Case Reference: 3247857

Appeal Decision
Hearing Held on 27 January 2021
Site visit made on 28 January 2021
by M Scriven BA (Hons) MSc CMgr MCIHT MCMI
an Inspector appointed by the Secretary of State
Decision date: 15th March 2021
Appeal Ref: APP/C1760/W/20/3247857
Oak Tree Farm, Staff Road, Michelmersh SO51 0NQ
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission.
• The appeal is made by [APPELLANT] against the decision of Test
Valley Borough Council.
• The application Ref 19/01446/FULLS dated 08 June 2019, was refused by notice dated
20 November 2019.
• The development proposed is the replacement of partially dismantled agricultural
buildings with two detached dwellings and one ancillary outbuilding, creation of a new
access and alterations to an existing access, change of use of land from agricultural to
residential use.
Decision
1. The appeal is allowed and planning permission is granted for the replacement
of partially dismantled agricultural buildings with two detached dwellings and
one ancillary outbuilding, creation of a new access and alterations to an
existing access, change of use of land from agricultural to residential use, at
Oak Tree Farm, Staff Road, Michelmersh SO51 0NQ, in accordance with the
terms of the application, Ref 19/01446/FULLS, dated 08 June 2019, subject to
the attached schedule of conditions.
Application for costs
2. At the Hearing applications for costs were made by the Council against the
Appellant and vice versa. These applications are the subject of separate
Decisions.
Procedural matters
3. I have determined the appeal on the plans submitted.
4. The description of the proposed development above is taken from the Council’s
Decision Notice and is as described at the Hearing.
5. The appellants submitted late evidence, which they considered applicable to
the appeal prior to the Hearing. This included a recently published Council
document, published after the Council’s decision, titled Affordable Housing
Supplementary Planning Document, adopted September 2020, (SPD). In
addition, a Freedom of Information Act response from the Council regarding
self-build data was provided. Notwithstanding the original proposal was not
intended to constitute affordable housing, the appellants also submitted
evidence relating to how they considered their circumstances to meet that
required in the SPD. These documents were accepted as evidence and the
Council were given opportunity to comment. I do not consider any parties were
prejudiced by this approach given the publicly available nature of the content
submitted. It is also important I consider the appeal against all extant relevant
policy and up to date information.
6. In addition, the appellants provided a written response to the Council’s
statement in advance of the Hearing. The Council were given opportunity to
comment on its content and I do not consider this to have prejudiced the
outcome of the appeal as it did not appear to raise new evidence, but rather
respond to points raised by the Council and provide points of clarification.
7. The Council’s second reason for refusal partly related to the likely effect of the
proposal on the Solent and Southampton Water Special Protection Area. The
main parties have since agreed that the likely effect of the proposal on the
designated site would be mitigated through the provision of an offset site
adjacent to the development site. I have dealt with this below.
Main Issues
8. The main issues are;
• The suitability of the location for the proposed development, with
particular regard to the site’s accessibility to necessary services and the
proposal’s effect on the vitality of the village.
• The effect of the proposal on the character or appearance of the
Michelmersh and Mottisfont Conservation Area (CA).
• The effect of the proposal on the New Forest Special Protection Area
(SPA) and Solent and Southampton Water SPA.
Reasons
Location of the proposed development
9. The appeal site sits on the edge of Michelmersh, outside but close to the
defined development boundary (DBB) of the village. Policy COM2 of the Test
Valley Borough Local Plan, 2011-2029, 2016 (TVBLP) seeks to ensure
development is directed at appropriate sites across the Borough and
development outside of DBBs is limited to certain exceptions.
10. One such exception is where the proposal makes use of existing buildings in
the countryside as detailed in Policy LE16 of the TVBLP. It is clearly apparent
that the buildings on the site have now been largely demolished. At the time of
my visit only some sections of walling remained intact, as too the concrete floor
slabs and there were also piles of what appear to be walling blocks stacked
around the site. Therefore, I have little reason to consider that the proposal
before me would make use of any existing buildings given their current
condition, or that they would be suitable for conversion, without the need for
substantial rebuild. Therefore, Policy LE16 is not triggered because no buildings
exist to convert or re-use.
11. A further exception is where the proposal would result in the provision of
affordable housing that meets identified needs, as detailed in policies COM8
and COM9 of the TVBLP. I concur with the Council’s view that the proposal
would not constitute affordable housing to meet an identified need and that the
proposal is not community-led. There has been no objective assessment of
local affordable housing needs undertaken, the appellants do not appear to be
on an affordable housing waiting list and nor is there any mechanism within the
submitted Unilateral Undertaking (UU) to secure this status in perpetuity.
12. By virtue of the fact the site sits outside the DBB the proposal does not accord
with Policy COM2. I fully accept that as found by previous Inspectors, Policy
COM2, appears broadly consistent with the National Planning Policy Framework,
2019 (the Framework) and therefore can be given considerable weight in this
appeal.
13. In determining the appeal on its own merits, I have had regard to the planning
history of the site. A material consideration of some importance is that full
planning permission ref 18/01593/FULLS was granted by the Council for the
conversion of the former barn into 2 residential dwellings as recently as August
2018. Now that the barn structures have been largely demolished, this scheme
can no longer be implemented and therefore cannot represent a realistic fall-
back position. Nonetheless, the Council has in the very recent past considered
that two residential dwellings would be an appropriate form of development at
this location, albeit in the form of a conversion. In my view, the fact that a
form of residential development has recently been approved and deemed
acceptable on the site must weigh heavily in favour of a future residential use
of the site.
14. At the point of that decision, the Council do not appear to have considered the
residential use of the site to have been unacceptable or of such limited
accessibility sufficient to justify refusing planning permission with regard extant
local or national planning policy. At the Hearing the Council explained that such
wider considerations were relevant, albeit not expressly referred to in Policy
LE16, which the existing permission had been primarily considered against.
15. Given the rural location of the proposed development, it is inevitable there
would be a reliance on private car use to access services such as healthcare.
However, the associated transport impacts would be low given the proposal is
for two houses only. The proposed development sits on the edge of the village
within a short, mainly level, walking and cycling distance to a school, pub,
church and other community facilities, including a part-time village shop. The
town of Romsey is around 15 minutes away by cycle, via various accessible
routes. Romsey’s railway station also offers rail connections to other main
towns. Although my time in the locality was limited, I saw many walkers and
cyclists making use of the rural road and public rights of way (PROW) networks
and I have no reason to consider the routes to be unsafe if users take due care
and attention.
16. I also accept that there is a limited timetabled bus service serving the village.
However, I understand the village is served by community transport facilities,
which I have no reason to consider future residents of the proposal would not
be eligible to use.
17. I have no reason to consider that the circumstances regarding the location’s
accessibility to services has significantly changed since the time of the Council’s
previous decision. Furthermore, it was agreed at the Hearing that other
development, albeit within the DBB, but of similar accessibility to services as
the appeal site, had been previously granted approval.
18. A key facet of Policy COM2, is the need for new development to be accessible
to necessary services by sustainable means, whilst there are limitations to the
site’s accessibility to sustainable transport solutions this is set against the
Framework’s recognition that opportunities to maximise use of such transport
networks varies between urban and rural areas.
19. Having considered the evidence of other interested parties, including Romsey
District Society and the Parish Council, I consider the appellants’ ongoing ties
with the village would also benefit the vitality of the village and social cohesion
as referred to in the Framework. Whilst not demonstrated in economic terms, I
have no reason to dismiss qualitative evidence. It was clear from the
contributions of other interested parties at the Hearing that the appellants play
an important role in village life and supporting community initiatives. However,
I only afford this limited weight in the appeal as the proposal is not for any
personal permission of the appellants and their long-term occupancy of
dwellings cannot be guaranteed.
20. As the site sits outside the DBB, the proposal would not accord with Policy
COM2 of the TVBLP which amongst other things seeks to manage new
development in the countryside. However, any harm associated with the need
for private car use to access necessary services would be limited.
21. Notwithstanding the conflict with the TVBLP identified above, the proposed
development would, in my view, broadly accord with the Framework’s
intentions of promoting sustainable development in rural areas.
Michelmersh and Mottisfont Conservation Area
22. Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act
1990 places a statutory duty on decision-makers to ensure that special
attention shall be paid to the desirability of preserving or enhancing the
character or appearance of CAs.
23. The significance of the CA derives from not just the architectural qualities of
the buildings of the village and its surrounds, but also the historic linkage of
the built environment with the area’s agricultural land use.
24. In its current form the site clearly detracts from the setting of the CA. The
partially demolished buildings and associated piles of blockwork sit behind
temporary metal fencing on expansive areas of concrete and hard standing, in
stark contrast to that which surrounds it. The site is also clearly visible from
the adjacent PROW, which appears to be well used and leads to the village’s
church and other historic buildings.
25. The proposed development would enhance the character of the conservation
area by replacing that which currently detracts from it, with buildings of an
agricultural barn appearance, reflecting the site’s previous agricultural use,
enhancing the character of the area. The Council do not consider the proposed
development to be necessary to the clearance of the site. However, even if the
materials were removed, it is likely the site would be left as an expansive area
of concrete and hardstanding, that would take considerable time to green over,
detracting from the wider CA in the short to medium term. Likewise, the
introduction of screening to the plot, as suggested by the Council, would result
in any apparent historic linkage of the site to agricultural usage being largely
lost. Given the significance of the CA partly lies in the relationship of the built
form with agricultural land usage, I consider the enhancement to the CA to be
a matter of significant weight in the appeal.
26. For the reasons above, the proposed development would accord with Policy E9
of the TVBLP, which amongst other things, seeks to ensure that heritage assets
are preserved or enhanced as a result of intended development.
New Forest SPA and Solent and Southampton Waters SPA
27. The appeal site sits within 13.6Km of the New Forest SPA. The New Forest SPA
supports a range of birds species, including nightjar, Dartford warbler,
woodlark, hen harrier, honey buzzard, wood warbler and hobby, that are
qualifying features of the associated SPA. These species are vulnerable to
impacts arising from increased recreational use resulting from new housing
development as noise and disturbance can cause important habitat to be
unavailable for use. As such, these birds can be displaced by human
recreational activities, using valuable resources to seek alternative suitable
habitat sites to breed undisturbed. Ultimately this can affect the status and
distribution of key bird species and conflict with the conservation objectives of
the European sites.
28. Natural England considers that residents within this area will travel to the New
Forest SPA for recreational purposes and thus development, such as before me,
in conjunction with other plans and projects, is likely to have significant effects
on the interest features of the European site from disturbance arising from
recreation. The main parties concur regarding this matter. Adopting a
precautionary approach, I cannot rule out that the effects would not be
significant.
29. The Council have agreed a strategic approach to mitigating the effects of
recreational disturbance, which is set out in the New Forest SPA Mitigation –
Interim Framework, 2014, that has been agreed by various bodies, including
Natural England, the statutory nature conservation body. The document has
the purpose of responding to the potential recreational pressures expected to
arise from the provision of new homes around the New Forest SPA through the
creation of off-site mitigation measures. It requires contributions to be made
on a tariff per dwelling basis towards mitigation measures including the
creation of a new strategic area of alternative recreation space that would offer
the same recreational opportunities offered by the New Forest SPA. In this
case, Natural England is satisfied that the use of a contribution in accordance
with the Mitigation Interim Framework would prevent the development from
creating adverse impacts on the European site.
30. I consider that the contribution to the alternative site, that has already been
paid, would adequately mitigate the development’s potential to generate
additional recreational pressure upon the New Forest SPA, such that the
designated site’s integrity would not be adversely affected in the event that the
dwellings were provided. Natural England have also agreed with this
conclusion.
31. The appeal site is also within 5.6Km of the Solent and Southampton Water
SPA, which also encompasses other European designated sites. The Solent and
Southampton Water SPA provides habitat for species of birds that are
qualifying features of the conservation objectives of the European sites. There
is existing evidence of high levels of nitrogen and phosphorous across the
Solent, including eutrophication at designated sites.
32. There is uncertainty whether new housing development contributes to the net
increase in nutrients entering these designated sites. Adopting a precautionary
approach, Natural England advice is that an associated nitrogen budget is
submitted to demonstrate that development proposals do not result in any
likely significant effect on the European designated sites due to increases in
wastewater discharge.
33. Since the time of the Council’s determination of the application, the main
parties have agreed data used in the calculations of the associated nitrogen
budget. I have no reason to disagree with these calculations on the basis of
guidance before me. The data provided shows that there would be an increase
in nitrates entering the catchment of 2.46kg/TN/y as a result of the proposed
development. Therefore, when considered in combination with other plans and
projects, the proposal would have a likely significant effect on the Solent
designated sites.
34. In order to offset the increased nitrates loads generated as result of the
proposed development, the appellants propose to take an existing area of land,
currently in the ownership of the parents of the appellants, out of future
agricultural use, resulting in a total reduction in nitrates of 3.6Kg/TN/yr. This
approach is agreed with Natural England as being appropriate in such instances
as agricultural production can also lead to nutrient discharge. A precautionary
approach has been taken with regard the existing agricultural land constituting
cereal production. Having visited the offset site and seen historic aerial photos
of the site, I am satisfied that the land has been recently used for agricultural
production. The appellant has provided a Unilateral Undertaking (UU) for the
removal of the land from agricultural production in perpetuity, in addition to
ongoing management.
35. The appellant has also proposed to undertake a woodland planting scheme on
the offset site, albeit this does not inform the nitrate calculations. However,
such measures would further prevent the land from being used for intensive
agricultural production in future. This has also been incorporated in the UU with
the signed agreement of the current landowners, furthermore the land will be
transferred to the appellants ownership for future management.
36. I am therefore satisfied that by taking the offset land out of agricultural use,
the proposal would not result in adverse effects on the designated site through
water quality impacts arising from nitrate generation. The proposed woodland
scheme would also likely serve as a small benefit to biodiversity through
habitat creation. Natural England also agreed with this conclusion.
37. The signed and dated UU includes detail relating to the offset mitigation site
associated with the development’s impact on the Solent and Southampton
Waters SPA. A separate undertaking pursuant to s111 of the Local Government
Act 1972 has been provided relating to the mitigation contribution for the New
Forest SPA, this contribution has been paid and the Council has confirmed
receipt.
38. I consider the schedule relating to the offset scheme to be necessary so as to
achieve no adverse effects to the Solent and Southampton Water SPA. It is also
directly related to the proposed development and is fair and reasonable on the
basis of the evidence provided. Furthermore, I consider that the undertaking
relating to the New Forest SPA is necessary to ensure appropriate mitigation
measures, in the locality, can be delivered which are directly related to the
proposal. Likewise, for the reasoning above that the undertaking is fair and
reasonable.
39. Therefore, I am satisfied that the planning obligations submitted, meet the
tests under Regulation 122(2) of the Community Infrastructure Levy
Regulations 2010 and paragraph 56 of the Framework.
40. As competent authority for the purposes of the Habitats Regulations, 2020, I
am satisfied that when taking into account the secured mitigations, the
established Mitigation Interim Framework and Natural England’s advice, I find
that the development would not adversely affect the integrity of the European
sites. I therefore conclude that it would accord with Policies COM2 and E5 of
the TVBLP in this regard.
Other matters
41. The appellants intend for the development to be self-build and an associated
signed and dated UU has been provided. The Council have explained that they
do not currently consider there to be a shortfall in self-build housing across the
Borough, also that a sufficient wider forward supply of market housing land can
be demonstrated, I agree with this assessment. Nonetheless the proposal
would add two units to the housing supply, albeit a small addition, this would
therefore constitute benefit in favour of the appeal as well as a small economic
benefit during construction.
42. Notwithstanding the view of the appellants, I have no reason to consider the
Council has acted disingenuously or unreasonably toward the appellants or
myself in their approach to the application or appeal.
Planning Balance
43. Section 38(6) of the Planning and Compulsory Purchase Act, 2004, requires
that determination of planning applications must be in accordance with the
Development Plan unless material considerations indicate otherwise. By virtue
of the site sitting outside the DBB the proposal would not accord with the
Development Plan.
44. The site has recently been considered acceptable for residential use and the
proposal would enhance the character of the CA. It would also provide two
additional dwellings to the housing supply. The proposal would potentially
contribute to the vitality of the village, albeit this is largely qualitative in
rationale. There would also be a likely small biodiversity gain to the area as a
result of the proposed woodland planting scheme. Although there would be
some reliance on the private car, the associated impacts would be low.
45. Therefore, on balance, I consider that other material considerations, taken
together, outweigh the conflict with the Development Plan.
Conditions
46. Although the Council’s suggested list of conditions were agreed between the
main parties, I have made some amendments for clarity and to meet the
6 tests set out in the Framework and the Planning Practice Guidance.
47. For accuracy a condition requiring the proposal being built to the approved
plans is necessary. A standard time limit condition is included.
48. At the Hearing it was confirmed by the main parties that the suggested
condition relating to asbestos was no longer necessary as all such materials
had been removed from site. This was also supported by the confirmation that
such a condition of the extant permission had previously been discharged.
49. In order to ensure the proposal’s appearance matches that of the extant
permission, a materials condition was suggested, stipulating the precise
materials to be used. I have amended the wording to require the appellants
agree the materials in writing with the Council as I consider the suggested
condition to be excessively onerous in the event that a specific material were to
be or become unavailable. This approach was agreed by the parties at the
Hearing.
50. Conditions relating to the development occurring in accordance with the
submitted arboriculture method statements and soil contamination risk
assessment are necessary to ensure accordance with environmental policies of
the TVBLP. Conditions are also necessary to ensure no harm to highway safety
and to ensure the development meets the requirements of the Development
Plan regarding cycle parking.
51. In addition to a condition relating to the development being carried out in
accordance with the submitted ecological report, a separate condition is
imposed relating to external lighting so as to ensure no harm to foraging or
migratory bats.
52. A condition is imposed relating to any future development of the site, in the
interests of the preserving or enhancing the character or appearance of the CA.
Conclusion
53. Having had regard to all matters raised and having considered the
Development Plan and the Framework as a whole, the appeal is allowed.
M Scriven
INSPECTOR
Appearances
FOR THE LOCAL PLANNING AUTHORITY
Mr Graham Melton MRTPI Senior Planning Officer
Mr Jason Owen MRTPI Development Manager
FOR THE APPELLANTS
Mrs Hannah Hunt Appellant
Mr James Hunt Appellant
Mr Peter Hunt Appellant
Mrs Louise Cutts MRTPI Agent – Wessex Planning
Interested Persons
Cllr Robert Davis (in support) Michelmersh and Timsbury Parish Council
Ms Anna Duignan (in support) Romsey and District Society
Mr David Phipp (in support)
Ms Amanda Hull (in support)
Cllr Tony Burley (observer) Test Valley Borough Council
Schedule of 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: Site Location Plan (SK001), Proposed
Site Plan (SK104), Proposed Site Plan – Ground Floor (SK100 P7),
Proposed Site Plan – Roof Plan (SK101 P1), Proposed Elevations
(SK102 P4), Proposed elevations (SK103 P4) and Landscape Proposals
(ACLA/BHZ 101)
3) The development hereby approved shall be carried out in accordance with
the document titled Landscape Management and Maintenance Plan (ACLA
Ltd – 19 October 2018)
4) No development within the area coloured red on approved drawing no.
SK104 shall take place until details of all external facing materials have
been submitted to and approved by the local planning authority in
writing. The relevant works shall be carried out in accordance with the
approved details.
5) The development hereby approved shall be undertaken in full accordance
with the provisions set out within the Technical Arboriculture
Arboricultural Impact Appraisal and Method Statement reference Oak
Tree Farm, Michelmersh, September 2018.
6) The development hereby approved shall be undertaken in full accordance
with the provisions set out within the Soil Environment Services
Contaminated Land Risk Assessment reference Oak Tree Farm,
Michelmersh, dated September 2018.
7) Prior to the first occupation of the development hereby permitted, the
vehicle accesses shown on the approved drawings, shall be constructed
with visibility splays of 2 metres x 70 metres and maintained as such at
all times. Within these visibility spays, notwithstanding the provisions of
the Town and Country Planning (General Permitted Development) Order,
2015 (or any Order revoking and re-enacting that Order) no obstacles,
including walls, fences and vegetation, shall exceed the height of 1 metre
above the level of the existing carriageway at any time.
8) At least the first 6 metres of the access measured from the nearside edge
of carriageway of the adjacent highway (Staff Road) shall be surfaced in
a non-migratory material prior to the first occupation of the development
hereby permitted and retained as such at all times.
9) No dwelling shall be occupied until space has been laid out within the site
in accordance with the approved drawings for cars to be parked and that
space shall thereafter be kept available at all times for the parking of
vehicles.
10) No dwelling shall not be occupied until space has been laid out within the
site for 2 bicycles to be parked and that space shall thereafter be kept
available for the parking of bicycles, in accordance with details to be
submitted to and approved in writing by the Local Planning Authority.
11) The development hereby approved shall proceed in accordance with the
provisions set out within the ECOSA Oak Tree Farm, Michelmersh –
Preliminary Ecological Appraisal report, dated 2018.
12) Prior to the installation of any external lighting, a lighting scheme shall be
submitted to and approved in writing by the Local Planning Authority. The
lighting scheme shall include locations and details of all proposed external
lighting. Any installation of external lighting will be in strict accordance
with the approved details.
13) Notwithstanding the provisions of the Town and Country Planning
(General Permitted Development) (England) Order 2015 (or any order
revoking and re-enacting that Order with or without modification), no
buildings, or structures, or other works permitted by Schedule 2, Part 1,
Classes A, B and E of the Order, shall be erected or undertaken without
prior written consent of the Local Planning Authority.
ENDS


Costs Decision
Hearing Held on 27 January 2021
Site visit made on 28 January 2021
by M Scriven BA (Hons) MSc CMgr MCIHT MCMI
an Inspector appointed by the Secretary of State
Decision date: 15th March 2021
Costs application in relation to Appeal Ref: APP/C1760/W/20/3247857
Oak Tree Farm, Staff Road, Michelmersh, SO51 0NQ
• The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Test Valley Borough Council for a full award of costs against
James, Hannah and Peter Hunt.
• The hearing was in connection with an appeal against the refusal of planning permission
for replacement of partially dismantled agricultural buildings with two detached
dwellings and one ancillary outbuilding, creation of a new access and alterations to an
existing access, change of use of land from agricultural to residential use.
Decision
1. The application for an award of costs is allowed in the terms set out below.
The submissions for Test Valley Borough Council
2. The applicant considers that the appellants have demonstrated unreasonable
behaviour in the appeal process, resulting in unnecessary expense further to
the appellants pursuing an appeal with an unrealistic prospect of success, in
addition to the late submission of evidence. In the applicant’s view the late
submission of evidence was of no relevance to the proposal.
The response by James, Hannah and Peter Hunt
3. The appellants have respectfully requested that this application for costs be
refused. They maintain that the Council’s application for costs is unfounded.
Reasons
4. For the reasons in my Decision I disagree that the applicant’s view that that the
appeal had no reasonable prosect of success. I accept that the proposal does
not strictly accord with the Development Plan, however other material
considerations in my view outweigh this conflict.
5. The appellants’ late submission titled ‘Affordable Housing Statement’ sought to
justify how they considered themselves to meet the requirements of the
recently published SPD. However, I have no reason to consider that the
proposal before me was originally intended as an affordable housing
development in response to an identified need. Likewise, the proposal is not
community-led. Whilst personal information has been provided, there has been
no objective assessment of local affordable housing needs or affordability
undertaken, the appellants do not appear to be on an affordable housing
waiting list and nor is there any mechanism within the submitted Unilateral
Undertaking (UU) to secure this status in perpetuity.
6. Therefore, in my view the provision of the document titled ‘Affordable Housing
Statement’ was unreasonable given the application before me. The applicant
has incurred wasted expense in the form of staff time in compiling a response
to this document.
7. The appellants’ ‘Further Comments Statement’ document, received in response
to the applicant’s statement did not in my view attempt to evolve the proposal,
but rather offer clarification of their position in response to the applicant prior
to the Hearing. I accept that the response to this element of the late
submission of evidence has unfortunately resulted in increased expense to the
applicant, including the staff time spent responding. However, I do not consider
unreasonable behaviour has occurred resulting in unnecessary cost on this
matter.
8. I have no reason to agree with the appellants’ position regarding any deliberate
intention of the applicant to not disclose relevant information. In this sense
there has been further unreasonable behaviour by the appellants. However, I
do not have evidence to consider that the Council incurred cost in confirming
no documentation had intentionally been withheld from me as decision-maker.
Conclusion
9. For the reasons given above, I find that unreasonable behaviour resulting in
unnecessary or wasted expense, as described in the Planning Practice
Guidance, has been demonstrated with regard to the appellant’s late
submission of evidence, titled ‘Affordable Housing Statement’ and that a partial
award of costs is justified.
Costs Order
10. In exercise of the powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other enabling powers in that behalf, IT IS HEREBY ORDERED that
James, Hannah and Peter Hunt shall pay to Test Valley Borough Council, the
costs of the appeal proceedings described in the heading of this decision;
limited to those costs incurred in contesting the appellant’s ‘Affordable Housing
Statement’, such costs to be assessed in the Senior Courts Costs Office if not
agreed.
11. The applicant is now invited to submit to James, Hannah and Peter Hunt, to
whom a copy of this decision has been sent, details of those costs with a view
to reaching agreement as to the amount
M Scriven
INSPECTOR


Costs Decision
Hearing Held on 27 January 2021
Site visit made on 28 January 2021
by M Scriven BA (Hons) MSc CMgr MCIHT MCMI
an Inspector appointed by the Secretary of State
Decision date: 15th March 2021
Costs application in relation to Appeal Ref: APP/C1760/W/20/3247857
Oak Tree Farm, Staff Road, Michelmersh SO51 0NQ
• The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by James, Hannah and Peter Hunt for a full award of costs
against Test Valley Borough Council.
• The hearing was in connection with an appeal against the refusal of planning permission
for the replacement of partially dismantled agricultural buildings with two detached
dwellings and one ancillary outbuilding, creation of a new access and alterations to an
existing access, change of use of land from agricultural to residential use.
Decision
1. The application for an award of costs is refused.
The submissions for James, Hannah and Peter Hunt
2. The applicants have advanced that the Council’s reasons for refusal were
unreasonable for the reasons set out in their appeal evidence and supporting
costs application. The applicants also consider that the need to seek planning
permission for the proposal was unreasonable further to planning permission
existing for the conversion of the barns to residential use.
The response by Test Valley Borough Council
3. The Council has respectfully requested that this application for costs be
refused. They maintain that the applicant’s application for costs is unfounded.
They consider that a new planning permission was necessary and all matters
put forward by the applicant at the time were considered in determining the
planning application.
Reasons
4. It is clear from the evidence before me that there is disagreement regarding
the events that led to the dismantling of the barns. However, I must consider
the proposal before me. The decision that was reached by the Council is a
matter of planning judgement made at a particular point in time, on the basis
of the information before them. Furthermore, the weight afforded to any
conflict with the Development Plan and other identified material considerations
is a matter for the decision-maker. I have no reason to consider that the
Council wholly ignored any material considerations raised by the appellants
either at the time of the application or during the appeal process.
5. That I as decision-maker have reached a different conclusion to the Council in
my determination of the appeal does not demonstrate that unreasonable
behaviour has occurred. I agree with the Council that the extant planning
permission is not a realistic proposition for development given the current
situation on-site. There are currently no buildings to convert but rather all that
remains of the buildings are the concrete floor slabs, partial remains of walling
and piles of blockwork stored throughout the plot.
6. I am aware that the applicants consider that the buildings could have been
rebuilt with the blockwork which remains in situ and then subsequently
converted. However, that is not the situation before me and it would appear to
constitute substantial rebuild. I also have no certainty of this being practicable
in terms of the amount, or quality, of the materials which remain on-site. The
applicants also consider that the extant permission does not expressly require
the buildings to be converted. I cannot agree with this given the description of
the extant planning permission and supporting documents provided clearly
refers to a proposal involving conversion of existing buildings.
7. Therefore, on the basis of the evidence submitted and that seen on site, I
concur with the Council that it would appear a new planning permission was
required.
8. Furthermore, I do consider the Council’s assessment of the proposal with
regards Human Rights and Best Interests of a Child was correct. I accept the
Council’s reasoning could have been clearer in their decision. However, I do not
consider this amounted to unreasonable behaviour or wasted expense in the
appeal process. At the time of the Council’s decision, as is the case now, the
appellants resided in their own accommodation. I accept that there would have
been inconvenience further to the time and distance involved in the trip to the
school, however this in my view did not justify planning permission being
granted.
9. Finally, I have no reason to consider that the Council acted disingenuously to
me or the applicants in the appeal process regarding the provision of relevant
information for the appeal. The Council met the prescribed deadlines and
submitted information they considered relevant to the appeal on the basis of
the information contained in the applicant’s appeal statement and original
application. It was the applicants that raised the issue of affordable housing as
being considered to be pertinent to the appeal at a late stage in the process.
Conclusion
10. For the reasons given above, I do not find that unreasonable behaviour from
the Council on substantive grounds, as described in the Planning Practice
Guidance (PPG) is evident. Consequently, neither has any unnecessary expense
in terms of the preparation and submission of the relevant appeal occurred.
11. As the relevant tests set out in the Planning Practice Guidance in respect to the
determination of costs applications have not been met, I conclude that an
award for costs is not justified.
M Scriven
INSPECTOR