BCP Council (Poole):  Darryl Howells, a director the firm is extremely pleased to announce the winning of a landmark appeal decision, for the demolition of a non-designated heritage asset positioned in the Branksome Park and Chine Gardens Conservation Area (BPCGCA), and the construction of a block of 25 apartments with basement car parking.  Following the refusal of the planning application, the client instructed Darryl to submit the appeal, manage it in terms of administrative support and provide expert witness for planning matters arising from the scheme and adopted planning policies.   The remainder of the appeal team included Robert Walton QC from Landmark Chambers, Laurie Marlow from David James Architects & Partners Limited, Steve Cox from Treecall Consulting Limited, and finally Jason Clemons of Savills.

Upon receipt of the refused plans, the appeal team met with the client and discussed the actions necessary to occur through the appeal process in order to secure the best opportunity to secure the successful outcome.  Part of that discussion included the submitted of amended plans to the Planning Inspector to address two particular reasons for refusal, the first relating to the proximity of the building to a protected tree; and the second to allow for natural light to enter into the solely northern facing flats. The submission of the plans under what is termed the ‘Wheatcroft’ principle required Darryl to undertake his own public consultation exercise, writing to every person that the Local Planning Authority (LPA) wrote to during their formal public consultation event that followed registration of the application.  Darryl explained in simplistic terms the changes to be made, offering to meet with residents to discuss the procedure and the justification behind the changes.  Once Darryl’s consultation was over, he presented the information and representations to the Inspector as part of the appeal submission, and it is these amended plans that have been approved by the Inspector.

Additional information that Darryl had to provide with the appeal were the Grounds of Appeal, Statement of Common Ground, Final Comments  and his own Appeal Statement with supporting evidence; whilst co-ordinating the submissions of his fellow consultants under the advice of Robert Walton QC.  Darryl requested the appeal to be heard by Public Inquiry where witnesses for the LPA and the appellant could be cross-examined by barristers.  The Planning Inspectorate initially downgraded the appeal to a written representation, however following extensive negotiations with PINS, Darryl convinced the Inspectorate to allow the appeal to be heard by Informal Hearing (no cross-examination but a virtual hearing led by the Inspector where evidence and witnesses can be questioned).

Returning to the appeal decision, the Inspector outlined in her agenda for the Hearing the following topics (i) effect on protected trees; (ii) the loss of a local heritage asset being acceptable; (iii) impact to the character and appearance of the BPCGCA; (iv) climate change; and finally (v) effect on the living conditions of occupiers with particular regard to natural light.   The decision notice correspondence issued by the Planning Inspector was comprehensive and ran to 35 pages so I will summarise the conclusions as:

  • The nearby Beech tree was identified as being a category A tree (worthy of retention and offering high amenity value) but it was not a ‘veteran’ tree due to its age and condition.  If deemed a veteran, then the root protection area would be significantly enlarged and would effectively estoppel the development from occurring.  The Wheatcroft plans, move the building about 1.8m further away from the tree trunk and therefore the construction of the development including provision of scaffolding could be carried out whilst respecting the protected tree.  The appellant had been honest with the Inspector and informed that the position of the Beech tree were incorrectly plotted, and the arboricultural information needed to be updated.  The LPA then alleged that the remainder of the survey was incorrect and could not be relied upon.  The Inspector dismissed that notation, acknowledging our openness and reminding the LPA that they did not pick up on the error, so it would be incorrect to express their opinion without evidence.
  • The existing building on the site was considered important due to its architectural interest according to the BPCGCA management plan.  Being a late Victorian building it was first shown on a map dated 1870 and originally offered a villa, which was part of historic character of Branksome Park.  Since the 1950s’ the condition of the building had deteriorated due to a strange legal agreement in respect of flat ownership namely there was no legal mechanism for the owners to pay for the upkeep of the building or to force the freeholder to undertake the works necessary.  The Inspector observed varies alterations that had occurred to the building including installation of different window designs, brick built additions, poorly designed extensions and the internal layout being split into flats, left very little of the original layout being unrecognisable, other than the grand staircase. The Council also tried to argue the building formed part of a ‘group value’ of similar buildings in the area, however the Inspector dismissed that claim due to the distances between them and the intervening modern development that had occurred.  The proposed development would result in the total loss of the non-designated heritage asset so the Inspector needed to balance the judgement having regard to paragraph 197 of the National Planning Policy Framework.  In the Inspector’s opinion, a scheme to return the original back to a good condition would be unviable, and the arrangement for the owners made it near impossible to bring forward an alternative scheme; and in terms of the condition of the building, it was deemed the layout and potential conversion would not result in good living conditions for the occupiers. 
  • When assessing the impact to the BPCGCA itself, the Inspector considered that “the significance of the BPCGCA is derived more from its landscaping and the layout of the area, rather than from the buildings it contains. Built development within the CA adds to its significance as a result of the mix of building styles that have clearly developed over the life of the estate. That mix is evident within the vicinity of the appeal site”.  That said, the existing building originally made a positive contribution however its condition today, being the best it will ever be due to the complex ownership issue is causing harm to the wider conservation area.   In respect of the proposed replacement building, the Inspector noted the contemporary appearance and the lack of detailing or materials that referred back to the building to be replaced however that was not to the detriment of the scheme.   In her opinion “The appeal site is in an area that is characterised by a mix of architectural styles and materials, where no one style or type of materials are prevalent” and “a building of the style proposed would not be out of accord with the character of built development in the surrounding area”.  Overall the design of the scheme was complemented, although the impact to the designated heritage asset (namely the conservation area) would be neutral and therefore acceptable.
  • The discussion around climate change related to the northern facing flats and the Council’s reason for refusal alleging it would lead to the need for greater reliance on artificial lighting sources.   In her opinion, the Inspector opined that the flats affected would benefit from floor to ceiling height windows throughout and therefore natural light penetrating into all the flats would be maximised so the objection was necessary and the scheme supported.
  • Finally in the other matters to be discussed, the Inspector accepted the appellant’s arguments that there would be no harm to the amenities of neighbouring residents by reason of loss of privacy due to the distances of separation and the intervening planting that was being offered.   Vehicular access and parking arrangements accorded with the Council’s policies and there were no grounds to raise objections on this basis. 

In the conclusion of the appeal decision, the Inspector found that there would be harm caused by the development by the loss of the non-designated heritage asset however the benefits of the scheme would weigh in favour of the development despite that harm and therefore there was no conflict with the development plan or Framework.   

In Darryl’s opinion this decision has wider implications for developers considering proposals in the BPCGCA especially if the scheme requires the demolition of an existing building irrespective of its contribution to the conservation area.   Whilst pleased with the outcome, we are mindful of the considerable cost to the client and the delay it has taken to get this decision.

We would remind all applicants of the importance to get the right professional team behind you from the outset, and we at Pure Town Planning have the abilities to bring your development forward using the right planning arguments so hopefully you can avoid the appeal process. However if that procedure is required our consultants can manage the whole process for you, whilst offering credible witnesses of experience and knowledge to assist your case.

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