Appeal 6006942

The appeal is dismissed.

Although the original planning permission refers to it as [address], the name of the building has changed over the intervening years since it was granted permission for use as a holiday let accommodation. I have taken the name of the appeal building from the appellant’s application form as that matches the name plaque attached to the building.

Paragraph 57 of the National Planning Policy Framework (“the Framework”) states that planning conditions should only be imposed where they are necessary, relevant to planning and to the development permitted, enforceable, precise and reasonable in all other respects.

The main issues in this appeal are whether the disputed condition is necessary having regard to (i) the settlement strategy and the location of the site relative to services and facilities, and (ii) the safety of occupants in the event of flooding.

Case law submitted by the appellant has established that the distinctive characteristics of a dwellinghouse is its ability to afford to those who use it the facilities required for day-to-day domestic existence. Based on the evidence before me, the appeal building has those facilities. Therefore, I see no basis on the evidence before me to disagree that the holiday let the subject of this appeal is a dwellinghouse, albeit subject to the disputed condition that restricts its occupancy to holiday accommodation for short stays by visitors to the area.

However, the Council contends that the appeal site is located where new residential development would not normally be permitted owing to its location relative to services and facilities, and the risk of flooding. It contends that the unrestricted occupancy of the appeal building, which to me seems likely to result in it being occupied as a person’s home, being their sole or main place of residence, would have different and unacceptable planning impacts when compared to its occupation as holiday accommodation. I have dealt with those issues in turn below.

The Folkestone & Hythe District Places and Policies Local Plan was adopted in September 2020 (“the LP”). It is reasonable to suppose that the existing holiday let was found to comply with LP Policy E7, which provides for the reuse and conversion of rural buildings, including visitor accommodation, to support the rural economy and tourist industry. Where it is proposed to convert a building to a residential use which is not ancillary to a scheme for business reuse, the Policy requires the proposal to be justified by the efforts made to secure a business reuse. Such a proposal must also involve the re-use of a traditional building of architectural or historic merit that is worthy of retention.

The appellant contends that LP Policy E7 is not relevant because the appeal building’s conversion to a residential use has already occurred and the building is of architectural merit worthy of retention. However, it seems to me that LP Policy E7 is aimed at retaining buildings that are reasonably required for the rural economy, which includes the tourist industry, unless evidence demonstrates otherwise.

Whilst LP Policy E7 does not define the terms ‘re-use’ or ‘conversion’, to my mind both imply a change in how a building is used or occupied. In my view, the proposed removal of the disputed condition would bring about a change in the nature of the appeal building’s residential occupation from operating as a holiday let business providing accommodation for short stays by visitors, thus supporting the rural economy and tourist industry, to one that does not. It would therefore result in the loss of visitor accommodation that falls squarely within the scope of Policy LP E7 which seeks to guard against it, unless it is shown that efforts have first been made to secure a business re-use.

Contrary to the terms of LP Policy E7, no substantive evidence is before me showing efforts to secure a business use of the appeal building. Both parties disagree whether the appeal building is of architectural or historic merit worthy of retention. Those terms are not defined in the evidence before me and therefore I have reached my own judgement. I note that concerns over the architectural or historic merit of the building did not prevent the grant of planning permission in 2021, over a year later than adoption of the LP for use of the appeal building as holiday accommodation. Consistency in decision making is an important principle. I consider that the building has a traditional appearance owing to its design and materials, and on the evidence before me has sufficient architectural merit to be worth keeping.

Nonetheless, even if I were to agree with the appellant that LP Policy E7 was not relevant to this appeal, removing the disputed condition would enable occupancy of the appeal building as a person’s home, by granting it planning permission. It would be an unrestricted residential dwelling that falls to be determined against Policies SS3 and CSD3 of the Folkestone & Hythe District Council Core Strategy Review 2022 (“the CSR”).

Together, [name] SS3 and CSD3 set the strategy of directing development, including housing, towards sustainable settlements with good access to facilities and services. The aims of the strategy are to protect the countryside and coastline and reduce the need to travel and the harmful greenhouse emissions it creates. They allow some very limited forms of housing in the countryside, as an exception to directing most new housing to sustainable locations.

In this instance the appeal building is located within the countryside for planning purposes and not within a settlement. It is remote from the nearest settlements and occupants of the unrestricted dwelling would be heavily reliant on the private car to access nearly all services and facilities. Only the most confident and able walkers or cycles would travel to and from the nearest settlements, given the distance and nature of the rural roads. Whilst the same would apply to other existing dwellings in comparative locations, in the context of [name] SS3 and CSD3 this does not justify occupants of the appeal proposal being heavily reliant upon the private car to access services and facilities, and the greenhouse gas emissions it would create.

The appellant contends that the proposed removal of the disputed condition would accord with the criteria in paragraphs f), g) and h) of CSR Policy CSD3, insofar as it provides for some very limited forms of housing in the countryside. However, the removal of the condition would not replace or subdivide the holiday let building, nor would it reuse a redundant or disused building. Even if it did, the proposal would not alter its appearance and there is nothing to indicate it would bring about the enhancement of its immediate setting. Policy CSD3 also includes the protection of tourist, recreation and rural economic uses, which would include the appeal holiday let use. The protection of those uses is consistent with the Framework’s support for a prosperous rural economy in paragraph 88.

The proposed removal of the disputed condition would therefore be contrary to the strategy of locating housing development in sustainable settlements and it has not been shown to be essential in the countryside. It would also result in the loss of tourist accommodation. Therefore, it would not gain support from the [name] SS3 and CSD3. The settlement strategy in the CSR is consistent with the Framework’s approach to managing housing growth to prioritise sustainable modes of transport, giving priority to walking and cycling, and locating development where it would help to reduce greenhouse gas emissions, whilst also supporting some rural housing in enhancing or maintaining the vitality of rural communities, and avoiding isolated homes in the countryside.

The proposal would result in a person’s home being physically separate and remote from a settlement. Therefore, it would constitute an isolated home in the countryside which Framework paragraph 84 seeks to avoid, unless certain criteria are met. Assessed against those criteria, the proposed removal of the disputed condition would not subdivide an existing residential building, nor would it re-use a redundant or disused building and enhance its immediate setting. The appeal building is not of ‘exceptional quality’ as specifically defined by the Framework. Therefore, as the removal of the disputed condition would result in a home that would not comply with any of the circumstances necessary to justify an isolated home in the countryside under Framework Paragraph 84, it should be avoided.

Although they have applied to remove the disputed condition, the appellant indicates that a mixture of holiday and short-term letting would be a viable alternative. Short-term letting has not been defined. However, given the distinction between it and holiday letting, the inference I draw is that short-term letting would still involve occupation of the appeal building as a person’s home, which appears to be substantially the same as what is proposed through the removal of the disputed condition. No condition restricting occupation to a mix of holiday and short-term letting occupation has been put forwards, nor has it been shown that such a condition would meet the tests in Framework paragraph 57.

Taking all the above into account, I conclude on this main issue that without the disputed condition, occupation of the appeal building as a person’s home would be contrary to the settlement strategy in [name] SS3 and CSD3, insofar as they seek to direct development to sustainable settlements where there is good access to facilities and services, and travel can be reduced, unless a location in the countryside is demonstrably essential.

The Environment Agency (EA) flood zone map shows the appeal site as within [name] 3 and at a high probability of flooding. For development located within such a flood zone, CSR Policy SS3 sets out that a site-specific flood risk assessment (FRA) will be required to demonstrate that a proposal is safe.

In this instance the appellant has undertaken a FRA for the development, which utilises evidence from the Council’s Strategic Flood Risk Assessment (SFRA). Whilst the appellant says that the SFRA 2115 flood risk map identifies the site at a “low risk”, they have not provided a copy of that map, and therefore I give greater weight to the extract from the SFRA’s 2115 flood risk map in the Council’s appeal statement. As this shows the appeal site within an area identified at “moderate risk” of flooding, Policy SS3 part b.i) is not relevant to the appeal proposal.

The FRA indicates that the level of the appeal site is 2.9 metres above [name] (ODN), and the ground floor level of the appeal building is set at 3.05 metres above ODN. Contrary to the EA’s consultation letter, the drawings show the appeal building as having a reasonably sized first-floor bedroom in the roof space with a floor level set at 5.5 metres above ODN. Occupants could therefore seek refuge within the building’s first floor in the event of flooding of the ground floor.

That said, the appellant’s FRA demonstrates that flood water would not be expected to cover the appeal site, let alone ingress the appeal building. This is because the predicted flood level of 2.56 metres above ODN, which the FRA records as being taken from the SFRA, is below the ground level of the appeal site, and the ground and first floor levels of the building. I observed that the land within and surrounding the appeal site, including the swathe of land along the route of [address] between it and the coastline, is more or less flat.

The FRA refers to EA guidance advising that flood resilient measures should be incorporated into a development if floor levels are not 300mm above ground level or 600mm above the predicted flood level. In this instance, the floor level of the appeal building is some 150mm above ground level and 500mm above the predicted flood level.

The appellant describes the materials of the building as including solid walls and floors impermeable to floodwater, with wiring running from above. The construction of the building therefore appears to be resilient to flooding were it to reach the site in events exceeding the predicted flood level. If the appeal was allowed, there is nothing to suggest that further details of flood resilient measures could not have been secured by a planning condition.

Based on the data and conclusions in the FRA, it seems reasonable to me that the appeal site and the building’s ground and upper floors would be expected to remain dry as they are some way above the predicted level of flood water. Therefore, I see no basis to conclude that the building could not be occupied safely. The EA states that it has reviewed the FRA. The EA and the Council have not advanced any data or analysis relating to flood risk at the appeal site that contradicts the conclusions reached in the appellant’s FRA, and therefore I have no evidential basis to depart from its conclusions.

Taking all the above into account, the occupancy restriction imposed on the appeal building by the disputed condition is not necessary to ensure the safety of occupants in the event of flooding. Accordingly, there would be no conflict with CSR Policy SS3, insofar as it requires a site-specific FRA to demonstrate that a proposal would be safe in terms of flood risk. However, an absence of harm in respect of flood risk does is a neutral factor that does not weigh in favour of the appeal.

The appellant says that in the 3 years or so that the appeal building has been used as a holiday let, it is having difficulty maintaining ‘economic equilibrium’ and is failing to provide an adequate return as a business enterprise. This is despite it being described as marketed, competitively priced and exempt from the payment of business rates. However, there is nothing of substance before me to demonstrate that the holiday let use of the appeal building is unviable. Therefore, the appellant’s concerns over the viability of the holiday let business carry limited weight in favour of the appeal.

Removal of the disputed condition would be expected to result in the appeal building being occupied as a person’s home. Such occupants would spend money in the local economy, supporting businesses and services all year round, and they would be expected to pay taxes such as Council tax. Even if the payment of Council tax could be considered a benefit in the circumstances set out by the appellant, the totality of those benefits from a single home would be relatively small.

The supporting text to CSR Policy CSD3, refers to the district’s rural areas as offering a range of attractions with places of particular interest to visitors. The Policy seeks to protect tourist, recreation and rural economic uses. In my judgement, holidaying visitors occupying the holiday let would have the mindset of enjoying themselves during their stay and are more likely to visit local attractions and take meals away from the site. They could reasonably be expected to contribute positively to the local economy through spending money in local tourist attractions and businesses, helping to sustain them and the rural economy. Moreover, it is reasonable to suppose that this pattern of activity would be repeated regularly with each successive party of holidaying occupants.

In my judgement, even if the existing holiday let is currently exempt from paying business rates, its occupation in accordance with the disputed condition would be expected to bring greater economic benefits to the area than its occupation as a person’s home. Consequently, the removal of the disputed condition would be expected to result in the loss of economic activity and associated benefits, thus weighing against the appeal proposal. I have already found nothing of substance to show the holiday let use of the appeal building to be unviable.

As there are no external changes proposed to the appeal building, I find no conflict with Policy HB1. However, an absence of harm, including to the character and appearance of the area, the living conditions of nearby residents, wildlife/ecology, and agriculture would not weigh positively in favour of the appeal.

Even if I were to agree that LP Policy E7 is not relevant to the appeal, the removal of the disputed condition would bring the development into conflict with [name] SS3 and CSD3, insofar as development in the countryside outside of sustainable settlements will only be permitted where it is essential for specified rural purposes as an exception to the settlement strategy. This brings the development into conflict with the development plan as a whole.

There are no other material considerations, including the benefits of the proposal and the provisions of the Framework, which outweigh this finding. Therefore, for the reasons given, the condition in dispute is necessary in accordance with the tests in paragraph 57, and the appeal should be dismissed.