Appeal 6004537

The appeal is dismissed.

The appellant submitted a signed [name] with their final comments. The Council confirmed on the 19 May 2026 that this overcomes the 3rd and 4th reasons for refusal. On this basis, I will no longer consider these main issues of the appeal.

The main issues are: • Whether the proposed development having regard to relevant development plan policies cause the loss of a viable employment site. • Whether the site is a suitable location for the proposal, having regard to policies concerned with development in areas at risk of flooding. • The effect of the proposed development on the character of the Conservation Area.

The proposal seeks the loss of an employment site, with conversion of the restaurant into a dwelling.

Policy WM13 of the [site address] Neighbourhood Plan 2022 (Neighbourhood Plan) provides a set of criteria on when employment sites can be lost. These criteria a-e provide exceptions to allow non-employment uses.

The appellant raises that both the original permission for the restaurant in 2001 and the revised consent in 2007 both had restrictive conditions that have prevented the restaurant from achieving regular use.

[name] agree that the conditions are restrictive, it is not my role in this appeal to determine if the conditions have met the tests under paragraph 57 of National Planning Policy Framework 2024 (Framework). The appellant has the option of seeking to further vary this condition, which could be appealed if the Council refused the S73 application.

The appellant states that some early marketing was undertaken, though no precise evidence of this has been provided. Therefore, it has not been demonstrated that genuine attempts have been made to sell/let the restaurant or that recent measures have been taken to remove the restrictive condition to make the site more viable in the foreseeable future. On this basis, exception b of the Policy WM13 of the Neighbourhood Plan has not been met and no argument has been made for any other exception.

I therefore conclude that the proposal at the current time would cause the loss of a potentially viable employment site. On this basis the proposal does not comply with Policies WM1 and WM13 of the Neighbourhood Plan, which protect employment sites from being lost.

The proposal also does not comply with Policies SP1 and SP3 of the Colchester Borough Local Plan 2013-2033 Section 1 [name] 2021 (Local Plan Section 1) that in total seek sustainable development and support of the rural economy. The proposal also does not comply with Policies SG1, SG2 and SS12B and ENV2 of the Local Plan 2017- 2033 Section 2 [name] 2022 (Local Plan Section 2) that in total as relevant to this main issue seek to ensure the protection of economic sites.

Paragraph 176 of the Framework states: ‘Applications for some minor development and changes of use should also not be subject to the sequential test, nor the exception test set out below, but should still meet the requirements for site-specific flood risk assessments set out in footnote 63’. Footnote 63 in the Framework states ‘A site-specific flood risk assessment should be provided for all development in [name] 2 and 3’.

The site’s current authorised use is that of a restaurant, which comes under less vulnerable under annex 3 of the Framework; while a dwelling comes under more vulnerable. As required under footnote 63 of the Framework, the appellant provided a flood risk assessment with their application. Paragraph 181 of the Framework is relevant to the determination of this appeal.

Whilst the proposed use should be avoided within [name] 3, I agree with the appellant that there is no need to undertake a sequential or exception test. However, the flood risk assessment still needs to meet the relevant criteria in paragraph 181 of the Framework. The appellant’s flood risk assessment shows that during a flood event leaving or reaching the site would be a risk to most to all people. On this basis, I am not convinced that if future residents did need to leave the proposed dwelling during a flood event or if emergency services needed to reach them that it could be done in a reasonably safe manner. Therefore, based on the evidence provided, the proposal does not comply with paragraph 181 e of the Framework, as it is not deemed safe over its lifetime and unacceptable on flood risk grounds.

The appellant has raised that the use as restaurant there is a greater risk to people, given that they would be unaware of risk and would have less space at first floor. However, based on annex 3 of the Framework, that restaurant owners should have knowledge of flood events, that restaurant patrons are unlikely to attend in a flood event and leave quicker at the risk of a flood this argument does not materially alter my conclusions.

I therefore conclude on this issue that the proposal has not been demonstrated as suitable in so far as it relates to flood risk. On this basis the proposal does not comply with the requirements of the Framework as detailed above. The Council appear to have provided the incorrect copy of Policy DM23, though I have been able to find the correct one. The proposal does not comply with Policy DM23 of the Local Plan Section 2, which seeks compliance with the Framework and the reduction in the risk of flooding.

I have considered the duties contained in the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) in determining this appeal. The Act contains duties whereby special regard should be given to the desirability of preserving or enhancing the character or appearance of the Conservation Area.

The [site address] Conservation Area runs along [site address] and includes a significant proportion of the water’s edge. It is defined by its mix of commercial and residential properties. However, while the landside is a mix of commercial and residential dwellings; the waterside is defined by boatyards, seafood restaurants/cafes, oyster enterprises, a public car park and houseboats. Excluding houseboats, there are no examples of current residential dwellings along the water’s edge. This mix of commercial and coastal uses along the waterside adds to the significance of Conservation Area.

The proposed development is not seeking any external changes and conditions could be used to remove permitted development rights if needed. On this basis there would be no harm to the appearance of the Conservation Area. However, the character of the Conservation Area would be harmed due to the proposal eroding this side of [site address] that is defined, excluding houseboats, by not having any residential uses. Whilst this harm is limited due to the likelihood of not being immediately apparent it would still harm the significance of the Conservation Area that has a clear and persistent character on this side of [site address] .

In terms of the Framework for similar reasons, the proposal causes less than substantial harm to the significance of [site address] Conservation Area. Paragraph 215 of the Framework states that in these circumstances this harm should be weighed against the public benefits of the proposal. The first public benefit is that the proposal would reduce the parking demands in the local area, though this site is near a public car park; though given the site has not been actively used for a while the exact level of this benefit is unknown. There is also the public benefit of the creation of a single dwelling; in an area the appellant argues there is not a five year supply of land. However, given that the proposal is for only one dwelling, the public benefit is limited and, in this case, does not outweigh the harm.

It is also noted Policy SS12b of the Local Plan Section 2 seeks to enhance heritage assets, maritime uses and maritime character. The proposal as detailed above would also conflict with this local policy.

I therefore conclude on this issue that the proposal does harm the character of the Conservation Area, which is not outweighed by the public benefit. On this basis the proposal conflicts with the Framework, as detailed above.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires planning applications to be determined in accordance with the development plan, unless material considerations indicate otherwise.

From the evidence before me there is not a proven deliverable five year supply of housing land as required by Paragraph 78 of the Framework. Consequently, paragraph 11 d) of the Framework, which is a material consideration of significant weight, is engaged. It states that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.

However, with the identified harm, as detailed above, to the risk from flooding and harm to heritage there is a strong reason for refusing the development proposed. Therefore, the proposal fails to comply with paragraph 11 d) i and on this basis the requirements under 11 d) ii are not applicable to this appeal.

The appellant has provided a signed unilateral undertaking securing a financial contribution to the Recreational disturbance Avoidance and [name], which seeks to mitigate the additional recreational pressure on the [name] arising through the proposed development. If the appeal was to be allowed, it would be necessary to consider this matter within an appropriate assessment.

For the reasons given above the appeal should be dismissed.