Case Reference: 3272399

Appeal Decision
Hearing Held on 9 November 2021
Site Visits made on 8 & 9 November 2021
by Martin Allen BSc (Hons) MSc MRTPI
an Inspector appointed by the Secretary of State
Decision date: 11 March 2022
Appeal Ref: APP/D1265/W/21/3272399
Land south of Leigh Road, Wimborne, Dorset BH21 2DA
• 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 Dorset Council.
• The application Ref 3/19/2449/FUL, dated 11 June 2019, was refused by notice dated
5 October 2020.
• The development proposed is to replace approved retail unit (not commenced) with 64
bed care home with associated access, car parking, foul and surface water drainage and
landscaping.
Decision
1. The appeal is allowed and planning permission is granted to Replace approved
retail unit (not commenced) with 64 bed care home with associated access, car
parking, foul and surface water drainage and landscaping at Land south of
Leigh Road, Wimborne, BH21 2DA in accordance with the terms of the
application, Ref 3/19/2449/FUL, dated 11 June 2019, subject to the conditions
set out in the attached Schedule.
Preliminary Matters
2. I undertook an unaccompanied site inspection on the day before the hearing in
order to familiarise myself with the site and its surroundings. Following the
close of the hearing, I undertook a further site inspection in order to clarify
matters discussed during the hearing. With the agreement of the main parties,
this further site inspection was also unaccompanied.
Main Issues
3. The main issues are:
i) Whether the loss of the approved retail use/local centre has been
sufficiently justified,
ii) The effect on the character and appearance of the area, and
iii) The effect on the Dorset Heathland Site of Special Scientific Interest.
Reasons
Loss of the approved retail use/local centre
4. The appeal site comprises a roughly triangular area of land, located to the
eastern fringe of Wimborne. It borders residential dwellings to the south, which
are part of a recent development undertaken pursuant to a large allocation for
a new neighbourhood to the south of Leigh Road within the Christchurch and
East Dorset Local Plan, Part 1 – Core Strategy (adopted 2014) (the Core
Strategy). Policy WMC8 of the Core Strategy sets out that around 75 hectares
of land is allocated for this new neighbourhood, which will include 350 new
homes, a Sports Village, new allotments, a local centre providing for day-to-
day needs, land for a school and land for a country park.
5. The appeal scheme seeks to replace the approved retail unit with a care home
and, as a result, would conflict with the requirements of policy WMC8, insofar
as it requires the delivery of a local centre to provide for day-to-day needs.
6. In order to demonstrate that the construction of a retail unit at this location
would not be viable, the appellant has undertaken a marketing exercise in
order to ascertain the level of interest in the retail market. Marketing of the
unit began in March 2018, with a “soft” marketing exercise, which then moved
to “full” marketing in June 2018. This included the erection of a marketing
board at the site, preparation of sales particulars and their distribution directly
to convenience store operators, local commercial property agents and specialist
local centre developers.
7. Following this, a further round of marketing was undertaken in September and
October 2018, which further widened the scope of the marketing to include
complementary uses. The marketing continued during the course of the
planning application, which was determined in October 2020.
8. Subsequent to the marketing outlined above, it was considered that while
direct marketing had been undertaken, there was a deficiency in online
marketing through property websites. Additional marketing was then also
undertaken, focussing on internet advertising. The submitted information
shows that there have been a number of enquiries in respect of the site.
9. Despite these queries, an operator for the retail unit has not come forward. The
Statement of Common Ground submitted outlines that it is accepted between
the parties that the marketing exercise has demonstrated that the site is not
attractive to a national grocery retailer and based on the evidence before me, I
have no reason to disagree. In respect of regional grocery retailers, from the
outcome of the various enquiries that have been made, there is a general
theme of opinion that there are “not enough chimney pots”, or insufficient
dwellings present, within the area to justify the proposal.
10. It is noted that the site has been marketed as an empty development site,
without a built-out retail unit present. While I am conscious of the Council’s
views that independent retailers like to see a built shop prior to taking a unit
on, that if the unit were built out it may be more attractive to a potential
occupier and an occupier may seek a franchise following securing the unit, I am
also conscious of the risk to the appellant of developing a retail unit at the site
without a realistic prospect of it being occupied by a retail user. This risk is
clearly in the mind of the appellant, who stated that on the basis of the
marketing that has already been undertaken, the store will not be built out.
11. It is also of note that the Council accepted at the hearing that the large size of
the retail unit, at approximately 420m2, may limit the attractiveness of the
unit, such that it would not be attractive to all independent operators. The
attractiveness to an operator of taking on the retail unit would also likely be
tempered by the presence of 10 identified convenience shops within 1.6km of
the appeal site1. It is also accepted by the Council that there are existing
accessible convenience facilities in the area that are able to support the day-to-
day convenience shopping needs for the population in the area.
12. Notwithstanding the proximity of a school and approved sports pitches to the
east of the site, there would be a limited amount of passing trade, given the
location of the site within the allocation, off the main road to the north. This
would further limit the desirability of the retail unit to potential operators.
13. I am mindful of the benefits of the proposed location of the retail unit,
particularly in light of the Council having declared a Climate Crisis, in that there
would be the potential to reduce the number of vehicular trips in the area.
However, given the matters that I have outlined above, allowing a care home
at this location would be no more injurious in this respect than the retail unit
not coming forward due to lack of demand.
14. Therefore, while acknowledging the conflict with policy above, I find that
sufficient marketing has been undertaken to satisfactorily demonstrate that
there is insufficient demand for the approved retail unit and that it is unlikely to
come forward. This is a material consideration of sufficient weight to outweigh
the conflict with policy WMC8 of the Core Strategy.
Character and appearance
15. The proposed care home building would have three-storeys of accommodation
above ground level, with a basement provided below. It would have a largely
rectangular form, albeit with a wing attached to and protruding from the rear
elevation. The longest elevation would address the existing road that adjoins
the south of the appeal site, while the main entrance to the building would face
eastwards and be visible when entering the wider development site.
16. The largest elevation to the road would be approximately 58 metres in length
and be three storeys in height for this full length. However, this elevation is
broken down visually into different elements which provide articulation, rather
than appearing as a single, flat elevation. The articulation of the elevation
would reflect the scale of the residential development nearby. In addition to
this, the third storey of accommodation would be provided within a mansard
roof, which is set back and slopes away from the main elevation, thereby
further reducing the bulk of the building. The elevations in my view result in a
coherent and understandable design, that would not be contrived.
17. I accept that the building would be substantial in its extent and larger than the
approved retail unit. However, given the location of the development at the
entrance to the residential development site, opposite an area of public open
space, occupying a gateway location, it would also act as a focal building. It
would not be located so close to the footway alongside the road so as to be
1 Paragraph 2.34, page 6, Lambert Smith Hampton letter dated 30 July 2020
overbearing or oppressive. Indeed, there is sufficient separation between the
building and the footway to allow for the inclusion of a substantial amount of
landscaping, which would further re-enforce the integration of the proposal
with the nearby open space.
18. The location of the building would be somewhat separate from the dwellings
nearby, to the extent that a building of a different scale to them would be an
appropriate design response. Moreover, while the building occupies a
significant portion of the site, the inclusion of landscaping, together with the
setbacks from the site’s boundaries would ensure that it would not look
cramped within its setting.
19. To the basement of the building are a number of functional spaces, including a
staff room. The Council raise concern in respect of the amenity value of this
space, given that there are no windows serving it. However, I note that this is
intended as an area of respite for members of staff during their work shift,
when on breaks. It is proposed as a functional area which would not be used
for long periods. Furthermore, staff would be able to access the outdoor spaces
around the building. The appellant highlights that there is no national or
industry standard for such areas. I thus consider this to be a matter for the
appellant and do not find that the staff room provision is indicative of any
substandard design or overdevelopment of the site.
20. In terms of parking provision, the submitted site layout plan shows the
provision of 23 parking spaces within the site. The Council highlight that this is
an under provision, when considered against the Council’s parking standards
which require 29.5 spaces. The appellant sets out that the parking standards
provide guidance and a starting point, rather than an absolute requirement.
21. The submitted Highway Statement of Case outlines that following a review of
comparable developments, the proposed parking provision would be
appropriate for the proposal. There is no substantive evidence provided to
counter this and I note that the Council has not objected to the scheme on the
basis of any concern over highway safety due to the lack of parking. Therefore,
I find that the parking provision proposed would be acceptable given the
characteristics of the site and any shortfall against the advised standard is not
suggestive of an overdevelopment of the site.
22. Accordingly, I find the proposal would have an acceptable effect on the
character and appearance of the area. Thus, the proposal complies with policies
HE2 and KS12 of the Core Strategy, insofar as they seek to ensure that
development is of a high-quality and that adequate vehicular parking is
provided.
Dorset Heathland Site of Special Scientific Interest
23. The project site lies within 5km of the Dorset Heathland, a designated Site of
Special Scientific Interest. The Council’s Decision Report on the planning
application identifies that the proposal, for a 64-bed care home, in-combination
with other plans and projects and in the absence of avoidance and mitigation
measures, is likely to have a significant effect on the Dorset Heathland.
However, the report does not identify in what way such an effect is likely to
occur.
24. The Dorset Heathlands are an extensive network of lowland heath within
southeast Dorset that are recognised for their national and international
importance for nature conservation. Evidence shows that the Dorset
Heathlands are under significant pressure from an increasing number of people
living nearby. As population grows, urbanising impacts from human pressures
and damage caused by domestic pets have the potential to cause ongoing
adverse effects on the protected habitats and species.
25. The Council has adopted The Dorset Heathlands Planning Framework 2020-
2025 – Supplementary Planning Document (the SPD) which seeks to set out a
strategy for the avoidance and mitigation of impacts arising from new
residential development on the Dorset Heathlands. Appendix B sets out advice
for different land uses and whether they are likely to cause a significant effect,
alone or in-combination.
26. Development falling within Use Class C2 – Specialist housing i.e., sheltered
housing/nursing home, is included within Appendix B, which identifies that this
use is not likely to have a significant effect, that there should be no publicly
available parking capacity and that no financial contribution is required. Further
guidance is provided stating that certain types of specialist purpose-built
nursing homes where residents are no longer active will not have a significant
effect and do not need to provide mitigation, e.g., where nursing care is
necessary, such as for advanced dementia or physical nursing needs. This
includes purpose-built schemes for the frail elderly, where there is an element
of close care provided on site 24 hours a day. The level of care would be above
that of provision of an on-site wardening service provided for sheltered
accommodation
27. On each floor of the proposed building the facilities would include large
disabled-access assisted bathroom, disabled access assisted WC, 2 no. day-
space lounge/dining areas, a clinical room and nurse station. Each floor will be
accessible via staircase (two provided) and elevator (two provided). In addition
to the above the following facilities will also be provided throughout the
building:
• Ground floor: Reception area with offices, meeting room and waiting area;
café/bistro; private dining area; hair and nail salon; laundry rooms (staff
area); visitor’s WC.
• First floor: cinema; therapy room; an additional day-space lounge/dining
area; 2 no. balconies; kitchen (staff area).
• Second floor: day-space orangery; day-space quiet lounge; shop; sweet
shop; 3 no. open roof terraces; 1 no. covered roof terrace; and a staff area
with associated male and female changing rooms.
28. There are sixty-four spacious private residents’ bedrooms within the proposed
care home with 21 ground floor bedrooms, 25 first floor bedrooms and 18
second floor bedrooms. The submitted information also indicates that of the 64
bed spaces provided, 25 will be dementia care beds. Each bedroom will contain
an en suite fitted with toilet, sink and shower cubicle. The rooms vary in size
from 17m2 to 20.8m2, with the majority achieving 17.8m2. Two communal
garden areas will be provided within the site in addition to border and boundary
planting to soften the appearance of the building within the locality. One of the
garden areas will contain a summer house, green house and 6 no. raised
allotment beds for use by residents. Parking for visitors and staff will be sited
to the immediate east of the building. A total of 23 parking bays will be
provided, including 1 no. disabled parking space and 1 no. emergency service
vehicle bay.
29. The level of care that would be provided within the proposed facility would, in
my view, indicate that the nursing home will not be accommodating persons
who would remain active. There would be no likely urbanising impacts from
human pressures or damage caused by domestic pets that would have the
potential to cause ongoing adverse effects on the protected habitats and
species. As such, there would be no likely significant effect on the integrity of
the Dorset Heathlands, and no mitigation is necessary, as advised in the SPD.
Natural England have confirmed that the details of the scheme, as I have
outlined above, are sufficient to ensure that any adverse effects on the
protected site and its features would be avoided.
30. Accordingly, the scheme would not have a harmful effect on the Dorset
Heathland Site of Special Scientific Interest and there would be no conflict with
Policy ME2 of the Core Strategy, which seeks to protect the Dorset Heathlands.
Other Matters
31. The Council refers within the Delegated Report to a request for a financial
contribution towards health care from the local NHS Trust, to be secured by a
Section 106 legal agreement. The Council concludes that the need for the
contributions has not been clearly justified, or evidenced as being directly
related to the development, or fairly and reasonably related in scale and kind
to the development proposed. Thus, the requested contribution would fail to
accord with the tests of Regulation 122 of the Community Infrastructure Levy
Regulations 2010 (as amended). I have no substantive evidence before me
that would lead me to a different conclusion.
32. At the time of the determination of the planning application by the Council, the
site lay in Flood Zone 1, as defined by the Environment Agency’s flooding
maps. Subsequent to the publishing of revised information by the Environment
Agency, the site now lies within Flood Zone 2. The Framework, at paragraph
159, sets out that inappropriate development in areas at risk of flooding should
be avoided by directing development away from the areas at highest risk. The
Planning Practice Guidance sets out that the aim of the ST is to steer new
development to Flood Zone 1. Where there are no reasonably available sites in
Flood Zone 1, decision makers should take into account the flood risk
vulnerability of land uses and consider reasonably available sites in Flood Zone
2, applying the ET if required.
33. Prior to the hearing I invited the parties to provide additional information
addressing the change in the flood zone status of the appeal site. The appellant
undertook a Sequential Test (ST) reviewing site allocations in the development
plan as well as looking for sites from a variety of property sources. The ST
demonstrated that there were no reasonably available sites in areas with a
lower probability of flooding, that would be appropriate for the type of
development proposed. The Council confirmed at the hearing that it considered
the ST to be passed and that the matter could be satisfactorily addressed by a
planning condition in respect of finished floor levels, should planning
permission be forthcoming. I have no compelling reason to find otherwise.
Conditions
34. In the interests of certainty, I have imposed a condition specifying the
approved plans to which the planning permission relates. I have imposed
conditions in respect of the construction of the vehicular access,
parking/turning areas and visibility splays in the interests of highway safety. A
condition in respect of cycle parking facilities is included in the interests of
promoting sustainable travel.
35. To ensure that the development does not have an adverse effect on matters of
ecological value, a condition in respect of protected species mitigation is
included. A materials condition and a condition in respect of landscaping are
included in the interests of protecting the character and appearance of the
area. In the interests of protecting the living conditions of neighbouring
occupiers, I have also imposed a condition in respect of construction working
hours. So as to ensure that there is not detriment to the environment, a
condition requiring the implementation of drainage works, as well as a
conditions in respect of energy and water efficiency, are included. As
mentioned above, in order to make sure that the development is safe from
flooding, I have also included a condition in respect of finished floor levels. In
order to protect neighbouring uses, I have also imposed a condition in respect
of an obscure glazed screen to a first-floor balcony.
Conclusion
36. I acknowledge that the scheme would conflict with the requirements of Policy
WMC8 of the Local Plan, in that it would replace the retail unit/local centre that
was aspired to within the allocation of the new neighbourhood. However, I find
that given the extent of the marketing that has been undertaken to date, there
is little or no realistic prospect of the retail unit being delivered on this site. I
consider that this is a material consideration sufficient to outweigh the conflict
with this policy. Additionally, I find that the design of the appeal scheme would
be acceptable at this location and that there would be no harmful effect on the
Dorset Heathland Site of Special Scientific Interest.
37. Accordingly, for the reasons given above, and having regard to all other
matters raised, I conclude that the appeal should be allowed.
Martin Allen
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
Paul Tucker QC, of Counsel Kings Chambers
Instructed by
Tristan Hutton, MRTPI Agent, Tetra Tech Planning
Mark Smith, BA MCIHT Paul Basham Associates
Terry Seymour, CENG MICE RCP Architecture & Civil
Engineering
John Gately, MRTPI Barratt David Wilson Homes
Southampton
Martin Hastelow, MRICS Savills
FOR THE LOCAL PLANNING AUTHORITY:
Naomi Shinkins Dorset Council
Philip Reese Dorset Council
Sean Prigmore Lambert Smith Hampton
Philip Crowther Dorset Council
Ellie Lee Dorset Council
SCHEDULE OF CONDITIONS
1) The development to which this permission relates must be begun not later
than the expiration of three years beginning with the date of this
permission.
2) The development hereby permitted shall be carried out in accordance with
the following approved plans:
• H.19.17 (00) 2 M Proposed Ground Floor Plan
• H.19.17 (00) 3 N Proposed First Floor Plan
• H.19.17 (00) 4 L Proposed Second Floor Plan
• H.19.17 (00) 6 Proposed Basement Floor Plan
• H.19.17 (27) 1 A Proposed Roof Plan
• H.19.17 (9) 3 G Proposed Site Plan
• H.19.17 (9) 4 A Proposed Waste Strategy
• H.19.17 (9) 5 Proposed Boundary Plan
• H.19.17 (20) 1 B Existing and Proposed Cross Sections
• H.19.17 (21) 1 F Proposed Elevations 1
• H.19.17 (21) 2 D Proposed Elevations 2
• 17-184/010 B Proposed Drainage
• 17-184/012 A Proposed Tracking
• BDWS21671-03 E Tree Protection
• BDWS22585 11 E Landscape Proposals
3) Before the development is occupied or utilised the first 5.00 metres of each
vehicular access, measured from the rear edge of the highway (excluding
the vehicle crossing) must be laid out and constructed to a specification
that has been submitted to and approved in writing by the Planning
Authority.
4) Before the development is occupied or utilised the access, geometric
highway layout, turning and parking areas shown on approved plans must
be constructed. Thereafter, these must be retained, kept free from
obstruction and available for the purposes specified.
5) Before the development hereby approved is occupied or utilised the
visibility splay areas as shown approved plans must be cleared/excavated
to a level not exceeding 0.60 metres above the relative level of the
adjacent carriageway. The splay areas must thereafter be retained and
kept free from all obstructions.
6) Before the development is occupied or utilised the cycle parking facilities
shown on approved plans must have been constructed. Thereafter, these
must be retained, kept free from obstruction and available for the purposes
specified.
7) The development hereby approved shall not be occupied unless and until
the protected species mitigation measures as detailed in the mitigation plan
dated September 2020 have been completed in full unless any
modifications to the agreed mitigation plan as a result of the requirements
of a European Protected Species Licence or the results of subsequent bat
surveys have first been submitted to and agreed in writing by the Local
Planning Authority. Thereafter approved mitigation measures shall be
permanently maintained and retained in accordance with the approved
details.
8) No development above damp-proof course (DPC) shall take place until
details and samples of all external facing and roofing materials have been
provided on site and approved in writing by the Local Planning Authority
(LPA). All works shall be undertaken strictly in accordance with the details
as approved.
9) All hard and soft landscape shall be carried out in accordance with
approved plan ‘BDWS22585 11 E Landscape Proposals’ prior to the
occupation of any part of the development and the planting carried out in
the first planting season following completion of the development. Any
planting found damaged, dead or dying in the first five years following their
planting are to be replaced with plants of the same size and species.
10) No construction work in relation to the development, including preparation
prior to operations, shall take place other than between the hours of 08.00
hours to 18.00 hours Monday to Friday and 09.00 hours to 13.00 hours on
Saturdays and at no time on Sundays, or Public or Bank Holidays.
11) Proposed drainage details shall be carried out in accordance with the
following drainage information:
• 17-184/010 B Care Home Preliminary Drainage Strategy,
• 17-184-09A Care Home Drainage Technical Note Combined, and
• 17-184 Leigh Road_SW Dummy Model for Retail Unit.
The surface water scheme shall be fully implemented in accordance with
the submitted details before the development is completed and maintained
as such for the lifetime of the development.
12) No development shall take place until details of finished floor levels have
been submitted to and approved in writing by the local planning authority.
The scheme shall be implemented in accordance with the approved details.
13) No development above damp-proof course (DPC) shall take place until
details have been submitted to and approved in writing by the Local
Planning Authority that cover the following matters:
• how the development shall achieve at least 10% of the total
regulated energy (used for space heating, hot water provision, fixed
lighting and ventilation) used in the dwellings in each phase from
renewable sources, unless otherwise agreed in writing with the local
planning authority,
• that options for district heating, and/or power facilities to serve the
development have been investigated,
• where it is possible to do so the development should be connected to
a district heating and/or power facility in accordance with a scheme
to be submitted to and agreed in writing by the Local Planning
Authority.
The scheme shall be implemented in accordance with the agreed details.
14) No development above damp-proof course (DPC) shall take place until a
scheme for water efficiency has been submitted to and approved in writing
by the Local Planning Authority. The scheme should demonstrate a
standard of a maximum of 110 litres per person per day is applied for all
residential development. The scheme shall be implemented in accordance
with the agreed details.
15) Before the development is brought into use, the first-floor balcony in the
northern wing must be glazed with a 1.8m high obscure glass screen to its
northern elevation to a minimum Pilkington privacy level 3 or equivalent.
Thereafter the obscure glazing shall be retained for the lifetime of the
development.