Appeal 6005536

The appeal is dismissed.

Under Article 3(1) and Schedule 2, Part 20, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO), planning permission is granted for the construction of up to two additional storeys of new dwellinghouses immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats, subject to limitations and conditions.

It is not therefore necessary to have regard to the policies of the development plan. However, paragraph B(15)(b) of Part 20 of the GPDO requires that regard be had to the National Planning Policy Framework (the Framework) so far as relevant to the subject matter of the prior approval, as if the application were a planning application.

Where an application is made for prior approval, paragraph B(3)(a) provides that the local planning authority may refuse the application where it considers that the proposed development does not comply with any conditions, limitations or restrictions that are applicable to the development in question. Previously, the Council granted prior approval for two additional storeys to create 10 dwellings, which has since lapsed1.

The appeal was accompanied by an accommodation schedule showing the bedroom sizes of the proposed flats. As the purpose of the schedule was to amplify the already submitted plans, no parties have been prejudiced, and I have determined the appeal on the basis of the additional plan ([name] 1413/PR01). The appeal was also accompanied by a flood risk assessment. 1 LPA reference 2021/2579

Articles 3(9A) and 3(9B) of the GPDO state that permission is not granted for any dwellinghouse where the gross internal floor area is less than 37sqm or that does not comply with the nationally described space standard (NDSS) issued by the Department for Communities and Local Government on 27th March 2015 together with the notes dated 19th May 2016 which apply to it. The Council contends that the proposed flats would conflict with the NDSS in respect of their total floor areas, and their bedroom areas and widths.

Part 20 Class A of Schedule 2 of the GPDO permits new dwellinghouses on detached blocks of flats including works for the construction of storage, waste or other facilities reasonably necessary to support the new dwellinghouses. [name].1(n) states that such works are not permitted if, amongst other things, they would be situated on land forward of a wall forming the principal elevation of the existing building or forward of a wall fronting a highway and forming a side elevation of the existing building. The Council contends that the proposed bin stores would be sited forward of the building.

[name].2(d) of the GPDO requires the developer to apply to the local planning authority for prior approval as to the flooding risks in relation to the building. The Council considers that it has not been demonstrated that the proposed development would not result in increased flood risk to the site.

[name].2(e) of the GPDO requires the developer to apply to the local planning authority for prior approval as to the external appearance of the building. The Council considers that the development would result in material harm to the character of the area.

Consequently, the main issues in this appeal are:  whether the development would be granted planning permission by Articles 3(1), 3(9A) and 3(9B) of the GPDO;  whether the development would be granted planning permission by Article 3(1) and Schedule 2, Part 20, Class A of the GPDO with particular reference to the limitation at paragraph A.1(n);  the impact of the development on flooding risks in relation to the building; and  the impact of the development on the external appearance of the building.

Article 3(9A) contains two criteria, both of which must be satisfied. Criterion (a) does not permit any dwellinghouses with a gross internal floor area of less than 37sqm. The appellant’s plans show that all the proposed flats exceed this requirement, thereby satisfying criterion (a).

Criterion (b) of Article 3(9A) together with Article 3(9B) require compliance with the NDSS. The NDSS sets out the minimum gross internal floor area for new dwellings according to their level of occupancy, and provides floor areas and dimensions for key parts of the home including bedrooms.

The proposed flats would all contain two bedrooms, of which the majority would have three bed spaces, with the largest two flats having four bed spaces. The NDSS specifies that the minimum gross internal floor area for a two bedroom three person flat is 61sqm and for a two bedroom four person flat is 70sqm. The appellant’s accommodation schedule shows that the gross internal floor area of each flat falls significantly below the NDSS standard.

The NDSS requires the main double bedroom to have a minimum floor area of 11.5sqm and a minimum width of 2.75m, and single bedrooms to have a minimum floor area of 7.5sqm and a minimum width of 2.15m. The appellant’s plans show the floor area of nearly all the bedrooms to be below these requirements, with many also being too narrow. Furthermore, the minimum requirement for 2.0sqm of built-in storage is not met.

The outcome of these shortfalls would be cramped flats unsuitable for the intended number of occupiers, which would provide unsatisfactory living conditions for future residents. The appellant has explained that the previous prior approval for 10 additional flats was amended by way of a non-material amendment so as to satisfy the NDSS2, which was achieved by making most of the flats one bedroom. However, those plans are not before me, and I must make my decision on the basis of the submitted plans.

The conflict I have found with the NDSS leads me to conclude that the development would not be granted planning permission by Articles 3(1), 3(9A) and 3(9B) of the GPDO. Article 3(1) and [name].1(n)

[name].1(n) of the GPDO does not permit works for the construction of storage, waste, or other ancillary facilities reasonably necessary to support the new dwellinghouses to be situated on land forward of a wall forming the principal elevation of the existing building or on land forward of a wall fronting a highway and forming a side elevation of the existing building.

The plans include a cycle store located at the rear of the site, and two bin storage areas, one in the existing car park and one in front of the current bin store adjacent to [site address] . The Council has highlighted that the bin storage areas would be, respectively, forward of the principal elevation facing the car park, which is where the entrance to the existing building is located, and forward of the side elevation fronting [site address] , in conflict with paragraph A.1(n).

The appellant’s Planning Appeal Statement refers to a bin store, but the only elevations provided in respect of ancillary facilities relate to the bicycle store. The plans annotate wheeled bins within a fenced area in the existing car park, and wheeled bins bordered by hedging on two sides at the front of the site. The Council has suggested that there would be hardstanding as a minimum and potentially a solid store around the bins, but the plans do not show this.

On the basis that the fence proposed around the bins in the car park would amount to works for the construction of waste facilities, this aspect of the 2 LPA reference 2022/0799 development would be in conflict with paragraph A.1(n). However, no works are proposed in association with the bin storage area at the front of the site, and thus there is no conflict with paragraph A.1(n).

Taking the above matters together, I find conflict with paragraph A.1(n) of the GPDO, and consequently the development would not be granted planning permission by Article 3(1) and Schedule 2, Part 20, Class A of the GPDO.

Environment Agency mapping shows that part of the site is at medium risk of surface water flooding. The Framework guides that a site-specific flood risk assessment should be provided for all development on land that may be subject to other sources of flooding, where its development would introduce a more vulnerable use such as dwellinghouses3. Although the site is already in use for residential purposes, the development would introduce additional dwellinghouses, and it is therefore necessary to undertake a flood risk assessment.

The appellant has provided a flood risk assessment which concludes that the development would not increase surface water runoff or off-site flood risk, as a result of there being no increase in impermeable area, no alteration to drainage layout and no groundworks affecting overland flow paths. However, these assertions are not evidenced, and whilst the additional works proposed are relatively minor, there is no indication that their impact has been assessed in detail or any necessary mitigation measures incorporated.

I therefore conclude that the development would have a potentially harmful impact on flooding risks in relation to the building, in conflict with paragraph 181 of the Framework, which indicates that development should only be allowed in areas at risk of flooding where the most vulnerable development is located in areas of lowest flood risk, the development is appropriately flood resistant and resilient, and it incorporates sustainable drainage systems.

Although paragraph A.2(1)(e ) of the GPDO refers to the external appearance of the building, CAB Housing Ltd v SSLUHC & [name] [2023] [name] 194 establishes that it is a matter of planning judgement as to whether consideration is given to the effect in terms of the building’s relationship with adjoining or nearby properties. I have had regard to the fact that the earlier prior approval was determined before the outcome of this case was known, and that in granting that approval the Council confined its considerations to the effect of the development on the external appearance of the building. In my judgement, it is necessary to consider the street context, as the Council has done on this occasion.

The appeal site is located close to [site address] Station, in an area characterised by flatted accommodation and commercial buildings, the latter including a hotel and a car dealership. The side of [site address] where the appeal site is located comprises three storey flatted developments set within mature landscaped grounds, as a result of which the flats are largely screened from the road. Further along [site address] , there are four storey flats on 3 Footnote [address] which, although set back from the road, benefit from significantly less natural screening and are consequently much more visible.

On the opposite side of [site address] , the character of the area has evolved significantly in recent years, mainly as the result of the extensive four and five storey flatted development at [address]. Its central section is set back from [site address] , but on either side the flats are situated close to the highway, with only street trees providing any screening. Between this site and the station there is an Audi car dealership, which includes a substantial building of contemporary appearance located opposite the appeal site.

The proposal would create a building two storeys higher than the adjacent flatted buildings, and higher than both the single “lodge” attached to the rear of the flats and the buildings behind the site. However, the wider context of the site comprises a significant amount of four and five storey development, as well as the Audi dealership, which for the most part are not well screened and constitute a notable component of [site address] ’s character. Given this context, a five storey flatted development such as that proposed would not depart significantly from the established character of the local area, but would instead represent a continuing evolution of its character.

In reaching this finding, I have taken into account that the building’s pitched roof would make it taller than the flat roofed five storey flats on the opposite side of the road, which are themselves set below the level of the road. I have given weight to the fact that the landscaped strip between the building and the road would be retained in its entirety, softening the appearance of the proposed building. The building is visible in glimpsed views from [site address] and, whilst the enlarged building would be more evident in such views, the height of the tree screen would ensure that the building would not be prominent. This outcome would be aided by the fact that the design of the additional two storeys would closely resemble that of the existing building. The loss of the trees within the existing car park where bin storage is proposed is regrettable, but sufficient trees would remain that the site would retain its sylvan appearance.

I conclude, therefore, that the external appearance of the building would have an acceptable impact, and would conform with the guidance in the Framework that developments should be sympathetic to local character, including the surrounding built environment and landscape setting.

For the reasons given above, I conclude that the appeal should be dismissed.