Case Reference: 3214046

Appeal Decisions
Hearing Held on 1 October 2019
Site visit made on 1 October 2019
by D Fleming BA (Hons) MRTPI
an Inspector appointed by the Secretary of State
Decision date: 05 December 2019
Appeal A, Ref: APP/P1560/C/18/3214046
Appeal B, Ref: APP/P1560/C/18/3214047
St John’s Nursery or Nurseries (also known as “St John’s Plant Centre”
and/or “Winter Wonderland”) Earls Hall Drive, Clacton-on-Sea, Essex
CO16 8PB
• The appeals are made under section 174 of the Town and Country Planning Act 1990 as
amended by the Planning and Compensation Act 1991.
• The appeals are made by [APPELLANT] against an enforcement notice issued by Tendring District
Council.
• The enforcement notice was issued on 14 September 2018.
• The breach of planning control as alleged in the notice is
a. Without the benefit of planning permission, an unauthorised material change of use
of the Land to a mixed use of a garden centre (either sui generis use or within Class A1
of the Town and Country Planning (Use Classes) Order 1987) and also retail sales within
Class A1 of the Town and Country Planning (Use Classes) Order 1987, as amended,
together with associated customer parking. This mixed use is combined with the lawful
activity of the Land which is in operation as a wholesale nursery operated for
horticultural and thus agricultural purposes and;
b. Without the benefit of planning permission, an unauthorised material change of use
of the Land to a mixed use for use as a “Winter Wonderland” and as a sui generis use
comprising retail sales akin to the holding of the market but also for use within Use
Class A1 of the Town and Country Planning (Use Classes) Order 1987, as amended,
combined with sales of plants, trees and shrubs together also with amusement rides,
animatronic displays and visitor attractions (including a Santa Claus grotto) and a cafe
within Use Class A3 of the Town and Country Planning (Use Classes) Order 1987, as
amended. This mixed use is combined with the lawful activity of the Land being in
operation as a wholesale nursery operated for horticultural and thus agricultural
purposes plus associated customer parking.
• The requirements of the notice are
A Cease the unauthorised material uses of the land for
1. A mixed use of a garden centre (either sui generis use or within Class A1 of the Town
and Country Planning (Use Classes) Order 1987) and also retail sales within Class
A1 of the Town and Country Planning (Use Classes) Order 1987, as amended,
together with associated customer parking. This mixed use is combined with the
lawful activity of the Land, which is in operation as a wholesale nursery operated
for horticultural and thus agricultural purposes and;
2. A mixed use for use as a “Winter Wonderland” as a sui generis use comprising retail
sales akin to the holding of the market but also for use within Use Class A1 of the Town
and Country Planning (Use Classes) Order 1987, as amended, combined with sales of
plants, trees and shrubs together also with amusement rides , animatronic displays and
visitor attractions, including a Santa Claus grotto and a cafe within Use Class A3 of the
Town and Country Planning (Use Classes) Order 1987, as amended. This mixed use
combined with the lawful activity of the Land being in operation as a wholesale nursery
operated for horticultural and thus agricultural purposes plus associated customer
parking.
B Cease any other material change of use of the Land within Use Class A1 of the Town
and Country Planning (Use Classes) Order 1987, as amended.
C Cease the use of the Land for customer parking in connection with the uses set out in
A-B.
D Remove from the Land all goods for sale, stock and items sold on the Land in
conjunction with the unauthorised uses.
E Cease the use of all animatronic displays, miniature railways, rides and roundabouts
used in conjunction with the unauthorised uses.
F Cease the use as a Santa's Grotto or any other Santa Claus visitor attraction used in
conjunction with the unauthorised uses.
G Cease all sales of fireworks on the Land and remove any trailer or container used for
such sales in conjunction with the cessation of the unauthorised uses in A-B
H Cease any use of any part of the Land as a cafe or restaurant or other catering facility
used in connection with the use is in A-B, whether used for use within Class A3 of the
Town and Country Planning (Use Classes) Order 1987, as amended, or as an ancillary
use to the unauthorised uses set out in this notice and referred to in the steps A-B.
I Remove from the Land all materials resulting from steps A-H of these requirements.
• The period for compliance with the requirements is six weeks.
• Appeal A is proceeding on the grounds set out in section 174(2)(a), (b), (c), (f) and (g)
of the Town and Country Planning Act 1990 as amended. Appeal B is proceeding on the
grounds set out in section 174(2)(b), (c), (f) and (g) of the Town and Country Planning
Act 1990 as amended.
Appeal C, Ref: APP/P1560/W/18/3202282
St John’s Plant Centre, Earls Hall Drive, St Osyth, Essex CO16 8PB
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for planning permission.
• The appeal is made by Park View Nursery (in liquidation) against Tendring District
Council.
• The application, Ref 17/01935/FUL, is dated 7 November 2017.
• The development proposed is described as improvements to Earls Hall Drive.
Decisions
Appeals A and B
1. It is directed that the enforcement notice be corrected by the deletion of “or
Nurseries (also known as “St John’s Plant Centre” and/or “Winter Wonderland”)
from the address of the site and by the deletion of the wording of the
allegations and the substitution with the words “the material change of use of
the site to a mixed use, comprising horticulture, retail, leisure uses and a cafe
use”. It is also directed that the enforcement notice be varied by the
- deletion of “six weeks” and the substitution with “six months” in paragraph 6
of the notice;
- deletion of the wording in paragraphs 5.A.- I. and the substitution of the
words “Cease the mixed use of the site, comprising horticulture, retail, leisure
uses and a cafe use and remove from the land all items, fixtures and fittings
that facilitate the mixed use”. Subject to these corrections and variations the
appeals are dismissed and the enforcement notice is upheld and planning
permission is refused on the application deemed to have been made under
section 177(5) of the 1990 Act as amended.
Appeal C
2. The appeal is allowed and planning permission is granted for improvements to
Earls Hall Drive at St John’s Nursery, Earls Hall Drive, St Osyth, Essex CO16
8PB in accordance with the terms of the application Ref 17/01935/FUL, dated
7 November 2017 subject to the following conditions:
1) The development hereby permitted shall begin not later than 3 years
from the date of this decision.
2) The development hereby permitted shall be carried out in accordance
with the following approved plans: dwg No 1789-01 dated 07/17, 1789-
02 dated 07/17 and a Block plan showing the site outlined in red.
3) No development shall commence until details of the materials to be used
in the construction of the surfaces of the widened access road hereby
permitted have been submitted to and approved in writing by the local
planning authority. Development shall be carried out in accordance with
the approved details.
Procedural Matters
3. The Hearing opened on 1 October 2019 and was closed in writing on 13
November 2019. It was adjourned at the end of business on 1 October for
conditions to be drafted, for the submission of copies of case law referred to
during the Hearing and closing comments from the parties.
4. The enforcement notice appeal form states that the first appellant is St John’s
Nursery and the second appellant is Park View Nursery (Enfield) Ltd. The
appellant in relation to Appeal C is stated as being ‘Park View Nursery’. As the
notice was served on several persons it was necessary to understand
everyone’s interests in the land.
5. It was clarified that the freeholder of the site is Kelsworth Limited; Moondrop
Limited lease the site from the freeholder and St John’s Nursery lease the site
from the leaseholder. St John’s Clacton Ltd and Growing Plants 4U carry out
the use of the site. The Park View Nursery (Enfield) Ltd business went into
liquidation after the appeals were lodged. However, as I am not aware that the
company has been formally dissolved, their appeals may continue.
6. At the time when the notice was issued the National Planning Policy Framework
(the Framework) in place was that published in 2012. This was replaced by the
Framework published in July 2018. Minor clarifications were published to this
document in February 2019.
The Notice
7. A notice must enable every person who receives a copy to know exactly what,
in the Council's view, constitutes the breach of planning control and what he
must do to put it right. It is not clear in this instance as two allegations
relating to a material change of use of the site are made in respect of, what the
parties agreed, is one planning unit. It is necessary to correct the allegation to
clarify the terms of the deemed planning application under section 177(5) of
the 1990 Act, as amended and to vary the terms of the notice, which currently
require the uses to cease, to reflect the changes.
8. While some elements of the material change of use to a mixed use are
seasonal, they can also be expressed in the one allegation, which the parties
agreed was the material change of use of the site to a mixed use, comprising
horticulture, retail, leisure1 uses and a cafe use. It follows that the
requirement of the notice will therefore be varied to cease this use. There will
be no injustice caused to either party in correcting and varying the notice as all
of these uses are referred to in the notice. I will therefore deal with the appeal
on the basis of the corrected allegation and the varied requirements.
9. The notice states the address of the site is ”St John’s Nursery or Nurseries
(also known as ‘St John’s Plant Centre’ and or ‘Winter Wonderland’)”. At the
Hearing it was clarified that the address of the site is St John’s Nursery and I
will proceed on that basis.
Appeal C
Main Issue
10. The main issue is whether the development represents an acceptable form of
development having regard to highway safety. The Council were minded to
approve the application prior to the submission of the appeal.
Reasons
11. The appeal site lies midway along St John's Road, the main road separating the
settlements of Clacton-on-Sea and St Osyth. There is some residential
development along the north side of St John’s Road but generally land to the
north of the houses and land to the south of the road is in agricultural use.
Earls Hall Drive is a single-track access road which is situated between Nos 762
and 7822 St John’s Road. It is the only access to St John’s Nursery and it is
also used by a number of households at Earls Hall Farm, several businesses
who occupy some of the farm buildings as well as traffic associated with the
farm. In addition, it is the route of a public right of way that leads to the farm.
12. The appellant proposes to widen Earls Hall Drive by demolishing an outbuilding
in the garden of No 762 and making use of a strip of garden land within that
property to create a carriageway width of 5.5m. There would also be a 2.1m
wide and a 2m wide footpath either side of the carriageway from St John’s
Road to the entrance into the nursery. At the junction of Earls Hall Drive with
St John’s Road, kerb radii of 10.5m would be provided in the bell mouth area
and the new footpaths would link into those on St John's Road. The
development would necessitate the removal of one tree, the reinstatement of
boundary fencing to the garden of No 762 and the re-positioning of the access
gates into the nursery car park so that they are 6m back from Earls Hall Drive.
13. This stretch of Earls Hall Drive is hard surfaced and is described by the owners
(who occupy Earls Hall Farm) as having a narrow grass verge on one side and
1 The leisure use comprises what is referred to as the “Winter Wonderland” activity that operates approximately
between October and January. During this period the appellant makes use of part of the nursery to run an electric
train through a Christmas wonderland to Santa’s Grotto, installs animatronic Christmas displays, brings in
fairground rides and opens up a pretend “Dickens” shopping street about 100m long. Behind the false shop
frontages there are shelves displaying Christmas goods for sale. There is also a café serving hot and cold meals.
2 There is a gap in the street numbering, these properties are only separated by the access way to the farm.
an earth verge on the other. Regardless of the current mixed use at St John’s
nursery, it is considered that the proposed alterations to the width and the
provision of pavements would result in a significant improvement to highway
safety. The development would allow two vehicles to pass where at present it
is single track and would provide a separate passageway for pedestrians. To
that end I note The Ramblers Association support the proposal and that the
Framework requires that planning decisions should protect and enhance public
rights of way. The HA also advise that the improvements would benefit heavy
goods vehicles using Earls Hall Drive due to the changes in the kerb radii.
14. Policy EN1 of the Tendring District Local Plan, adopted 2007 (the LP) seeks to
protect the traditional character of public footpaths and rural lanes. In this
instance there is little rural character or appearance in this stretch of Earls Hall
Drive. It is largely bounded by garden fencing and is used by a variety of
vehicles carrying out deliveries and collections to the nursery as well as
vehicles emanating from the businesses and residents on the farm. The
improvements to Earls Hall Drive, to what are referred to as ‘adoption’
standards by the appellant, would change this character but to my mind there
would be little or no harm caused to the rural character. As such, the Council’s
requirement for a landscaping strip would not be necessary.
15. I therefore find the development would be acceptable having regard to highway
safety and as such, it would accord with Policies EN1, TR1A and TR3A of the LP.
Policies TR1a and TR3a seek to reduce and prevent hazards and inconvenience
to traffic and improve links to and between pedestrian routes.
Conditions
16. I have considered the conditions suggested by the Council against the
requirements of the Planning Practice Guidance (PPG). In addition to the
standard time limits and the requirement to carry out the development in
accordance with the approved plans, it is also necessary and reasonable to
impose a further condition. This would require the submission and approval of
surfacing details prior to the commencement of the development. The Council
include a number of informative notes in their suggested conditions but I have
not imposed them as they do not carry any legal weight. Furthermore, a
condition requiring that Earls Hall Drive shall remain open and free for use in
perpetuity is unenforceable given it is privately owned.
Appeals A and B, ground (b)
17. Under a ground (b) appeal, the onus of proof falls upon the appellants to show
that the alleged breach of planning control has not occurred, as a matter of
fact. The appellants submit that as the notice was issued on the 14 September
2018, the Christmas retail, leisure and cafe uses were not taking place at that
time and that a notice cannot be directed at a potential future use. The Council
submit an element of the notice attacks a seasonal use. Although the retail
element of the mixed use happens all year, it is the space it occupies and the
goods for sale that vary, with the floor space being increased over the
Christmas period in order to sell a wide range of Christmas goods. The
appellants accept the notice can attack a seasonal use but seem to be under
the impression that the notice must be issued at the time the seasonal use is
occurring.
18. It is considered that this is not the case though as ground (b) is that the
matters have not occurred (my emphasis) not that the matters are not
occurring. The appellants explain that the Christmas retail, leisure and cafe
use had occurred during the 2014 season on a much smaller scale. They then
became a much bigger operation in 2015, 2016 and 2017. In the absence of
any other submissions or material from the appellants, I conclude they have
not been able to demonstrate that the alleged breach of planning control has
not occurred, as a matter of fact. The appeals on ground (b) therefore fail.
Appeals A and B, ground (c)
19. This ground of appeal is that the matters alleged in the notice do not constitute
a breach of planning control. This appeal is limited to the retail use (the
garden centre use) that takes place other than at Christmas time. The
appellants accept that retail use at Christmas time amounts to development
requiring planning permission, due to the range of goods being sold. Under a
ground (c) appeal, the onus of proof is on the appellants to show that there has
not been a breach of planning control.
20. The appellants submit that the sale of plants ‘grown on’ at the nursery to the
general public and associated sundry items such as compost, fertiliser and
plant pots is a use that does not amount to development. It is ancillary to the
use of the site as a horticultural nursery. This is because of the scale of the
activity, both in terms of the amount of space it occupies, and as a percentage
of the business turnover.
21. The appeal site extends to approximately 6.5 ha and is primarily covered in
glass with a total area of buildings extending to 53 100 sqm. The permanent
sales area occupies approximately 4 366 sqm and at the Hearing the appellants
stated that the turnover of the entire premises is approximately £2.5 million
pa, of which £125 000 is sundries. They also stated that of the plants ‘grown
on’ at the site, approximately 70% are sold to the public and 30% are sold to
major supermarkets or garden centres. The income from the latter, each year,
varies between £0.5 million and £1.2 million. Furthermore, case law has
established that sales, for example of sundries, up to 10% of the business, can
be regarded as an ancillary activity which does not amount to development
requiring planning permission.
22. The concept of a material change of use is not defined in any statute or
statutory instrument. It is a question of fact and degree in each case. For
there to be a material change of use, there needs to be some significant
difference in the character of the activities from what has gone on previously.
When there are questions over whether there has been a material change of
use amounting to development, it is necessary to ascertain the correct planning
unit and the present and previous primary users of the site. The leading case
on the subject is Burdle3. The tests for determining the planning unit laid down
in that case start with the unit of occupation and turn on the concept of
physical and functional separation.
23. The parties agree that the whole of the site is one planning unit and that the
primary use of the site is that of horticulture. Where the parties disagree is
over the type of retail use. The appellants acquired the site in 2012. At that
time, it is stated it was derelict and had not been used for horticulture for over
3 Burdle and Williams v SSE and New Forest DC [1972] 1 WLR 1207
10 years. The appellants state that they began using it for horticulture with
ancillary plant sales and have continued to do so. They rely on case law
(Emma Hotels4 and Allen5) to support their position that the floor space
occupied by the sale of plants ‘grown on’ at the nursey to the public with
associated sundry items, together with the income this produces as a
percentage of business turnover, means that the retail activity can be
considered to be an ancillary use.
24. The Council submit that initially the sale of plants grown on the site took place
in a small area. This then became a larger area where the retail activity is not
just limited to plants grown on the site. There is also the sale of, for example,
furniture, fireworks (from a booth within the car park) and pet sundries, none
of which are incidental or ancillary to a horticultural use. These are part of a
new composite use which has developed since 2013. The Council also
submitted a case to support their position, namely Williams6 as well as an
extract from the Encyclopedia of Planning Law and Practice (EPL), which
discusses the meaning of development.
25. The cases are helpful when dealing with the relationship of an ancillary use to
the primary use and ascertaining the correct approach should that change. In
Emma Hotels, a hotel bar drew 70% to 80% of its customers from outside but
it was held that notwithstanding this, the provision and use of a bar in a hotel
was incidental to the main hotel use. In that case the courts found it would be
surprising if a hotel did not operate in that way as unless the hotel had a large
number of bedrooms, there would not be sufficient residents to warrant a bar.
26. In Allen, it was held that the retail sale of plants and shrubs grown from seeds
and cuttings on a site in a mixed use for agriculture and residential, was
regarded as being incidental or ancillary to the use of the land. It was also
held that the Inspector was entitled to conclude that a 10% proportion of sales
derived from imported goods took the retail use outside the ancillary category.
27. In Williams, which was earlier than Allen, there was a similar finding. In that
case the owner of a nursery sold what was grown on site from a building within
the grounds. He then began to import and sell fruit in addition to his own
produce and the courts held that this resulted in a change in the character of
the use, which resulted in a material change of use amounting to development.
28. All three cases point to a need to consider the functional relationship between a
primary use and an ancillary use, and whether this results in a change in the
character of the use, rather than its scale and extent, as emphasised by the
appellants. The focus by the appellants on the percentage sale of sundries
being less than 10% to support their position that a material change of use has
not occurred is incorrect. There have been other cases that have referred to
different percentages but the level of overall sales and the proportion that are
sales of imported goods must be looked at in each case. The two main tests
for the materiality of a change of use are a change in the character of the use
itself and the effect of that change upon neighbouring uses and the
surrounding area.
4 Emma Hotels Ltd v SSE and Southend on Sea BC [1980] 41 P and C. R. 255
5 Allen v Secretary of State and Reigate and Banstead BC [1990] JPL 340.
6 Williams v Minister of Housing and Local Government and Another [1967] 18 P. & C.R. 514
29. From the evidence it seems to me that the type of imported goods has changed
over time to the point where there has now been a change in the character of
the use. The extent of the retail sales at the appeal site appears to comprise a
wide variety of products in addition to plants grown on at the site. Some are
seasonal, such as the sale of garden and conservatory furniture as well as
fireworks, some are described by the appellants as being sundries, such as
plant pots, compost, seeds, fertiliser and gardening tools but not lawn mowers.
However, at the site visit I saw that the appellants’ sundries also extend to and
include various hard surfacing materials and ‘wood burning’ logs. The
appellants also stated in their Planning Contravention Notice (PCN) response
that household furniture was sold from the site but this ceased in 2016 and
that they sold barbeques and garden heaters. In addition, the Council describe
other goods they have seen for sale such as pet related products and grave
memorials but these are disputed by the appellants.
30. As well as enlarging the sales area, the appellants created a public parking
area in 2015 adjacent to the entrance. This area was doubled in size in 2017
so that the total number of car parking spaces became around 250. The
appellants also installed lighting columns7 in 2015 and 2017. Planning
permission was subsequently obtained for the car park extension in October
2017. The first complaints made to the Council following the acquisition of the
site by the appellants were in 2012 and centred on the harm caused by
additional traffic movements at the junction of Earls Hall Drive and St John’s
Road. These complaints have continued over the years and at one point led to
the issue of an enforcement notice in 2013 alleging a material change of use
but this was subsequently withdrawn due to an incorrect plan. The Council
state that there have been claims of up to a 1000 vehicle movements a day
during trading one spring bank holiday weekend but I have not been provided
with any details of that complaint. The St Osyth Parish Council (SOPC) point
out that there are always traffic difficulties, with cars queuing along St John’s
Road whenever the nursery has a sale, such as during May and August.
31. Having regard to these submissions and my conclusion on the change in the
character of the use, it is my view that what may have begun as an ancillary
use, the retail sale of plants ‘grown on’ at the site, has now morphed into a
garden centre use. This is a new primary use that operates alongside the
existing primary horticultural use of the site and results in a mixed use taking
place on the site. No planning permission exists for this use. There has
therefore been a breach of planning control and the appeal on ground (c) fails.
Appeal A, ground (a)
Main Issue
32. The main issue is whether the use of the site is acceptable, having regard to
highway safety and the level of traffic generation.
Reasons
Highway safety and traffic generation
33. The appeal site occupies a substantial area to the north of the houses on
St John’s Road. Whilst the development is for a mixed use, it contains a
significant area of retail floor space (4 366sqm) that is substantially increased
7 Witness statement of C Stathers to the High Court
(by approximately 2 472sqm8) during the “Winter Wonderland” operation. The
appeal site car parking area lies to the south and west of the glass houses.
Although it has a hard surface, it is not formally laid out with parking bays
painted on the ground, although these were shown on the 2017 planning
permission. It was stated that this could accommodate 300 cars if formal bays
were marked out and the Council did not disagree with this figure.
34. The appellant submits that the operation of the “Winter Wonderland” provides
a ‘fantastic’ facility for the town and district as evidenced by the considerable
number of postings on social media. The use is a fundamentally conjoined
retail and leisure package. Over the Christmas period, the business employs
an extra 20 staff and the operation of the “Winter Wonderland” enables the
retention of 70 of the nursery staff from the end of the summer till February.
In addition, the extended car park accommodates all of the visitors.
35. The appellant’s submissions focus on the “Winter Wonderland” use element of
the deemed planning application. However, given my findings on the ground
(c) appeal, the development for the ground (a) planning application includes
the operation of a retail (garden centre) use for most of the year. Planning
law9 requires that all applications for planning permission be determined in
accordance with the development plan. This therefore includes the garden
centre use as well as the “Winter Wonderland” operation.
36. The operation of the mixed use has resulted in an increased number of vehicles
entering and exiting the site. This has caused several difficulties described by
the Highway Authority (HA) as being largely due to the inadequate width of
Earls Hall Drive. Drivers are prevented from leaving the site by drivers turning
into Earls Hall Drive from St John’s Road. Queues consequently form in the car
park. Drivers seeking to turn into Earls Hall Drive from St John’s Road are
prevented by drivers exiting the site. Consequently, cars form queues in both
directions along the main road, classified as the B1027, a main distributor
road. The increased number of visitors coming to/going from the site also
increases the potential for conflict with other users of Earls Hall Drive such as
large farm vehicles and users of the public right of way.
37. The SOPC and third parties who live near the site have described in detail the
effects of the mixed use on living conditions. They take issue with the
appellant’s figure of 10 visitors an hour which they say is more in the summer.
During the “Winter Wonderland” event, it can take up to 3/4 of an hour to get
home by car due to the volume of local traffic, when ordinarily from the town it
would take far less. There are often tailbacks over a mile long in each direction
from the junction of Earls Hall Drive with St John’s Road and congestion for
many hours. In these conditions many visitors park their cars across
numerous driveways preventing residents from leaving or entering their
homes. Cars are also parked along the road and grass verges.
38. The mixed use also affects the households and businesses who rely on Earls
Hall Drive to access/vacate their properties. In particular, one householder is a
midwife who is often called to leave her property at short notice. In addition,
8 Part of the 2 472sqm floor area (Block 3 shown on the plan accompanying the response to the PCN) is used for
the café area. At the Hearing it was not clear whether this area is used just during the “Winter Wonderland” or
throughout the year. However, given it is fitted with ventilation and extraction equipment and third parties
describe ‘Sunday dinner’ being on the menu, it would appear to be open most of the year.
9 Section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country
Planning Act 1990
when the arable farm is quiet over the winter, the farmer raises 1000 turkeys
which are collected by customers just before Christmas. The operation of the
“Winter Wonderland” event unduly conflicts with this enterprise as well as other
businesses who operate in the farm buildings throughout the year.
39. The side garden fences of Nos 762 and 782 form the boundaries of Earls Hall
Drive though where it emerges into St John’s Road there is a bell mouth area
that is part of the adopted highway. This is because there are wide grass
verges running alongside St John’s Road in the vicinity of the access that
facilitate a bell mouth shape.
40. The distance between St John’s Road and the appeal site entrance on the
eastern side of Earls Hall Drive is about 85m10. Two pairs of double gates mark
the ingress and egress. At this point Earls Hall Drive widens slightly for the
first time to allow for two vehicles to pass. North of the public access into the
appeal site there are a few more passing bays along Earls Hall Drive and
another access point into the appeal site for delivery vehicles.
41. I am told that the former horticultural business that previously operated on the
appeal site was given an access deed by the owners permitting use of Earls
Hall Drive for service runs and vehicular access into the site for the
horticultural business. The appellant and the owners of Earls Hall Drive are
currently in dispute about this but that is a matter that is not before me and I
have not been provided with a copy of the deed.
42. The appellant does not deny that the use of the site has been successful and
results in traffic generation. In particular, he accepts that difficulties occur
during the operation of the “Winter Wonderland” and employs traffic marshalls
to prevent this happening. Three are on duty in the car park to assist drivers
to find a parking space, one is on duty at the entrance to the car park who
liaises with one on duty at the junction with St John’s Road. Together they
liaise to prevent congestion along Earls Hall Drive. However, congestion occurs
at other times of the year, such as during the Easter and summer sales, and it
is not clear whether traffic marshalls are employed on other occasions. The
Council submit that marshalls have to be trained and accredited to operate on
the public highway but the appellant stated his staff do not stand on the public
highway and therefore do not need to be trained and accredited.
43. The HA receive reports from the police on traffic accidents. Between the 1 July
2016 - 13 June 2019 there have been three accidents in the vicinity of the
appeal site described as ‘slight collisions’. The exact details are not passed
onto the HA but the only event that occurred during “Winter Wonderland”
involved two cars and one casualty. The appellant explained this was caused
as the HA had removed their roadside sign. New signage has subsequently
been approved and installed. Nevertheless, the congestion caused by the
mixed use can be considerable. Added to that, when the car park is full,
drivers park along St John’s Road, where there is a 40mph speed limit, or on
the grass verges.
44. Policies TR1, TR1A and TR2 from the LP require the submission of a transport
assessment for all new developments and a travel plan. New development will
be assessed in relation to its effect on the transport system and its capacity to
accommodate the traffic generated. In addition, Policies ER7, ER11 and QL10
10 There is also a reference to this being 67m.
from the LP require new business uses to have satisfactory vehicular access
and adequate car parking as well as taking into account the acceptability of the
level of traffic generated. Policy QL2 also promotes transport choice and Policy
ER38 requires that farm shops will only be permitted where they do not cause
traffic hazards.
45. The appellant has not submitted a formal transport assessment or a travel
plan. At the Hearing he relied on the response made to the PCN given in
August 2018 in which it is stated that outside of the “Winter Wonderland”
event, there are approximately 10 visitors an hour. He also explained that the
car park was extended in 2017 to meet the needs of visitors and there has
been no objection from the HA on this point. In addition, he referred to the
planning application made to widen Earls Hall Drive. He believes there is no
need for a transport assessment as the HA did not seek one when he applied
for temporary planning permission for the “Winter Wonderland” in 2017. He
also states that it is open to the police and the Council to ban parking on the
verge.
46. It appears to me that the appellant has failed to take full account of the
Council's policy requirements and those set out in the Framework. In
particular, no survey work has been carried out to ascertain visitor trip levels
throughout the year, the frequency of visits and the direction of travel. There
has also been no assessment of nearby junctions, given the importance of
St John’s Road as a main distributor road. In the main, there seems to be an
over reliance on the anticipated success of Appeal C and the benefits that
would bring. I have found this scheme would result in significant
improvements to managing the flow of traffic in and out of the site, and goes
some way towards resolving the queueing issue. However, widening Earls Hall
Drive only deals with one aspect of the traffic consequences from the mixed
use, albeit a substantial aspect. It does not resolve the whole issue of traffic
creation and congestion.
47. This is because without any prior assessment work carried out, it is not clear
whether the levels of parking provision are appropriate and that the use of a
widened Earls Hall Drive would improve the situation further afield in terms of
highway safety. Furthermore, if most of the traffic comes from Clacton-on-
Sea, not an unlikely theory as the main ‘A’ classified road serving the area runs
into the town, then the ability of cars to pass each other along Earls Hall Drive
would not address queuing traffic waiting to turn right from St John’s Road.
48. In addition, even though I allow Appeal C, it is not clear whether that planning
permission could be implemented. This is because the appellant does not own
Earls Hall Drive and a member of the family who does own it stated at the
Hearing (and in writing in response to the application the subject of Appeal C)
that no consent would be given to carry out any work to it.
49. The appellant explained though that he has bought Nos 762 and 782 St John’s
Road in order to carry out the works to widen Earls Hall Drive. This however is
not the case. Land Registry extracts submitted at the Hearing by the Council
show that the dwelling and surrounding land at No 762 is owned by Dumfries
Developments Limited and only the front garden of No 782 is owned by
Dumfries Developments Limited, not the side garden. In response, the
appellant advised that the director(s) of Kelsworth Limited are director(s) of
Dumfries Developments Limited, implying that there is sufficient control over
the land to implement any planning permission11. Notwithstanding the fact
that each company is a separate legal entity and noting the comments from
the owners of Earls Hall Drive, there is nothing before me to demonstrate that
this would be the case.
50. From all I have read and heard, the operation of the mixed use results in
unacceptable harm to the living conditions of local residents and businesses.
The levels of traffic congestion are substantial and have resulted in numerous
complaints to the Council and the HA dating back to 2012, resuming in 2015
and continuing in 2016 and 2017. There is no doubt that the most severe
congestion occurs during the operation of the “Winter Wonderland” event when
visitors are attracted from not only across Essex but further afield.
51. Traffic conditions during this period are described as ‘chaos’ by the PC and local
residents and were the main reason the Council sought an injunction against
the operation of the use, in the interests of highway safety. However,
congestion occurs at other times of the year and although the appellant states
his summer sale only lasts two weeks, the evidence from neighbours is that
this sale, and others held in the year also result in intolerable conditions.
52. Notwithstanding that in the operation of his business, the appellant can hold a
sale at any time of his choosing, Policy QL11 of the LP requires new
development to minimise any adverse environmental effects. Development will
only be permitted if any additional road traffic arising will not have a materially
damaging impact on amenity. The objective of the policy is to ensure that land
uses are suitably located and controlled and that they are compatible with
neighbouring uses.
53. Whilst I have no doubt that levels of business will fluctuate throughout the
year, this is no mitigation for tolerating the effects of the use when business
activities increase. This brings me to whether the use of the site is acceptable.
However, at this point, in terms of traffic generation, I find that the
development causes harm and as such does not accord with either LP or ELP
policies as discussed, or indeed the requirements of the Framework.
Appropriateness of development
54. The appeal site is currently outside the Clacton-on-Sea settlement boundary in
a rural location, as defined in the LP and the spatial strategy for the area,
(Policy QL1) requires new development to be located in the towns. The
emerging local plan12 (the ELP) proposes that the site would be included in the
settlement boundary and allocated for housing development.
55. The LP sets out that retail, leisure, entertainment facilities and tourism,
amongst other uses, are regarded as town centre uses in the preamble to
Policy ER31. This policy defines Clacton-on-Sea as a major town centre and
requires all options in town centres to be thoroughly assessed before edge of
centre locations or out of centre sites are considered. Policy ER32 requires
proposals for town centre uses outside existing towns to be considered against
a sequential site approach and need assessment whilst Policy ER32a requires
proposals for development in use classes A1-A5 to be directed towards the
primary shopping area.
11 It was also stated that they are directors of Galliard Homes Limited, who have submitted a planning application
to redevelop the appeal site with housing but it was unclear why this reference was made.
12 Tendring District Local Plan 2013-2033 and Beyond – Publication Draft June 2017
56. Policy QL8 cited in the notice is not relevant as this relates to mixed use
development within a settlement boundary and the appeal site lies within the
rural area of the district.
57. The relevant policies from the ELP13 repeat the approach to sustainable
development in the Framework and carry forward LP requirements and
objectives to protect the town centre of Clacton-on-Sea. The ELP was
submitted to the Secretary of State in October 2017. The Examination in
Public (EIP) in respect of section one of the plan dealt with the overall strategy
for growth, including housing and employment targets. This took place in
January and May 2018.
58. Where there is an ELP, the Framework sets out that weight may be given to
relevant policies according to the stage of preparation of the local plan, the
extent to which there is an unresolved objection to relevant policies and the
degree of consistency of the relevant emerging policies with the Framework. I
find, based on the submissions from the parties, that whilst the ELP is at an
advanced stage of preparation and the Council submit that the emerging
policies are consistent with the Framework, the EIP process is not complete.
The ELP therefore only attracts limited weight.
59. The Framework supports both the role that town centres play at the heart of
local communities as well as the diversification of rural businesses. It states
that decisions should ensure that developments will function well not just for
the short term but over the lifetime of the development. The glossary also
defines retail and leisure uses as being town centre uses.
60. The appellant submits the use of the site as a “Winter Wonderland” for a short
seasonal period is neither a town centre use nor a major retail activity that can
be considered in relation to LP Policies ER31, ER32 and ER32a. Although the
site has no specific designation in the LP, the area in the vicinity of the appeal
site is changing. Planning permission has been given and implemented for
retail parks outside the town centre of Clacton-on-Sea and for housing
development on the south side of St John’s Road.
61. The requirements of the LP, the ELP and the Framework all refer to the need to
carry out an impact assessment. They make no distinction in respect of
seasonal developments. However, this has not been done as the appellant
claims he was not asked to do it and, as they sell a specialist range of items
not found in the town centre, no comparison would be possible. He also states
that there are no suitable alternative sites and refers to the development of
Brook Retail Parks east and west, which have been built in the last few years.
62. However, these comments do not equate to any sort of impact assessment
though the observation regarding the specialist range of goods being sold could
have formed part of the assessment to demonstrate the suitability of the
appeal site. He stresses the importance of maintaining jobs, which is a
material consideration but ignores another requirement of the Framework.
This is that when considering out of centre proposals, preference should be
given to accessible sites which are well connected to the town centre. At my
site visit I saw that the recent retail park developments, unlike the appeal site,
are accessed from the main ‘A’ road into the town via properly serviced
highways.
13 SP1, PP1, PP2 and PP4
63. In addition, the retail/leisure package that comprises “Winter Wonderland” is
not unique, as claimed by the appellant. I am aware that the owners of many
large department stores, shopping centres, stately homes and even some
Councils allow their parks to be used for various Christmas displays/markets.
In my experience they include a whole host of events and attractions of varying
sizes for children and adults. The appellant claims that anyone visiting the
appeal site may visit the pier and the town centre and thus the use has wider
economic benefits but there was no substantiated evidence submitted to
support this claim. In conclusion, I therefore find that the development does
not accord with either LP Policies ER31, ER32 and ER32a, ELP Policies SP1, PP1,
PP2 and PP4 or indeed the requirements of the Framework.
Other Matters
64. The Council are also concerned that the levels of congestion diminish air
quality, which affects local residents. The appellant makes no comment on this
matter. I find that no substantive evidence is submitted by either party in
relation to this issue and as such I am not able to pursue it. This is because I
am unable to determine the extent of any potential harm arising and whether
this would be of such significance for this appeal.
Planning balance
65. I have found that the mixed use of the site is not acceptable, having regard to
highway safety and the level of traffic generated. It results in unacceptable
harm to the living conditions of local residents and businesses due to traffic
congestion. This conflicts with development plan policies. In addition, it has
not been demonstrated that the location of the mixed use accords with the
Council’s approach to sustainable development envisaged by the LP.
Furthermore, there are no substantive material other considerations that
demonstrate the operation of the business can only be at the appeal site. I
give all of these matters substantial weight.
66. I turn now to factors which could possibly outweigh these findings. Conditions
have been suggested as a way forward to enable the development to proceed
where it would otherwise be necessary to refuse planning permission in the
first instance. It is suggested that the “Winter Wonderland” seasonal event
should cease unless Earls Hall Drive is widened, a right-hand turning lane is
created on St John's Road and a scheme for the use of traffic marshalls is
submitted to and approved by the Council. They would operate at weekends,
in the seven days prior to Christmas and during sales events.
67. The PPG states that conditions requiring works on land that is not controlled by
the applicant often fail the test of reasonableness and enforceability. The use
of a Grampian condition is often suggested but at the Hearing two matters
were brought to my attention. Firstly, the family who own Earls Hall Drive do
not consent to work on their land, and secondly, the appellants do not own the
land needed to widen the road. There is no documentation before me to show
that Dumfries Developments Limited have given their consent to use their land
notwithstanding the apparent relationship between the freeholders of the
appeal site and Dumfries Developments Limited. For these reasons it is
considered that there is no realistic prospect Earls Hall Drive could be widened.
The Council suggested a section 106 agreement or a unilateral undertaking is
the way forward but neither are before me.
68. The Council also cast doubt on the feasibility of a right-hand turning lane and
point out that there is no guarantee such a facility would assist in the absence
of a transport assessment. There is also an application for new housing on the
south side of St John’s Road before the Council which includes the provision of
a new footpath on the south side of St John’s Road, where none exists at
present, and which could negate the provision of a right-hand turning lane from
happening.
69. Whilst the use of traffic marshalls in theory should be welcome, this condition
is really seeking to manage a situation that should not occur in the first place
and points to the need for a transport assessment. Even if the condition was
redrafted to require the submission of a transport assessment, none of the
other suggested conditions deal with the location of the use and the prior need
to carry out a sequential assessment. Making a sequential assessment the
subject of a condition demonstrates that in this case conditions are not
appropriate when the principle of the development may not be acceptable at
the appeal site. As such, I make no further comments on the remaining
suggested conditions.
70. It is open to me to grant planning permission for part of the development
which could be a mixed use for horticulture, retail (namely a garden centre)
and cafe. However, given what appears to be a significant amount of traffic
generated when the “Winter Wonderland” is not in operation, particularly at
sale times, and my findings on the suggested road improvements, it is likely
that conditions would not overcome the harm that is caused by that use.
Taking all of these factors into account, I consider that in the overall planning
balance the other considerations do not clearly outweigh the harm I have found
and for these reasons the appeal on ground (a) fails.
Appeals A and B, ground (f)
71. The appeal on ground (f) is that the requirements of the notice exceed what is
necessary to achieve the purpose of the notice. The purposes of a notice are
set out in section 173 of the 1990 Act and are to remedy the breach of
planning control (S173(4)(a)) or to remedy injury to amenity (S173(4)(b)). In
this case the notice requires the cessation of the mixed use and that various
items that facilitate the use should be removed. The purpose of the notice as
confirmed at the Hearing is therefore to remedy the breach of planning control.
72. The appellants raise several concerns including that the requirement to cease
retail sales is excessive. However, the requirement, as varied, is to cease a
mixed use where the retail element is a primary use in the mixed use. This is
reasonable and does not prevent the appellants from using the site for
horticultural purposes and the ancillary sale of produce ‘grown on’ at the site.
73. The appellants also refer to the requirement to remove materials; if this relates
to the removal of the “Dickens” style street then they say this is unreasonable.
This is because it is formed within the building and planning permission was not
required for it. However, the courts have held that a notice can require the
removal of fixtures/fittings which are not in themselves development but
because they facilitate a material change of use. This requirement is therefore
reasonable.
74. The notice also requires the use of the customer car park to cease in
connection with the material change of use. However, this is not reasonable.
Notwithstanding that planning permission exists for the car park, as I explained
previously, the cessation of the mixed use would not prevent the appellant
from using the site for horticultural purposes with ancillary sales of produce.
The appeal on ground (f) therefore succeeds in part and I will also vary the
requirements so that they are more precise.
The ground (g) appeal
75. This ground is that the time given to comply with the requirements of the
notice is too short. The appellants request that this be extended to a year to
avoid making any staff redundant and to enable the business to move
elsewhere in the district.
76. In cases involving business uses, it is necessary to weigh the interests of the
business against the harm caused by the development the subject of the
notice. On the one hand, the appellants have calculated that they would need
a year to plan for and organise their relocation without detriment to the
business. On the other, the notice includes a number of reasons setting out
the harm caused by the development. These include, amongst other matters,
severe traffic congestion. It was primarily for this reason that the Council
stipulated six weeks in an effort to avoid a ‘Winter Wonderland’ in 2018.
77. I consider a year would be tantamount to a grant of temporary planning
permission. Furthermore, the time period in a notice is given to bring about
the cessation of a use or the removal of operational development, not to find,
and move to, an alternative site. Leaving the time period unaltered would not
bring to an end the 2019 ‘Winter Wonderland’, which I saw at the site visit was
being prepared. However, a three month period would ensure that it did not
reoccur, would be a reasonable time to enable the appellants to comply with
the requirements of the notice and would strike the appropriate balance. To
this limited extent the appeal on ground (g) succeeds.
Conclusions
Appeals A and B
78. For the reasons given above I conclude that the appeals should not succeed. I
shall uphold the enforcement notice with corrections and variations and refuse
to grant planning permission on the deemed application.
Appeal C
79. For the reasons given above I conclude that the appeal should be allowed.
D Fleming
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
P Le Grys Agent, Stanfords
T Bowden Manager
FOR THE LOCAL PLANNING AUTHORITY:
W Beglan Of Counsel
C Stathers Enforcement Team Leader
K Hutchinson Hutchinson Planning and Development
Consultants
C Stoneham Strategic Development Engineer, Essex County
Council Highway Authority
INTERESTED PERSONS:
S Grantham Chair St Osyth Parish Council
R Crosier Local Resident
M Isom Local Resident
P Bond Local Resident
D Lord Local Resident
Documents
1 Copy of plan from 17/01775/FUL
2 Copy of email to C Stathers dated 26 November 2017
3 Agreed Statement of Common Ground
4 Planning Statement for application 17/01935/FUL (Appeal C)
5 Copy of representations to application 17/01935/FUL
6 Copies of ELP policies omitted from appeal questionnaire
7 Copies of LP policies omitted from appeal questionnaire
8 Copy of letters of notification
9 Copy of planning application form and decision notice for 17/01770/FUL
10 Copy of officer report for 17/01770/FUL
11 Copies of Land Registry extracts for Nos 762 and 782 St John’s Road
12 Extract from Encyclopedia of Planning Law and Practice, Vol 2 Part 2B, Part
III Control over development
13 Williams v Minister of Housing and Local Government and Another [1967]
18 P. & C.R. 514
14 The Council’s comments on the appellant’s suggested conditions
15 The Council’s closing submissions
16 Appellants’ letter dated 11 October 2019 enclosing a copy of Allen v
Secretary of State for the Environment and Reigate and Banstead Council
[1990] JPL 340, an extract from the Inspector Training Manual-Enforcement
Case Law 2019 page 27 and suggested conditions
17 The appellants’ closing submissions