Appeal 6004874

The appeal is dismissed insofar as it relates to onsite use and location of commercial shipping container for stock storage purposes only.

The appeal is allowed in part and planning permission is granted insofar as it relates to the installation and mounting of external wall mounted condenser fan units for the use of shop installed aircon and cabinet chillers; construction of permanent access ramp / steps with guardrail all to provide inclusive shop access at [site address] , Bicester [postcode] in accordance with the terms of the application, Ref 25/01235/F, and subject to the following conditions:

The development hereby permitted, insofar as it relates to the installation and mounting of external wall mounted condenser fan units for the use of shop installed aircon and cabinet chillers; construction of permanent access ramp / steps with guardrail all to provide inclusive shop access, shall be retained in accordance with drawing no. 6393.01A.

The external wall mounted condenser fans units hereby permitted shall be retained and operated in accordance with the Environmental Noise Assessment Ref 23491-1, prepared by noise.co.uk, dated 4 February 2026.

The development has already taken place, with the container already on site, the condenser fan units installed, and the ramp / steps with guardrail constructed generally in accordance with the plans before me. Consequently, I have had regard to the plans before me, as well as what has been undertaken.

With the appeal, the appellant submitted an Environmental Noise Assessment (ENA) which was not before the Council when it made its decision. The ENA does not fundamentally change the scheme that was before the Council, and the development remains substantively the same. The Council and interested parties had the opportunity to comment on the contents of the ENA in their submissions and as such, it would not be procedurally unfair to accept the ENA, in this instance.

The Council concluded that the development, insofar as it relates to the construction of permanent access ramp / steps with guardrail all to provide inclusive shop access, does not cause harm to the character and appearance of the area or the living conditions of nearby occupiers. Based on the evidence before me and what I saw on site, I find no reason to conclude otherwise. As such, it has not been necessary to consider the above matter within the below

The main issues relevant to this appeal are the effect of the shipping container upon the living conditions of the occupiers of [address] with regard to outlook; and the effect of the condenser fan units upon the occupiers of nearby dwellings with regard to noise and disturbance.

The appeal property is a Premier shop and is located within a promenade of commercial units. This group of units is located to the rear of the houses on [address] and the rear elevations of the two groups of buildings face towards each other. To the rear of the commercial buildings is a service yard and the gardens for some of the dwellings on [address] are located up against this service yard. The container has been installed directly to the rear of [address] (No. 42) and there is only a small gap between it and the rear fence line of No. 42’s garden. No. 42 is a mid-terrace property and the garden is relatively narrow and modest in depth. The container is notably taller than the rear fencing that bounds the garden and is wider than the garden itself and extends across parts of the neighbouring gardens either side of No. 42.

The green painted metal container is utilitarian and commercial in character and appearance. Whilst the appeal property to the rear of [address] is a commercial building, this is brick built with a tiled roof and is not dissimilar in character to the houses on [address] and thus is not notably more commercial in character, particularly when viewed from the rear. This building is also separated from the rear of No. 42 by the service yard and whilst a two-storey building, this building does not appear overbearing due to this separation distance. In comparison, the container is located directly to the rear of No. 42, is taller than the boundary fencing and is clearly commercial and utilitarian in character, and due to the close siting and appearance of it, it appears significantly more overbearing than the appeal property to the rear of it. This is more notable from within No. 42’s garden and the seating area towards the rear of it. Given the modest size of No. 42’s garden and because the container extends beyond the full width of it and above the rear fence line, it creates an oppressive environment within the garden.

Although the container may only project a limited amount above the boundary fencing, this does not negate its impact. The assessment of overbearing impact is not solely dependent on height above the fence line, but on the cumulative effect of height, bulk, width, and proximity. In this case, the combination of these factors, particularly given the modest size of the garden, results in a visually enclosing and oppressive feature.

The absence of overshadowing does not overcome concerns regarding outlook. A structure may avoid causing overshadowing but still appear dominant or oppressive due to its scale and siting. Therefore, the north-facing position of the container does not diminish the identified harm to outlook and the experience of the garden space.

In terms of within the property itself, given that it is a single storey structure, the container does not appear overbearing from the upstairs rooms that face towards the rear. Additionally, given the depth of the garden, whilst the container does notably alter the existing outlook, it is located far enough away to not appear overbearing from within the kitchen/dining room located at the rear of the house. However, this would not overcome the identified concerns with the scale and siting of the container and its impact on the living conditions of the occupiers using the garden.

The appellant notes that an outbuilding could be built under Article 3, Schedule 2, Part 1, Class E of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the Order) similar in scale to the container. However, the comparison with permitted development allowances carries limited weight in this instance. The appeal site is not a dwellinghouse and does not benefit from the same rights. Moreover, even where such rights apply, they impose clear limitations on height and proximity to boundaries which this container does not reflect. In any event, the existence of permitted development rights elsewhere does not justify development that, in this specific context, gives rise to an unacceptable impact on outlook.

Whilst there is an outbuilding located nearby, that at its ridge appears to be almost as tall as the container, it has a pitched roof, and the eaves are notably lower, and the building is much smaller. As a result, that outbuilding is not as bulky as the container and appears less overbearing.

The Appellant has also made submissions regarding whether the container constitutes operational development, including reference to case law1, which identifies factors such as size, degree of permanence, and physical attachment as relevant to whether a structure amounts to a building. Having had regard to these principles, I note that although the container is not physically attached to the ground, it is of a substantial size and is positioned in a fixed location where it functions as an integral part of the retail operation, providing ongoing storage for day-to-day use. Its presence would persist unless actively removed and would require a significant operation to do so.

There is no substantive evidence that permission is being sought or would be granted for an extension to the appeal property to replace the container and thus no clear evidence that the container would be on site for a temporary period. Furthermore, permission has been sought to retain the container rather than just for a temporary period. Taking the above considerations into account, there is no reasonable prospect that this fallback situation could take place on a permanent 1 Cardiff Rating Authority and Cardiff Assessment Committee v [name] and Steel Co Ltd [1949] 1KB 485; James v [name] [1963] 15 P&CR 20; Barvis v SSE [1971] 22 P&CR 710; Parkes v SSE [1979] 1 [name] 211; and Skerritts of Nottingham Ltd v SSETR & [name] (No. 2) [2000] WL 389505. basis as is being sought as part of this appeal. My conclusions are for the purposes of the current appeal only and do not prejudice any future application for a lawful development certificate and/or, where relevant, any enforcement proceedings.

In these circumstances, I consider that, whether as operational development or as part of the use of the land, the container has clear and continuing planning effects. Accordingly, irrespective of its precise legal classification, it is necessary to assess its impact on the living conditions of neighbouring occupiers.

The container that was granted planning permission by the Council to the rear of the Tesco store on [address] is located directly to the rear of the store with only a small gap between it and the building. Whilst similar in scale to the appeal container, it is located a significant distance from the rear gardens of the houses on [address]. As such, this is a material difference between the two schemes and for the reasons given above, the close siting of the container is one of the fundamental concerns with this development. Accordingly, the Council granting planning permission for the siting of that container does not justify this container. This also provides further evidence that permission is typically necessary for the siting of a container to be used for storage purposes with a convenience store like the appeal property.

The appellant’s assertion that the container is of a standard size does not, in itself, justify its acceptability in this context. A structure may be typical in form or dimension, but still inappropriate where, as here, its width, height and proximity to the boundary result in a confined and overbearing relationship with a neighbouring garden.

Whilst it is acknowledged that the appellant has identified a functional need for additional storage, this does not outweigh the requirement for development to respect the living conditions of neighbouring occupiers. Such development must still be appropriately scaled and sited. In this case, even accepting the need for storage, it has not been demonstrated that this need can only be met through a container of this size and in this specific location, particularly where it results in harm to the outlook and living conditions of the occupiers of No. 42.

Whilst the appellant has indicated that siting options are constrained by drainage infrastructure and operational requirements, limited evidence has been provided to demonstrate that alternative, less harmful arrangements have been fully explored. In the absence of clear justification that no other siting or configuration could reduce the impact on the occupiers of No. 42, significant weight cannot be afforded to this constraint, particularly given the identified harm arising from the current position.

The Council has referred to the [name] and [name]. Whilst this document is primarily intended for domestic extensions, I consider that its underlying principles relating to outlook and relationships between built form and neighbouring properties can be afforded limited weight as a material consideration. However, my conclusions on outlook are based primarily on the specific spatial relationship, scale and siting of the container rather than strict numerical separation distances.

Therefore, the container is oppressive and harms the outlook and thus living conditions of the occupiers of No. 42. Consequently, insofar as the development relates to the container, it conflicts with Policy ESD15 of the Cherwell Local Plan 2011-2031 Part 1 (Part 1 LP) and Policy C31 of the Cherwell Local Plan (LP) which expects development, amongst other matters, to consider the amenity of both existing and future development, including matters of outlook.

The ENA concluded that the rating level of noise from the condenser fan units are below the prevailing background sound levels during both daytime and night-time periods, which is indicative of a low impact. The assessment also identifies that the site is located within an established commercial environment where existing plant and background activity already influence the noise climate, and the condenser fan units do not materially alter this character. No significant tonal, impulsive or intermittent characteristics were identified that materially increase the impact. Having regard to the technical evidence before me and my own observations, I am satisfied that the operation of the condenser fan units does not give rise to unacceptable noise or disturbance to nearby occupiers and does not harm their living conditions.

Therefore, for the reasons given above, the condenser fan units do not cause significant disruption to the surrounding occupiers and thus do not harm their living conditions. Consequently, the development insofar as it relates to the condenser fan units, complies with Policy ESD15 of the Part 1 LP and Policies ENV1 and C31 of the LP. These seek, amongst other matters, to ensure that in existing and proposed residential areas any development which is not compatible with the residential character of the area or would cause an unacceptable level of noise or visual intrusion would not normally be permitted.

The development provides storage for the appellant and supports an existing commercial operation, as well as securing step-free access to the store. As such, it gives rise to economic benefits and some social benefits associated with improved accessibility and the ongoing operation of a local convenience store. However, while I recognise the need for additional storage, it has not been demonstrated that the container, as sited and of this scale, is the only or least harmful means of securing those benefits. As such, I afford the benefits modest weight. The scheme results in harm to the living conditions of the occupiers of No. 42 and conflicts with relevant policies of the development plan. While it may accord with other policies, these must be read as a whole, and the conflicts identified lead to overall conflict with the development plan as a whole. Overall, I find the benefits do not outweigh the harm I have identified and no material considerations, including the Framework, have been shown to carry sufficient weight to indicate that a decision, insofar as it relates to the onsite use and location of commercial shipping container for stock storage purposes only, should be taken otherwise than in accordance with the development plan.

[name] have found that no harm arises from the installation and mounting of external wall mounted condenser fan units for the use of shop installed aircon and cabinet chillers; construction of permanent access ramp / steps with guardrail all to provide inclusive shop access. These elements of the development accord with the development plan and the material considerations do not indicate that a decision should be taken otherwise than in accordance with it.

In light of the above matters, I find that I am able to issue a split decision since the access ramp and condenser fan units are clearly severable from the onsite use and location of the commercial shipping container. I shall therefore issue a split decision, granting permission for the access ramp and condenser fan units, but dismissing the appeal insofar as it relates to the commercial container.

Concern had been raised by interested parties regarding the lighting to the rear of the appeal site. However, the scheme before me does not include lighting and thus that harm does not arise from the parts of the development that would be allowed.

The appellant has identified concerns with the conduct of the Council in their handling of this case. Ultimately, I have had regard to the planning merits of the respective parties’ cases insofar as they relate to the main issues for consideration in this appeal.

Given that the development has already taken place, the statutory commencement condition is not necessary. I have amended the suggested plans condition to remove reference to the supporting documentation in the interests of precision, but it is necessary in the interests of certainty that the development is retained in accordance with the submitted plan. Another condition is necessary to require the condenser fan units are retained and operated in accordance with the ENA in the interests of the living conditions of nearby occupiers.

Therefore, for the reasons given above, the appeal, insofar as it relates to the onsite use and location of commercial shipping container for stock storage purposes only, is dismissed.

The appeal, insofar as it relates to the construction of permanent access ramp / steps with guardrail all to provide inclusive shop access and the installation and mounting of external wall mounted condenser fan units for the use of shop installed aircon and cabinet chillers, is allowed.