Appeal 6005565

The appeal is dismissed.

The description of development given on the Council’s decision notice referred to a new vehicular access, hardstanding, bunds and post and rail fencing; none of which were included in the description used on the original application forms. However, the appellant confirmed at the hearing that this description is accurate, and so I have used it in the header above.

In both descriptions, reference is made to the development being part retrospective. I saw at my site visit that a new access had been created, a hardcore access road laid, bunds created, post and rail fencing installed, and two caravans were stationed on the site although they were not occupied at that time. I have therefore considered the appeal on a partly retrospective basis.

The Council confirmed at the hearing that, subject to the imposition of conditions, they no longer wished to sustain an objection on biodiversity grounds. They also no longer object to the development in terms of it making best use of previously developed, untidy or derelict land, nor that it fails to provide pitches of a sufficient size. My decision therefore focusses on the remaining disputed areas.

At the hearing two plans were submitted showing a day room and its position on all the pitches. The appellant suggested that these were not submitted with a view to adding them to the description of development, but rather to illustrate how day rooms could be provided on each pitch. I have therefore accepted the plans on an illustrative basis.

In light of the above, the main issues therefore are: i) whether the site is reasonably located with regard to access to services and facilities by sustainable modes of transport; ii) the effect of the development on the character and appearance of the area; iii) whether the development, and the wider area, would be safe from flooding and be suitably drained; and iv) whether the development would provide satisfactory living conditions for its future occupiers with regard to the provision of domestic facilities for day to day living.

It is not disputed that the site is located outside the built-up area boundary of any settlement and therefore, for the purposes of planning policy, the site is within open countryside. The nearest settlement is [site address] , the edge of which is around 1.3km away from the site. Though there are some scattered houses, a garden centre and a health centre in between [site address] and the site, the intervening distance is largely comprised of fields.

Policy CS.21 of the [name] (2016) refers to gypsy and traveller development. It states in section 7, that sites should be in reasonable proximity to local services and facilities, making them accessible by modes of transport more sustainable than the private car. There is a bus stop on [site address] , around 450m from the site, but there is no pavement connecting the site to it and pedestrians would have to walk along roadside grass verges. Indeed the appellant accepts it is unlikely that residents of the site would use the bus. For the same reason, the health centre opposite the bus stop would also be difficult to access by foot, despite its proximity. As such, local services and facilities would not be accessible by sustainable modes, and hence there would be conflict with this part of the policy.

Moreover, paragraph 26 of the Planning Policy for [name] (PPTS) advises that new traveller sites in open countryside away from existing settlements should be very strictly limited. Due to the distance between [site address] and the site, I would consider the development to be away from that settlement.

The National Planning Policy Framework (the Framework), in paragraph 110, recognises that opportunities to maximise sustainable transport solutions will vary between urban and rural areas. Accordingly, it is accepted that in rural areas such as this, some use of the private car would be expected. In addition, paragraph 13 of the PPTS recognises the value of providing a settled base which reduces the need for long-distance travelling. Though the site is away from [site address] , it would not be a long distance to the settlement. I also understand that this broad location is preferred by the Council for gypsy development, being within the Avon Valley and outside the Green Belt.

Overall, there is conflict with policy CS.21, but given it is not a long distance to [site address] and the services and facilities therein, I give only moderate weight to that conflict.

Before any development took place, it is understood that the appeal site, like much of the land to either side, was undeveloped grassland. The site is within the [name] Area as identified in the [site address] Landscape Character Assessment (BALCA) (2016). This assessment identifies some of the key characteristics of this area as being large and medium scale agricultural fields defined by hedgerows. Moreover, these features are consistent with the wider Vale Orchard Belt Landscape; a key characteristic of which is the large scale, often poorly defined, field pattern. The parties agree that overall the site has a medium sensitivity to the development.

The development would not be wholly isolated, being in proximity to some other houses, the garden centre and other forms of development. Also, the amount of built form would not be substantial. However, the provision of nine pitches with two caravans each, hardstanding for parking and vehicle manoeuvring, the access road, post and rail fencing and bunds would inevitably result in the loss of the field, compartmentalising it into much small parcels. This would represent a departure from one of the key characteristics of the area.

Visually, the development would not be clearly seen from [site address] . This is largely due to the mature hedges and trees along the roadside. Indeed, from here, because the traffic on the road is fast moving road and there are no footways, it is likely that most people would have only a fleeting view of the development as they pass the vehicular access. As such, although the BALCA identifies the view from the B439 towards [site address] as being a key view, the development would not be likely to materially affect that.

The development would be more apparent from nearby footpaths. From footpath SD15 to the east of the site, the caravans would be seen, albeit at a distance and against the backdrop of the garden centre buildings which extend away from the road. The more prominent view however is from the elevated former railway line to the north of the site. [name] understand this is a permissive path, not a public footpath, it is a clearly well used recreational route. From here, clear views of the whole extent of the site, with the spread of the works including all the proposed caravans, their associated paraphernalia, the hardstanding and the fencing, would be visually prominent. Due to the elevated nature of this viewpoint, any landscaping that could be provided would be unlikely to have little screening effect. In the context of the undeveloped land to either side and on the north side of the former railway line, and the undeveloped nature of the site before any works took place, the development would appear as a harsh and incongruous feature. The impact on this elevated viewpoint is specifically referred to in the BALCA, insofar as it specifically says that the impact of development on views from high ground should be considered.

In summary, the development would substantially harm the character and appearance of the area. It would therefore conflict with policy CS.5 of the [name] which aims to ensure that proposals have regard to landscape character, and part 9 of policy CS.21 which requires development to not have an adverse impact on the landscape. It would also be contrary to policy ENV7 of the [site address] Neighbourhood Development Plan which requires proposals to have regard to the landscape character and retention of views identified in the BALCA.

The appellant’s Flood Risk Assessment and [name] (FRADS) identifies that there is an area of medium flood risk (flood zone 2) from surface water within the site. There are also some smaller areas of high risk (flood zone 3), albeit not where the proposed caravans would be positioned. To address this, it proposes to create a 6m wide swale that would divert surface water from the higher land to the west of the site, around the edge of the site, to the watercourse along the eastern boundary. It also proposes to raise land levels in some areas to bring them above the flood level. It is noted however that neither the swale, nor the areas where land would need to be raised, are detailed on the submitted drawings. It is also apparent that the position of the swale, as suggested in the FRADS, may conflict with the position of the landscaped bund and/or the fencing along the edge of the southern two plots, and that the northernmost part of the swale is on adjacent land. Moreover it is not known what effect land raising would have on flood risk on lower land beyond the site.

As such, I could not be confident the swale could be constructed as the FRADS suggests, and therefore whether it would be effective in diverting surface water, or whether land raising would not merely displace flood water to elsewhere. Without these works, I understand that, in a flood event, the depth of the floodwater in the eastern parts of the site may only be 150mm, and so the caravans themselves would naturally be raised above this anyway. However access to them, and across the pitches, would mean walking through floodwater.

In any case, notwithstanding the potential mitigation, paragraphs 173 and 175 of the Framework set out that a sequential test should be undertaken for sites at risk of any type of flooding. The national Planning Practice Guidance recognises that a proportionate approach should be taken, and that where a site-specific flood risk assessment demonstrates clearly that mitigation measures would ensure that occupiers would remain safe from surface water flooding, then the sequential test need not be applied. However, for the reasons given above, I am not satisfied that the mitigation as set out would ensure that the development would be safe from surface water flooding.

I accept there are no other gypsy sites available to the appellant, and I understand the appellant has been searching for suitable land for around five years. However, I do not consider this is sufficient to demonstrate that the sequential test has been fulfilled. Indeed, much of the land outlined in blue on the appellant’s location plan is outside any flood risk zone.

With respect to the drainage of the appeal site itself, the appellant proposes two options depending on the permeability of the ground. Essentially, option one is for all hardsurfacing to be permeable to allow infiltration, and if infiltration drainage is not possible, option two is for surface water to be captured and tanked with a controlled outflow into the existing watercourse via the swale. However it is not known if the swale referred to above has been designed to account for the outflow in option two, nor if the existing watercourse is able to accommodate the outflow from the swale in this option.

Overall, based on the evidence before me, I could not be confident the site would be safe from flooding nor that it would be suitably drained. These are matters of considerable importance and could not be deferred to a planning condition. As a result I could not conclude that the development would accord with [name] policy CS.4, which states that development within flood zone 2 will only be acceptable when the sequential test has been satisfied and that development will not be permitted where it results in an increase in flood risk elsewhere. It would also be contrary to part 4 of policy CS.21 which aims to steer development away from areas prone to pluvial (surface water) flooding.

On the original plans, no amenity buildings were shown. In part W of the Council’s Development Requirements Supplementary Planning Document (SPD) it sets out that each pitch should have its own amenity building. [name] acknowledge that such amenity buildings are commonly part of gypsy development, and that the requirement in the SPD may have stemmed from consultation with gypsy and traveller groups at the time the SPD was being developed, I see no reason why this could not be a matter of personal choice. Crucially, it is clear from the indicative plans submitted at the hearing that there would be sufficient room for each plot to have its own amenity building should they be required in the future, without unacceptably compromising the amount of amenity space remaining for each pitch particularly as the plans include a separate communal play area. If that were the case, separate planning permission would be needed for them and so the impacts of them, such as on the appearance of the area or flood risk, could be assessed at that time.

The SPD also states that each pitch should have an area for hardstanding for a storage shed and for clothes drying. Although the plans do not show hardstanding for these purposes, as set out above, such hardstanding could be provided without harmfully reducing the amount of garden space available to each pitch. Likewise, hardstanding would require planning permission, at which point the effects of that, such as on flood risk, could be assessed.

As such, although there is direct conflict with the requirements of the SPD, I do not consider this would necessarily result in a poor residential environment, as required by part 10 of policy CS.21.

In addition, there would be plenty of room adjacent to the vehicular driveway on land owned by the appellant, for bins to be stored. Although a bin storage area close to the caravans would not be accessible by the Council’s own waste collection service, unless the access road were constructed to adoptable standards, an arrangement with a private collection company could be agreed and details of this could be secured by a planning condition. This would allow for many of the caravans to be within the maximum distances for taking bins to be collected as required by the SPD.

In summary, the development could provide satisfactory living conditions for its future occupiers. It would therefore accord with policy CS.21 as referred to above, and [name] policy CS.9 which aims to ensure all development achieves high quality design.

The parties agree the Council cannot demonstrate a five years’ supply of pitches and in fact there is currently no policy or plan allocating sites. As such, paragraph 11 d) of the Framework is engaged. This requires planning permission to be granted unless the application of policies in the Framework that protect areas of particular importance provide a strong reason for refusing the proposal. Areas at risk of flooding constitute areas of particular importance. [name] have found that the application of flooding policies provides a strong reason for refusing planning permission, the presumption in favour of sustainable development does not apply.

Aside from that, the latest information shows that there is an unmet need for 26 pitches over the next five years. Indeed this has increased from 18 pitches as set out in the officer report. The failure to provide a supply of pitches and the increasing need are matters of substantial weight. In that context the provision of the nine pitches proposed contributes to the supply and is a considerable benefit.

Although it was not stated at the time of the application, the appellant advises that the development would cater for his family, including two children who are young adults and are due to get married, his brother and his family including three young children, his mother and his mother-in-law. The appellant has seven other children, of which the eldest is autistic. Five of the appellant’s children are school age, although none currently attend.

At the moment he is doubling up on an existing site in the District and has been doing so for five or six years. There is no clear alternative available to the appellant and the proposal would provide the settled base with access to schools and health services that would be supported by the PPTS. This carries significant weight in favour of the proposal.

The work already undertaken constitutes intentional unauthorised development. This is a material consideration, but I give it only moderate weight, given that the works that have been done involve only fencing, two bunds, some hardcore being laid and two unoccupied caravans being placed on the land.

The development does not have access to services and facilities by sustainable modes, and it would harm the character and appearance of the area. In addition it has not been satisfactorily demonstrated that it would be safe from flooding nor that surface water from the site can be appropriately dealt with. The unauthorised development that has occurred so far also weighs against the development.

Balanced against that is the unmet need, the Council’s failure to allocate sites in accordance with the PPTS, the lack of any acceptable alternative sites and the personal needs of the appellant and his wider family. Nonetheless, I consider the harms outweigh the benefits.

I have had regard to Article 8 of the [name] on Human Rights as incorporated into the Human Rights Act 1998. Article 8 affords the right to respect for private and family life, including the traditions and culture associated with the gypsy way of life. It is a qualified right, and interference may be justified where that is lawful and in the public interest.

Dismissing this appeal would likely interfere with the appellant and his wider family’s rights under Article 8 in that they have no other lawful accommodation available to them. However, interference with those rights in this instance would be in accordance with the development plan policies which seek to protect the spatial strategy, the character and appearance of the area, and ensure development is satisfactorily drained and safe from flooding.

That balance is subject to the best interests of children and there is no consideration more important than that. I recognise that unlawfully doubling up on pitches is not the settled base that the appeal site would be. However, being at a site which is at risk of flooding would not be in their best interests. Even if it was, those interests are not necessarily determinative.

Gypsies share the protected characteristic of race for the purposes of the Public Sector Equality Duty (PSED) under s149 of the Equality Act 2010 which sets out the requirement to have due regard to the need to eliminate discrimination and advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not. The development would allow the occupants the opportunity to foster good relations with the settled community. However the harm resulting from the development would outweigh these benefits in terms of advancing equality. Dismissing the appeal would therefore be a proportionate response to the PSED.

The appellant suggests that if it would not be acceptable to grant permission for the use of the site as applied for, a personal or a temporary permission should be considered. A personal permission would not be justified as I have already determined that their personal circumstances do not outweigh the harm. I see no reason why a temporary permission would be advantageous either as it would merely replace their existing uncertain living arrangement with another. A temporary permission would minimise the opportunity for flooding to occur, but would not reduce the annual probability.

Overall the proposal would fail to accord with the development plan as a whole. The other material considerations including the application of the Human Rights Act, the PSED and accounting for what is in the best interests of the children, do not outweigh the conflict with the development plan. As such, the appeal is dismissed.