October 19, 2012

The knockout blow – failing to preserve/enhance the conservation area

I have recently received the decision on an appeal where I represented the local planning authority and thought that it would be worthwhile drawing your attention to a few points.

The appeal was against the decision of the local planning authority to refuse the demolition of some existing commercial workshop buildings and for the redevelopment of a retail store car parking and new access etc.  The existing buildings were unkempt and overall the site gave an untidy appearance.  The site though was within a designated conservation area.

The Inspector identified six main issues as follows:-

  1. The effect of the development on the vitality and viability of the retail centre of Coggeshall;
  2. Whether the development would preserve or enhance the character or appearance of the Coggeshall Conservation Area and the setting of nearby listed buildings;
  3. The effect of the development on the open countryside in view of its location in relation to the boundary of the village envelope;
  4. The effect of the development on the living conditions of residents of nearby dwellings by reason of noise and disturbance from vehicle movements and the operation of plant and equipment and from light spillage from external lighting;
  5. The level of traffic generated by the development and whether the proposed parking provision would be sufficient; and
    The effect of the development on flood risk with regard to surface water drainage.

It should also be borne in mind that whilst perhaps not issues, it was undeniable that the existing food offer within the village in question was poor and that to allow the development would result in additional employment.  There were therefore advantages to be taken into account and balance.

The Inspector found against the local planning authority on five of the six issues and concluded that whilst there will be no harm to retail vitality or viability, the living conditions of local residents, the character of the open countryside and that there was adequate on-site car parking and no increased risk of flooding, nevertheless these factors did not carry sufficient weight in favour of the appeal to outweigh the harm, which it had been concluded the development would cause in neither preserving nor enhancing the character or appearance of the conservation area.  Therefore on the face of it the Appellant won 5-1 but the one was a knock out blow and the appeal was dismissed.  I have just two comments to make.

The design of the proposed building had been given the “green light” by both English Heritage and the conservation experts from the County Council.  Furthermore the Appellants architect gave evidence at the Inquiry.  The local planning authority at the same time also called evidence from an architect who opposed the scheme.  The building was therefore acceptable in this location to some at least!  I do not propose to comment on the design of the building, that is not my province as a lawyer but what it does clearly demonstrate is that even where there are advantages to development and the majority of matters are acceptable, where there still remains harm to the conservation area, development may be refused i.e. in this case it was a knock out blow.  It does of course seem likely that the developer may come back with an amended scheme.

Secondly it is worth looking at how the Inspector dealt with the issue of retail impact.  Members of the local planning authority were very worried about the impact that this proposed edge of centre store would have on the existing food stores and other shops within the village centre.  The local planning authority had taken advice at the application stage, which was arguably inconclusive.  However, both main parties undertook a Retail Impact Assessment but the Appellants also argued that none was required.

They relied upon para 26 NPPF which only requires an impact assessment if the development is over 2,000 square feet unless there is a locally set threshold.  In this instance whilst the local planning authority had endeavoured to obtain a locally set threshold in their Core Strategy the Inspector recommended that it be removed as it had not been justified.  The threshold proposed was 200 square metres.  At the time of the Inquiry therefore there was no locally set threshold.

The Inspector therefore concluded that there was no basis to require a detailed Retail Impact Assessment and it was ordered that the Council pay the costs in respect thereof.  I regard this as something of a harsh decision bearing in mind the general plank of planning policy to protect the vitality and viability of existing town and village centres.  It also perhaps sends a strong message to others in not dissimilar localities.

To me the figure of 2,500 square metres in the NPPF is far too high.  It is essential therefore that local planning authorities set lower thresholds.  They must therefore incur the expense of undertaking the necessary research and be able to justify any threshold before the Inspector holding the hearing into their Local Plan or should I say Core Strategy or whatever it may be.  It perhaps also serves as a warning to others in a similar position to be very careful when demanding a Retail Impact Assessment.

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