Appeal 6004801

The appeal is dismissed.

An application for costs made by [name] against Cornwall Council is the subject of a separate decision.

I have used the site address from the application form and decision notice in the banner above, as the main parties agree that to be accurate.

The main issues are: • the effect of the proposed development on the character and appearance of the area; • whether the appeal site is an appropriate location for the proposed development having regard to the development plan; and • the implications of any fallback position.

The appeal site is located north of the small village of Lamanva, in a largely rural area. It is a portion of open ground that includes an access track, a hardsurface, and a mobile home in lawful residential use. It forms part of a wider landholding that includes open paddocks, a riding school, and a cluster of buildings (the landholding buildings).

[name] have described above, neither the appeal site nor the wider landholding is wholly undeveloped. That said, the track and hardsurface, riding school, and landholding buildings are simple and modest. Furthermore, they are unsurprising features to find in a rural setting. Even the buildings, which are the largest and most prominent element, have a practical, unfussy appearance typical of working rural structures.

The combination of the existing mobile home, non-agricultural vehicles, and some small spreading of domestic paraphernalia illustrates the residential occupation of the site. These, however, are positioned close to the landholding buildings, and are shorter than them. They have a modest presence in this context.

Notwithstanding that ongoing residential occupation of part of the site has been certified as lawful, in visual terms the mobile home strongly suggests impermanence borne of a practical relationship to rural activity. In that way, it serves to emphasise the rurality of the site.

Overall, the scale and nature of development on the site and the landholding are such that the character and appearance of both are strongly rural, rather than domesticated or residential.

The site adheres and contributes to the rural character and appearance of its immediate surroundings; It is readily apparent upon approach from either direction that the site is physically separated from the main body of the village by open paddocks. This distinguishes it from the settlement, and underlines that it is in the countryside.

Though some outbuildings associated with a neighbouring property, [address], are visible from the appeal site, they are agricultural in appearance and modest in size and therefore reinforce the countryside setting of the site. Otherwise, visible neighbouring land largely comprises undeveloped fields, as does the backdrop to the north. The nearest visible settlement is some distance away on the far side of the fields west of the site. All these factors reinforce the inherently rural qualities of the appeal site and its surroundings, and the sense of remoteness.

It is proposed to erect a two-storey dwelling southeast of the existing mobile home. Notwithstanding the harm it argues would result from the presence of this dwelling in the setting, the Council raises no objection to its particular design. Based on the mix of buildings in the wider landscape I see no reason to take a different view.

Even so, the dwelling being set forward of, and separated from, the landholding buildings would give it a striking prominence, increased by it being in the foreground upon approach, such that it would dominate the site. It would mark a notable spread of development outward from what is currently a relatively contained cluster.

More significantly still, in introducing permanent residential development the proposal would change the character and appearance of the land making it predominantly domestic, with the dwelling as the principal, defining feature of the site, and the remaining existing developments appearing subservient to it. This would harmfully erode the rural character of the site and undermine its adherence and contribution to that of the wider area.

I recognise that there is only limited intervisibility between the private access track to [address] and the appeal site, and that the proposed dwelling would be only partially visible from the road. In both cases, the dwelling would likely be seen only in passing. Even so, it would be partially visible from those locations, and its presence would register.

I have considered longer views of the site, including from vantage points identified in the hearing. Views of the site from near Treverva Village Hall, from [name], and from the footpath around the far side of [name] are over some 800m, 700m, and 450m respectively, and are wide, sweeping views which include a scattering of development on the southeastern side of the reservoir.

Again, however, I see little reason to feel that the presence of the proposed dwelling would not register to some degree. A bank of Leylandii trees along one side of the site would do little to effect views from the churchyard and footpath. When lights were switched on upstairs in the proposed dwelling, it is not obvious that the trees would hide the presence of the dwelling in views from Traverva; The site is on the highest ground in those views and is somewhat prominent in that respect.

Overall, I do not find the absence of direct, comprehensive views of the proposed dwelling from outside the appellant’s land to make the appeal proposal acceptable. Rather, the fact that the dwelling would be perceptible in these views adds to the harm identified above.

The proposed development would have a harmful effect on the character and appearance of the area, contrary to Policies 12 and 23 of the Local Plan, where they require development to promote local distinctiveness and respect landscape character, including in un-designated landscapes.

The site is in the countryside beyond any settlement boundary. As such the proposal is subject to Policies 7 of the Cornwall Local Plan (2016) (the Local Plan) and H1 of the Budock Parish Neighbourhood Development Plan (2021) (the Neighbourhood Plan). Neither policy supports new homes in the countryside except for special circumstances listed in Policy 7. Of these only one, that the new dwelling is a replacement for one broadly comparable in size, scale and bulk and of an appropriate scale and character for the location, has any potential to be relevant.

For the reasons set out in my assessment of the first main issue, I do not consider the proposed development to be of an appropriate scale and character for its location. The proposal does not, therefore, have the support of Local Plan Policy 7 or Neighbourhood Plan Policy H1, and the appeal site is not an appropriate location for the proposed development having regard to the development plan.

The appellant recognises there is conflict with the policies but also argues that the Council has applied them inconsistently across comparable schemes. In line with section 79(1) of the Town and Country Planning Act 1990, I will proceed as if the application had been made to me in the first instance, and assess it against the policies as they are presented to me.

The appeal site is within a Green Gap as set out in the Neighbourhood Plan, but that does not engage a policy of relevance to the proposal; Policy H4 of the Neighbourhood Plan is cited in the decision notice but addresses development between [name]/Nangitha and Falmouth/Penryn. As such, it has no application to the appeal scheme.

I address below two different though partly interconnected fallback positions. The first (hereafter, the contended fallback) is one which the appellant argues that they possess, though it is not formally recognised by the Council. The second (the established fallback) is one recognised by the Council through a Certificate of Lawfulness issued in 20181.

The appellant contends that they may lawfully put a replacement mobile home measuring 20m by 6.8m in width and breadth and with an internal floor to ceiling height of 3.05m2 in much the same position as the proposed dwelling. The rationale behind this is that the whole of the appeal site can be seen, the appellant argues, to have a lawful use that includes the stationing of a residential mobile home. The following are pertinent to this argument;

Firstly, a Planning Enforcement Notice served on 2 December 2013 and withdrawn on 28 March 2014, which alleged the change of use of land for the stationing of a caravan for residential purposes. A plan attached identified the current appeal site and an adjacent part of the landholding, presented as one, as the land addressed by the Notice.

Secondly, a previous appeal decision involving the site dated 11 December 20173. This followed the decision of the Council to refuse permission for a scheme which, for the purposes at hand, was not incomparable to the current appeal proposal.

Thirdly, the nature of the land and the events that occurred upon it, reflected in a disagreement over the accuracy of the 2018 Certificate of Lawfulness (CLUPD) in identifying the operative planning unit. That is to say, the precise area of land which had in fact been put to a particular use or mix of uses.

Regarding the first of these; The appellant accepts that a plan attached to an enforcement notice is not bound to reflect or identify the planning unit; their argument is simply that it did so in this instance, being the consequence of the investigation leading to the service of the notice.

I recognise that the Council could not use such a notice to apprehend anticipated breaches of planning control, only that which it believed it had found. That said, it is not evident that either the service of the Notice, or the investigation leading to it, was intended or adequate to identify the planning unit. Indeed, the Council is clear that the Notice simply reflected the unit of occupation. In my experience this is a perfectly common approach not least because, as the Council points out, it 1 Application Ref 18/03977. 2 Section 29 of [name] and Control of Development Act 1960, Section 13 of the Caravan Sites Act 1968. 3 Appeal Ref: APP/D0840/W/17/3173883. addresses the risk of a mobile home being moved around the land to frustrate the Notice.

There is no evidence that a Planning Contravention Notice, the tool usually used to establish the finer details of an unauthorised land use, was served. It is not evident, therefore, that the Council was particularly concerned with identifying the planning unit. Indeed, an [name] may be served when it appears4 to the Council that there has been a breach of planning control; it need not be certain that there has been one, much less of the finer details. In this context it seems entirely possible to me that the Council served the Notice without seeking to identify the planning unit.

Such an approach goes hand in hand with the provision for a Notice to be modified at appeal so as, amongst other things, to more accurately identify a planning unit. That did not happen in this instance. The notice was withdrawn and its accuracy was never tested. This further reduces its value in identifying the planning unit.

The Council accepted in the hearing that the Notice ought to have alleged the unauthorised change of use of the land to one in a mixed use comprising residential occupation and the keeping of horses. I agree that this is so, but simply because the land addressed by the notice seemingly included areas used to keep horses, rather than because all of the land was evidently part of the residential use. Overall, I do not find the Notice to reliably identify the nature and extent of the planning unit.

Turning to the second matter; I recognise that the previous appeal decision appears to acknowledge what is effectively now the contended fallback position. In the hearing, the Council accepted that fallback was not in dispute at the time of the previous appeal.

That said, the matter of the planning unit had not been directly addressed at that stage. That happened later, through the CLUPD application. I do not, therefore, take the absence of disagreement at the time of the appeal to mean the facts regarding fallback had been established.

Had the previous Inspector had the benefit of the CLUPD he might have approached the fallback argument very differently. As it was, his comments were made in the context of the fallback position being found, even if exploited fully, insufficient to prevent the appeal from being dismissed. It is not clear to me that he would have needed to fully satisfy himself of the veracity of that fallback position in such circumstances.

Ultimately, as much as the previous Inspector would have been bound to consider the fallback position, it was not before him to establish it formally. That was not a purpose of the appeal, nor a feature of the process leading to the decision. Overall, I do not find the previous appeal decision to prove the contended fallback position.

Regarding the third matter; The CLUPD effectively recognises as lawful the use of land to which it relates for the stationing of a residential mobile home. That land, identified on an attendant plan, is a triangular area immediately outside the landholding buildings (the CLUPD triangle). 4 My emphasis.

The CLUPD application was originally made for the use of the area of land identified on the [name] plan, along with the landholding buildings. It was made on the basis that the use of that wider land for a residential mobile home had, by that point, taken place for so long as to be immune to enforcement action. It fell to the applicant to demonstrate this. The Council concluded that the evidence showed the use to have occurred within the CLUPD triangle, rather than across the wider land.

That does not necessarily mean that the use of the rest of the appellant’s land, outside the CLUPD triangle, for the residential mobile home might not also be lawful. It may be that further evidence would demonstrate that this is so.

The submissions direct me to the approach set out in Burdle5, in which a planning unit is usually the unit of occupation unless a smaller area, physically separate and distinct and occupied for different and unrelated purposes, can be identified. The Council contends that the CLUPD triangle is such an area, whereas the appellant argues there is no physical or functional separation between the relevant parts of the appellant’s land.

The CLUPD triangle excludes a part of the landholding buildings purportedly used as a day room, even though the Council officer for the CLUPD had, during correspondence, identified it as part of the residential planning unit. One of the landholding buildings, used as a stables, is accessed over the CLUPD triangle. It seems likely to me that any horses kept in the stables would, therefore, have regularly been led across the triangle. There is no suggestion that any fence, wall, or other built enclosure ever segregated the appellants land, save for that which encloses the sandschool. I appreciate why, to the appellant’s mind, these factors cast doubt on the CLUPD as an accurate reflection of the planning unit.

That said, the southern edge of the CLUPD triangle accords broadly to the bank between a distinct change in land levels, and to the extent of the hardsurface. As such, it reflects physical features rather than being arbitrary. I heard from interested parties that trees once marked the bank and may have played a part in screening from view the first residential caravan placed on the site in breach of planning control. Greenery may serve to physically separate different areas of land; Indeed, it does precisely that across the local area. Taking all this into account, even if the Council’s approach to the CLUPD did contain flaws, it is not evidently unsound to equate the features of the appellant’s land with physical separation and distinction.

In 2001 planning permission was granted for the sandschool on the condition it be used ‘for domestic purposes’, but I do not take that to mean the keeping of horses at the site reflects residential occupation. Indeed, only a few months beforehand the use of the stables landholding building had been certified as lawful6 for a ‘private recreational stable.’ Unusual though the use of the word ‘domestic’ in the sandschool permission may be, I find it likely to have a meaning close to ‘recreational’ given the context.

Moreover, using land to keep horses is plainly very different to using it to live on, and I see no reason why one use should depend upon the other. It is not obvious 5 Burdle & Williams v SSE & New Forest RDC 1 WLR 1207; 116 SJ 507; 3 [name] 240; 24 P & CR 174; 70 LGR 511; JPL 759. 6 Application Ref PA01/LU008. that the two could not, or would not often, be distinct and separate. Again, I see little here to show me that the Council’s approach is fundamentally unsound.

Beyond all of this, whilst the contended fallback position is material to the appeal, it is not before me to determine its lawfulness. For that, the appellant must use the certificate of lawfulness and appeal procedure, but they have not. Whether they felt somewhat exhausted by their interactions with the planning system as they report, the fact is that the evidence put forward in support of the contended fallback position has not been formally tested. I cannot know, therefore, whether it would be altered, or even discounted, by that process. That significantly reduces the weight I attach to it.

Furthermore, even if a mobile home of the maximum dimensions set out in the definition of a caravan were placed in much the same location as the proposed dwelling, it would not have as harmful an effect on the character and appearance of the area as the proposed dwelling would. A mobile home would not be as tall and so would have less visual impact in that respect. [name] set out in a preceding section above, whereas a mobile home has strong visual connotations to impermanence and practical rural activity, the proposed dwelling would harmfully change the character and appearance of the land to predominantly domestic.

Overall, whilst I find the prospect of the contended fallback position to be greater than theoretical, for the reasons set out above I attach minimal weight to it.

Moving away from the contended fallback position and on to the established one; There is no dispute that residential occupation of the site may continue regardless of the outcome of this appeal. I see little evidence that this is not at least as likely as the erection of the proposed dwelling, were I to allow the appeal. In fact the appellant tells me that, should the appeal be dismissed, she will replace the existing mobile home with one meeting the maximum dimensions within the definition of a caravan, within the CLUPD triangle. I have been provided with little reason to doubt this.

The implications of the established fallback position are significant. Indeed, in the hearing the Council accepted that, matters of character and appearance aside, whatever harm the appeal scheme would cause by virtue of the site’s location is already real, and will likely remain so whatever decision I might make. This weighs in favour of the appeal to such an extent as to counterbalance entirely my finding, made in respect of the second main issue, that the appeal site is an inappropriate location for the proposal having regard to the development plan.

The appellant has drawn my attention to a series of relatively recent appeal decisions and planning permissions at other sites in Cornwall7. These are said to reflect general trends in decision making. I note that whilst each involves residential development outside settlement boundaries and, in some cases, harm to the character and appearance of the area, each was permitted following the application of paragraph 11d of the National Planning Policy Framework (the Framework). 7 Appeal Refs APP/D0840/W/25/3366033; APP/D0840/W/25/3362082; Application Refs PA25/07798; PA25/05816; PA25/08930.

I attach minimal weight to these other permissions, however, as they all involve the provision of additional housing towards the shortfall that triggered the application of paragraph 11d. They are significantly different therefore to the appeal scheme, which does not.

Given my conclusion in respect of the established fallback I need not consider the implications, insofar as appropriateness of location is concerned, of a recent permission for four new dwellings on Land at [address].8 Insofar as the implications of that permission for the character and appearance of the area are concerned, I do not find it to be comparable to the appeal scheme; That site is on the southern side of the village road, alongside the main body of existing development, and so not as rural or separated from the village as the appeal site.

A discussion took place in the hearing about whether, in the event I were to allow the appeal, a planning condition could be used to ensure the proposed dwelling would replace the mobile home, rather than coexist with it. Given my decision, I have not had to consider this point further and have made my determination on the basis that the dwelling would replace the mobile home.

I heard concerns during the hearing that to allow the appeal risked setting a precedent for similar development on land nearby. Even if I were to accept this to be undesirable, the appellant’s case, involving as it does the existing lawful residential occupation of part of the site and considerations of possible fallback positions, is specific to the appeal site. I am therefore content that no precedent would be set by any decision I may make.

The provisions of paragraph 11d of the Framework are engaged. The Council cannot presently demonstrate a five-year supply of deliverable housing land, and estimates a supply of some 3.8 years. [name] find that a considerable shortfall, the appeal scheme would not assist in reducing it. Instead, the benefits of the scheme are presented, broadly, as threefold.

Firstly, that the proposed dwelling would have greater environmental credentials than a mobile home. The appellant intends for the dwelling to achieve zero carbon status, the Council does not dispute that it could, and I see no reason to doubt it.

I accept that the dwelling would significantly outperform the existing mobile home, which is of an older and basic type. It also seems likely to outperform a newer, replacement mobile home if that too was of a basic type. I say this due to the relatively insubstantial nature of a basic mobile home. I also recognise that it is common for basic mobile homes to require periodic replacement, and see little reason to dispute the appellant’s estimation that this would be on an approximate ten-year cycle.

However, I have no compelling evidence that it is impossible, or even improbable, for accommodation meeting the definition of a caravan to deliver high levels of energy efficiency, even to the point of carbon neutrality, or to deliver far greater longevity subject to design and maintenance.

The appellant has provided me with no reason to think they would be unable to procure a high-performing mobile home as a replacement for the existing one; 8 Application Ref PA25/07265. their argument on this point is simply that it could not be ensured they would do so. I recognise that this is so, but see little reason to feel the appellant would opt for a poorer performing replacement mobile home; It would be to their own detriment to do so in terms of energy bills and comfort. Taking all of this into account, I attach minimal weight to the environmental credentials of the proposed dwelling.

The second benefit is that the proposed self-build dwelling would cater for multi-generational living, including high levels of accessibility. I recognise that this would assist the appellant in her family life, but the scheme is not proposed to be personal to her. She and her family may move away, nullifying any personal justification for the dwelling. Even if I treat the provision of a dwelling capable of supporting occupiers of differing ages and needs as a significant benefit, I have little evidence that the local area lacks for housing stock of that type. I attribute little weight to these benefits.

Third is that the proposal would generate economic benefits in the short term from the construction process, and in the longer term from residential occupation of the site. However, the production and sale of a replacement mobile home or homes would also generate economic benefits, and I have little evidence these would not be reasonably comparable.

The site would continue to be occupied in any event and so make a comparable contribution to the local economy. Even if the economic benefits associated with the appeal proposal are in fact greater than those of the established fallback position, they are in any event modest given the scale of the scheme. Overall, the evident benefits of the scheme are no more than minor.

The appeal proposal conflicts with the requirements of the Framework that the intrinsic character and beauty of the countryside be recognised, and that development be sympathetic to local character and history including the surrounding built environment and landscape setting. Whilst the harmful effect the proposal would have on the character and appearance of the area is largely confined to that appreciable from the appellant’s land it would, nonetheless, be a distinct and notable harm, perceptible from various points around the local area.

Overall, [name] come to weigh that harm against the benefits of the scheme, I find that the harm significantly and demonstrably outweighs the benefits, as those benefits are so minor.

The proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it.

The appeal is dismissed.