Appeal 6004915

The appeal is dismissed.

Additional information in the form of a biodiversity net gain (BNG) metric, BNG assessment, and a River Condition Assessment were provided to the Council after the planning application was submitted but before it was determined. The Council’s statement of case confirms that these are sufficient to inform future assessment of the details required to be submitted to discharge the statutory biodiversity gain plan condition if the appeal is allowed.

On 16 December 2025, the Government published a consultation on proposed reforms to the National Planning Policy Framework (the Framework). Whilst broad changes to the structure of the Framework are proposed as part of this consultation, these proposals could be subject to further change and can only be given very limited weight at this stage. It has therefore not been necessary to consult the parties on the proposed changes, and in reaching my decision, I have had regard to the Framework published in December 2024.

The main issues are • Whether the site would be in a suitable location having regard to the development plan policies concerning new housing with reference to its effect on the character and appearance of its surroundings and the effect on public right of way MALM26; • The effect of the proposed development on the character or appearance of the Malmesbury Conservation Area and on the setting of nearby listed buildings; • The effect of the development on the Conygre Local Nature Reserve; • The effect of the proposed parking and access arrangements on highway safety on the B4040 [address]; • Whether the proposed development would provide satisfactory living conditions for future occupiers with regard to noise and odour from the adjoining restaurant; and • Whether the future occupiers of the proposed development would be at risk of flooding.

[name] 1 and 2 of the [name] 2015 (WCS) set out the settlement and delivery strategies for new residential development with Core Policy 13 providing the spatial strategy for the Malmesbury community area. The site lies outside the limits of development where Core Policy 2 states that development other than that falling within a limited number of categories will not be permitted. The proposal does not fall within any of those categories.

The site lies adjacent to an attractive area of woodland which physically and visually separates the site from the northern edge of the town. Together with the stretch of the [name] which flows past the southern boundary of the site, the trees provide a pleasant, green setting to the town and mark the transition from the built up area of the town to the rural landscape beyond.

The proposed two storey dwelling would be sited forward of the restaurant and would be prominent in views from the main road and public right of way MALM26 which runs along the river into the adjacent nature reserve. Its scale and position on the road frontage means that the dwelling would interrupt the existing, pleasant views of the woodland particularly from the northern and eastern directions from a main route into the town. Whilst it is proposed to use a traditional design using stone materials, the intrusive siting of the building adjacent to the woodland means it would not relate positively to the sensitive landscape setting of the edge of the town.

Whilst the existing car park is previously developed land (PDL) it has an open character which still affords views of the woodland adjacent to it. The proposed dwelling would result in the encroachment of built form along the open road frontage beyond the woodland edge and public footpath. This would erode the distinction between the countryside and the town in this prominent location and cause a moderate level of harm to the character and appearance of the site’s surroundings.

An existing [name] tree on the southern side of the site contributes to the verdant appearance of the woodland. It is not shown to be retained on the proposed plan and its removal to accommodate the dwelling would contribute to the harm caused to the green character and appearance of the woodland edge.

Although there are footways which would give future occupiers of the dwelling pedestrian access to facilities in the town, including bus stops, and the town centre is within a short cycle ride, the proposal would nevertheless conflict with the settlement strategy in the WCS. This does not permit residential development, such as that proposed, outside the limits of development.

Therefore, for the above reasons, the site is not in a suitable location having regard to the development plan policies concerning new housing. It would conflict with [name] 1, 2, 13 and 57 which define the settlement strategy and require development to relate positively to its landscape setting and the existing pattern of development.

Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) requires that special attention shall be paid to the desirability of preserving or enhancing the character or appearance of the CA.

The Malmesbury CA derives its significance from its origins as an important defensive and ecclesiastical centre inextricably linked to the Abbey which continues to visually dominate the town. Much of its townscape character derives from a late Saxon plan within the walls and which had been firmly established by the late 13th Century and little changed by the 20th.

The Conservation Area Appraisal1 (the appraisal) indicates that the CA also derives significance from the topography of the town and it being surrounded on three sides by the two branches of the [name]. This is part of the unique character of the town. The rivers and their undeveloped valleys are identified in the appraisal as defining the setting of the town and marking a distinct and clear transition from urban to rural environments.

The appeal site and adjacent woodland are located within the northern boundary of the CA and are part of the transition from the urban to the rural environment identified in the appraisal. Together with the stretch of the [name] beyond the southern boundary of the site, the pleasant, green setting to the town provided by the woodland and viewed across the site, is part of the character of the CA from which it derives significance as a whole.

[name] have found in the first main issue, the prominent location and two storey form of the proposed dwelling would encroach into the view of the wooded river corridor. Whilst the views of the site from the northern and eastern directions are not identified as important views in the appraisal, for the reasons already given, the view of the development from these directions would not preserve or enhance the character or appearance of the green edge of the CA.

Even though there were previously buildings on the site of the car park, the evidence indicates they were replaced by the existing restaurant in the 1960s. The existing car park and timber clad restaurant, although PDL, do not make a positive contribution to the significance of the CA and are not indicative of the general character or appearance of the CA as a whole. The Framework makes clear that not all elements of the CA necessarily contribute to its significance and that is the case with the existing restaurant and car park. Moreover, each proposal should be considered on its individual merits. The nature of the car park and restaurant, together with the fact that the site was occupied by other buildings up to the 1960s, do not justify the further erosion of the character and appearance of the CA which would be caused by the proposed dwelling. 1 Malmesbury Conservation Area Appraisal 2007

For the reasons given above and in the first main issue, the proposed dwelling would not preserve or enhance the character or appearance of the CA as a whole and would cause harm to its significance. The level of harm would be moderate and towards the lower end of the scale of less than substantial harm. It is nevertheless of considerable importance and weight

In accordance with paragraph 215 of the Framework, the harm caused to the CA should be weighed against the public benefits of the proposal. That balancing exercise must take place in the context of the Act which sets a strong presumption against a grant of planning permission for development that would fail to preserve or enhance the character or appearance of a CA. I return to this matter in the heritage balance below.

Section 66(1) of the Act requires the decision maker, in considering whether to grant planning permission for development which affects a listed building or its setting, to have special regard to the desirability of preserving the building or its setting.

The grade II listed 33 and 35 Bicks Hill2 and the attached front wall derive their significance from being a pair of early 19th century 2-story houses constructed of coursed, squared limestone rubble with brick gable stacks and interlocking tile roof. The grade II listed 37 Blicks Hill3 is significant as a mid to late 18th century house of coursed limestone rubble, formerly limewashed, with brick gable stocks and stone slate roof.

The listed buildings are part of a small group of buildings a short distance to the north east of the site on the opposite side of the road. They are experienced from the road and from the car park where the proposed dwelling would be sited. The open nature of the appeal site means it contributes to the significance of the heritage assets by allowing them to be appreciated from the eastern end of public right of way MALM26 from where they are currently visible across the car park.

Whilst the views of the heritage assets from the car park and road would be largely unimpeded, the siting of the proposed dwelling between public right of way MALM26 and the heritage assets means it would obstruct views of the listed buildings from the footpath and visually compete with them. Even though there were previously buildings on the site of the car park, the obstruction of the current view by a new dwelling would nevertheless result in a limited level of harm to the significance of the listed buildings through development within their setting. The harm however would be at the low end of the scale of less than substantial harm.

The proposal would cause less than substantial harm to the character and appearance of the CA and the ability to appreciate the grade II listed 33, 35 and [address].

The Council’s officer report indicates that the Council can only demonstrate 2.42 years’ supply of deliverable housing sites which is well below the minimum level required. The proposal would have the public benefit of providing an additional dwelling towards meeting the Council’s significant shortfall in housing land supply which might reduce development pressure elsewhere, increase choice and add to 2 List entry number 1269523 3 List entry number 1269524 a pipeline of permissions. Recognising that the Framework highlights that small sites such as this can make an important contribution to meeting the housing requirement in the area and are often built out relatively quickly, these would be moderate public benefits. They attract moderate weight in favour of the proposal. The use of PDL is also a public benefit. Only a relatively small area of PDL would be redeveloped and the benefit would therefore be limited. As the site is not within a settlement, the use of PDL carries moderate weight in favour of the development.

There would also be economic benefits arising from the construction of the proposed dwelling; by future occupiers using local services and facilities; and to Council revenues. As the site is small, these benefits would be moderate and attract moderate weight in favour of the proposal.

Whilst the provision of an electric vehicle charging point might have the benefit of encouraging future occupiers to support the transition to electric vehicles, I am not convinced from the evidence before me, that future occupiers could be prevented from using other types of vehicle. This benefit therefore carries limited weight. In the absence of compelling evidence of anti-social behaviour taking place at the site, the public benefit arising from a reduction in anti-social behaviour as a result of increased natural surveillance from the proposed dwelling carries little weight.

After taking full account of the public benefits of the proposal, I am not persuaded that the totality of the public benefits provide the clear and convincing justification for the harm that the proposal would cause to the significance of the heritage assets, the conservation of which the Framework requires me to assign great weight.

For the reasons given, the proposal would not preserve or enhance the character or appearance of the [name] and would fail to preserve or enhance the setting of the nearby grade II listed buildings. It therefore conflicts with [name] 57 and 58 which require that development should protect, conserve and where possible enhance the historic environment. It would also conflict with the Framework’s policies to conserve and enhance the historic environment.

The Preliminary Ecological Appraisal (PEA) indicates that the Conygre Mead Local Nature Reserve (LNR) consists mostly of open grassland with mature willows associated with a restored pond and some woodland. Plants identified in the LNR include lady's bedstraw, field cranesbill, white form of meadow cranesbill, reed canary grass, water mint, rushes, meadowsweet, yellow water lily and branched bur-reed. The PEA also identifies that sawfly, water voles, grass snake and slow worm have been recorded. Birds include bullfinch and garden warbler.

The site is adjacent to the LNR and comprises a hardstanding with a small section of modified grassland. The PEA concludes that habitats within the site are common and widespread and have low ecological value.

Whilst no direct impact on the LNR is identified in the PEA, the PEA makes several recommendations to mitigate the potential effect of the development on small mammals, amphibians and birds during the construction process. From the evidence before me, I am satisfied that appropriate measures, including a Construction Environment Management Plan and tree protection plan, could be secured by planning conditions should the appeal be allowed.

Therefore, on this basis, the development would not have an adverse effect on the Conygre Local Nature Reserve and would not conflict with [name] 50 and 51 in so far as they seek to protect biodiversity and natural features.

The proposed plan shows that 22 car parking spaces would be retained for the existing restaurant comprised of 19 spaces for customers and 3 spaces for staff. From the evidence before me, this would comply with the Council’s parking standards for a restaurant.

The evidence indicates that the parking standards are maximum rather than minimum standards. The Council’s officer report notes that the site is within 0.5km of the main town centre. The footway leading into the town means that there would be reasonable pedestrian access from the town centre for restaurant customers to access the site from the town centre. I also saw on my visit that on-street parking was available on the B4040 south of the site.

Whilst staff parking spaces are proposed to be sited behind customer parking spaces, I have not been provided with compelling evidence why this would result in harm to the safety of users of the highway. Core Policy 64 of the WCS states that the maximum parking standards will be reduced to reflect local circumstances and the relative accessibility by sustainable transport modes. Even if staff parking could not be provided on site, I have found no sound reason why the local circumstances are such that a lower parking requirement would not be reasonable in this location.

The proposed site plan demonstrates that a visibility splay of 2.4m x 43m can be achieved at the proposed access adjacent to the appeal site. This would accord with the visibility requirement identified by the Highway Development Control officer. I viewed the visibility of vehicles from the proposed and existing accesses during my visit and have no reason to conclude that the proposed visibility splay could not be achieved.

I therefore conclude, for the reasons given, that the proposed parking and access arrangements would not have a harmful effect on highway safety on the B4040 [address]. It would comply with [name] 60, 61 and 64 regarding transport and new development.

The proposed dwelling would be separated from the restaurant by an area of parking. Whilst parking would take place along much of the site boundary, there are no bedroom or habitable room windows in the northern elevation of the proposed dwelling facing the car park and restaurant. In my judgement, this would mitigate the direct effect of possible noise from the use of the car park and restaurant on the living conditions of future occupiers of the dwelling. Recognising that the restaurant is in the control of the appellant, I have found no sound reason why, if the appeal is allowed, appropriately worded conditions could not be imposed to secure a noise assessment and any attenuation measures which may be required.

The restaurant kitchen is on the opposite side of the building to the proposed dwelling. In view of the distance between it and the proposed dwelling, and in the absence of compelling evidence to the contrary, I have no reason to conclude that odours emitted by cooking processes at the restaurant would be harmful to the living conditions of future occupiers of the dwelling. Nor have I found any sound reason why any such odours could not be mitigated by appropriate planning conditions to secure odour control at the restaurant which is in the appellant’s control.

Therefore, as the effect of noise and odour could be addressed through conditions if the appeal is allowed, the proposal would provide satisfactory living conditions for future occupiers with regard to noise and odour from the adjoining restaurant. On this basis it would comply with WCS Core Policy 57 regarding the compatibility of adjoining buildings and appropriate levels of amenity.

The site lies within flood zone 1 and the Council’s drainage engineer’s comments on the scheme indicate the site is at low risk of flooding from all sources. The engineer’s comments also accept that the proposal is unlikely to result in a significant increase in flood risk elsewhere. The Environment Agency was consulted on the proposal and raised no objections. Nor did it identify the site as having critical drainage problems.

Core Policy 67 of the WCS requires that all new development includes measures to reduce the rate of rainwater run-off and improve rainwater infiltration to soil and ground (sustainable urban drainage) unless site or environmental conditions make these measures unsuitable. I am satisfied that a suitably worded condition could be imposed to require the submission and approval of a drainage strategy before the development commences to secure these requirements if the appeal is allowed.

On this basis, for the reasons given, the future occupiers of the proposed development would not be at risk of flooding and the proposal would accord with WCS Core Policy 67.

Whilst part of the site may be within an area of publicly maintainable highway, the stopping up of the highway is not a matter before me in this appeal.

Reference has been made to other schemes permitted by the Council near the [name] in Corston. I am not familiar with the full details of those schemes or their planning context. Nevertheless, from what I saw on my visit, those sites were within a group of buildings in the village. The location is therefore materially different to this appeal which I have determined on its individual merits.

As the Council can only demonstrate 2.42 years supply of deliverable housing sites, consideration of the presumption in favour of sustainable development is required in accordance with paragraph 11 d) of the Framework.

Notwithstanding the Council’s housing land supply shortfall, applying footnote 7 to paragraph 11d) i. of the Framework, the conflict with the Framework’s policies for conserving and enhancing designated heritage assets provide a strong reason for refusing the proposed development. As a consequence, paragraph 11 d) ii. of the Framework is not engaged.

As well as harm to the settlement strategy, the proposal would cause harm to the character and appearance of the site’s surroundings and fail to preserve or enhance the character or appearance of the CA. A limited level of harm would also be caused to the significance of the grade II listed buildings as a result of development within their setting. The harm I have identified results in conflict with [name] 1, 2, 13, and 58 and with Core Policy 57 when read as a whole. As a result, there is conflict with the development plan when taken as a whole.

Whilst the Council’s housing land supply shortfall means that the WCS is deemed to be out of date for the purposes of the Framework, paragraph 232 of the Framework however makes it clear that due weight should be given to existing policies according to their consistency with the Framework.

The Framework has policies for conserving and enhancing the historic environment. [name] 57 and 58 are broadly consistent with the Framework, the conflict with them carries substantial weight in this appeal. The significant shortfall in the Council’s housing land supply indicates that the settlement strategy in [name] 1, 2, and 13 is not delivering the required number of houses. The conflict with those policies therefore carries limited weight.

I have referred to the benefits arising from the proposal when undertaking the heritage balance in the second main issue. The proposal conflicts with the development plan and the material considerations including the economic, environmental and social benefits which I have identified do not indicate that the appeal should be decided other than in accordance with it. For the reasons given above the presumption in favour of sustainable development in the Framework does not apply in this appeal and the appeal should be dismissed. [planning inspector] `INSPECTOR