Appeal 6004545

The appeal is dismissed.

An application for costs was made by [name] and [name] and [name] against Durham County Council and this is the subject of a separate

The main issue is the effect on the Northumbria Coast Special Protection Area (SPA) and the Durham Coast Special Area of Conservation (SAC).

There are two application forms. The first has [name] as the applicant. The second indicates that the application is made by [name] and [name] on behalf of a company called [name] and [name] and [name]. The appellants have submitted a string of emails with correspondence between the council and the agent under reference DM/24/01912/FPA. These refer to an amended application form and reference to [address]. This is not the reference for the appeal application but it would appear that these related to the revised second application form and that it was submitted to and accepted by the council. I have therefore included the three names as being the applicants.

The description of development on both application forms refers to the replacement of the existing timber shop front with an aluminium shopfront. The council advise that the application description was amended during the course of the application to refer to the repair of the existing shopfront, rather than the removal and Appeal Decision: 6004545 replacement with an aluminium shopfront. The council are concerned that the plans continue to show a new shopfront, including the removal of the distinctive corner features that form part of the existing timber frontage. The plans before me do not appear to illustrate any discernible change to the shopfront from ‘existing’ to ‘proposed’. The scale is insufficient to show much detail but it does not appear that the plans show the shopfront in its current form. No confirmation of agreement to the change of description has been provided by either party. The appellant advises, in the final comments, that this element could be removed by condition or by the provision of a split decision. In the absence of evidence of agreement to a change in the description, I have retained the description on the application forms.

The council advise that they were notified after the appeal submission that all works had taken place. No information in this regard has been provided by the appellants. It is evident that works have been carried out but they do not appear to exactly reflect the plans in a number of respects. The proposed plans show a new side door which is required to provide independent access to the upper floors. It was evident from my visit that the side door was in place and a canopy, not shown on the plans, has been added. The plans show the retention of the original side door to the yard area and changes within the rear yard to provide a separate bin and bike storage area. The existing side door has been replaced with a roller shutter door with external casing which extends beyond the brickwork. This does not appear to reflect the details of the plans. The covering of the rear yard and the heights of the boundary walls appear to have been altered and a new consolidated roof erected, covering the rear yard area. These changes are not shown on the plans. Although works necessary to create an independent residential use have taken place, it is not clear whether the residential use has commenced.

Copies of emails have been submitted by the appellants relating to a unilateral undertaking. The first email from the agent to the council includes two photographs of a signed and witnessed undertaking. Not all of the text is visible in the copy provided. These appear to be part of the same images that have been submitted with the appeal documents, although those do provide a full legible image of each page. It is not clear whether the council received the full copies with the initial email on 9 July 2025. The council raised unspecific concerns regarding the undertaking. They requested a hard copy of the document and official copies of the [name] legal title. A solicitor of the council also raised concerns about a completed undertaking being amended.

The appeal was lodged on 2 February 2026. A summary of title document, which is not an official copy of the title or title plan, indicates that it was accessed on 1 February 2026. There is no evidence that any detail of legal title was provided to the council before that date. The title relates to [address] and is in the name of [name]. This differs from the spelling of the similar name on the application form. The application form refers to [site address] .

The photographs of the two separate pages of the undertaking indicate that it was signed and witnessed on 18 June 2025. It sets out that the freehold owner covenants to pay £756.61, not later than 6 months after the first day of occupation of the development on the land, defined by the first permanent residential occupation of the flat. The freehold owner and applicant is stated as [name] as spelt on the planning application form but printed by the signatory as spelt on Appeal Decision: 6004545 the title. There is no doubt a simple explanation for the difference in address and spelling of the owner’s name but it has not been provided in the documentation.

As set out in the procedural matters above, the council’s description differs from that on the application form but there is no evidence that this has been accepted by the appellant. However, it appears that the council is satisfied that the proposal would be acceptable, notwithstanding the shopfront details, subject to the provision of a [name]. The appellants advise that they are agreeable to making the payment. They submitted to the council the images showing a signed, dated and witnessed document which refers to such a payment. The council advise that the application, which they considered no longer included changes to the shopfront, remained undetermined because it was not satisfied that a legally compliant and enforceable unilateral undertaking, to secure the [name], had been provided to them.

It is necessary to establish whether such a payment would meet the tests set out in Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 which are repeated in the National Planning Policy Framework. Planning obligations must only be sought where they are: a) necessary to make the development acceptable in planning terms; b) directly related to the development; and c) fairly and reasonably related in scale and kind to the development.

Policy 42 of the County Durham Plan 2020 sets out the approach to development that may have an effect on internationally designated sites in accordance with the Conservation of Habitats and Species Regulations 2017. It advises that the council carried out screening and after Appropriate Assessment, concluded that there is likely to be a significant effect on the Northumbria Coast Special Protection Area (SPA) and Durham Coast Special Area of Conservation (SAC) from new housing within 6km of these sites due to increased recreational impacts, including dog walking and coastal erosion. The proposal is within the 6km buffer.

The council has concluded that mitigation would be appropriate for the identified impacts and would need to be in the form of a financial contribution to the [name] and [name] which is designed to limit the identified impacts. The council’s Development Viability, [name] and Financial Contributions Supplementary Planning Document (SPD) sets out the approach to calculating and securing developer contributions for the specific mitigation measures in accordance with policy 25 of the County Durham Plan which relates to developer contributions. The coastal avoidance and mitigation strategy requires a planning contribution of £756.61 per net new dwelling for windfall sites to fund avoidance and mitigation measures that are set out in the SPD. The council consider that without a payment the proposal would conflict with policy 42.

Not all of the background information to the above assessments and the sequence of conclusions has been provided. However, the appellants have not identified any shortcomings in the process. They have offered to pay the calculated requirement; and have submitted a photograph of a deed designed to control such provision. Whilst some concern has been raised with regard to the impact of the proposal, no evidence or alternative assessment has been made. As the requirements, conclusions and methodologies are clearly set out in policy 42 and the SPD, I am satisfied that such a payment would satisfy the tests for a planning obligation, being Appeal Decision: 6004545 necessary; directly related to the development; and fairly and reasonably related in scale and kind to the development.

The appellants provided two photographs, page 1 and page 2, of a document entitled [name]. Despite requests, the original document was not lodged with the council. The council, as enforcing authority must have an appropriate document for it to be entered into the planning register; registered as a land charge; and capable of being enforced against if necessary. Whilst it need not be the original, it should be a certified copy that can be proven to be a true copy of the original deed. No documents other than these photographs have been provided as part of this appeal, despite the exchanges with regard to an application for costs against the council. It is also not evident that the council had the opportunity to view the ownership information, which is also not an official copy of the title. Whilst the undertaking is unilateral, the council have an interest in it being made correctly given that it is the enforcing authority.

In the cost application correspondence, the appellant makes an assurance that if the undertaking is acceptable, ‘we will present the hard copy to the local planning authority for processing (or make it a condition of the consent), and likely pay the fee to them that day to save all the hassle of making it a land charge. Something we would prefer to do anyway’.

It is not possible to proceed on the basis suggested by the appellant as an undertaking to make a payment, or to submit an undertaking requiring a payment, cannot be required by condition. Furthermore, if the appeal were allowed and planning permission granted, there would be no facility to require or obtain such an undertaking retrospectively. The council would be reliant on the current submission. Notwithstanding the discrepancies with regard to the address and the spelling of the owners name, given that the council do not have the original or a certified copy; and where not given the opportunity to review the ownership submission, I am not persuaded that accepting the two photographs and copy of the ownership details, would not prejudice the council; or provide an enforceable undertaking.

In any event, I also have concerns regarding some elements of the proposal and the undertaking. It is evident that the development that has taken place does not represent the detail of the plans in all respects. There is considerable doubt that the works undertaken would be lawful even if permission, in accordance with the plans, was granted. There is uncertainty regarding the shopfront works listed in the description. The loss of the existing shopfront would be unacceptable. It is not clear whether the change of use to residential has already commenced and if it has, from when. A requirement to report the date of first occupation would need to be included within any undertaking if its requirements are to relate to a period after that date. If occupation has already commenced and has been in place for six months, the requirement of the deed could not be satisfied. A period for payment, from the date of permission, would be more appropriate if the use has commenced.

I have considered whether some of the above matters could be addressed by conditions. A requirement to submit revised plans that match the works carried out could be imposed but I am not satisfied that the council and third parties have had an appropriate opportunity to consider these alternative works. Appeal Decision: 6004545

As it is not clear that a change to the description has been agreed, the description could not be changed as part of this appeal process. A split decision could however be issued dismissing the appeal in so far as it relates to the shopfront.

Even if assuming a split decision, given that the undertaking has not been provided satisfactorily to the council, it cannot be afforded weight. The proposal would therefore be at odds with policy 42. I am mindful however that the use would bring benefits to the area with regard to the additional residential accommodation, economic benefits and an efficient use of land in a sustainable location. [name] afford these matters considerable weight, they are not sufficient to outweigh the concerns with regard to the effects on the Northumbria Coast Special Protection Area (SPA) and Durham Coast Special Area of Conservation (SAC), particularly as there is an accepted arrangement for resolving this issue.

I have had regard to the submissions of the appellants and I am also mindful that no objections were received and that the council are generally satisfied with the details of the plans. Whilst these matters and the benefits listed, weigh in favour of the proposal, they are not sufficient to outweigh my concerns. I therefore dismiss the appeal.