘[name], it lists: electrical sockets and switches raised above flood level; water resistant floor finishes; water tolerant or water-compatible plaster and wall finishes; higher-level storage provision for vulnerable items; and water-tolerant fixtures, fittings and furnishings. In addition, under ‘Access and Egress’, it is noted that occupiers can register for the Environment Agency’s flood alert and warning scheme. As things stand, the disputed Condition 3 requires all of these measures to be implemented in full.

In my view there can be no doubt that it is desirable that new and converted properties be designed to be both resistant and resilient against the risk of flooding. When flooding occurs, and properties have to be vacated, repaired and renovated as a result, whilst much of the cost falls on individual owners or their insurers, there are also wider costs and impacts that have to be borne by society as a whole. It is therefore important that planning policies relating to flood resistance and resilience should be complied with wherever the risk of flooding makes such actions appropriate. It does not appear to be disputed that the present appeal site is one to which such policies are applicable.

However, the measures required should be proportionate; not only to the level of risk, but also to the size and type of property, and the extent of the work being carried out. This is because unduly onerous requirements could act as a deterrent to otherwise acceptable developments. Nothing in any of the relevant flood risk policies suggests that resistance and resilience should be pursued to such an extent as to jeopardise other policy objectives. In this case, the appeal property is a modest, 2-bedroom terraced unit, where only one room has been in commercial use, and the remainder has evidently been a dwelling for many years. These circumstances seem to me to weigh further in favour of ensuring that the extent of the flood resistance and resilience measures required are realistic. 2 PPG paragraphs 7-052-20220825 and 7-068-20220825 3

In the light of these considerations, it is evident that the majority of the measures that would be needed to comply fully with the existing Condition 3 would incur some costs. Cumulatively therefore, it seems to me that the effect of requiring all of those measures would be likely to add significantly to the cost of carrying out what is essentially no more than a small-scale, and otherwise policy-compliant development. As the appellant points out, whilst all of the measures involved are ones that have been identified in the FRA, that does not necessarily mean that all are required together. Rather, the recommendation in the FRA was that the identified measures be considered. To my mind, the clear implication is that an acceptable level of flood resistance and resilience could be achieved by selecting a package of measures from the list, rather than adopting the list in its entirety. No other evidence is before me to suggest that a more selective approach along these lines could not secure a reasonable degree of protection.

I therefore find that Condition 3, as currently worded, fails the tests set out in NPPF paragraph 57, in that it exceeds what is reasonable or necessary to achieve the aims of Local Plan Policy CLP13, and those of the relevant NPPF and PPG policies.

For these reasons, I conclude that Condition 3 should now be varied, by being deleted and replaced. In its place, I intend to insert a new Condition 3A, as set out at paragraph 1 of this decision, which will still require a scheme of flood resistance and resilience measures to be implemented, but will allow the details of those measures to be agreed between the appellant and the Council.

In drafting this new condition, I have had regard to the wording suggested by the appellant, but I am not persuaded that it is necessary for the condition to incorporate any further guidance as to the nature of the measures to be agreed. This is because, in the event that agreement pursuant to the new condition cannot be reached, a right of further appeal will remain.

On this basis, the appeal is allowed.