Appeal 6005316

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for the erection of agricultural access track at [site address] , [site address] , Frieth [postcode] in accordance with the application PL/25/4483/AGN and the details submitted with it including plan numbers 1412_PA-01 and 1412_PA-03, and subject to the following condition:

No surfacing of the bell mouth of the agricultural access track hereby approved shall take place until samples of the top-surfacing material have been submitted to and approved in writing by the local planning authority. The access shall not be used until the bell mouth has been completed and surfaced in accordance with the approved sample details.

The replacement hedgerow planting detailed on drawing number 1412_PA- 03 shall be undertaken prior to the use of the access track commencing and shall thereafter be retained in accordance with the approved details.

An application for an award of costs was made by [name] against Buckinghamshire Council. This application will be the subject of a separate

The appellant has submitted a [name] (HTN) as part of the appeal. The Note provides an assessment of the speed of traffic along [site address] and the associated visibility splay requirements from the proposed site access.

I have considered the additional highway information in consideration of the Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 judgement. The HTN provides further supporting information regarding the access but does not amend the proposed access location. As such, I have considered whether accepting the information would cause procedural unfairness to interested parties. Several objections were received by the Council during the application and further objections have been received following notification of the appeal. The Council has acknowledged the submission of the HTN within its evidence but has provided no comment on it. Accordingly, whilst comments from the Highway Authority on the original application are provided, no further comments following the submission of the HTN have been included within the Council’s evidence.

As the HTN does not amend the location or the visibility splay for the proposed access from that seen within the application, the evidence does not make a substantive change to the proposal. As a result, the acceptance of the HTN would not unfairly deprive those entitled to be consulted on the application, the opportunity to make a representation. My decision has therefore taken the HTN assessment into consideration.

Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the Order) sets out that agricultural development, including any excavation or engineering operations, which are reasonably necessary for the purposes of agriculture, on agricultural land comprised in an agricultural unit of 5 hectares or more is permitted development, subject to certain restrictions, limitations and conditions. This would include the provision of a new access.

This includes a requirement that, under [name].2 (2) (i) of Class A, the developer applies to the local planning authority for a determination as to whether the prior approval of the authority will be required as to the siting, design and external appearance of the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be.

The Council’s reasons for refusal states that it has not been demonstrated that the proposed means of access would not have a harmful effect on highway safety, and that the access would remove a section of hedgerow and would be inappropriately surfaced in bitumen. Therefore, the Council contends that prior approval would be required and refused as the siting, scale and construction material would result in harm to the Chilterns National Landscape (CNL). Consequently, the Council considers that the proposal is not permitted development under Schedule 2, Part 6, Class A of the Order.

Accordingly, the main issue is whether the appeal proposal would be permitted development under Schedule 2, Part 6, Class A of the Order, with regard to siting and means of construction of the private way.

[name].1 of Part 6, Class A of the Order provides a list of exclusions as to when development would not be permitted by Class A. The Council’s delegated officer report determines that the proposal complies with the exclusions specified in [name].1 (a) to (k). Based on the information provided, I have no reason to take a different view.

[name].2 (2) of the Order requires a determination by the local planning authority as to whether prior approval will be required as to the siting and means of construction of the private way.

Prior approval was previously granted for the construction of an agricultural hay and agricultural machinery storage barn with the creation of a private way. Prior approval is now sought for an agricultural access track to serve the barn from a different point of access on [site address] .

The submitted proposed site layout plan (ref 1412_PA-03) illustrates the access onto [site address] would include 2.4m x 43m visibility splays. This would be achieved through the removal of part of an existing hedgerow. The proposal includes the provision of a replacement hedgerow planting and fencing.

[site address] is a single carriageway unclassified road with a 60 miles per hour (mph) speed limit, no street lighting, and no footpath. The road features a curve with a 90-degree blind bend at the eastern end and a junction with [address], at its western end. Due to the characteristics of the road and established hedgerow boundaries, forward visibility is limited and as observed on site, whilst only a snapshot in time, the general speed of vehicles using [site address] was significantly below the speed limit.

The Council’s officer report refers to Article 3(6) of the Order. This identifies that the permission granted by Schedule 2 of the Order does not authorise development which requires or involves work to an existing highway which is a trunk or classified road. Nor does it authorise development that creates an obstruction to the view of any person using any highway used by vehicular traffic, to likely cause a danger. I note the comments from the Council’s Highways Officer that in the absence of a speed survey to illustrate that the 85th percentile speed is 30mph or below, the proposed visibility splay would not be sufficient, and the proposed access would likely cause a danger.

The appellant’s submitted HTN outlines that speed surveys were undertaken on [address] over the course of 7 days. The speed surveys recorded the 85th percentile speeds to be significantly below 30mph both eastbound and westbound towards the site access. Based on the recorded speeds, the HTN concludes that the 2.4m x 43m visibility splays would be sufficient to ensure the safe operation of the highway and would not give rise to an increased highway safety risk for users of [site address] .

The Council regards the HTN to be new evidence and therefore has not provided commentary on this. Nonetheless, as I find this to provide helpful and useful detail on this subject, the HTN is a material consideration of great weight. The proposed visibility splay would accord with the guidance in Manual for Streets and the HTN illustrates that the proposed access would not create an obstruction to highway users and its use would not harmfully affect other road users resulting in an adverse effect on highway safety.

For the above reasons, the proposed access track would be acceptable in relation to highway safety and consequently, would constitute permitted development under Schedule 2, Part 6, Class A of the Order.

The proposed access would require the removal of part of the existing hedgerow on [site address] to provide the required visibility splay. Whilst prior approval applications are not subject to the statutory [name] requirements, the proposed site layout plan, indicates that a replacement mixed native hedge would be provided around the new access on [site address] .

The Council’s concerns appear to relate to the issue that no conditions can be imposed to enforce against failure to provide the planting or ensure its retention. However, [name].2 (2) (v) of the Order identifies that the development must, be carried out: (aa) where prior approval is required, in accordance with the details approved; or (bb) where prior approval is not required, in accordance with the details submitted with the application.

The proposed site layout plan comprehensively details the proposed landscaping including the mix and proportion of native plants within the new hedgerow and that if any die of fail to establish within five years they will be replaced. On this basis, I am satisfied that the plan as submitted alongside the requirements under A.2 (2) (v) would ensure that the replacement hedgerow planting would occur as part of the development and could be enforced against if not undertaken.

The proposed site layout also details the proposed surfacing material for the access track. The plan details that the first 13m within the bell mouth to the access track would be surfaced in Bitumen with a bullnose dropped kerb or granite setts adjacent to the highway in accordance with the Council’s ‘[name] within the Public Highway’ document. I note the Council’s concerns regarding the use of bitumen due to its urban appearance in the rural and agricultural setting proposed. I also note that the Council raises no objections in relation to the use of the proposed granite finish for the remaining track.

Whilst the site layout plan details the surfacing materials, a condition could be imposed that requires details of an alternative surfacing finish for the bell mouth to the access track.

The site is located within the CNL. Whilst the site’s location within the CNL does not affect how the statutory function of prior approval should be interpreted, I have given great weight to the duty imposed by Section 85 of the Countryside and Rights of Way Act 2000 to seek to further the purpose of conserving and enhancing the natural beauty of National Landscapes. Whilst an area of hedgerow would be removed, this would be replaced behind the required visibility splay and would provide a mix of native plants and trees increasing biodiversity on site. With regards to the impact of the surfacing material on the NL, this could be overcome by the imposition of a materials condition. On this basis, the proposed development would conserve the CNL.

For the above reasons, the proposed siting, scale, materials and means of construction would not cause harm to the CNL. Consequently, the proposed development would accord with Schedule 2, Part 6, Class A of the Order.

The appellant and the Council dispute that the local planning authority acted in a positive and proactive way. However, these matters have had no material bearing on my consideration of the proposal which has been assessed on its own merits based on the specific evidence before me.

The Council has drawn my attention to two appeal decisions in Liverpool and Aylesbury in relation to the submission of new information as part of the appeal and working proactively. Whilst these decisions have been useful in outlining the context in which the Council determined the application, they have no material bearing on the assessment of the appeal before me.

I acknowledge that there were several representations from interested parties, including those from Hambleden Parish Council. Prior approval applications have a limited scope for assessment purposes which are outlined within the Order. Consequently, issues and concerns raised regarding necessity of the access, agricultural intent of the barn and access, erosion of field patterns, and whether the proposal would comply with the consent for the barn are outside of the requirements for an assessment of the proposed development under Part 6, Class A of the Order.

In addition to the main issues of road safety and loss of hedgerow, the concerns of interested paties included concerns regarding noise, disruption, and ecology, including the protection for [name]. Whilst the issue of noise and disturbance is not included in the defined interests of the Order, any construction disturbance would be temporary in nature, and the works would be undertaken over a short period of time. Following completion, agricultural use of the access and track by large agricultural vehicles would be expected along with the wider road network including [site address] . However, this is not prohibited and is likely to be limited and of minimal disruption, and already common within the area given the rural and agricultural character of the area.

In relation to the protection of [name] as a [name], development proposed as permitted development under the Order is not subject to nature conservation as a specified matter. Consequently, the ecology effects of the proposed development are outside of the assessment requirements under Part 6, Class A of the Order.

The National Planning Policy Framework (the Framework) states that conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise, and reasonable in all other aspects. The Council have not provided a list of conditions and have advised on the appeal form that no new conditions are requested.

[name].2 (2) (vi) of Schedule 2, Part 6, Class A of the Order identifies that development must be carried out within a period of 5 years from the date on which approval is given. Consequently, a time limit condition is not required.

[name].2 (2) (v) of Schedule 2, Part 6, Class A of the Order identifies that development must, except to the extent that the local planning authority otherwise agree in writing, be carried out: (aa) where prior approval is required, in accordance with the details approved; or (bb) where prior approval is not required, in accordance with the details submitted with the application. Consequently, a plans condition is unnecessary in this instance.

The Council raised concerns regarding the proposed surfacing material for the access bell mouth. Consequently, I consider it necessary to impose a detail of materials condition to ensure that an appropriate surfacing material is used for the bell mouth given its location within and the requirement to conserve and enhance the CNL. The Council also raised concerns regarding the hedgerow planting being undertaken. Whilst the details are submitted with the application, I consider it necessary to ensure that the hedgerow planting is undertaken prior to the use of access track.

The proposal would satisfy the requirements and limitations set out in Article 3(1) and Schedule 2, Part 6, Class A of the GPDO. I therefore find that the appeal should be allowed, and prior approval is granted, subject to the standard conditions set out in paragraph A.2 (2) of Class A and to the additional condition specified.