Case Reference: 3311539

Appeal Decision
Site visit made on 22 August 2023
by R Bartlett PGDip URP MRTPI
an Inspector appointed by the Secretary of State
Decision date: 1 November 2023
Appeal Ref: APP/C1570/W/22/3311539
Land to the west of High Lane, Stansted CM24 8LQ
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission under section 73 of the Town and
Country Planning Act 1990 for the development of land without complying with a
condition subject to which a previous planning permission was granted.
• The appeal is made by [APPELLANT] against the decision of Uttlesford District
Council.
• The application Ref UTT/21/2376/FUL, dated 21 July 2021, was refused by notice dated
3 October 2022.
• The application sought planning permission for redevelopment of site to provide 35 no.
dwellings with associated garages, drainage infrastructure, landscaping and parking
including the creation of new vehicular access from High Lane and additional footpath
access points from Cambridge Road and High Lane, without complying with a condition
attached to planning permission Ref UTT/18/1993/FUL, dated 30 May 2019.
• The condition in dispute is No 18 which states that: The pedestrian links, as indicated
on drawing no. P18-0133_01 (Rev N) as Path 1, Path 2 and Path 3, shall be constructed
to a minimum width of 2 metres.
• The reason given for the condition is: In the interests of accessibility and in accordance
with ULP Policy GEN1.
Decision
1. The appeal is allowed and planning permission is granted for redevelopment of
the site to provide 35 no. dwellings with associated garages, drainage
infrastructure, landscaping and parking including the creation of new vehicular
access from High Lane and additional footpath access points from Cambridge
Road and High Lane, without complying with condition 18 attached to planning
permission Ref UTT/18/1993/FUL, dated 30 May 2019, on Land to the west of
High Lane, Stansted CM24 8LQ, in accordance with the terms of the
application, Ref UTT/21/2376/FUL, dated 21 July 2021, subject to the
conditions set out in the attached schedule.
Preliminary Matters
2. As there was no post code on the application form, I have taken this from the
appeal form. The new development has now been named King Charles Drive.
3. The redevelopment of the site is complete, and all of the new dwellings are
occupied. The only exception to this is the provision of the pedestrian links
referred to as Path 2 and Path 3 by the condition in dispute. However, the
Council has conceded in an email dated 18th September 2023, that the
condition in dispute is not enforceable and that the provision of these paths is
not a requirement of the S106 Agreement.
4. The evidence before me shows that the development has been completed in
accordance with planning permission ref UTT/18/1993/FUL, and that all
necessary conditions and planning obligations have been discharged.
Main Issue
5. The reason given for the condition in dispute on the original decision notice was
in the interests of accessibility and in accordance with Policy GEN1 of the
Uttlesford Local Plan (2005) (the Local Plan). However, the reason for refusing
to vary the condition was that the loss of 2 of the 4 approved pedestrian access
points would reduce accessibility for occupiers of the development resulting in
a poorly designed scheme, contrary to Policies GEN1 and GEN2 of the Local
Plan.
6. The main issue is therefore the effect of varying or removing the condition in
dispute on the pedestrian accessibility of the site and on the overall design of
the development.
Reasons
7. Paragraph 56 of the National Planning Policy Framework (The Framework) and
the Planning Practice Guidance (PPG) set out the relevant tests for conditions,
which must be necessary, relevant to planning and to the development to be
permitted, enforceable, precise and reasonable in all other respects. All of
these requirements must be met.
8. The condition in dispute, as currently worded, is neither precise nor
enforceable. Whilst it requires the pedestrian links indicated on a specific
drawing number to be constructed to a minimum width of 2 metres, it does not
specify when the pedestrian links must be provided by or that they must be
retained. I also note that whilst the approved drawing numbers have been
listed at the beginning of the decision notice, there is no condition requiring the
development to accord with these and the completion of a development in full,
is not enforceable.
9. The Council has accepted that the condition as currently worded is not
enforceable and that the construction of the Paths in question are not secured
by the S106 Agreement. The pedestrian link that has been provided from the
site, onto Cambridge Road, and the footpaths at the main entrance of the site
joining High Lane, appear to be at least 2 metres wide. Consequently, no
enforceable breach of condition appears to have occurred.
10. The appellant is seeking to vary the condition in dispute to read “The
pedestrian links, as indicated on drawing No. BRD/19/045/052 as Footpath 1
and Footpath 4, shall be constructed to a minimum width of 2 metres.”
11. It was evident from my site visit that Footpaths 1 and 4 have already been
constructed to a minimum width of 2 metres, in accordance with the originally
approved drawings.
12. The site is bound by the B1351 High Lane to the east and by the B1383
Cambridge Road to the west. The principal vehicular and pedestrian access into
the site is from High Lane. There is an additional pedestrian access,
approximately midway along the western boundary of the site, that joins the
footpath along Cambridge Road.
13. The site slopes uphill from north to south. Due to the site levels, there are
steep embankments between the development and the unlit footways on either
side of it. These embankments contain mature landscaping that is valuable in
terms of screening and softening the appearance of the development. The
Council’s Landscape Officer has commented that the removal of the
requirement for the footpath links would reduce the impact of the development
on the landscaped boundaries of the site. The landscaping also provides
ecological benefits and reduces road traffic noise and improves privacy and
security for occupiers of the new houses.
14. With regard to the necessity of the condition, the development is relatively
small and has pedestrian access links to footpaths along the main roads on
either side of it. Although the two additional pedestrian links that have not
been provided would have created shortcuts for occupiers of the development,
these reduced distances would not be significant and would not deter people
from walking. Moreover, given that these links, due to the significant
differences in ground levels, would have had to be provided by steep steps,
they would not have improved accessibility for those with mobility issues,
pushchairs, wheelchairs or for cyclists.
15. The Local Highway Authority does not object to the loss of the footpaths and
note that this would not preclude pedestrian access to and from the site. It
previously advised that due to the constraints of the site these may not be
achievable. Moreover, the Local Highway Authority would not be willing to
adopt or maintain the pedestrian links in the event that they were provided. I
have been referred to the Highway Authority response to the original
application, dated 5 October 2018, in which the disputed condition was
recommended. However, this does not reflect the more recent responses of the
Highway Authority. I am also advised that the achievable gradients would not
be compliant with Manual for Streets guidance and this has not been disputed.
16. Given the technical difficulties caused by the land levels, the condition also fails
the test of reasonableness. Providing the links would require significant
excavation works, the construction of retaining walls and would result in the
loss of mature landscaping. This would result in an urban appearance that
would detract from the character and appearance of this edge of settlement
location.
17. For the reasons set out above, it is my view that the omission of Paths 2 and 3
would not unacceptably diminish the design quality or accessibility of the
overall development. Consequently, the removal of condition 18, even if it had
been enforceable, would not be contrary to Policies GEN1 or GEN2 of the Local
Plan. These Policies require new development to be well designed taking
account of the reasonable needs of all potential users, including the needs of
people with disabilities and the need to encourage movement other than by
car. There would also be no conflict with The Framework in so far as it relates
to accessibility and the need for high quality design.
18. I have considered the variation of the condition suggested by the appellant, but
this would also fail the relevant tests for conditions. Given that all pedestrian
links necessary to make the development acceptable have been provided to an
appropriate width and standard, a revised condition is not required.
Other Matters
19. Objections have been made to the pedestrian link referred to as Path 1, which
has been constructed in accordance with the 2-metre minimum width
requirement and as such is not in breach of the disputed condition. The
objections relate to the wide footpath opening resulting in a loss of
landscaping, loss of privacy, increased noise and increased security risks.
However, as this footpath was approved as part of the original development
and any minor alterations to it do not form part of the proposal before me to
delete the requirement for Paths 2 and 3, I have not considered this matter
further.
20. Whilst I have had regard to the history of the development site that has been
drawn to my attention, this does not change my view that Paths 2 and 3 are
unnecessary to make the development compliant with the relevant
Development Plan Policies. Nor does it alter the fact that the existing condition
is not enforceable and therefore dismissing this appeal would not facilitate the
Council in taking any action. The condition of existing adopted pavements
outside of the development site are the responsibility of the County Council.
Conditions
21. The Planning Practice Guidance makes clear that decision notices for the grant
of planning permission under section 73 should also restate the conditions
imposed on earlier permissions that continue to have effect. As the
development is already complete and occupied, the Council has provided a
revised list of conditions that it considers remain relevant due to their ongoing
requirements.
22. I have therefore re-imposed the condition requiring the surface water drainage
system to be maintained in accordance with the previously approved details to
ensure the site is appropriately drained to reduce the risk of flooding. The
retention of ecological enhancement measures and the retention (and
replacement where necessary) of soft landscaping is necessary to ensure the
appearance of the site reflects its edge of settlement location and to support
local wildlife. The retention of obscure glazing is necessary in the interests of
privacy, and the conditions to ensure visibility splays are kept free from
obstruction and to prevent the use of unbound surfaces are necessary in the
interests of highway safety.
Conclusion
23. For the reasons given above I conclude the appeal should succeed.
R Bartlett
INSPECTOR
Schedule of Conditions
1) The surface water drainage system shall be maintained in accordance with the
maintenance plan details submitted to and discharged by the local planning
authority under application ref UTT/19/2586/DOC, and yearly records of any
maintenance undertaken shall be made available for inspection upon the
request of the local planning authority.
2) All ecological mitigation and enhancement measures and/or works shall be
carried out in accordance with the details contained in the Preliminary
Ecological Appraisal Report sections 5 and 6 (Southern Ecological Solutions,
July 2018) and the Badger Survey (Southern Ecological Solutions, August
2018) as submitted with the planning application ref UTT/18/1993/FUL. This
includes bat sensitive lighting, planting which enhances the environment for
bats, installation of bat boxes, due diligence regarding nesting birds, due
diligence for hedgehogs when undertaking vegetation clearance, creation of
hedgehog habitat, permeable boundaries for hedgehogs, retaining boundary
trees and hedgerows, plantings to include grassland and fruiting trees to
increase foraging for badgers. The enhancement measures shall be carried
out strictly in accordance with the approved details and shall be retained in
that manner thereafter.
3) Any soft landscaping which within a period of five years from the substantial
completion of the development dies, is removed or becomes seriously
damaged or diseased shall be replaced in the next planting season with other
landscaping of similar size and species. All landscape works shall be carried
out in accordance with the guidance contained in British Standards.
4) First and second floor flank windows serving en-suites, landings, bathroom
and dual secondary dual aspect windows shall be obscurely glazed with glass
of obscuration level 4 or 5 of the range of glass manufactured by Pilkington
plc at the date of this permission or of an equivalent standard. Glazing of that
obscuration level shall thereafter be retained in those windows.
5) The visibility splays of the new vehicular access onto High Lane, with
dimensions of 2.4 metres by 70 metres to the north and 2.4 metres by 133
metres to the south, as measured from and along the nearside edge of the
carriageway, shall be retained free of any obstruction at all times.
6) The internal visibility splays as indicated on DWG no. P18- 0133_01 Rev N
shall be retained free from any obstruction at all times.
7) No unbound material shall be used in the surface treatment of any vehicular
access within 6 metres of the highway boundary.
End of Schedule