Case Reference: 3337633

Appeal Decision
Site visit made on 15 October 2024
by K L Robbie BA (Hons) DipTP MTP MRTPI
an Inspector appointed by the Secretary of State
Decision date: 12 December 2024
Appeal Ref: APP/A1530/W/24/3337633
Aboukir, Maypole Road, Tiptree, Essex CO5 0EJ
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as
amended) against a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Colchester City
Council.
• The application reference is 231572.
• The development proposed is described as “outline application for a new detached
bungalow to land to the rear of Aboukir, Maypole Rd, Tiptree. All matters reserved”.
Decision
1. The appeal is allowed and planning permission is granted for outline application
for a new detached bungalow to land to the rear of Aboukir, Maypole Road,
Tiptree with all matters reserved at Land to the rear of Aboukir, Tiptree, Essex,
CO5 0EJ in accordance with the terms of the application, reference 231572,
and the plans submitted with it, subject to the conditions in the attached
schedule.
Preliminary Matters
2. The application has been submitted in outline form with all matters reserved
for subsequent consideration. Drawings which include details of layout,
appearance and parking have been provided with the appeal. I have considered
these plans solely on the basis of determining whether, in principle, it is
possible to erect a bungalow on the site as set out in the description of
development. However, as all matters are reserved for future consideration, I
have treated them as illustrative only.
3. A planning obligation made by way of a Unilateral Undertaking (UU) under
Section 106 of the Act was submitted during the course of the appeal. I
consider this matter in full below.
Main Issues
4. The main issues are:
• The effect of the development on the character and appearance of the
area;
• Whether the proposed development would provide adequate living
conditions for future occupiers of the proposed development and the
effect of the development on the living conditions of existing occupiers
of neighbouring properties;
• The effect of the development on the integrity of the Essex Coast
European Protected Sites;
• The need for a legal agreement for the provision of open space, sport &
play and recreation; and
• the effect on the public health of the future occupiers of the proposed
dwellings with regard to land contamination.
Reasons
Character and Appearance
5. The appeal site consists of a parcel of land to the rear of a semi-detached
dwelling known as Aboukir on Maypole Road close to its junction with Barbrook
Lane. It is located within an established residential area within the village of
Tiptree, backing on to a school site. Access would be taken via a strip of land to
the side of Aboukir.
6. The character of the area around the appeal site is derived from the variety of
buildings, set within the built-up area. The appeal site is enclosed by other
residential development and the school site beyond, including an adjacent
dwelling known as Hollywells which has been previously developed to the rear
of the adjacent property at Wits End. I saw on my site visit the wide variety of
building forms, styles, ages and building materials which surround the appeal
site. Many properties have garages and outbuildings to their rears which
creates a depth of built form.
7. Furthermore, the gap between Wits End and Aboukir would means that the
proposed dwelling would be visible from the road and would not appear
cramped or incongruous adjacent to the bungalow at Hollywells. As the
proposed dwelling would be viewed in this context of it would not be discordant
with the character of the area and given the site’s proximity to properties on
Barbrook Lane it would be seen from various angles in the context of built
development in both the foreground and background.
8. Although I note that Hollywells was granted planning permission prior to the
adoption of the Council’s Supplementary Planning Document on Infill and
Backland Development (SPD), I cannot ignore its presence which alters the
character of the area here. Furthermore, I have not been directed towards
specific policies in the Local Development Plan which the proposal would
conflict with. Whilst the SPD is a material consideration in the determination of
the appeal it does not form part of the development plan.
9. Moreover, the SPD does not prohibit backland development rather it advises
that it should respect and reflect the character of the area and the existing
street scene which I have found to be the case here. Furthermore, the proposal
before me would not result in the adverse impacts that the SPD seeks to avoid.
10. I therefore conclude that the proposed dwelling would not lead to a cramped
and awkward appearance and therefore would not adversely affect the
character and appearance of the appeal site or its surroundings. There would
be no conflict with either the advice in the SPD or National Planning Policy
Framework (the Framework) paragraphs 126 and 130 which promote high
quality development which is sympathetic to local character.
Living Conditions
11. The second reason for refusal does not explicitly set out what the effect on the
living conditions of both future and existing occupiers would be. However, from
the Council’s officer report, it seems to me that it is concerned with whether
proposal would provide future occupiers of the proposed dwelling with
adequate living conditions with regard to noise and disturbance and the effect
of the proposed development on existing occupiers of properties on Barbrook
Lane with respect to privacy and overlooking.
12. The proposed dwelling would be single storey in height. The rears of two storey
properties on Barbrook Lane face directly towards the appeal site. Although the
application is made in outline with no details of siting or appearance included
the distance between the appeal site and the rears of the properties on
Barbrook Lane and the intervening gardens of properties on Maypole Road
would mean that acceptable privacy distances could be achieved as set out in
the Essex Design Guide. There would therefore be no adverse effect on the
living conditions of existing occupiers of properties on Barbrook Lane with
regard to privacy and overlooking.
13. The Council’s concerns for the living conditions of future occupiers of the
proposed dwelling seem to be concerned with their expose to noise and
disturbance for example, from vehicular movements. The proposal would be
accessed from a private driveway off Maypole Road which would be for the sole
use of the proposed development. A driveway serving the Hollywells is situated
adjacent to the appeal site. I have not been provided with any substantive
evidence to suggest that the occupiers of the proposed dwelling would be
subjected to noise and disturbance which would result in adverse noise and
disturbance from comings and goings from this property. Neither have I had
my attention drawn to excessive noise and disturbance which would arise from
the neighbouring school site.
14. I therefore conclude that the proposal would not cause undue harm to living
conditions of the occupiers of neighbouring properties. The proposal would
therefore not conflict with Colchester Borough Local Plan Section 1 (CLP1)
Policy SP7 and Colchester Borough Local Plan Section 2 (CLP2) Policies DM12
and DM15 which seek to protect the amenity of existing and future residents
with regard to noise and disturbance and acceptable levels of privacy for rear
facing habitable rooms and sitting out areas.
Integrity of European Protected Sites
15. The appeal site lies within the Zone of Influence (ZOI) of European Protected
Sites on the Essex coast, which are recognised for their value as coastal
habitats and support internationally important populations of breeding and
non-breeding bird species. The Essex Coast Recreational Disturbance
Avoidance and Mitigation Strategy Supplementary Planning Document (SPD)
establishes mitigation for pressures created by recreational disturbance on this
area.
16. A tariff-based system has been established for housing developments, which
would contribute towards a range of measures set out in the SPD. The appeal
proposal would result in an increase of one dwelling, with a consequent small
increase in the number of people living close to the protected sites. The
evidence is that this would likely increase recreational disturbance, either on its
own or in combination with other projects, particularly through dog walking,
fishing and water sports, to the detriment of the integrity of the protected
areas. I therefore find that the proposal would likely lead to significant effects
on the protected sites.
17. The Council has adopted a Recreational Disturbance Avoidance and Mitigation
Strategy (RAMS) in collaboration with other boroughs within the ZOI of the
protected sites. This aims to avoid adverse effects by securing financial
contributions towards a detailed programme of strategic avoidance and
mitigation measures. CLP1 Policy SP2 confirms this approach. A signed and
completed UU dated 26 April 2024 has been submitted which secures the
requisite payments.
18. As the competent authority, it falls to me to undertake an appropriate
assessment. In this case I find that the financial contribution to the RAMS
would secure acceptable mitigation and hence ensure that the proposal would
not cause harm to the integrity of the protected sites.
19. I am therefore satisfied that the development therefore accords with the
biodiversity requirements of the Conservation of Habitats and Species
Regulations 2017 (as amended) (the Habitat Regulations) and paragraph 186
of the Framework.
Legal Agreement
20. A UU in respect of community facilities; open space, sport and recreational
facilities has been submitted in support of the proposal. have considered the
obligation in light of the statutory tests contained in Regulation 122 of The
Community Infrastructure Levy (CIL) Regulations 2010 (the Regulations). It
seems to me that this obligation is directly related to the development and is
fairly and reasonably related in scale and kind to the development and
therefore also meets the tests set out in paragraph 57 of the Framework.
21. Consequently, I am satisfied that the contributions and requirements contained
within the UU are necessary to make the development acceptable in planning
terms. Furthermore, on the evidence before me, they would be directly, and
fairly and reasonably related in scale and kind, to the development proposed.
The proposal therefore complies with CLP1 Policy SP6 and CLP2 Policy DM2 in
this regard.
Land Contamination
22. Representations made on the appeal indicate that the site may have been
subject to historic land contamination following a fuel leak. I have little
information to the exact nature of the contamination or how it was dealt with
at the time with regard to the appeal site. However, the appellant accepts that
appropriate investigation and mitigation is necessary for the proposed
development to take place.
23. From the evidence before me I see no overriding reason why any
contamination could not be remediated should it be identified that it remains
on the land, and this would not appear to be a situation where land
contamination would rule out the development. I am satisfied therefore a
suitably worded condition would be proportionate to the risk in this instance.
24. Consequently, I conclude that the proposal would not have an unacceptable
effect on the public health of the future occupiers of the proposed dwelling with
regard to land contamination. As a result, it would comply with CLP2 Policy
ENV5 where it concerns land that is affected by contamination and matters in
relation to identifying the risk and remediation.
Other Matters
25. I note that an interested party states that that a tree was felled at the appeal
site shortly after planning permission was refused which may have provided
habitat for protected species. However, I have no further knowledge of this
matter or the reasons for the felling of the tree. The loss of a tree at the site is
not a reason in itself to withhold planning permission in this instance. I have
placed little weight on this matter and it does not lead me to an alternative
conclusion on the main issues.
Conditions
26. I have carefully considered the conditions suggested by the Council in the light
of the Framework and Planning Practice Guidance. I have undertaken some
minor editing in the interests of precision and clarity. Those included in the
schedule are found to be reasonable and necessary in the circumstances of the
case.
27. I have imposed the standard outline conditions, time limits and approved plans
conditions. Some conditions require matters to be approved before
development commences. This is necessary in the case of the Construction
Management Plan and land contamination investigation because these either
seek to address issues arising during the construction of the development or
require incorporation into the final design. The appellant has indicated their
willingness to accept these pre-commencement conditions. I have also imposed
a condition relating to unexpected contamination which is necessary in the
interests of the health and safety of future occupiers of the site.
28. I am satisfied that it would not be unreasonable to expect the construction
phase of the development to be carried out at hours compatible with the
residential location of the site. I have therefore imposed a condition relating to
hours of operations during the demolition and construction phase of the
development.
29. Conditions relating to surface water drainage, and biodiversity enhancements
are necessary in the interests of sustainability and conditions relating to
parking provision, refuse storage, cycle storage and the use of unbound
materials are necessary in the interests of highway safety and the appearance
of the site.
30. I have not imposed the suggested condition relating to the provision of
vehicular accesses as this does appear to be relevant to the appeal site and
means of access remains a reserved matter to be determined at a later date in
any event.
Conclusion
31. For the reasons set out above and having had regard to the development plan
and all other matters raised, I conclude that the appeal should succeed, subject
to the conditions set out in the attached schedule.
K L Robbie
INSPECTOR
Schedule of Conditions
1) Details of the access, appearance, landscaping, layout, and scale, "the
reserved matters") shall be submitted to and approved in writing by the
local planning authority before any development takes place and the
development shall be carried out as approved.
2) Application for approval of the reserved matters shall be made to the
local planning authority not later than three years from the date of this
permission.
3) The development hereby permitted shall take place not later than two
years from the date of approval of the last of the reserved matters to be
approved.
4) The development hereby permitted shall be carried out in accordance
with the following plans: Location Plan dated 30 June 2023; Land to Rear
of Aboukir Drawing Number: Outline 01 dated June 23.
5) No development shall take place, including any works of demolition, until
a Construction Method Statement has been submitted to, and approved
in writing by the local planning authority. The Statement shall provide
for:
i) the parking of vehicles of site operatives and visitors;
ii) loading and unloading of plant and materials;
iii) storage of plant and materials used in constructing the
development;
iv) wheel washing and under body washing facilities;
v) measures to control the emission of dust and dirt during
construction;
vi) a scheme for recycling/disposing of waste resulting from demolition
and construction works;
The approved Construction Method Statement shall be adhered to
throughout the construction period for the development.
6) No development shall take place until an assessment of the risks posed
by any contamination, carried out in accordance with British Standard BS
10175: Investigation of potentially contaminated sites - Code of Practice
and the Environment Agency‚ Land Contamination Risk Management
(LCRM) (or equivalent British Standard and Model Procedures if
replaced), has been submitted to and approved in writing by the local
planning authority. If any contamination is found, no development shall
take place until:
i) i. a report specifying the measures to be taken, including the
timescale, to remediate the site to render it suitable for the
development hereby permitted has been submitted to and approved
in writing by the local planning authority;
ii) ii. the site has been remediated in accordance with the approved
measures and timescale; and
iii) iii. a verification report has been submitted to and approved in
writing by the local planning authority.
7) If, during the course of development, any contamination is found which
has not been previously identified, work shall be suspended until:
i) i. additional measures for the remediation of the site have been
carried out in accordance with details that shall first have been
submitted to and approved in writing by the local planning authority;
and
ii) ii. a verification report for all the remediation works has been
submitted to and approved in writing by the local planning authority.
8) Demolition or construction works shall take place only between 0800 and
1800 Monday to Friday and 0800 and 1300 on Saturdays and shall not
take place at any time on Sundays or on Bank or Public Holidays.
9) No works above foundation level shall take place until details of surface
water drainage shall have been submitted to and approved, in writing, by
the Local Planning Authority. No part of the development shall be first
occupied or brought into use until the agreed method of surface water
drainage has been fully installed and is available for use.
10) The development shall not be occupied until such time as car parking has
been provided in accord with current Parking Standards together with a
workable, convenient and efficient turning areas for both the donor and
proposed dwelling which has been submitted as a scaled drawing to and
approved in writing by, the Local Planning Authority. These facilities shall
be retained in this form at all times and shall not be used for any purpose
other than the parking and turning of vehicles related to the use of the
development thereafter.
11) Prior to the first occupation of the development, details of refuse and
recycling storage facilities have been provided and made available in
accordance with details that have been submitted to and agreed in
writing b the Local Planning Authority to serve the development. Such
facilities shall thereafter be retained to the satisfaction of the Local
Planning Authority at all times.
12) Prior to the occupation of the proposed development, details of the
provision for the storage of bicycles sufficient for all occupants of that
development, of a design that shall be approved in writing with the Local
Planning Authority. The approved facility shall be secure, convenient,
covered and provided prior to the first occupation of the proposed
development hereby permitted within the site which shall be maintained
free from obstruction and retained thereafter.
13) Prior to first occupation of the development, Biodiversity Enhancements
shall be provided in accordance with the details provided in the ecology
report dated 11.4.23.
14) No unbound materials shall be used in the surface treatment of the
proposed vehicular accesses within 6m of the carriageway.
**End of Schedule**