Appeal 6004904

The appeal is allowed and planning permission is granted for retention of [name] and B in B8 storage use together with the retention of area of hardstanding, portacabins, containers and associated structures at [site address] , [site address] , [name] and [name], Dorset [postcode] in accordance with the terms of the application, [name]/FUL/2024/02115, subject to the conditions in the attached schedule.

The application form states that the application is retrospective and that it was completed in September 2023. Based upon my site visit and on the evidence before me, I have considered the appeal on the basis that the development has already taken place as did the Council.

The description of development has changed during the process of the application. The application form described the development as ‘area of hardstanding; portacabins, containers and associated structures (retrospective)’. The appellant has referred to the changed description of development in their statement of case. Based on the evidence, the appellant does not object to the amended description. Therefore, I have proceeded with the amended description of development in the banner heading above.

The main issues are: • the effect of the proposed development on the living conditions of the occupants of neighbouring dwellings with regard to noise and disturbance; and • the effect of the proposed development on the character and appearance of the surrounding area.

Firstly, given I have used the description of development contained within the Council’s decision notice and appellant’s statement of case, the appeal seeks planning permission for both operations and for the use.

The appeal site is relatively large and comprises a parcel of land including a number of portacabins, containers and other associated structures. The appeal site has on the plans before me, been split into three areas referred to as ‘A’, ‘B’ and ‘C’. Part of the appeal site benefits from a Certificate of Lawfulness of [name] or Development (CLEUD)1.

Interested parties have raised concerns regarding whether the introduction of hard-standing and portable structures into Area B is the creation of a new planning unit and thus new planning history.

Whilst the CLEUD does not refer to specific Use Class, its description in the First Schedule is as follows: Use for the storage of landscape construction materials, building materials, double glazing materials, gutters, motorcycle spares, pallets and up to 30 secondhand cars kept for spares, all without planning permission.

The CLEUD relates to the area referred to as area ‘A’ in the appeal before me and refers to the then existing use. It does not however certify the lawfulness of any area of hardstanding, portacabins, containers or associated structures.

Notable judgements for this appeal are Brooks and Burton Ltd v SSE [1977] JPL 720 as well as [name] v FSS and [name] [2004] EWHC 1408. The case of Brooks related to two enforcement notices. Nevertheless, it outlines that whether an intensification can amount to a material change of use is a matter of degree for the Secretary of State. Regarding the judgement in Eastleigh, it was found that even if the intensification could normally constitute development, there would be no development if the intensified use remained within the same use class.

Additionally, in the case of Hertfordshire County Council v The Secretary of State for Communities and Local Government & Metal and Waste Recycling Limited [2012] [name] 1473 it was found that what must be determined is whether an increase in the scale of the use has reached the point to where it gives rise to such materially different planning circumstances, that as a matter of fact and degree, it has resulted in such a change in the definable character of the use that it amounts to a material change of use. [name] am mindful that a number of these cases relate to enforcement notices.

Regarding mixed uses and whether a material change of use has occurred, I am mindful of the following legal judgements: Wood v SSE 1973, Fidler v [name] of State [2004] [name] 1295 and [name] v First 1 GC/3/04/0624 Secretary of State [2003] EWHC 1895 (Admin) and Manchester City Council v Secretary of State for Housing, Communities and Local Government [2021] [name] 1920.

Interested parties refer to the case of Titchfield Festival Theatre Ltd v Secretary of State for Housing, Communities and Local Government [2025] EWHC 883 (Admin) which highlighted that accrued planning rights (whether they be those with the benefit of planning permission or otherwise lawful as defined in section 191(2) of the TCPA 1990) can be lost when a new planning unit is formed.....

However, the [address]’s decision in the Titchfield case was overturned by the Court of Appeal2. Moreover, it was in relation to an enforcement notice and therefore is not wholly comparable to the appeal scheme before me.

I am cognisant of the above judgements as well as the cases of Murfitt v Secretary of State for the Environment (1980) 40 P. & [name]. 254 and [name] v Secretary of State for Communities and Local Government [2015] EWHC 1654 (Admin)3 in so far as they relate to the appeal before me.

An interested party has referred to Smith v Secretary of State for the Environment [1983] J.P.L. 462. However, the full details of this are not before me and therefore I am unable to give this further consideration in this case.

The lawfulness of the existing use in 2004 should be conclusively presumed as outlined in Section 191(6) of the Town and Country Planning Act 1990 (as amended) (the TCPA) unless there has been a material change in circumstances. Additionally, there are a number of legal opinions in the evidence before me which contend, amongst other things, that the Council should take enforcement action against the occupiers and owners of the appeal site.

However, whether there has been a material change and enforcement action should proceed is outside the remit of the appeal before me given that it has been made under Section 78 of the TCPA. Accordingly, it should be noted that my decision is without prejudice to any other proceedings. It is for the same reason that matters regarding the planning unit and reversion rights are not within the scope of this appeal.

Considering the above, for the purpose of this appeal, the CLEUD is an available and realistic fallback position.

The appeal site is accessed via [site address] and the busy A31 carriageway. There are a number of dwellings that neighbour the appeal site. There is a level of background noise at the appeal site that derives from the A31 given the significant traffic that it carries. The appellant acknowledges that the use of the site has intensified but that it is not clear how much traffic use the site generated in 2004 when the CLEUD was granted. Notably, given the CLEUD, area A is not subject to any conditions/restrictions. 2 Titchfield Festival Theatre Ltd v Secretary of State for Housing, Communities and Local Government & Anor (Rev1) [2026] [name] 368 3 I am aware that there has been a Court of Appeal Judgment: [name] v Secretary of State for Communities and Local Government [2016] [name] 784.

There is a scaffold storage use on part of the site at present and therefore there is likely to be a level of noise and disturbance associated with it. Particularly the loading and unloading of the scaffold. The appellant contends that the removal of the existing scaffold shelters would not remove the activity of storing scaffolding given it can be stored in the open under tarpaulin.

The application form outlines that there are around 30 full time employees and 10 part time employees. The appellant contends that they are not all on site at any one time.

The Council has provided aerial images of the site from around 2005 and 2025 which highlight the evolution of the site. It considers that area A benefits from a CLEUD for effectively B8 Use, but that the number of businesses operating from the area with their own ancillary structures has intensified the B8 use and thus resulted in greater vehicle trip generation.

Nevertheless, there is limited substantive evidence before me regarding a greater vehicle trip generation. Especially given the comments from National Highways which state that the site already has the potential to generate uncontrolled vehicle movements under its existing permitted uses.

Additionally, National Highways have also confirmed that, subject to conditions, they do not consider the appeal scheme to result in an unacceptable or severe impact on the surrounding road network or highway safety.

I note reference in the evidence before me to the road surface as well as around 135 to 147 vehicle movements a day. An interested party highlights around 127 entrances and exits were undertaken on the 11 March. However, there is limited substantive evidence before me to adequately demonstrate that the appeal scheme results in consistent harmful additional traffic nor that the road cannot cope with the traffic associated with the appeal scheme. I note the reference from interested parties regarding the junction of [address] and [site address] with regard to highway safety. National Highways has not objected to the appeal scheme regarding this matter and I find no reason to disagree with its conclusion on this matter, given the recommended condition.

The Council highlights that the appeal scheme would provide the opportunity to bring the whole site under control by imposing planning conditions such as restricting operating hours. However, it contends that, on balance, this would not result in adequate living conditions for neighbouring residents. There is limited substantive evidence before me to adequately demonstrate that the restriction of operating hours would fail to adequately protect the living conditions of neighbouring occupants regarding noise and disturbance, especially considering the fall-back position I have identified above.

I acknowledge that interested parties have highlighted noise as an issue with the appeal scheme but for the reasons given above, in my judgement, there is limited substantive evidence to adequately demonstrate that the noise resulting from the appeal scheme is harmful. Moreover, given that I can impose a condition restricting operating hours, I consider this to be a reasonable measure which would likely benefit neighbouring residents.

In conclusion, the proposal would not have an unacceptable effect on the living conditions of the occupants of neighbouring dwellings with regard to noise and disturbance. Considering all of the above, the appeal scheme complies with Policies HE2 and PC4 of the Christchurch and East Dorset Local Plan Part 1 2014, saved Policy DES2 of the East Dorset Local Plan 2002 insofar as they seek to ensure that developments are of a high quality and are compatible with its surroundings including minimising general disturbance to amenity.

The appeal scheme retains area C as a paddock and therefore the commercial use of the site is set back considerably from [site address] as well as nearby dwellings. Furthermore, given that area A benefits from the CLEUD the appeal scheme is viewed within this context.

The structures contained within the site are not, in my judgement, unreasonable given the use of the site for storage. A number of the structures such as the portacabins and containers are relatively low in height and therefore not overly dominant. To my mind, they do not detract from the wider character and appearance of the area.

There are aerial photographs before me from around 2014 and 2024 which demonstrate the evolution of the site. I acknowledge that the site has undergone change but this does not necessarily equate to unreasonable harm to the character and appearance of the surrounding area. Especially when the CLEUD is considered.

Moreover, given the presence of the A31 as well as a range of commercial developments along it and relatively close to the appeal scheme, I do not consider the effect of vehicles associated with the appeal scheme to result in unacceptable harm to the character and appearance of the surrounding area

In conclusion, considering all of the above, the appeal scheme complies with Policies HE2 and PC4 of the Christchurch and East Dorset Local Plan Part 1 2014, saved Policy DES2 of the East Dorset Local Plan 2002 insofar as they seek to ensure that developments are of a high quality and are compatible with its surroundings including matters relating to visual impact, site coverage and landscaping.

The appeal site is in the zone of influence of the [name]. I have a duty under the Conservation of Habitats and Species Regulations 2017 to assess any impact the proposed development would have upon this site.

The Dorset Heathlands are an extensive network of lowland heath within southeast Dorset that are recognised for their national and international importance for nature conservation. Natural England has been consulted as part of this appeal and is content that given the type of development proposed by the appeal scheme and the distance of the appeal site to the RAMSAR, that there would be no likely significant effects either alone or in combination to the integrity of the RAMSAR and its relevant features. As a competent authority and based on the evidence before me, I am satisfied that the proposed development would not have an adverse effect on the integrity of the RAMSAR.

The Council has also indicated that the site is within a Site of Special Scientific Interest (SSSI) risk zone for the [site address] [name]. I consulted Natural England and they have indicated that they consider there to be no harmful effects on the SSSI. Accordingly, in the absence of any objections, I have no reason to find any harm to the SSSI.

The Council has outlined that it considers the appeal site to be grey belt as outlined in the National Planning Policy Framework (the Framework). Accordingly, harm to the green belt is not a putative reason for refusal and I find no reason to disagree with the Council’s conclusion on this matter.

The appellant has submitted a Preliminary Ecological Assessment which the Council deems to be adequate. I find no reason to disagree and note the recommended conditions.

Interested parties have highlighted concerns regarding, the need for the development as well as issues relating to vehicular speed limits, lighting, dust and flooding. [name] acknowledge the frustration of the interested parties the Council has not raised these matters as putative reasons for refusal. Accordingly, based on the evidence before me, I find no reason to disagree with the Council on its conclusions on these matters either.

I acknowledge that interested parties have concerns regarding delivery drivers, waste transfer/disposal and bonfires however these have not been raised as putative reasons for refusal and therefore are not within the scope of the appeal before me.

Regarding applications and pre application advice at Land adj. Wynfield, [site address] , [name]/St Ives4, I do not have the full circumstances and therefore cannot be certain that they are wholly comparable to the appeal before me. Nevertheless, each application is determined on its own merits and based on the evidence before me, they do not lead me to a different conclusion.

Regarding the ownership of [site address] and the use by commercial traffic, this is not a matter within the scope of this appeal. I note the apprehension highlighted within interested party comments regarding adherence to any planning conditions. However, this would be a matter for the Council.

The Council has provided suggested conditions which I have considered against the Framework, and advice contained in the Planning Practice Guidance. I have amended the wording of the suggested conditions for clarity and to ensure accordance with the tests set out in paragraph 57 of the Framework.

I have attached a condition specifying the approved plans to provide certainty (1). It is necessary in the interests of the living conditions of neighbouring 4 Planning Application Ref: 03/01/9002/HST, 3/04/1419/FUL, 3/04/1763/FUL, 3/06/0310/COU, 3/16/0624/FUL, 3/16/1860/FUL, 3/17/1768/FUL, P/PAP/2023/0083 and 3/17/3172/FUL residents to include conditions requiring the submission of a Noise Management Plan, submission of any details relating to external lighting and a condition to restrict the hours of active use of the site (2, 6 and 10).

Additionally, in the interests of highway safety I have imposed a condition requiring the implementation of site-wide traffic management measures (3). Conditions requiring the removal of end-of-life vehicles, the submission of landscape details, the restriction of area C to agriculture only, limiting the use of the site to B8 storage and the restriction of the height of any structure, items or materials are necessary to prevent the erosion of the character and appearance of the surrounding area (4, 5, 7, 8 and 9).

Furthermore, to ensure there is no harmful effect on ecology as a consequence of the appeal scheme it is necessary to impose conditions requiring the implementation of the recommendations in the ecology report and the submission of a landscape and ecological management plan (11 and 12).

An informative note has been recommended by the Council regarding biodiversity net gain. However, since it is not a condition, it is not included in the attached schedule.

The material considerations do not indicate that a decision should be made other than in accordance with the development plan. For the reasons given above the appeal should be allowed.

The development hereby permitted shall be carried out in accordance with drawing nos Drawings Location Plan - Planning Portal Reference: PP- 12968432v1, 2091 00 (Site Plan), 2091 01 (Site Plan), 2091 02 (Elevations), 2091 03 (Elevations), 2091 04 (Elevations), 2091 05 (Elevations), 2091 06 (Elevations).

Unless within 3 months of the date of this decision, a Noise Management Plan (NMP) is submitted in writing to the Local Planning Authority for approval, and unless the uses on the site are operated to accord with this NMP within 3 months of the local planning authority’s approval, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as an NMP is approved and implemented. If no NMP in accordance with this condition is approved within 6 months of the date of this decision, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as a NMP approved by the local planning authority is implemented Upon implementation of the approved NMP specified in this condition, the uses on the site shall accord with this NMP for the lifetime of the development. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

Unless within 3 months of the date of this decision, details of site-wide traffic management measures including measures to ensure that all vehicles utilising the site are able to enter and exit the A31 in a forward gear and no vehicles visiting the site park outside the site in [address] obstructing traffic movements are submitted in writing to the local planning authority for approval, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as the details of site-wide traffic management measures are approved. The details should also include the provision and retention of the HGV swept vehicle path shown on [name]. NJC-001 which shall not be obstructed and be available for use by all operators at the application site during operational hours. Unless these measures are implemented within 3 months of the local planning authority’s approval, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as site-wide traffic management measures are approved and implemented. If no scheme in accordance with this condition is approved within 6 months of the date of this decision, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such use shall be removed until such time as a scheme approved by the local planning authority is implemented. Upon implementation of the approved site-wide traffic management measures specified in this condition, the uses on the site shall accord with these measures for the lifetime of the development. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

Unless within 3 months of the date of this decision, all end-of-life vehicles are removed from the site, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as they are removed from the site. Upon removal of all the end-of-life vehicles from the site, no end-of-life vehicles shall be kept at the site for the lifetime of the development. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

Unless within 3 months of the date of this decision, full details of the landscaping set out in the [name] by [name] and dated October 2024, (to include additional planting for the boundaries of the application site) are submitted in writing to the local planning authority (LPA) for approval, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as the details are approved. The approved details shall then be implemented in the first planting season following the LPA’s approval and shall thereafter be maintained in accordance with a timetable that shall also have been agreed in writing with the LPA. If no scheme in accordance with this condition is approved within 6 months of the date of this decision, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as a scheme approved by the local planning authority is approved. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

Unless within 3 months of the date of this decision, details of any external lighting at the site are submitted to the Local Planning Authority (LPA) for approval, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as the details are approved. Unless these details are implemented within 3 months of the local planning authority’s approval, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as external lighting details are approved and implemented. If no scheme in accordance with this condition is approved within 6 months of the date of this decision, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as a scheme approved by the local planning authority is implemented. Upon implementation of the approved external lighting details specified in this condition, the external lighting shall be maintained for the lifetime of the development. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

[name] & B of the application site as shown on the approved 101 [name] 2091 00 shall only be used for storage in Use Class B8 and for no other purpose whatsoever (including any other purpose in Class B8 of the Schedule to the Town and Country Planning ([name]) Order 1987, as amended, or in any provision equivalent to that Class in any statutory instrument revoking and re enacting that Order.

The use of the land marked ‘Area C’ on the approved 101 [name] 2091 00 shall be limited to agriculture only as defined by Section 336 of the Town and Country Planning Act 1990 and for no other purpose whatsoever.

The height of any structure, items or materials stored on Area B, as indicated on the approved 101 [name] 2091 00 – site plan, shall not exceed 5m and the height of any structure items or materials stored on Area A shall not exceed 3m.

The use hereby permitted shall only take place between the following hours: 07:00 – 19:30 Mondays - Fridays 08:00 – 16:00 [name] shall be no active use of the site on Sundays and on Bank or Public holidays.

The development hereby permitted shall be implemented strictly in accordance with the recommendations and requirements in the ecology report titled [name] by [name] and dated October 2024. The development hereby approved must not be first brought into use unless and until: i) the recommendations detailed in section 5 of the approved ecology report have been completed in full, in accordance with any specified timetable, unless otherwise agreed in writing with the Local Planning Authority, and ii) evidence of compliance has been supplied to the Local Planning Authority prior to the substantial completion, or the first bringing into use of the development hereby approved, whichever is the sooner. The development shall subsequently be implemented entirely in accordance with the approved ecology report and thereafter the approved mitigation, compensation and enhancement measures must be permanently maintained and retained in accordance with the approved details.

Unless within 3 months of the date of this decision, a landscape and ecological management plan (LEMP) is submitted to the local planning authority (LPA) for approval, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such uses shall be removed until such time as the details are approved. The content of the LEMP shall include the following: a) Description and evaluation of features to be managed. b) Any ecological trends and constraints on site that might influence management. c) Aims and objectives of management. d) Management actions. e) Preparation of a 5 year maintenance schedule for the retention of planting and for the new planting. f) Details of the body or organization responsible for implementation of the plan. g) Ongoing monitoring and remedial measures. The LEMP shall also include details of any legal and funding mechanism(s) by which the long-term implementation of the plan will be secured by the developer with the management body(ies) responsible for its delivery. The LEMP shall also set out (where the results from monitoring show that conservation aims and objectives of the LEMP are not being met) how contingencies and/or remedial action will be identified, agreed and implemented so that the development still delivers the fully functioning biodiversity objectives of the originally approved scheme. If no LEMP in accordance with this condition is approved within 6 months of the date of this decision, the uses on the site shall cease and all equipment and materials brought onto the land for the purposes of such use shall be removed until such time as a scheme approved by the local planning authority is implemented. Upon approval of the LEMP specified in this condition, the LEMP shall thereafter be implemented in accordance with the approved details. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined. =====END OF SCHEDULE=====