Case Reference: 3268794

Appeal Decision
Inquiry Held on 22 June – 2 July 2021
Site visit made on 23 June 2021
by R. Catchpole BSc (hons) PhD MCIEEM IHBC
an Inspector appointed by the Secretary of State
Decision date: 2nd September 2021
Appeal Ref: APP/F0114/W/21/3268794
Homebase Site, Pines Way, Westmoreland, Bath BA2 3ET
• 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 Bath & North East Somerset Council.
• The application Ref: 20/00259/FUL, dated 20 January 2020, was refused by notice
dated 5 January 2021.
• The development proposed is a new care community (Use Class C2) comprising care
residences and care suites and ancillary communal, care and well-being facilities, offices
in Use Class E(g)(i) together with associated back of house and service areas,
pedestrian and vehicular access, car and cycle parking, landscaping, private amenity
space and public open space.
Decision
1. The appeal is allowed and planning permission is granted for a new care
community (Use Class C2) comprising care residences and care suites and
ancillary communal, care and well-being facilities, offices in Use Class E(g)(i)
together with associated back of house and service areas, pedestrian and
vehicular access, car and cycle parking, landscaping, private amenity space and
public open space at the Homebase Site, Pines Way, Westmoreland, Bath, BA2
3ET in accordance with the terms of the application, Ref: 20/00259/FUL, dated
20 January 2020, subject to the conditions set out in the schedule at the end of
this decision.
Preliminary Matters
2. The Inquiry sat on non-consecutive days between 22 June and 2 July 2021 and
an unaccompanied site visit was carried out on 23 June 2021. The site visit
was carried out according to an agreed itinerary [CD 10.5.11] which included
views of the appeal site from the habitable rooms and outdoor areas of
Nos. 6-8 Albert Crescent.
3. The Council gave four reasons for refusal in its decision notice but has since
withdrawn the third and fourth reasons which, respectively, relate to car
parking provision and the mitigation of tree loss. A Statement of Common
Ground [CD 10.5.1] states that this resulted from further clarification of the
parking arrangements, the submission of a revised landscaping scheme [ID1]
and the submission of a completed s106 planning obligation through which a
financial contribution towards off-site tree planting has been secured [ID25]. I
am satisfied that there are no substantiated grounds that would lead me to
question the Council’s position on these matters. The Council continued to
defend its position in relation to the first two reasons for refusal and this is the
basis on which this appeal has been determined.
4. As the proposal potentially affects the setting of listed buildings I have had
special regard to section 66(1) of the Planning (Listed Buildings and
Conservation Areas) Act 1990 (the Act).
5. The National Planning Policy Framework 2021 (the Framework) and a new
National Model Design Code were published after the close of the Inquiry. The
main parties were given an opportunity to highlight any effect that these
publications might have on their respective cases. I have taken the responses
I have received into account in my decision-making.
Main Issues
6. The main issues are:
• the effect on the character and appearance of the surrounding area,
having particular regard to the City of Bath World Heritage Site (WHS)
and special regard to the settings of the Bath Conservation Area (BCA)
and other designated heritage assets; and
• the effect on the living conditions of occupants of residential dwellings on
Albert Crescent, Western Terrace and The Mews with regard to privacy
and outlook.
Reasons
Background
7. The appeal site is located in close proximity to Bath city centre and covers an
area of approximately 1.8 ha. The main access lies the south west, via Pines
Way, and an ancillary access is also present from Stothert Avenue, which lies
to the west. The site is currently occupied by a large, Homebase retail shed
that is no longer in active use. This structure occupies the southern part of the
site with the northern part being occupied by an extensive area of car parking.
8. The surrounding land use is mixed with residential dwellings located
immediately to the north and north west, a Sainsbury’s petrol filling station to
the south west, two large office buildings (Pinesgate) to the south and a
Sainsbury’s overspill car park immediately to the east. A number of light
industrial units are also located near the south eastern corner of the appeal
site.
9. The River Avon passes in close proximity to the north eastern boundary, as
does a riverside walkway, linking the overspill car park with the Bath Western
Riverside (BWR) development. A pedestrian route and a mature belt of trees
flank the opposite bank nearest to the appeal site beyond which lies the Grade
II* Norfolk Crescent and an associated public open space/ green. The southern
bank of the river delineates the boundary of the BCA and the site lies within the
City of Bath UNESCO WHS.
10. The scheme is regenerative and seeks, among other things, to create
residential units and care suites in the C2 use class. A total of 288 units would
be created with the majority (approximately 253) comprising accommodation
designed to support the long-term needs of residents who are capable of
independent living but who require some ongoing care or support. There would
also be approximately 30 ‘care suites’ and 5 ‘care residences’ that would be
designed to support those residents who have a greater need for care on a
shorter-term basis.
11. A number of other uses would also be present including a range of communal
facilities comprising a restaurant, café/bar, occupational therapy/wellness
centre, a gym, a library, treatment and therapy rooms and around 1,865 m2 of
office space for independent use that would not be directly related to the day-
to-day operation of the scheme. Consequently, the proposal would deliver a
mixed-use development whilst being a predominantly residential scheme.
12. The appeal site forms part of a larger site which has been allocated for
redevelopment under policy SB7(B) (Sydenham Park) of the Bath and North
East Somerset Core Strategy and Placemaking Plan for Bath 2017 (PPB)
[CD 4.2]. This states that residential development should account for a
significant proportion of floor space with over 500 residential units being
allocated. It also has a B1 employment floor space requirement of around
14,000 m2 and a 150-bed hotel as well as complementary food and drink
establishments.
13. It is common ground between the parties that the principle of developing the
appeal site to provide an extra care community is acceptable within the context
of Policy SB7(B) and that the remainder of the Sydenham Park allocation has
sufficient capacity to accommodate the residual quantum of development that
is required. It is also common ground that the appeal scheme would not
compromise the future redevelopment of the remaining, allocated area.
Character and Appearance
14. The vision for the Sydenham Park area, as set out in the commentary to the
above policy, states that it represents ‘an exciting opportunity to create a new
city destination … that responds to the bold architectural presence of Green
Park Station’ and creates ‘a new city quarter that complements the new
residential development of Bath Western Riverside and represents a confident
new stage in the evolution of the city.’
15. This contrasts with the existing townscape that is characterised by low rise
utilitarian sheds, extensive areas of car parking and a gyratory system with a
poorly related development at Pinesway which the Council acknowledges is ‘an
anomaly within the fabric of the city’ [CD 10.4.10]1. The Council also
acknowledges that the wider area has ‘few commendable characteristics’
[CD 10.4.10]2.
16. The appellant goes further and characterises the townscape quality of the
appeal site as poor [CD 10.3.14]3. Among other things, a lack of spatial
enclosure, poor legibility, a lack of active frontages, poor architectural quality
and underutilisation are identified as detracting elements and I agree. I
observed that the immediate area has a stark, utilitarian character that is
dominated by car use with very few positive, placemaking attributes and
entirely lacking in architectural merit.
1 Paragraph 4.4
2 Paragraph 4.3
3 Paragraph 4.7
17. Turning to the wider area, I observed that the context of the site is strongly
influenced by the scale, massing and materials of the BWR development to the
west which the Council accepts as defining the current context of the site
[CD 10.4.10]4. I observed a range of building heights up to eight storeys.
Whilst the latter was associated with two landmark buildings nearest the river,
I also observed that Fredrick House has up to seven storeys and an extensive
frontage facing onto Midland Road. The massing of this building is such that it
dominates the street scene of Midland Road and is clearly visible from the
junction with the Lower Bristol Road. A mixed palette of materials has been
used throughout the scheme which includes the extensive and prominent use
of dark metal cladding on the recessed, upper storeys of these buildings.
18. The site context is also influenced by the development closest to the northern
boundary, along Albert Crescent and Western Terrace, which has a more
intimate and varied scale. This also utilises areas of metal cladding, as part of
the upper storey detailing, which has a light-coloured finish. The development
contributes to a distinctive and modern river frontage and is a well-considered
continuation of the residential use of the south bank of the river. The fresh
modernity of its design and the prominent visual break provided by the River
Avon and its flanking vegetation clearly differentiates it from the Georgian city
beyond.
19. The design response to the appeal site is founded on the requirements set out
in Diagram 10 of SB7 [CD 4.2] and would result in three mixed-use buildings
(A/B, C and D) fronting onto two routes that pass through the appeal site on an
east-west alignment. One of these would maintain the line of Sydenham Park
Street through the creation of a pedestrian precinct between buildings C and D.
This would be characterised by active commercial frontages, as set out in the
appellant’s design proof [CD 10.3.19]5. The other throughfare to the north
would provide the main vehicular access to the site and would be situated
between buildings A/B and C. This would provide access to an underground
parking facility as well as the internal courtyard associated with building A/B.
20. The proposed building heights would vary between two and six storeys with the
heights generally rising towards the southern part of the appeal site where the
ridge heights of building C and D would be around 21 m above ground level
with a parapet height of around 20 m [ID 19]. Building A/B would be a mix of
two and four storeys with the top of the latter being set back from the main
elevation. The design steps down to two storeys where it is adjacent to Albert
Crescent/Western Terrace and at the corner of the northern throughfare, when
approached via Stothert Avenue [CD 10.5.12]6. Building C would be
predominately six storeys, with a four-storey element fronting onto Pinesway,
whilst building D would be six storeys. Both buildings would have a similar
setback to their upper floors, as would also be the cased for building A/B.
21. In terms of urban typology, whilst the scale, massing and density of the
proposed buildings would mark a significant change in the appearance of the
site, it would nevertheless be in keeping with the evolving character of the
post-industrial river corridor as expressed through the BWR development. I
find that the proposal would create a highly legible street scene that would be
read as a complementary, visually modulated neighbourhood with clear
4 Paragraph 3.4
5 Figure 43, paragraph 5.1.15
6 Artist’s Impression - View 1 from Stothert Avenue
circulation routes that would be re-enforced by changes in building height, such
as the two-storey element of the south eastern corner of building A/B. An
active and engaging public realm would also be created along the river frontage
[CD 10.5.12]7 with clear pedestrian links to Victoria Bridge and beyond.
22. The Council’s position on the townscape effects and cohesiveness of the design
narrowed during the course of the Inquiry to the relationship with the
two-storey element of building A/B, as defined above, and building C. It was
established in cross-examination that it was the difference in the height and
massing of these two buildings that went to the heart of the Council’s concerns
over design cohesiveness [ID24]. The appellant has drawn my attention to the
chamfered layout of this corner, the width of the street and the parapet height
of Building C. Taken together, I find that the variation in height, building
articulation and common architectural language adds significant visual interest
in addition to supporting the legibility of the public realm. As noted above, the
chamfered corner invites the eye towards one of the main routes through the
site. The elevational language is also varied in more subtle ways with the
window recessing, engaged brick columns, corbelled brickwork and the setback
of the upper floors all creating a clearly stratified, lively and cohesive, vertical
architectural composition.
23. Given the above, I find the concerns over cohesiveness lacking in merit and
inconsistent with the guidance in the BWR Supplementary Planning Document
2008 (BWRSPD) [CD 5.1] which states that heights should not be ‘consistently
applied across a site or across development blocks’.
24. Turning to materials, I note that neither the Council’s design nor heritage
witnesses objected to the use of sheet metal or buff brick in the proposed
scheme and that this was also the position of the case officer who
recommended the granting of planning permission. Mr Neilson, in response to
a direct question that I put, acknowledged that the use of brick should be
encouraged and would be a more authentic response to the appeal site that
would have been historically characterised by a diverse range of materials,
including brick.
25. However, the Council’s planning witness maintained that the use of buff brick
and sheet metal was prohibited in the BWRSPD despite the widespread,
prominent and highly contrasting use of the latter throughout the BWR
scheme. When questioned about the use of this material,
Mr Griggs-Trevarthen conceded that it is a prominent feature of this
development. Bearing this in mind, as well as its use at Albert
Crescent/Western Terrace and the extensive corrugated metal sheeting of
Green Park Station, I find that this aspect of the guidance can only be given
limited weight when the evolving character of this area is taken into account.
26. Turning to the matter of buff brick, the established character and therefore the
relevance of the BWRSPD is less equivocal and I accept that it is not a
frequently encountered material in the locale. However, there is a tension with
SB7(B) which notes that ‘the location would benefit from a clear identity and
point of differentiation, one with a strongly defined built environment’. In
urban design terms, it is hard to see how the use of a light-coloured brick and
pointing would fail to meet this requirement or how the use of an alternative
7 Artist’s Impression – View 2 Riverwalk
facing material, such as Bath Stone, would result in anything other than a
bland contextualisation lacking clear differentiation and identity.
27. Consequently, I find that both brick and sheet metal would offer a more honest
and grounded expression of the industrial heritage of the site which is visually
and topographically distinct from the Georgian City and, as such, is capable of
accommodating a greater degree of townscape change and the adoption of a
more clearly articulated identity.
28. Turning to building heights, the Bath Building Heights Strategy 2010
[CD 10.2.6] places the appeal site in Zone 3, the Valley Floor, which it
describes as being ‘visually distinct from the Georgian City with a fragmented
townscape and a variety of building heights’. I note that this guidance has not
been formally adopted and cannot be considered part of the development plan
but that it is nevertheless a material consideration. It recommends that
building shoulder heights in this zone should generally be 4 storeys with one
additional, setback storey within the roofscape. It also suggests that an
additional storey may be acceptable in certain circumstances. The most
relevant being where a building fronts onto public space and marks key
locations, such as corners or gateways.
29. The strategy provides area-based guidance on the appropriate height of new
development to ensure the protection of the Outstanding Universal Value
(OUV) that defines the WHS. I deal with townscape effects at this point and
shall address the effect of the proposed heights on OUV and heritage assets in
the following section. I note that the design steps down with its 2, 3 and 4
storey elements and also steps up to 6 where there would be a clear urban
design purpose. Although there was disagreement over the nature of the
public realm at the western end of the appeal site, where Sydenham Park
Street would meet the existing road network, the Council’s design witness
accepted that this would have a nodal function in cross-examination and I
agree.
30. As such, I note that building D would act as a clear point of demarcation within
the public realm in terms of signifying the gateway to a broad, pedestrianised
zone linking the proposed development to Sainsbury’s and the city centre,
when looking east, along the line of Sydenham Park Street. The four-storey
element of building C sweeps round to these higher, facing elements which
draws attention to the gateway thus stressing its architectural function. I do
not find the heights of building C or D to be excessive or out of proportion with
the proposed townscape bearing in mind the separation distance between
buildings C and D, setback of the upper floors and the width of the Pines Way
gyratory.
31. Notwithstanding my heritage conclusions, I find that the proposed building
heights would accord with the principles of good urban design and be
consistent with the BWRSPD insofar as it supports building heights of between
4-6 storeys. I also note that building height and massing vary considerably
across the city given the monumental scale of some of its historic buildings and
that the location of the proposed scheme on the valley floor would not lead to
any significant townscape disruption as a result.
32. Given the above, I find that the proposal would not harm the character and
appearance of the surrounding area and would be consistent with policy SB7 of
the (PPB) [CD 4.2] as well as policies D1, D2, D3 and D5 of the Bath & North
East Somerset Core Strategy Placemaking Plan – District-Wide Strategy and
Policies 2017 (DSP) [CD 4.2] that seek, among other things, to ensure that
new development contributes positively to local distinctiveness, identity and
history, creates legible connections and buildings that are flexible and
adaptable, improves areas of poor design, responds to urban morphology,
contributes positively to urban fabric through an appropriate grain and delivers
well designed and articulated buildings with active frontages.
Historic Environment
33. The Council identified direct harm to the WHS as well as harm to the setting of
the BCA and a number of listed buildings. The heritage assets potentially
affected, as well as the scope of the impact on the WHS, could not be agreed
between the parties [CD 10.5.7]. The Council’s heritage witness confirmed
during the course of the inquiry that the potential harm to the assets results
from the top two floors of building C and D, as set out in his proof [CD 10.4.8].
This is consistent with the views of Historic England but only insofar as the
potential harm that would be caused to the setting of Norfolk Crescent, the
WHS and the setting of the BCA because these were the only three assets for
which it expressed any concern [CD 10.3.17]8.
34. In its heritage proof, the Council maintains that the proposal would also cause
harm to the setting of a Grade II* Watchman’s Box located on the edge of the
green near Norfolk Crescent, a group of Grade II buildings that are mostly
arranged along the Lower Bristol Road comprising Victoria Buildings, Belvoir
Castle and Park View and the Grade II Green Park Station to the east of the
site. The Council offers no reasoning concerning why the significance of these
assets would be affected and simply concludes a ‘moderate impact’ in all
instances according to ICOMOS guidelines [ID10].
35. My questioning during the inquiry elicited no further elucidation of how the
significance of these assets would be affected beyond visual juxtaposition of
the top two floors of buildings C and D and a failure of the appellant to adhere
to a ‘rule of thumb’ that new buildings must always be subservient. The rule of
thumb not only lacks policy support but also fails to account for the significant
variation in height and scale in the Georgian City, as previously noted. In
response to a question I put, the Council’s planning witness confirmed that the
assessment of harm to the heritage assets was based entirely on intervisibility
and the intrusion of the proposal into general views. I find this approach
unsatisfactory because it has not been grounded in an objective analysis of
how the settings of these assets contribute to their special interest and how
that would then be affected by the proposal. Taking each in turn.
36. The Watchman’s Box (Ref: 1395748) dates from around 1810 and the design is
attributed to John Palmer who was also responsible for the first phase of
Norfolk Crescent. Given its proximity to the Crescent and the nearby green, its
historical function and setting is highly localised and directly related to the past
protection of the residents of Norfolk Crescent. The proposal would not detract
from this group value or its neo-classical style which is closely matched by the
nearby buildings. Consequently, there would be no loss to the evidential value
of this asset, as a police shelter, when experienced within this context nor
would it be so visually overwhelmed that this relationship would, in any way,
be disrupted.
8 Appendix 9
37. Turning to the listed buildings that the Council identify along the Lower Bristol
Road, these form an intact Georgian terrace of varying height comprising 1-6
Victoria Buildings (Ref: 1395093), Nos. 7-10 Victoria Buildings (Ref: 1395094),
11-24 Victoria Buildings (Ref: 1395096), Nos. 25-27 (Ref: 1395099) and
Nos. 30-32 - Belvoir Castle (Ref: 1395102). The Council has also identified
harm to the setting of 1-6 Park View (Ref: 1394334) which is located at the
rear of the western end of the main terrace and orientated at approximately
90o to the Lower Bristol Road.
38. I observed that the buildings fronting onto the Lower Bristol Road are all of a
similar style, material and era and date from the mid-late 19th century. They
are illustrative of modest, speculative Georgian development along one of the
key historic routes into the city. They are faced with limestone ashlar with low
parapets and shallow roof pitches. The architectural language is restrained and
consistently expressed to give a relatively homogenous façade with tiered
pediments on scrolled brackets above many of the doorways and a first-floor
banding course that provides a degree of architectural integration. The
simplicity of expression and scale of these dwellings gives them an artisanal
charm that contrasts with the larger set pieces within the city, such as Norfolk
Crescent. Park View terrace has a more vernacular character and comprises a
short row of dwellings with detached gardens facing the main elevation which,
whilst faced in limestone ashlar, lacks any significant architectural detailing.
This is suggestive of lower status dwellings when placed in the context of their
cramped arrangement and lack of any street frontage. Overall, this group of
buildings of modest scale and mixed character evoke the varied uses and
fortunes of the historic community that would have inhabited this part of the
city.
39. With the exception of Park View, which is almost wholly self-contained, the
experience of these buildings is essentially kinetic given their compact linear
form along the Lower Bristol Road. As such, they are experienced and
appreciated at close quarters as movement occurs along this road which
provides the setting in which they must necessarily be understood. I observed
that there is an abrupt change in scale and character of the townscape when
moving east towards the appeal site with a contemporary context dominating
after the junction with Brougham Hayes and Victoria Bridge Road.
40. Whilst the proposal would form a relatively prominent feature of the
streetscene at this point, it would be read within the context of a much altered,
modern townscape [CD 1.12.8]9 with only limited juxtaposed views from the
south side of the road being present in the area proximate to the eastern end
of the terrace [CD 1.12.8]10. Moreover, there would be no material
intervisibility with 1-6 Park View and my own observations suggest that the
legibility of its backland setting and historical juxtaposition with the buildings
fronting onto the Lower Bristol Road would remain unaffected given the
fine-grained arrangement of these buildings.
41. Consequently, I find that the setting and thus the special interest of these
listed buildings would not be harmed nor would the development compromise
an understanding of the pattern and form of Georgian town planning that these
buildings signify as part of their group value. In this regard, I note that the
prominent juxtaposition of Fredrick House with Belvoir Castle and the fact that
9 View 2 – Brougham Hayes junction with Lower Bristol Road - Proposed
10 View 1 – Lower Bristol Road Looking East at Lorne Road - Proposed
the latter remains clearly differentiated despite the significant massing of the
former.
42. Bearing in mind the separation distances and clearly differentiated materials of
the proposed scheme, I also find that it would preserve the OUV and thus the
significance of the WHS because this historic route into the city and the
remnant Georgian town planning would remain clearly legible. The buildings
would not be overwhelmed by the proposal which would be located in a modern
townscape context and set back, at an oblique angle, to the line of the Lower
Bristol Road.
43. Turning to Green Park Station (Ref:1396267), I do not find the Council’s views
credible in relation to this building because its primary orientation and
architectural engagement faces east, towards the city, rather than towards the
appeal site. Its main elevation, which denotes its principal architectural
significance, comprises a neo-classical composition, faced in limestone ashlar
with a rusticated ground floor. The rear elevation is dominated by the former
mouth of the train shed comprising a Victorian wrought iron structure on
limestone rubble walls.
44. The western context of this building is much altered with only an iron lattice
bridge denoting the line of the rail route to the former marshalling yards and
engine sheds. As it has already been established that the proposal would
preserve the associated corridor identified in Diagram 10 of SB7(B), the only
question that remains is whether the scale and massing of the proposal would
be so large and incongruent that it would visually overwhelm the train shed
and undermine its legibility. I observed that this would not be the case
because of the monumental scale of the station as well as the considerable
separation distance and intervening vegetation that is present. Added to this is
the fact that the historic relationship between the station to the appeal site
would remain legible given the alignment and industrial character of the lattice
bridge which clearly denotes the historic route of the rail line to the west.
45. The Council has highlighted differences in the conclusions of the heritage
statements submitted with the application and the conclusions of the
appellant’s heritage witness [CD 1.2.19, CD 1.6.4 and CD 1.10.4]. These were
summarised in a table that was submitted during the course of the Inquiry
[ID14]. I have carefully considered this evidence in relation to the above
heritage assets and nothing would lead me to reach a different conclusion. The
reasoning, as it relates to impact, is limited and goes to matters of judgement
upon which I hold a different view for the reasons I have set out above.
46. Furthermore, this evidence relies, in part, on the application of the DMRB11
heritage impact assessment methodology to the setting of listed buildings. I
note that irrespective of its commonalities with the ICOMOS guidance [ID10],
its use is not supported in HE guidance [CD 6.14], the Planning Practice
Guidance 2016 (as amended) (PPG) or the Framework in this particular context
and carries very little weight as a result.
47. Consequently, the outstanding heritage issues that remain to be determined
relate to the effect of the proposal on the WHS, the setting of the BCA and the
setting of Norfolk Terrace.
11 Design Manual for Roads and Bridges 2007 (as amended)
48. The City of Bath WHS is a designated heritage asset of the highest significance.
It was inscribed in 1987 and the designation covers the entire city which
encompasses an area of around 29 km2. The WHS Management Plan (WHSMP)
identifies six headline attributes which express the essential qualities of the
OUV [CD 6.5]. Of these, the parties agree that Attribute No. 5 ‘The Green
Setting of the City in a Hollow in the Hills’ and Attribute No. 3 ‘Georgian Town
Planning’ are the ones most relevant to this appeal with the Council also
identifying Attribute No. 4 ‘Georgian Architecture’ as being important as well as
some additional components of the first two attributes [CD 10.5.7].
49. In terms of Attribute No. 3, the visual homogeneity arising from a limited
palette of colours and the ‘uniform scale and height of buildings’ are identified
as well as views and vistas that have been deliberately created. This links to
the transposition of Palladio’s ideals to the specific geography of the valley that
has been expressed in terms of a picturesque landscape which is described in
the OUV statement as a precursor to the garden city movement. This is also
reflected in, among other things, the layout of crescents with adjacent open
areas which are expressed on a monumental scale by the Royal Crescent and
to a lesser extent, Norfolk Terrace.
50. Turning to Attribute No. 5, this reflects the importance of the wider landscape
in terms of the verdant, undeveloped hillsides that surround the city as well as
the sylvan skyline that is apparent from many locations throughout the city.
The preservation of these elements, as well as the presence of defensive walls
that provided the nucleus for the 18th century remodelling of the city, has led
to a compact form of development within the topographic basin that has
avoided the extensive and unattractive urban sprawl characteristic of most
English cities.
51. Turning to Attribute No. 4, this identifies the importance of particular set pieces
and the works of noted architects which includes John Palmer who is associated
with, among other things, the design of Norfolk Crescent. The extent, quality
and consistency of expression of the neo-classical, Palladian architecture over
the course of a century has led to a well-integrated and harmonious city that
has not relied on a single masterplan or patron but instead has arisen though
opportunistic means which the WHSMP describes as a ‘testament to the
architects and visionaries of that period’.
52. Given the above, the special interest of the WHS, insofar as it relates to this
appeal is the planned relationship of the built environment to its landscape
setting as well as the consistent and sustained architectural expression of
neo-classical, Palladian ideals, at different scales, as expressed through a
common palette of building materials.
53. Turning to the BCA, it was first designated in 1968 and is city-wide
conservation area covering approximately 1,486 ha. Although covering a wider
area and intended for another purpose, the Bath City Wide Character Appraisal
SPD 2005 nevertheless describes its character [CD 5.2]. It notes that there
can be considerable variation in height between buildings of the same number
of storeys due to different floor to ceiling heights that were traditionally defined
by the ‘rates’ system12. Consequently, the generally uniform heights and scale
of the city, typically expressed as comprising 3-4 storeys, must necessarily be
considered within this context.
12 Paragraph 6.4.1
54. It also emphasises the inherent quality of buildings that result from the use of
a limited palette of natural materials mainly comprising Bath stone, Welsh
slate, painted iron and painted timber. It notes that the colours and subtlety of
natural weathering gives rise to a highly cohesive visual quality that is further
supported by the widespread use of fine ashlar facings with thin jointing.
However, other materials are also highlighted in terms of the use of Bath stone
rubble in back and side walls as well as red brick, pennant sandstone and
white/grey lias limestone in outlying areas.
55. The BCA itself is divided into 16 different character areas with a narrow section
of the Brassmill Lane, Locksbrook and Western Riverside area running along
the southern bank of the river, immediately adjacent to the appeal site, whilst
the City Centre area incorporates the facing northern bank of the river and the
built environment that lies beyond. The Brassmill appraisal [CD 6.2] identifies
the River Avon as the dominant feature with a character that has largely arisen
from extensive post-industrial redevelopment, most notably at the BWR site.
It highlights a mixed, light industrial and commercial character with pockets of
residential dwellings largely comprising Georgian terraces, Victorian villas and
modern apartment blocks. It identifies the increases in building height, as a
result of the BWR development, as a potential threat.
56. In contrast, the City Centre Character Appraisal [ID26] notes that the facing
area marks the westernmost extent of Georgian city which terminates in the
‘fine curve’ of Norfolk Crescent and the other buildings facing onto the adjacent
green. This area also includes Green Park Station which is highlighted as a
demonstration of Georgian Bath’s influence on Victorian architecture as
expressed in the design of its principal façade by J.H. Saunders for the Midland
Railway.
57. Given the above, as well as my own observations, I find that the setting of the
BCA, insofar as it relates to this appeal, comprises the transitional, post-
industrial river corridor that is characterised by modernist architectural forms
juxtaposed with glimpses of the westernmost extent of the historic city, as
experienced by the recreational users of the river corridor and the occupants of
riverside dwellings. The Council confirmed, in response to one of my
questions, that no defined, historic views associated with the BCA would be
affected by the proposal.
58. Turning to Norfolk Crescent, this comprises the two separate Grade II* listings
of 8-18 Norfolk Crescent (Ref: 1395745) and Cumberland House
(Ref: 1395744). The listing for the latter notes that it is part of symmetrical
crescent that originally comprised 18 large houses since converted into flats. It
describes these as being situated behind a fine ashlar facade dating from
around 1810 that was most likely designed by John Palmer, completed by John
Pinch and reconstructed in the 1960s following severe war damage. The listing
for the former notes that it originally comprised a total of eleven houses and
was constructed between 1800-1820.
59. The architectural significance of the Crescent is linked to its main façade which
is on a monumental scale. It reflects Palladian ideals comprising a balanced
composition with a high degree of uniformity and repetition of features such as
the giant order, Ionic pilasters at each end with set forward bays, continuous
ground floor rustication, a consistent attic storey and continuous first floor,
wrought iron balconies. The central section is set forward and denoted by six
giant order, Ionic pilasters that are spanned by a simple, unadorned pediment.
It faces across an open green and the western reaches of the river with only
oblique views of the appeal site and what would have originally been
Sydenham Park Meadow at the time of its construction [CD 10.3.14]13.
60. The listing notes that Norfolk Crescent was part of an ambitious proposal, on
land leased in 1792 to an attorney named Richard Bowsher. The appellant’s
heritage evidence suggests that the green may have originally been a formal
garden but that by 1848 it had assumed a more informal character
[CD 10.3.14]14. There is also a suggestion that Bowsher’s original intent was
to develop the whole of this area for housing which would have led to a more
enclosed setting15. However, these elements of the scheme were never to see
fruition and the area remained open. Consequently, any relationship with land
on the southern bank of the river which incorporates the appeal site can only
be viewed as opportunistic at best in terms of Georgian town planning and not
in any way equivalent to other planned, set pieces such as the Royal Crescent.
61. Given the above, as well as my own observations, I find that the setting of
Norfolk Crescent, insofar as it relates to this appeal, to be associated with the
juxtaposition of this building with the green and nearby palace-fronted terrace
of Nelson Place that is also attributed to John Palmer. They mark the
westernmost extent of the Georgian city and have no planned, historic
relationship with either the river or the land beyond which appears to have
been deliberately screened from view in subsequent years by riverside tree
planting [CD 10.3.14]16. They are to be appreciated through movement in and
around their immediate environs and through the glimpsed views across the
river from its southern bank.
62. Turning to the potential impacts of the proposal, these have been explored
through a Landscape Visual Impact Assessment (LVIA) [CD 1.3.27] and a
series of Visually Verified Montages (VVM) [CD 1.12.8]. It is common ground
between the parties that the LVIA methodology is sound and that the images
are complete and have been prepared in accordance with best practice. The
Bath Preservation Trust has suggested that more viewpoints should have been
considered to fully appreciate the impact. However, I have carefully reviewed
the LVIA and have visited the site and evaluated the proposal from the
different viewpoints, as well as a significant number of other locations and I am
satisfied that the views are representative. I find the most relevant to
comprise VVM 5, VVM 6, VVM 8\8b and VVM 12.
63. VVM 5 shows a view of the site from the adjoining pavement near the eastern
end of Nelson Place. This shows that there would be a limited occlusion of
views of the sylvan skyline to the south during the winter months and that
views would be maintained, to a lesser extent, by one of the 2 storey elements
of building A/B nearest to Albert Crescent/Western Terrace. My own
observations suggest that this effect would not be present during the summer
months given the thick belt of trees along the northern bank of the river.
Whilst the proposal would be visible from the riverside path during these
months, the angle of view as well as the height of the existing structure is such
that there would be no significant loss of more distant views directly across the
13 Paragraph 4.21-4.22
14 Paragraph 6.19
15 Appendix 4, figure A4.10
16 Paragraph 6.23
river to the southwest when moving along this route. Even if this were the
case, they would be peripheral to the main views of users which are orientated
along the river on a broad east-west axis. Consequently, I find the landscape
impact would be slight (adverse) from this perspective.
64. Turning to VVM 6, this shows a view of the site from Victoria Bridge. It is clear
from this image that the currently expansive views of the wooded hillsides to
the south would be restricted. However, the Inquiry established that this
would be limited to up to around 70 m of kinetic views as individuals move
south along Victoria Bridge Road. As such, I accept that the occlusion would be
transient and that a significant extent of the view would nevertheless remain
unaffected, as is apparent from Figure 18 [CD 1.12.8]. Consequently, I am
satisfied that no significant adverse impact would result in relation to this
particular view. As a result, I find the landscape impact would be negligible
from this perspective.
65. Turning to VVM 8\8b, this shows two different views of the site from
Stothert Avenue. This demonstrates how the view would change with the
falling gradient of this road with more distant views of the sylvan hillsides to
the east being largely occluded and only visible through the gap created by the
two storey, southwestern element of building A/B. Moving closer to the appeal
site, it becomes clear that the existing structure obscures more distant views of
the surrounding hillsides and that there would be no significant material change
to more proximate views. Whilst partial views of the upper floors of Norfolk
Crescent would be obscured during the winter months, which would reduce the
juxtaposition of the Georgian city at this point, I only give this limited weight
because such views are only glimpsed with the nearby listed buildings of the
Lower Bristol Road providing a more prominent expression of Georgian town
planning. Given the above, I find the landscape impact would be moderate
(adverse) from this perspective.
66. Turning to VVM 12, this shows a more distant viewpoint from Kelston View in
the vicinity of Bath City Farm. This demonstrates that the compact form of the
city would be maintained and that the proposed building heights would not lead
to an incongruent built form capable of competing with important set pieces,
such as the Royal Crescent. Moreover, the light-coloured brick would lead to a
harmonious integration with the lighter colour palette of the surrounding city.
The massing, varied heights and sheet metal of the proposed scheme would
simply be read as a less prominent continuation of the BWR development.
Consequently, I find the landscape impact would be slight (beneficial) from this
perspective.
67. Whilst the proposal would be visible from the BCA, I find that it would be
clearly read within the context of the post-industrial river corridor and the
modern placemaking of BWR and Albert Crescent/Western Terrace rather than
as part of the Georgian city. This would be further re-enforced by the clear
visual break provided by the river and its vegetation. I also find that the poor
quality of the site currently detracts from the setting of the BCA and that this is
exacerbated by its unkempt and derelict appearance.
68. Consequently, I find that the proposal would have a positive effect on the
immediate setting of the BCA and that this would consequently enhance its
significance thus gaining support from paragraph 206 of the Framework. For
similar reasons and bearing in mind the circumscribed setting of Norfolk
Crescent and visual break of the river and intervening vegetation, I find that
there would be a neutral effect on its setting thus preserving the special
interest of this listed building.
69. I note the concerns of Historic England in relation to harm to the setting of the
BCA and Norfolk Crescent [CD 10.3.17]17 [ID28]. Whilst I have given them
careful consideration, I have nonetheless reached a different conclusion in
relation to the setting of these assets for the reasons I have given. The
proposal would be read as a clearly differentiated phase in the development of
the city in an area that is able to accommodate new placemaking which has
suffered from a post-industrial legacy that has clearly detracted from the
setting of at least one of these assets and thus its significance.
70. Turning to the WHS, I do not find that the consistent and sustained
architectural expression of neo-classical, Palladian ideals, at different scales, as
expressed through a common palette of building materials would be
compromised despite the use of buff coloured brick and sheet metal. This is
owing to the individual site characteristics and historical antecedents for, albeit
darker, brick and sheet metal at this location as well as the considerable
precedent that has been set by the BWR for use of the latter. Moreover, the
capacity of the site to accommodate a wider range of materials and
architectural forms is much greater than one more directly juxtaposed with the
historic core of the city which would be considerably and justifiably more
constrained.
71. I can find no harm to any of the other elements of Attribute 4 of the OUV
because views of key visual landmarks would not be disrupted, there would be
no harm to the setting of any monumental buildings or ensembles designed by
notable architects and the fact that the widespread survival of Georgian fabric,
including historic street furniture, would be unaffected. Nor can I find any
harm in relation to Attribute 3 of the OUV given the lack of any impact to the
setting of the buildings along the Lower Bristol Road, the modern context
provided by the BWR and the transitional, post-industrial nature of the appeal
site.
72. However, the planned relationship of the built environment to its landscape
setting is a different matter and whilst the compact form of the city would not
be compromised, for the reasons I have already given, I nevertheless find
harm from the occlusion of distant views of the green hillsides and sylvan
skylines at key viewpoints (VVM 5 and VVM 8). The proposal would therefore
fail to preserve Attribute 5 of the OUV of the WHS and consequently, given the
expectations of paragraph 199 of the Framework, I give this harm substantial
weight in the heritage and planning balances of this appeal.
73. Paragraph 199 of the Framework advises that when considering the impact of
development on the significance of designated heritage assets, great weight
should be given to their conservation. Paragraph 200 goes on to advise that
significance can be harmed or lost through the alteration or destruction of
those assets or from development within their setting and that this should have
a clear and convincing justification. Bearing in mind that such views would not
be completely occluded and the geographical extent of the WHS, I find that the
proposal would lead to less than substantial harm to this heritage asset.
17 Appendix 9
Paragraph 202 of the Framework advises that such harm should be weighed
against the public benefits of the proposal.
74. Whilst the main parties agree that there would be less than substantial harm to
the WHS, no agreement could be reached over the level of harm within this
category. The Council maintains that the effect on a wider range of attributes
would lead to moderate harm [CD 10.4.8]18 whilst the appellant maintains that
the effect on a narrower range of attributes would only lead to slight harm
[CD 10.3.14]19. I find a narrower range of attributes at play for reasons I have
given which would necessarily lead to a more limited effect on the WHS than
the one the Council envisages. As was the case for other heritage assets, the
Council has sought to rely on ICOMOS guidelines [ID10] and the heritage
statements submitted with the original application [CD 1.2.19, CD 1.6.4 and
CD 1.10.04] to set the level of impact rather than on any detailed reasoning.
75. As the appellant points out20, an assessment of moderate harm requires a
significant impact according to the ICOMOS guidelines. In particular, I note in
Appendix 3B of the latter that a moderate impact to historic urban landscape
attributes would need ‘changes to many key historic building elements, such
that the resource is significantly modified’ whilst a moderate impact to historic
landscape attributes would need ‘change to many key historic landscape
elements, parcels or components … visual change to many key aspects of the
historic landscape’. It was established during cross-examination that the
Council had applied these criteria to a localised area rather than the whole of
the WHS despite the fact that paragraph 207 of the Framework requires
account to be taken of the relative significance of any elements that may be
affected and their contribution to the WHS as a whole.
76. As such, I find the Council’s case in relation to the level of harm to be
overstated given the extensive geographical context of the green bowl and the
localised, adverse effects of the scheme on a very limited number of general
views. In ICOMOS terms, I find that this would equate to a minor impact
because there would only be ‘change to few key historic landscape elements,
parcels or components’. Despite being at the lower end of the ‘less then
substantial spectrum’, I nevertheless give this harm substantial weight. As
with the other heritage assets, nothing in the heritage statements submitted
with the original application would lead me to a different conclusion.
77. Given the above, I find that the proposal would be contrary to policy HE1 and
B4 of the DSP [CD 4.2], CP6 of the Bath & North East Somerset Core Strategy
2014 (CS) [CD 4.1] that seek, among other things to ensure that all
development helps to sustain and enhance the historic environment, support
the delivery of the WHS Management Plan, avoids harm to the OUV of the WHS
that is not outweighed by public benefits and ensures environmental quality is
fostered both for existing and future generations.
Heritage Balance
78. Turning to the public benefits of the proposal, the main parties were unable to
reach an agreement on a discrete range of benefits which necessitated the
submission of a comparison table during the course of the Inquiry [ID12]. In
18 Paragraph 5.8
19 Paragraph 8.13
20 ID24, footnote 65
general terms, the Council acknowledges that the scheme would provide
benefits but that these are overstated and subject to ‘double counting’ [ID23].
More specifically, it suggests that the contribution the scheme would make to
extra care housing, the site allocation, 5-year housing land supply and the
short-term delivery opportunity all amount to the same thing, i.e. housing
delivery.
79. I accept the Council’s argument that the contribution that the scheme would
make to the Sydenham Park allocation and 5-year housing land supply amount
to the same thing and that delivery of a scheme of this scale within five years
would be unremarkable. However, the overarching fact remains that
approximately 253 units of long-term housing would be created that would help
to deliver more than half the allocated housing for the site and that this would
consequently make a significant contribution to the 5-year housing land supply
and help to address the national housing crisis. Added to this is an additional
35 units that are intended to meet a higher level of need although admittedly
this would be on a shorter-term basis and thus carry reduced weight.
Nevertheless, I give this public benefit substantial overall weight for the above
reasons.
80. In terms of the extra care housing, there is an acknowledged shortfall in the
rationale of policy H1 of the DSP [CD 4.2]. It highlights the identified need at
that time as comprising 479 extra care units with an additional 192 specialist
dementia units21. The appellant’s evidence suggests that the unmet need for
extra care units is likely to rise to around 515 by 2023 with an escalating
number thereafter that will reach around 768 units by 2040 [CD 10.3.7]22.
81. In cross-examination the Council confirmed that these estimates and the
underlying methodology of the assessment undertaken by the appellant
[CD 2.2] are not disputed and that the scheme would help to meet the
identified unmet need. The Council also confirmed that the moderate weight it
gave to this benefit only flowed from the contribution it would make to general
housing targets despite the fact no other schemes had come forward in the
plan area to address this need. However, I find this benefit to be more
nuanced because it goes beyond merely delivering general needs housing.
82. I am mindful of the fact that the PPG has identified that the need to provide
housing for older people is ‘critical’ because their proportion of the overall
population is increasing. It emphasises that offering older people a better
choice of accommodation to suit their changing needs can help them live
independently for longer, feel more connected to their communities and help
reduce costs to the social care and health systems23. Bearing this in mind, as
well as the established unmet need, I give this public benefit substantial
weight.
83. In terms of improved health outcomes and reduced NHS costs, the Council’s
closing position disputed the weight to be given to this benefit because it would
be no more than would be expected from well-designed, general needs housing
that complies with the National Design Guide 2021 [CD 6.11]. This states that
‘well-designed places include a variety of homes to meet the needs of older
people, including retirement villages, care homes, extra-care housing,
21 Paragraph 360
22 Paragraph 6.2
23 Paragraph: 001 Reference ID: 63-001-20190626
sheltered housing, independent living and age-restricted general market
housing. They are integrated into new settlements with good access to public
transport and local facilities’24.
84. It follows that various types of specialist housing that are well integrated into
new areas of development are envisaged rather than a ‘one size fits all’
approach to general needs housing or wholly voluntary toolkits that promote
health and wellbeing [CD 10.4.2]25. In any event, I have no alternative
scheme before me that provides any evidential basis for such a comparison. I
consequently find this assertion to be unsubstantiated and that the scheme
would offer something that goes beyond the benefits provided by
well-designed, general needs housing. In this respect, I note the undisputed
evidence from Aston University [CD 10.3.9 and ID16] that was cited in
Mr Spencer’s proof [10.3.2]26. This shows that GP visits for individuals in care
communities fell by 46% in comparison with people over 85 who lived in their
own home and that the average time in hospital fell from 8-14 days to 1-2
days.
85. During the course of the Inquiry, the Council highlighted the fact that there is
no evidence to suggest what proportion of residents would require enhanced
support over and above the minimum requirement of 2.5 hours per week and
that the scheme would only benefit those who had the means to pay. In
response to a question I asked, it became clear that all future occupants would
be means-tested to ensure their financial assets were sufficient to meet the
long-term costs of residency.
86. However, the available evidence suggests that existing extra care provision in
the plan area is skewed towards ‘affordable’ extra care with only 50 units
currently attributable to the private care sector [CD 2.2]27. The Council’s own
Market Position Statement28 highlights the fact that it knows little about
self-funders in its area despite being acknowledged as a significant part of the
wider ‘care market’. It notes that it purchases just under a quarter of the care
home beds in the local area which, it suggests, indicates that around 75% are
occupied by a combination of self-funders and people placed by other Council’s
or NHS bodies.
87. Moreover, homeowners comprising over 66% of older households in the Council
area will not be eligible for either existing or future ‘affordable’ extra care
developments [CD 2.2]29. It follows that a significant uplift in provision is
needed to ensure equitable access to improved health outcomes for all
individuals irrespective of their financial status. The bottom line is that there is
a unmet need of 515 units that is rising and that this scheme would improve
the wellbeing and health outcomes of a significant proportion of the local
population who would not qualify for ‘affordable’ extra care.
88. As far as the extent to which enhanced levels of extra care would be delivered
by the scheme, I note the Oxford Brookes study30 that indicates that the
average level of care provided in extra care schemes as being around 12 hours
24 Paragraph 117
25 Appendix 2 – Building for a Healthy Life
26 Paragraph 4.62
27 Table T18
28 Market Position Statement – Adult Social Care Services for Adults 2018/19 – 2020/21, extracts in CD 2.2
29 Table T2
30 Bolton, J. (2016) Predicting and managing demand in social care. A discussion paper.
per week [ID17]. Whilst this evidence is anecdotal and taken out of context, it
nevertheless seems reasonable to assume that individual needs will increase
over time and that the ongoing support offered by the scheme will significantly
extend the scope for independent living beyond that which would occur in
general needs housing. Given the above, I give this public benefit substantial
weight.
89. The parties agree that the proposal would be in a sustainable location but differ
on the degree of weight to be attributed. The appellant maintains that this
carries significant weight because of the emphasis the PPG places on the
location of housing for older people [CD 10.3.2]31. I accept that there would be
high levels of accessibility to local amenities and level walking routes along the
river. Bus services are also closely situated on the Lower Bristol Road and
Pines Way that would facilitate longer journeys by alternative transport modes.
Whilst it is an inherent characteristic of the site, the fact remains that there is
extremely limited scope for high density development of this type in such close
proximity to the city centre. The ease with which future occupants would be
able to access local services and recreational activities would directly contribute
to their wellbeing. Consequently, I give this public benefit substantial weight.
90. The economic benefits of the scheme outlined in the Economic Impact
Assessment were not challenged by the Council [CD 1.2.13]. In terms of the
construction phase, it has been estimated that the scheme would generate
about £54.3 million in wages and about a £62.4 million contribution to Gross
Domestic Product (GDP) as well as the recruitment of new entrant trainees into
the construction workforce. As this would be temporary in nature, I give this
moderate weight.
91. Turning to the operation phase, a total of around 234 jobs would be created
that would generate wages of about £6.1 million per annum and about a £10.9
million per annum contribution to GDP [CD 1.2.13]32. These jobs would be
associated with the mixed-use development of the site with around 155 jobs
being attributed to the office space, around 20 to the nursery and about 59 to
the care offer. A number of indirect and induced benefits are also highlighted
in the report which suggests that a further 49 jobs would be created by the
scheme33.
92. Whilst the estimated occupancy level of the office floorspace may be more
uncertain in a post-pandemic world, these nevertheless amount to substantial
economic benefits. The Council also accepts that there would be a net increase
in jobs in comparison to the previous use of the site [CD 10.4.2]34. Bearing in
mind the significant weight that paragraph 81 of the Framework places on the
need to support economic growth and productivity and the undisputed evidence
that is before me, I give this public benefit substantial weight.
93. The parties agree that substantial weight should be given to the regeneration
of the appeal site which is currently an under-utilised, ‘brownfield’ site. This is
consistent with paragraphs 120(c) and 120(d) of the Framework which places
substantial weight on the use of ‘brownfield’ land within settlements and which
also requires decision-makers to promote and support the development of
31 Paragraph 4.63
32 Section 4.1
33 Section 4.2
34 Paragraph 7.27
under-utilised land and buildings. I consequently give this public benefit
substantial weight.
94. The Council has suggested that Historic England guidance on tall buildings
[CD 6.7] applies in this instance and that alternative designs or schemes might
be more sustainable because they would be able to deliver the same public
benefits alongside a positive improvement to the local environment. In this
respect it suggests that the removal of the top two storeys would only result in
the loss of 46 units and that there is no evidence to suggest that this would
make the scheme unviable. However, this cuts both ways and there is no
evidence to suggest that the scheme would remain viable if a further reduction
in overall capacity were to occur.
95. In cross-examination, Mr Serginson noted that the service charges would need
to go up but was unable to say whether the economic benefits of the scheme
would remain the same. More importantly, Mr Nielson’s cross-examination
established that the preservation of views of the green bowl and thus the
significance of the WHS would only be possible if all buildings were two-
storeys. The Council therefore conceded that four stories would still lead to
occluded views. Consequently, even if the scheme remained viable with the
removal of the top two floors, this would not lead to a positive improvement
because the harm to the WHS would remain. In the absence of any other
alternative scheme, I find the Council’s position without merit on this particular
point.
96. Drawing all this together and having established the public benefits, I find that
substantial weight should be given to the harm to the significance of the WHS
on account of the views of the green hillsides that would be occluded but that
this would be outweighed by the substantial, cumulative weight of the
identified public benefits which are supported by the Framework and which
includes a positive enhancement to the setting of the BCA. This is an
important material consideration in the determination of this appeal.
Living Conditions
97. The private view from a window is not of itself regarded as a planning matter
and there is no ‘right to a view’. However, some proposals can change a view
to such an extent that the residential amenities enjoyed by existing occupants
would be significantly eroded. In this respect, significant concerns have been
raised in relation to the effect of the proposal on the occupants of existing
dwellings immediately to the north of the site along The Mews, Albert Crescent
and Western Terrace. The Council’s case, as summarised in the second reason
for refusal, is that there would be a loss of privacy. Local residents have
highlighted additional concerns relating to a potential loss of daylight and
sunlight as well as disturbance from the operation of air extraction equipment.
98. Technical evidence has been submitted by the appellant in relation to these last
two areas and I have no such evidence to the contrary or any reason to believe
that the methodologies that have been applied to the daylight and sunlight
assessment [CD 1.12.5], noise assessment [CD 1.12.9] or the ventilation and
extraction statement [CD 1.3.43] are flawed. In response to a question I put
to Mrs Payne during the round table discussion, it became apparent that the
significant material harm alleged in relation to both these factors was a matter
of opinion that was not based on the conclusions of the technical assessments I
have before me.
99. In relation to daylight and sunlight, the potential loss of daylight was evaluated
through well-established tests associated with Vertical Sky Component (VSC)
and Daylight Distribution (DD) whilst the potential loss of sunlight was
measured through Annual Probable Sunlight Hours (APSH). It demonstrated
that 20 of the 24 properties that were analysed would meet the VSC threshold
for every window. Of the four properties that did not meet the threshold (1-3
Western Terrace and 4, 5, and 6 The Mews) only seven windows out of a total
of 27 would be affected with an exceedance range of between 1-7%. In terms
of DD, 23 out of 24 properties showed no change. Of the one property that
would be affected (Palladian), only two rooms out of 137 would be affected
with an exceedance of 9% and 34%. Whilst high, these were considered to be
non-habitable rooms from the narrow design of the windows. Since I have no
evidence to suggest otherwise, I find the extent of this impact to be limited.
Turning to APSH, all of the windows analysed would meet the requirement for
sunlight and the sunlight threshold for outdoor areas would also be met in all
instances.
100. Whilst there would be a marginal exceedance of the daylight threshold in the
habitable rooms of some properties, the overall nature of this impact would be
minor. Paragraph 125(c) of the Framework advises that decision makers need
to take a flexible approach to guidance relating to daylight and sunlight where
the efficient use of development sites would be compromised. Moreover, the
associated guidelines also stress the need for flexibility in high density, urban
environments. Given the above, I find that the limited loss of daylight that is
likely to result to be within acceptable tolerances at this location and that a
significant adverse effect on living conditions would not result with respect to a
loss of daylight or sunlight.
101. Turning to noise, the Noise Policy Statement for England introduces the
concept of observable effects which are applied by the World Health
Organisation. The PPG adopts the same framework and advises that noise
impacts should be assessed as being above or below the ‘significant observed
adverse effect level’ and the ‘lowest observed adverse effect level’ for a given
situation35. It goes on to advise that at the lowest level, when noise is not
perceived to be present, there is no effect. As the noise exposure increases, it
will cross this ‘no observed effect level’. However, noise only has no adverse
effect so long as the exposure does not cause any change in behaviour,
attitude or other physiological responses. It is important to bear in mind that
noise can affect the acoustic character of an area but not to the extent there is
a change in quality of life36. In this respect it is important to measure the
ambient noise environment to determine whether there would be a material
change at key locations where impacts are likely to occur.
102. The noise assessment report [CD 1.3.33] highlights the fact that current
Government advice to Local Planning Authorities makes reference to British
Standard 4142:2014 (BS 4142) as being the appropriate guidance for
assessing commercial operations and fixed building services plant noise37. It
goes on to highlight that this standard provides an objective method for rating
the significance of impact from industrial and commercial operations and
describes a means of determining sound levels from fixed plant installations
35 Paragraph: 003 Reference ID: 30-003-20190722
36 Paragraph: 005 Reference ID: 30-005-20190722
37 Paragraph 2.3
and for determining the background sound levels that prevail on a site. I find
this approach to be robust and have no evidence before me to suggest that its
application is flawed in this instance.
103. Mrs Payne, in her oral submission to the Inquiry, suggests that the
65 decibels (dB) highlighted in the noise assessment ‘would be present and
disruptive’. In this respect I note Figure 5 and Table 9 of the assessment
which shows the location and maximum sound power level (L ) that was used
w
for the predictive modelling of potential noise impacts that range between
65-67 dB. However, noise generated at source is not the same as the noise
experienced at nearby receptors which was predicted as being no greater than
30 dB L , which would be an acceptable night-time noise effect. Given
Ar,15min
that Table 3 of the assessment shows the ambient sound level at monitoring
Position 5 as being 44 dB L , the impact would be at the ‘no observable
Aeq,8h
effect level’ because it would not exceed the ambient background and would
consequently not be perceptible. Bearing this in mind, as well as the fact that
a suitably worded condition could ensure compliance with this prediction, I am
satisfied that there would be no material impact on living conditions with
respect to noise.
104. Turning to the loss of privacy, it is clear from my site visit that the outlook
from the existing properties would change significantly. Views of an open car
park and the wider landscape would be curtailed and a significant number of
windows, many of which would be full height and single aspect, would face the
existing properties. This would not only affect habitable rooms but also
outdoor areas that are above ground floor level. Separation distances would
vary with the closest property and therefore the greatest impact being
experienced by No. 8 Albert Crescent. I also note the proximity of Nos. 7 and
6 Albert Crescent in this respect as well as the first floor living areas of The
Mews that would have direct views of the garden and northernmost elevation
of building A/B. I also note the proximity of Nos. 2 and 3 Western Terrace.
105. The extent of overlooking from the nearest windows at the first-floor level of
the proposed scheme has been summarised in Figure 58 of Mr Dean’s proof
[CD 10.3.19]. In response to one of my questions, the appellant also provided
a summary of all the nearby, north-facing windows which indicates that a total
of 71 habitable room windows associated with 21 units would face the existing
properties on the nearest elevation of the proposed scheme [ID7]. I also note
that there would be more distant views from other north-facing elements of the
scheme, as indicated in an associated plan that was submitted [ID8].
106. Given the above, I have little doubt that the sense of being overlooked as
well as well as the levels of privacy would change but the key question is
whether significant harm would be caused to residential amenity or would the
resulting grain of development and associated levels of privacy be appropriate
and reasonable to expect at this location bearing in mind the appeal site
allocation and its city centre location.
107. As with the design, the context for this high-density scheme is the BWR
development which generally has a greater scale and massing. Figure 57 of
Mr Dean’s proof shows the comparative separation distances between the two
developments [CD 10.3.19]. I confirmed during the course of the Inquiry that
these measurements were not disputed by the Council. In terms of the
separation distances to the nearest properties these range from between
13.4 m to 18.5 m which the case officer’s report found to be broadly consistent
with an informal 18 m ‘rule of thumb’ [ID4]38.
108. I note from this diagram and my own observations, that the rectilinear,
parallel arrangement of the BWR development has led to a comparable
development intensity with extensive overlooking between properties as would
be expected in any dense-grained, urban environment. Consequently, I find
the general level of intervisibility would be appropriate at this location and
suitably moderated by the two-storey massing of the nearest elements and
offset angle of the higher four storey elements, most notably at the north-
eastern corner of building A/B.
109. Significant harm to the living conditions of the nearest properties would be
mitigated through screening that would be planted along the northern
boundary of the appeal site that would be secured, in perpetuity, as part of the
planning obligation. Moreover, the nearest first floor windows to the gable end
of No. 8 Albert Crescent would have fixed external louvres [ID3] that would
reduce the extent of overlooking and help to maintain the privacy of this
dwelling. This could be secured through a suitable condition, as would be the
case for screens to prevent overlooking from a roof terrace, as discussed at the
Inquiry.
110. Drawing matters together, I find that significant harm would not be caused
to the living conditions of nearby residents with respect to privacy, sunlight,
daylight or noise and that the proposal would therefore be consistent with
policy D6 of the DSP that seeks, among other things, to ensure that
development achieves appropriate levels of privacy, outlook and natural light to
existing occupiers as well as avoiding significant harm to the amenities of such
individuals in terms of loss of light, increased noise and overlooking.
Planning Obligation
111. A completed planning obligation has been agreed by the main parties that
would ensure the delivery of the following:
• Financial contribution of £26,348 for targeted recruitment
• Training package to secure a range of training opportunities
• Financial contribution of £41,486.12 for off-site replacement trees
• Financial contribution of £4,500 for additional fire hydrant provision
• Undertaking to connect to the district heating network when available
• Financial contribution of £286,143 for open and green space provision
• Restricted occupancy criteria and care definition for the care units
• Landscape management plan to ensure screening is maintained
• A transport service to manage the car use of future occupants
112. I find the training and recruitment clauses necessary in order to secure local
opportunities for employment and training on the development site, either in
construction or as part of the end-use. The assumed cost has been
38 Paragraph 94
benchmarked against similar scale developments in the district and I am
satisfied that it is proportionate as well as being explicitly supported by national
and local policy, as set out in the Council’s compliance statement [ID29].
113. I find the tree planting contribution necessary to make the scheme
acceptable in planning terms because it would involve the removal of 48
established trees in the existing car park. Whilst a significant number of
replacements would be on site, there remains a requirement to make a
contribution towards the provision of 19 off-site replacement trees. I find the
cost of planting trees in areas of hardstanding to be proportionate and
supported by local policy.
114. I find the fire hydrant contribution to be necessary because building
regulations require major new development to be within 100m of a fire hydrant
and because central Government does not provide any funding to the Avon Fire
& Rescue Service for the capital cost of growth-related infrastructure. Avon
Fire and Rescue Service have calculated the cost of installation and five years
maintenance of the fire hydrants. I have no reason to doubt that the cost is
not proportionate to keeping future occupants safe and I am satisfied that this
has local and national policy support.
115. Although the District Heat Network is not ready to receive a connection from
the appeal scheme, I note that the Council is actively seeking to expand the
network in this area and will eventually be able to provide a connection. I find
this necessary because the scheme falls within an identified District Heating
Priority Area and connection is supported by local policy.
116. I find the open space contribution necessary because a green space strategy
identifies the locality as having a deficit supply of parks and recreation space
(-3.18 ha) and amenity green space (-0.68 ha). As the scheme would
generate a demand for these amenities and place an additional pressure on the
existing provision, I find this clause necessary. The local Parks Department has
calculated the overall capital cost of providing the relevant off-site green space
typologies and I have no reason to doubt this cost. It is anticipated that the
funding will directly contribute to local provision through the Waterspace River
Park and River Line projects and I am satisfied that it is supported by local
policy.
117. I find the restricted occupancy of the care units essential to ensure the
continued C2 use of the building even though the spouses or partners of
qualifying persons would continue to live in the units after the qualifying person
may have moved on to a more specialised care facility or has passed. There
was some discussion of potential occupancy by dependants during the Inquiry,
but I am satisfied that this would be adequately controlled by only permitting
continued occupancy by spouses or partners.
118. There was also some discussion about whether the obligations should be
binding on freehold and leasehold owners and occupiers. Whilst I accept that it
would be the intention of the appellant to enforce the relevant terms of the
obligation, a different operator may not have the same intent. Consequently, I
find that clause 7.9.3 would be necessary in planning terms to ensure strict
compliance with the necessary restrictions so that the building can meet the
ongoing extra-care needs of the local population and not morph into a C3
residence over time.
119. I find the landscaping management plan necessary in order to secure
effective screening in perpetuity along the northern boundary of the appeal site
where it is adjacent to existing properties along Albert Crescent, The Mews and
Western Terrace, as already discussed.
120. I find transport service provision is necessary in order to reduce car use and
to promote the wellbeing of future occupants. In relation to the latter, it would
promote greater social integration through organised day trips and support the
day-to-day activities of less able occupants. I am satisfied that this is
supported in policy terms.
121. Overall, I find that all of the provisions of the agreement are necessary in
order to make the development acceptable, taking into account the terms of
the compliance statement that the Council has provided and the roundtable
discussion at the end of the inquiry. I conclude that the statutory tests in
paragraph 57 of the Framework are met and that the provisions of the planning
agreement are material considerations in this appeal.
Other Matters
122. The site is situated in close proximity to the River Avon which provides
supporting habitat for the Bath and Bradford on Avon Bats Special Area of
Conservation (SAC) and could be subject to lighting impacts arising from the
proposed scheme. Relevant case law39 states that if a plan or project, either
alone or in combination with other plans or projects, is likely to have a
significant effect on an SAC then an Appropriate Assessment must be
undertaken by the Competent Authority to determine if an adverse effect on
integrity would occur.
123. It was established at the Inquiry that the Council failed to identify a likely
significant effect and screened out any potential, unmitigated impacts.
However, I do not share this view given the proximity of the proposal to the
river and the presence of a clear impact pathway, namely light spillage
affecting the commuting and foraging behaviour of horseshoe bats. In the
absence of mitigation, I have no evidence before me to suggest, beyond
reasonable scientific doubt, that an adverse impact would not result. I
consequently find that the scheme could have a potential adverse effect on the
integrity of the SAC.
124. The appellant has submitted evidence concerning proposed lighting design
measures [CD 10.5.15] and has agreed to a condition to mitigate the potential
adverse effect on the SAC. I have consulted Natural England (NE) on this
matter as well as on the wording of the suggested condition. NE has indicated
that the light spill resulting from the proposals would remain within acceptable
thresholds and that the exclusion of all up-lighting will help to ensure the
continued use of the river corridor by light-sensitive, horseshoe bats. It
concludes that the scheme will not have an adverse impact on the Bath and
Bradford on Avon Bats SAC and that the condition will secure suitable
mitigation [ID27].
125. Given the above and in the absence of any evidence to the contrary, I am
satisfied that the mitigation measures would reduce the adverse effects of the
39 European Court of Justice ruling (Case C323/17 – People Over Wind and Sweetman 2018) relating to the
application of the Habitats Directive.
proposal to a de minimis level and that the integrity of the SAC would thus be
preserved.
126. I accepted a late representation on behalf of Norfolk Crescent Green
Residents Association concerning plans associated with the Bath River Line
Project [ID21] as they were unable to join the virtual event due to technical
difficulties. It highlights the fact that the project includes proposals to
punctuate the tree canopy and vegetation along the river bank adjacent to
Norfolk Crescent green in order to improve visual connection between the
green and the nearby river [ID22]. However, this is a consultative document
that has not been adopted and does not form part of the development plan. As
such, whatever proposals may or may not come to fruition is uncertain and it
can only be afforded negligible weight as a result.
127. Additional concerns raised by local people to the proposed development,
with regard to parking, odour, overdevelopment, tree loss and alternative uses
of the site are acknowledged. Many of these matters were considered in the
case officer’s report and I support the view that the concerns do not warrant
the refusal of the scheme. Furthermore, additional tree planting would be
secured through the planning obligation. Consequently, these matters were
not determinative in my decision-making.
Planning Balance
128. Planning law40 requires that applications for planning permission must be
determined in accordance with the development plan, unless material
considerations indicate otherwise.
129. It is clear that the proposal would conflict policies HE1 and B4 of the DSP
and policy CP6 of the CS as a result of the harm that would be caused to the
WHS. Although I found no conflict with policy D6 of the DSP, there would
nevertheless be a reduction in daylight to a limited number of dwellings which
weighs against the proposal. It is also clear that the proposal would be
inconsistent with the design code set out in the BWRSPD on account of the
proposed use of buff brick and metal cladding.
130. However, substantial material considerations weigh in its favour in relation
to housing land supply delivery, the regeneration and reuse of previously
developed land, the enhancement of the BCA setting, improved provision of
extra care accommodation, improved health outcomes and NHS savings, long-
term economic benefits and the delivery of development in a sustainable
location. These would not only clearly and substantially outweigh the harm to
the significance of the WHS but also the other harms that I have identified.
131. I therefore conclude that when assessed against the Framework and
development plan as a whole, I find the benefits of the scheme would
demonstrably outweigh the harms. The sum of this balance amounts to a
material consideration of sufficient weight to clearly justify a determination
other than in accordance with the development plan.
40 Section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country
Planning Act 1990 (as amended)
Conditions
132. I have considered both the wording and grounds for the conditions
suggested by the Council in accordance with the tests set out in paragraph 56
of the Framework. In addition to the standard time limit condition [1], a
condition requiring the development to be carried out in accordance with the
plans is necessary to ensure that it is implemented as approved [2].
133. I have withdrawn permitted development rights in order to ensure that the
intended uses are maintained and potentially more harmful alternatives
controlled [3]. A detailed scheme of archaeological investigation and
preservation is necessary because the site lies within an area of major
archaeological interest [4]. I have specified finished floor levels and adherence
with flood resilience measures because of the location of the site in the river
floodplain and the resultant need to mitigate potential impacts from flooding
[5-6].
134. A range of measures are necessary in order to manage pollution risks to
surface waters and groundwaters due to the proximity of the scheme to the
River Avon [7-10]. Given the post-industrial nature of the site, a range of
investigative and remediation measures are necessary in the interests of public
health [11-14]. Measures to protect trees, ensure biodiversity net gain and
manage gulls are also necessary in the interests of nature conservation [15,
21-22 and 33]. A related condition is also necessary to ensure there would be
no adverse effect on the integrity of the SAC [23].
135. Turning to living conditions, a number of conditions are necessary to avoid
disturbance and control odour during the construction and operation phases of
the development [17, 18 and 16]. Further conditions are also necessary to
reduce the loss of privacy to nearby residents [36 and 37]. Bearing in mind
the sensitive nature of the location, a range of conditions are necessary in the
interests of character and appearance [19, 20, 24-25 and 32].
136. A number of conditions are also necessary to encourage a sustainable form
of development and to help mitigate the effects of climate change [27-31 and
34]. A condition for a management plan to regulate access to the publicly
facing elements of the scheme is necessary to ensure accessible provision of
services to the local community [35]. A final condition securing the necessary
parking provision is necessary in the interests of highway safety [26].
137. I have not imposed a suggested condition that attempted to achieve a water
efficiency of 110 litres per person per day as the amount of water used in
private residences would vary according to need and imposing a limit would not
only be unenforceable but also contrary to public health and wellbeing.
138. All pre-commencement conditions have been accepted by the appellant in
writing and are consequently compliant with the necessary legislation41.
Conclusion
139. For the above reasons and having regard to all other matters raised I
conclude that, subject to the attached schedule of conditions and the
obligations in the planning agreement, this appeal should be allowed.
41 The Town and Country Planning (Pre-commencement Conditions) Regulations 2018
R.Catchpole
INSPECTOR
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:
A-10_001 Rev P01: DEMOLITION PLAN
A-10_300 Rev P01: DEMOLITION - ELEVATION - NORTH AND SOUTH
A-10_301 Rev P01: DEMOLITION - ELEVATION - EAST
A-10_302 Rev P01: DEMOLITION - ELEVATION - WEST
A-01_002 Rev P03: PROPOSED SITE LOCATION PLAN
A-20_001 Rev P03: ROOF LEVEL MASTERPLAN / SITE PLAN
A-20_002 Rev P03: LEVEL 00 MASTERPLAN
A-20_003 Rev P03: LEVEL 01 MASTERPLAN
A-20_004 Rev P03: LEVEL 02 MASTERPLAN
A-20_005 Rev P03: LEVEL 03 MASTERPLAN
A-20_006 Rev P03: LEVEL 04 MASTERPLAN
A-20_007 Rev P03: LEVEL 05 MASTERPLAN
A-20_100 Rev P03: BUILDING A & B - LEVEL 00
A-20_101 Rev P03: BUILDING A & B - LEVEL 01
A-20_102 Rev P03: BUILDING A & B - LEVEL 02
A-20_103 Rev P03: BUILDING A & B - LEVEL 03
A-20_104 Rev P03: BUILDING A & B - LEVEL ROOF
A-20_107 Rev P03: BUILDING C & D - LEVEL 00
A-20_108 Rev P03: BUILDING C & D - LEVEL 01
A-20_109 Rev P03: BUILDING C & D - LEVEL 02
A-20_110 Rev P03: BUILDING C & D - LEVEL 03
A-20_111 Rev P03: BUILDING C & D - LEVEL 04
A-20_112 Rev P03: BUILDING C & D - LEVEL 05
A-20_113 Rev P03: BUILDING C & D - LEVEL ROOF
A-20_300 Rev P03: BUILDINGS A-B - NORTH ELEVATION & COURTYARD
SECTION
A-20_301 Rev P03: BUILDINGS A-B - SOUTH ELEVATION & COURTYARD
SECTION
A-20_302 Rev P03: BUILDING C - NORTH & SOUTH ELEVATIONS
A-20_303 Rev P03: BUILDING D - NORTH & SOUTH ELEVATIONS
A-20_304 Rev P03: SITE - EAST ELEVATIONS
A-20_305 Rev P03: SITE - WEST ELEVATIONS
A-20_306 Rev P03: SITE SECTIONAL ELEVATION E-E
A-20_307 Rev P03: SITE SECTIONAL ELEVATION F-F
A-20_308 Rev P03: SITE SECTIONAL ELEVATION H-H & I-I
A-20_310 Rev P03: CONTEXTUAL ELEVATIONS
A-21_300 Rev P03: TYPICAL BAY STUDY - SHEET 01
A-21_301 Rev P03: TYPICAL BAY STUDY - SHEET 02
A-21_302 Rev P03: TYPICAL BAY STUDY - SHEET 03
A-21_303 Rev P03: TYPICAL BAY STUDY - SHEET 04
A-21_304 Rev P03: TYPICAL BAY STUDY - SHEET 05
A-30_100 Rev P02: TYPICAL UNIT LAYOUTS - 1 BED M4(2) & M4(3)
A-30_101 Rev P02: TYPICAL UNIT LAYOUTS - 2 BED M4(2) & M4(3)
A-30_102 Rev P02: TYPICAL UNIT LAYOUTS - 3 BED M4(2) & M4(3)
A-30_103 Rev P02: TYPICAL UNIT LAYOUTS - AGED CARE SUITES
LTS 101(08) 101 Rev D: LANDSCAPE GENERAL ARRANGEMENT PLAN
A-20_115 Rev P01: BUILDING A & B - BASEMENT LEVEL
A-20_008 Rev P01: LEVEL B1 MASTERPLAN
A-21_305 Rev P01 WINDOW OVERLOOKING STUDY
3) Notwithstanding the provisions of the Town and Country Planning
(General Permitted Development) Order 2015 (or any order revoking and
re-enacting that Order with or without modification) the ground floor
commercial units hereby approved shall be used only for purposes
defined as Use Class E(g)(i) and (ii) and for no other purpose (including
any other purpose in Class E of the Schedule to the Town and Country
Planning (Use Classes) Order 1987, or in any provision equivalent to that
Class in any statutory instrument revoking and re-enacting that Order
with or without modification.
4) Prior to the commencement of development, a programme of
archaeological work is to be implemented in accordance with the
submitted written scheme of investigation that has been submitted to
and approved by the Local Planning Authority (Bristol & Bath Heritage
Consultancy Ltd, January 2020, Report 18010 Rev C) as amended by the
WSI Addendum (Bristol & Bath Heritage Consultancy Ltd, 7 October
2020, Report 18010 Addendum, Rev A).
The programme of archaeological work shall provide a controlled
excavation of all significant deposits and features that are to be disturbed
by the proposed development and shall include any building techniques
and measures necessary to mitigate the loss or destruction of any further
archaeological remains. The archaeological works shall be carried out by
a competent person(s) and completed in accordance with the written
scheme of investigation.
5) The development hereby permitted shall be constructed with finished
floor levels set at a minimum 20.360 m above ordnance datum (AOD) as
per drawings A-20_300 Rev P03: Buildings A-B – North Elevation &
Courtyard Section, and A-20-301 Rev P03: Buildings A-B – South
Elevation & Courtyard Section. The proposed Finished Floor Levels for
Buildings C and D shall be set at a minimum 20.310 m AOD and
20.250 m AOD respectively as per drawings A-20-302 Rev P03: Building
C – North & South Elevations and A-20-303 Rev P03: Building D – North
& South Elevations.
6) The development hereby permitted shall be constructed with all flood
resistance and resilience measures as detailed in page 13 of the Energy
and Sustainability Statement, dated 01 July 2020, that was submitted to
and approved by the Local Planning Authority. The measures shall be
fully implemented prior to first occupation and thereafter retained and
maintained for the lifetime of the development.
7) No drainage systems for the infiltration of surface water to the ground
are permitted other than with the written consent of the Local Planning
Authority which shall be obtained prior to the installation of any drainage
works. Any proposals for such systems must be supported by an
assessment of the risks to controlled waters. The development shall be
carried out in accordance with the approved details.
8) Piling using penetrative methods shall not be carried out other than with
the prior written consent of the Local Planning Authority. The
development shall be carried out in accordance with the approved details.
9) During the demolition and construction of the development hereby
permitted, there shall be no storage of spoil, construction or demolition
materials within 8 m of the southern bank of the River Avon or within
areas of the site designated as Flood Zone 3 by the Environment Agency
Flood Map for Planning.
10) No development approved by this planning permission shall commence
until such time as a scheme for the prevention of pollution during
construction has been submitted to and approved in writing by the Local
Planning Authority.
The scheme shall include details of the following: site security; fuel oil
storage, bunding, delivery and use; spillage procedures; containment of
silt/soil contaminated run-off; disposal of contaminated drainage,
including water pumped from excavations; and a site induction package
for the workforce highlighting pollution prevention and awareness.
The development shall thereafter be carried out in accordance with the
approved details.
11) No development shall commence until an investigation and risk
assessment of the nature and extent of contamination on site has been
carried out and its findings have been submitted to and approved in
writing by the Local Planning Authority. This assessment must be
undertaken by a competent person and shall assess any contamination
on the site, whether or not it originates on the site. The assessment
must be conducted in accordance with DEFRA and the Environment
Agency's 'Model Procedures for the Management of Land Contamination,
CLR 11' and shall include:
a) A survey of the extent, scale and nature of contamination;
b) An assessment of the potential risks to human health, property
(existing or proposed) including buildings, pets, trees and
service lines and pipes, adjoining land, groundwaters and
surface waters, ecological systems and archaeological sites and
ancient monuments; and
c) An appraisal of remedial options, and proposal of the preferred
option(s).
12) No development shall commence until a detailed remediation scheme,
which has been prepared by a competent person, to bring the site to a
condition suitable for the intended use by removing unacceptable risks to
human health, buildings and other property and the natural and historical
environment, has been submitted to and approved in writing by the Local
Planning Authority, unless the findings of the approved investigation and
risk assessment has confirmed that a remediation scheme is not
required. The scheme shall include:
a) all works to be undertaken;
b) proposed remediation objectives and remediation criteria;
c) timetable of works and site management procedures; and
d) where required, a monitoring and maintenance scheme to monitor
the long-term effectiveness of the proposed remediation and a
timetable for the submission of reports that demonstrate the
effectiveness of the monitoring and maintenance carried out.
The remediation scheme shall ensure that the site will not qualify as
contaminated land under Part 2A of the Environmental Protection Act
1990 in relation to the intended use of the land after remediation.
The approved remediation scheme shall be carried out prior to the
commencement of development, other than that required to carry out
remediation, or in accordance with the approved timetable of works.
13) No part of the development hereby approved shall be occupied until a
verification report, which is to be carried out by a competent person (that
demonstrates the effectiveness of the remediation carried out) has been
submitted to and approved in writing by the Local Planning Authority,
unless the findings of the approved investigation and risk assessment has
confirmed that a remediation scheme is not required.
14) In the event that contamination which was not previously identified is
found at any time when carrying out the approved development, it must
be reported in writing immediately to the Local Planning Authority.
Thereafter an investigation and risk assessment shall be undertaken, and
where remediation is necessary, a remediation scheme shall be submitted
to and approved in writing by the Local Planning Authority. Following
completion of measures identified in the approved remediation scheme, a
verification report (that demonstrates the effectiveness of the
remediation carried out) must be submitted to and approved in writing by
the Local Planning Authority prior to first occupation of the development.
15) No development shall commence until a Detailed Arboricultural Method
Statement with Tree Protection Plan following the recommendations
contained within BS 5837:2012, prepared by a competent person, has
been submitted to and approved in writing by the Local Planning
Authority. The arboricultural method statement shall incorporate a
provisional programme of works; supervision and monitoring details by
an Arboricultural Consultant and provision of site visit records and
compliance statement. All works shall be carried out as agreed.
16) Prior to installation of mechanical plant equipment, the details of the
mechanical plant equipment (excluding that serving individual residential
apartments) including details of external flues and plant shall be
submitted to and approved in writing by the Local Planning Authority.
Noise levels associated with mechanical plant shall not exceed the
predicted levels set out in a report to the Local Planning Authority
(Acoustics Noise Assessment Report, Revision 11, 2 October 2020, Hoare
Lea). All mechanical plant (excluding that serving individual residential
apartments) shall be installed and maintained for the lifetime of the
development in accordance with the approved details.
17) There shall be no works on the site related to demolition or construction,
or any deliveries to or dispatches from the site undertaken outside of the
hours of 08:00 and 18:00 (Monday to Friday) and 08:00 and 13:00
(Saturdays). There shall be no work and the site shall be closed on
Sundays and all public and bank holidays.
18) Notwithstanding the submitted documentation, a site-specific
Construction Environmental Management Plan (CEMP) shall be submitted
to and approved in writing by the Local Planning Authority prior to the
commencement of development (including demolition). The CEMP must
demonstrate the adoption and use of best practice to reduce the effects
of noise, vibration, dust and site lighting. The plan shall include the
following:
a) Procedures for maintaining good public relations including
complaint management, public consultation and liaison;
b) Arrangements for liaison with the Local Planning Authority's
Environmental Protection Team;
c) Mitigation measures as defined in BS 5528: Part 1 and 2 shall be
used to minimise noise disturbance from construction works;
d) Control measures for dust and other air-borne pollutants. This
must also take into account the need to protect any local resident
who may have a particular susceptibility to any air-borne
pollutants;
e) Measures for controlling the use of site lighting whether for safe
working or for security purposes;
f) Details of deliveries (including storage arrangements and timings);
g) Contractor parking;
h) Traffic management;
i) Wheel wash facilities;
j) Site compound arrangements; and
k) Site opening times.
All demolition and construction shall proceed in accordance with the
details so approved.
19) Notwithstanding the submitted documentation, no occupation of the
development hereby permitted shall occur until a hard and soft landscape
scheme has been submitted to and approved in writing by the Local
Planning Authority showing details of all trees, hedgerows and other
planting to be retained, finished ground levels, a planting specification to
include numbers, density, size, species and positions of all new trees and
shrubs, details of existing and proposed walls, fences, other boundary
treatment and surface treatment of the open parts of the site, and a
programme of implementation. This shall not include the area subject to
the Landscape Management Plan specified in Schedule 2, Clause 4 of the
planning obligation.
20) All hard and/or soft landscape works shall be carried out in accordance
with the approved hard and soft landscape scheme. The works shall be
carried out in accordance with a programme (phasing) which is to be
submitted and approved in writing by the Local Planning Authority. Any
trees or plants indicated on the approved scheme which, within a period
of five years from the date of the development being completed, die, are
removed or become seriously damaged or diseased shall be replaced
during the next planting season with other trees or plants of a species
and size to be first approved in writing by the Local Planning Authority.
All hard landscape works shall be retained in accordance with the
approved details for the lifetime of the development.
21) No development (including demolition and site clearance works) shall
take place until full details of a Wildlife Protection and Enhancement
Scheme have been submitted to and approved in writing by the Local
Planning Authority. The details shall include:
a) Method statement for enabling works, demolition and construction
phases to provide full details of all protection and mitigation
measures, including, where applicable, proposed
pre-commencement checks and updated surveys, for the
avoidance of harm to bats, reptiles, nesting birds and other
protected wildlife, and proposed reporting of findings in writing to
the Local Planning Authority prior to commencement of works;
b) Detailed proposals for the implementation of the wildlife mitigation
measures and recommendations of the approved ecological report
(Ecological Appraisal - Including Building/Tree Inspection and Bat
Survey results, January 2020, Nicholas Pearson Associates) and
ecological addendum (Ecological Addendum - Revised proposal
submission – October 2020, Nicholas Pearson Associates),
including wildlife-friendly planting and landscape details; additional
and strengthened Green Infrastructure; provision of bat and bird
boxes, with proposed specifications and proposed numbers and
positions to be shown on plans as applicable; specifications for
fencing to include provision of gaps in boundary fences to allow
continued movement of wildlife;
c) A timetable for the implementation of the wildlife mitigation
measures; and
d) Demonstration of measurable biodiversity net gain.
All works within the Wildlife Protection and Enhancement Scheme shall be
carried out in accordance with the approved details and completed in
accordance with specified timescales.
22) The development hereby approved shall not be occupied until a report
produced by a suitably experienced ecologist confirming and
demonstrating, using photographs, completion and implementation of the
Wildlife Protection and Enhancement Scheme in accordance with
approved details, has been submitted to and approved in writing by the
Local Planning Authority.
23) No new external or internal lighting shall be installed without full details
of proposed lighting design, which shall be fully in accordance with the
principles and predicted light spill levels of the approved illumination
impact study (Illumination Impact Update Lighting Design & Apartment
Design Addendum, Hoare Lea, October 2020), being first submitted to
and approved in writing by the Local Planning Authority.
The submitted details shall include: proposed lamp models and
manufacturer’s specifications, proposed lamp positions, numbers and
heights with details also to be shown on a plan; predicted lux levels and
light spill onto sensitive features including the River Avon and bankside
habitats; all measures to limit use of lights when not required and to
prevent upward light spill and light spill onto trees, boundary vegetation
and adjacent land; and the proposed compliance checks and operational
monitoring and reporting. The lighting shall be installed, maintained and
operated thereafter in accordance with the approved details.
24) No construction of the external walls of the development shall commence
until a schedule of materials and finishes, and samples of the materials to
be used in the construction of the external surfaces, including roofs, have
been submitted to and approved in writing by the Local Planning
Authority. The development shall thereafter be carried out in accordance
with the approved details.
25) No construction of the external walls of the development shall commence
until a sample panel of the proposed brickwork to be used has been
erected on site, approved in writing by the Local Planning Authority and
kept on site for reference until the development is completed. The
development shall be undertaken in accordance with the approved
details.
26) The areas allocated for parking and turning, as indicated on the
submitted plans, shall be kept clear of obstruction and shall not be used
other than for the parking of vehicles in connection with the development
hereby permitted.
27) The development hereby approved shall not be occupied until details of
Electric Vehicle Charging Points (EVCP) have been submitted and
approved in writing by the Local Planning Authority. Details shall include:
a) The total number of car parking spaces to be provided with EVCPs;
b) The number/type/location/means of operation; and
c) A programme for the installation and maintenance of EVCPs and
points of passive provision for the integration of future charging
points.
The Electric Vehicle Charging Points as approved shall be installed prior to
occupation of that part of the scheme and retained in that form thereafter
for the lifetime of the development.
28) The development hereby approved shall not be occupied until bicycle
storage for at least 86 bicycles (43 stands) has been provided in
accordance with details which have been submitted to and approved in
writing by the Local Planning Authority. The bicycle storage shall be
retained for the lifetime of the development.
29) A travel plan welcome pack shall be submitted to and approved in writing
by the Local Planning Authority. The approved pack shall be issued to all
owners and occupiers prior to first occupation. It shall include
information on bus and train timetables, examples of different fares and
ticket options, key cycle and walking routes and details of any car share
or car clubs to encourage alternative means of transport.
30) No occupation of the development shall commence until a Travel Plan has
been submitted to and approved in writing by the Local Planning
Authority. The development shall thereafter be operated in accordance
with the approved Travel Plan.
31) No occupation of the development shall commence until a Service
Management Plan has been submitted to and approved in writing by the
Local Planning Authority. The development shall thereafter be operated
in accordance with the approved Service Management Plan.
32) No decals shall be affixed to the windows of the ground floor commercial
units hereby approved unless first approved in writing by the local
planning authority.
33) A Gull Management Strategy shall be submitted to and approved in
writing by the Local Planning Authority prior to first occupation of the
development hereby approved. The strategy shall be implemented in
accordance with the details so approved.
34) Prior to first occupation of any part of the development hereby approved
the following tables (as set out in the Local Planning Authority's
Sustainable Construction Supplementary Planning Document, Adopted
November 2018) shall be completed by competent persons, in respect of
the completed development, submitted and approved in writing by to the
Local Planning Authority together with the further documentation listed
below:
• Table 2.1 Energy Strategy (including detail of renewables);
• Table 2.2 Proposals with more than one building type (if relevant);
• Table 2.3 (Calculations);
• Building Regulations Part L post-completion documents for
renewables;
• Building Regulations Part L post-completion documents for energy
efficiency; and
• Microgeneration Certification Scheme (MCS) Certificate/s (if
renewables have been used).
35) Prior to first occupation of the development, a Management Plan shall be
submitted to and approved in writing by the Local Planning Authority. The
Management Plan shall regulate public access to the communal parts of
the development which are open to the public, namely: the wellness suite
(including gym and swimming pool, changing and shower facilities),
multi-use space and café/restaurant all of which are located at the
ground floor level of the development. The Management Plan shall
include details of:
a) The parts of the development which will be available to both the
public and residents of the scheme;
b) Opening hours of these facilities for the public and residents of the
scheme;
c) The details of the membership scheme for the wellness suite;
d) The details of the booking system in order to access the multi-use
space and restaurant/café; and
e) The membership scheme for the wellness suite shall be maintained
for the lifetime of the development.
The Management Plan as approved shall be implemented prior to the first
occupation of the development and thereafter maintained for its
designated purpose for the lifetime of the development.
The Management Plan shall be subject to review following 5 years from
first occupation of the development. On review of the Management Plan
the developer shall submit to the Local Planning Authority details of the
public use of the facilities and any proposed amendments to the
Management Plan for the Local Planning Authority’s approval. Any
amendments to the Management Plan shall only be implemented
following a written approval by the Local Planning Authority.
36) No development above the ground level shall take place until the details
of the directional louvres to be installed to the windows of unit A2-109
(shown on drawing A-20_101 Rev P03: Building A & B – Level 01) and
illustrated in drawing A-21_305 Rev P01: Window Overlooking Study, are
submitted and approved in writing by the Local Planning Authority. The
directional louvres shall be implemented prior to the first occupation of
the unit and permanently maintained in strict accordance with the
approved details.
37) No development above the ground level shall take place until the details
of a privacy screen along the north and east facing boundaries of the roof
terrace on building A/B (shown on A-20_103 Rev P03: Building A & B -
Level 03) have been submitted to and approved in writing by the Local
Planning Authority. The privacy screen or equivalent measures shall be
implemented prior to the first occupation of the development and
permanently maintained in strict accordance with the approved details.
APPEARANCES
For the Appellant
Mr Rupert Warren QC Instructed by CMS
He called Mr Matthew Serginson, Guild Living
Mr Tim Spencer B-TECH TRP MRTPI, Nexus Planning
Dr Chris Miele, BA (hons) MA PhD MRTPI, Montagu
Evans
Mr Stewart Dean BA (hons), Marchese Partners
Mr David Harvey, Nicolas Pearson Associates
For the Council
Mr Jonathan Darby Instructed by Bath and North East Somerset Council
He called Mr Steve George BA (hons) DipUD MA MRTPI, Bath and
North East Somerset Council
Mr Adrian Neilson BA (hons) MA MSc IHBC, Bath and
North East Somerset Council
Mr Neil Williamson BA (hons) MA FLI PPLI FCMI, Bath
and North East Somerset Council
Mr Christopher Griggs-Trevarthen BSc MSc MRTPI, Bath
and North East Somerset Council
Interested Parties
Cllr Sue Craig, Kingsmead Ward
Ms Joanna Robinson BA (hons) MA Dip Arch Con, Bath Preservation Trust
Mrs Payne, Local Resident
Mr Payne, Local Resident
Mr Robert Wee, Local Resident
Mr Keith Russell, Local Resident
ANNEX A - DOCUMENTS SUBMITTED
ID1 – Revision D – Landscape General Arrangement Plan
ID2 – Revision P3 – Building A & B – Level 01 Plan
ID3 – Revision 01 - Window Overlooking Study Plan
ID4 – Paginated Planning Committee Report
ID5 – Landscape Impact Comparison Table
ID6 – Updated List of Drawings for Conditions
ID7 – Analysis of North Facing Windows
ID8 – North Facing Elevation Windows (Highlighted)
ID9 – Computed Generated Graphic Animations (x3)
ID10 – ICOMOS Guidance on Heritage Impact Assessment
ID11 – Errata to Dr Miele’s Proof
ID12 – Public Benefits Comparison Table
ID13 – Appeal Decision (3263347), Walton-on-Thames
ID14 – Heritage Impacts Comparison Table
ID15 – SoS Appeal Decision (3226914), Brentford
ID16 – Aston University Research Report 2015
ID17 – Caterwood Care Provision Summary
ID18 – Clarification Note on NHS Savings Calculations
ID19 – Confirmation of C&D Building Heights
ID20 – Acceptance of Pre-Commencement Conditions
ID21 – Bath River Line Project
ID22 – Late Representation, Norfolk Green Residents Association
ID23 – Council’s Closing Submission
ID24 – Appellant’s Closing Submission
ID25 – Completed s106 Planning Obligation
ID26 – Draft City Centre Character Appraisal, Bath Conservation Area 2015
ID27 – Natural England Planning Inspectorate Consultation Response
ID28 – Historic England Letter to Inquiry, 10 June 2021
ID29 - S106/CIL Compliance Statement, BaNES Council