Case Reference: 3342862

Appeal Decision
Site visit made on 3 October 2024
by G Powys Jones MSc FRTPI
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 30 October 2024
Appeal Ref: APP/Y3940/W/24/3342862
Waterhay Barn, Leigh, Wiltshire.
• 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 Wiltshire Council.
• The application Ref is PL/2024/01572.
• The development proposed is described as replace barn with new build dwelling.
Decision
1. The appeal is dismissed.
Preliminary matters
2. Reference has been made by both parties to the planning history of the site.
Pursuant to the Council’s decision1 on a prior notification submission
‘permission’, in effect, was granted for the change of use of a barn on the site
to a dwelling under the terms of Class Q of the Order2.
3. Subsequently, an application to demolish the barn to be replaced by a new
build dwelling was refused permission3.
4. Following this decision, the site was acquired by the appellant. However,
during the Building Regulation design process the appellant was advised that
no adequate foundations to support the steel columns were present in the barn
and that a new floor slab would also be required.
5. The barn was demolished earlier this year, and the concrete slab of the former
barn and its apron were broken up. Work commenced on the construction of
foundations for a new dwelling.
6. No obvious trace of the barn existed when I visited. All materials and waste
had been removed from the site, but I saw the excavations to form new
foundations, although these had flooded.
7. The description of the proposed development is therefore inaccurate in that the
barn no longer exists and, indeed, had been demolished prior to the submission
of the application leading to this appeal.
1 Ref PL/2021/07862 dated 30 September 2021
2 The then Town and Country Planning (General Permitted Development) (England) Order 2015(as amended)
3 Ref PL/2022/03761 dated 6 July 2022
Main issues
8. The main issues are: (a) whether this is an appropriate location for a new build
dwelling having regard to development plan policy and, if not (b) whether the
material considerations indicate that a departure from the provisions of the
development plan is justified.
Reasons
Location
9. The appeal site is bordered on three sides by hedges and trees, whilst it is
fenced off from an open field to the north. Access is gained from a country
lane by means of a field gate. The site is physically unrelated to any settlement
and the surrounding uses are agricultural.
10. Reference has been made to several development plan policies, in particular
Core Policies (CP) 1, 2 & 19 of the Wiltshire Core Strategy (CS).
11. The first two policies deal respectively with settlement strategy and delivery
strategy for the County whilst the latter policy provides a spatial strategy for
the Wootton Bassett and Cricklade area, within which the appeal site is
situated. In essence the policies set out the Council’s spatial strategy and
distribution of growth, and provides that development will be focused in
settlements within defined settlement boundaries or allocated land.
12. It is common ground between the parties that the site lies in countryside
beyond a designated settlement boundary, as defined in local policy. I have no
reason to disagree. Saved Local Plan policy H4, defines the circumstances
where new dwellings may be permitted outside settlement boundaries. The
proposal does not fall within any of the defined categories. Although the new
dwelling would be reasonably be well-screened, the largely undeveloped and
unspoilt character of the local countryside would be harmed by the a new
dwelling.
13. The appellant acknowledges ‘..that the proposal is technically contrary to..’ the
provisions of the above policies. I share that view.
14. The Council’s land supply for housing is such that it satisfies the terms of
national policy as set out in the Framework4, and the appellant does not
suggest otherwise. Accordingly, the policies referred to above are not out of
date and relevant in my considerations. Both parties agree that the
Framework’s ‘tilted balance’ does not apply.
15. Policies CP 60 & 61 are directed to sustainable transport and the means of
achieving it in new development. In essence, new development should be
located and designed to reduce the need to travel by car and to encourage the
use of sustainable transport alternatives. Against this the Framework
acknowledges that the opportunities to maximize sustainable transport
solutions will very between urban and rural areas.
16. The appellant has pointed to the opportunities available for walking and
cycling. However, local highways are generally narrow, sometimes tortuous,
unlit with no footways. It would be potentially hazardous for pedestrians and
4 The National Planning Policy Framework
cyclists to use them during the day, but even more so between dusk and dawn.
There is little doubt in my mind that future residents of a new dwelling on this
site would be heavily reliant on the private vehicle for movement.
17. Whilst the site may not be ‘isolated’ in the terms of the Framework5, this does
not render it appropriate for development as a matter of course.
18. The site is clearly in open countryside which is subject to policies of restraint in
respect of the type of development proposed, and its character would be
harmed. Residents of the dwelling are likely to be heavily reliant on the private
car for transport. In these circumstances I conclude that the site is not an
appropriate location for a proposed new build dwelling given the degree of
conflict with development plan policies.
Material considerations
19. Since the barn has been demolished and removed, the appellant acknowledges
that no ‘fall-back’ exists. Indeed, in my view, the demolition of the barn
effectively reverted the lawful use of the land to its former agricultural use.
20. However, the appellant takes the view that the planning history of the site,
notably that the right to convert the barn to a dwelling was once established,
should be regarded as a weighty material consideration.
21. The appellant argues that the dwelling proposed now is little different in scale
and appearance to the permitted development scheme; that issues of
locational sustainability would be similar; that no harm would be caused to the
local landscape, particularly given the visually sheltered, screened nature of the
site and that the barn had become a feature of the local landscape in any
event. In effect, the appellant argues that the impacts of a new dwelling on
issues of planning significance when compared to a converted barn would not
be dissimilar.
22. These arguments suggest that I should possibly overlook the fact that the barn
no longer exists. That is not a practical proposition since the demolition
opened a new chapter in the site’s planning history.
23. It is also significant that the permitted development right under Class Q is not
unconditional. In particular, barns must be capable of conversion involving no
more building operations than reasonably necessary to achieve the conversion.
This is explained in further detail in national guidance:
“It is not the intention of the permitted development right to allow rebuilding
work which would go beyond what is reasonably necessary for the conversion
of the building to residential use. Therefore, it is only where the existing
building is already suitable for conversion to residential use that the building
would be considered to have the permitted development right”6.
24. In applying the appellant’s technical evidence, it would be reasonable to
conclude that the barn was never suitable for conversion in the terms of Class
Q since the structural frame had no or inadequate foundations and the slab was
also inadequate for the proposed use - it is what led to the demolition. This, of
course, is at odds with the technical evidence presented to the Council in 2021.
5 As established in the Courts
6 Planning Practice Guidance When is Permission Required? paragraph 105.
25. Had the Council been presented with the appellant’s current technical evidence
3 years or so ago, it is extremely doubtful whether its decision on the prior
notification submission would have been the same. It could therefore be
justifiably said that the Council was misinformed and possibly misled into
making its decision in 2021. On this basis, the Council’s stance on the current
proposal can be fully understood, and it is one that I support.
26. The planning history therefore attracts very little weight in my considerations
given that the barn no longer exists, and the appellant’s evidence
demonstrates that the barn was not suitable for conversion even in 2021,
notwithstanding the Council’s decision at the time.
27. It is said that the appellant is inexperienced in development, was not properly
advised before he took the decision to demolish the barn and faces financial
difficulties should his appeal fail.
28. The initial appeal statement says that:
The ground conditions report, submitted with the appeal application, demonstrated that
foundations of at least 1.3m would be required, but the building control officer has
since signed off on foundations as deep as 2.5m to 3m. The structural engineer
reported to the appellant in September 2023 that the current foundations were
insufficient and that a new foundation would be required.
29. The initial ground conditions report supporting the planning application was
prepared in April 2023 by GW – a firm of geotechnical and environmental
consultants. Their investigation informed the recommendation made by the
Structural Engineer the following September7. However, GW’s April 2023 report
contains the following statement:
Discussion with the client suggested the original foundations will not be used, and new
foundations are expected to be constructed.
30. Accordingly, the report contains relatively detailed recommendations on
foundation design. There is no clear indication before me as to whether ‘the
client’ in the above-mentioned quotation and the appellant are one and the
same, and I draw no firm conclusions on this aspect. However, it seems clear
that the appellant was involved with and advised by persons and firms well
versed in development including a structural engineer and others providing
advice on Building Regulation matters8. A contractor was also involved. This
being the case, it seems surprising to me that planning issues were not raised,
particularly given the significant departure proposed from the deposited class Q
plans.
31. I find it equally surprising that the appellant appears not to have taken
professional advice when purchasing the barn given the costs of acquisition.
32. Personal circumstances rarely outweigh general planning considerations and
they do not in this case given the substantial conflict with policy and that the
circumstances surrounding this case potentially bring the proper operation of
the class Q procedure into disrepute.
7 Appendix 7 to appellant’s appeal statement
8 Although no evidence has been presented as to whether and when a Building Regulation submission was made
33. Reference has been made to other appeal decisions9 to demonstrate that issues
relating to the planning history of sites and personal circumstances can be
material considerations in planning decisions. There is no dispute about that,
but it is a matter for the decision-maker to determine what weight these should
attract having regard to the facts and circumstances of each individual case. I
should add that whilst extracts from the appeal decisions have been referred
to, the decisions should be read as a whole. When that is done, the details and
circumstances of the 3 cases referred to are clearly distinguishable from those
in the case before me.
34. Accordingly, I conclude that the material considerations in this case do not
indicate that a departure from the policies of restraint contained in the
development plan to be justified.
Other matters
35. I note that the ecological information submitted originally has been updated,
and this in my view adequately overcomes one of the Council’s concerns.
36. The representations of the Parish Council and local residents are also noted,
and I have already dealt with the main planning points raised.
37. All other matters referred to in the representations have been taken into
account, but no other matter is of such strength or significance as to outweigh
the considerations that led me to my conclusions.
G Powys Jones
INSPECTOR
9 APP/C1760/W/20/3247857; APP/N4720/C/20/3258467; APP/J1915/W/23/3317491