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| Appeal No. | AP14/0014 | | --- | --- | | Application No. | 13 / 91508 / B |
For the Appellant: He called: For the Planning Authority: For the Applicant:
Mr L Vaughan-Williams LLB(Hons) FCIArb FRSA Assisted by Ms E Sampson Mr P F Simpkiss Mrs J Simpkiss Mr E Baker Mr T Lloyd-Davies (Cornerstone Architects) Mrs B Scott
The material points are: 4. The appellant has owned Ballaconley Farm for over 40 years. He owns and maintains the farm drive. The evidence from and on behalf of the appellant includes the following points:
the histories of Ballaconley Farm and of Lough Ny Shuin are explained (Note: this information is in Mrs Simpkiss' statement, but is not summarised here as it is not of material planning significance);
the proposal includes no provision for surface water runoff from the roofs;
no provision is made for parking; if vehicles park on the drive they would obstruct farm traffic;
the proposal would have a detrimental effect on the access track which is private and leads to the Farmhouse; it is dangerous, narrow, winding, unmade and used for farming activities, including movement of livestock, farm vehicles and equipment, as well as domestic traffic;
the proposal would interfere with farming undertaken by the tenant farmer, due to the extra traffic;
the drive is in a poor condition; the Post Office is reluctant to allow its vans to use it and the Commissioners refuse to allow bin wagons to use it;
extra use of the drive resulting from the proposal would cause congestion and additional expense for the appellant in maintaining it;
the residents of Lough Ny Shuin and Fell View (a property on the same drive to the south west), have had access along the drive, but only for social and domestic purposes;
any right of way to Lough Ny Shuin is at best a prescriptive right; at law this right would not extend to the proposed tourist accommodation;
the appellant's privacy would be reduced as the appeal site is at the heart of the farm and near the Farmhouse; tourists staying at the unit could try to enter farm buildings;
presence of tourists would interfere with the enjoyment of the appellant's property and his security;
Ballaconley Dub is a "conservation area"; the appellant spends most of his time on conservation and has planted many trees; visitors to the unit could enter the land around the Dub and disturb birds (Note; the appellant accepted at the inquiry that the Dub is not designated for conservation purposes and that the land where he undertakes conservation is separate from the appeal site);
the proposal would be in breach of Business Policies 11 and 13, and Environment Policy 16(d) of the Isle of Man Strategic Plan ("the Strategic Plan").
The material points are: 7. Approval in principle was given in 2002 for conversion to dwelling/tourist use but not implemented. The site is in open countryside under the Isle of Man Development Scheme (Development Plan) Order 1982. The Committee report cited these Strategic Plan policies - Spatial Policy 5, General Policy 3, Environment Policies 4 and 16, Business Policies 11, 13 and 14, and Transport Policy 7. 8. The Strategic Plan provides for the re-use/conversion of rural buildings to tourism use, and approval may be granted to use dwellings for such use subject to no adverse impact on neighbours' amenities.
The proposal does not strictly fall within the terms of Environment Policy 16 or Business Policy 13; the building does not have special historic, architectural or social interest, and it is a domestic outbuilding not a private house. The location is not ideal. The access track is long and difficult, but the unit would be small and would generate only modest extra traffic. The proposal would have financial benefits, including for the local economy, which would outweigh the sustainability concerns. The proposal accords with the general aims of the Strategic Plan concerning tourism development in the countryside. The alterations, particularly the new roofs, would enhance the building's appearance. Parking would be visually contained within the site. The character and appearance of the area would at least be preserved. The amenities of neighbours would not be affected as there are no immediately adjacent properties. 9. The access and parking arrangements would be satisfactory. The track is poorly surfaced, but it is not a public highway and would be adequate for the limited extra traffic. As it is private land, the condition of the track is not of planning relevance. The concern of the planning system is the public interest, and so the main consideration with respect to access is the safety of the access to the public highway. The Highways Division did not object. Only one extra car would be likely to travel to/from the site. There is sufficient space for parking within the curtilage. The extra traffic would have only a minimal effect on the operation of the farm. There would be no material change in the volume of traffic using the junction onto the public highway. Any impact on the condition of the lane, and the matter of access rights, are private issues for separate resolution and are not material planning considerations. 10. The site is not a designated area under Environment Policy 4. There is no evidence that the proposal would adversely impact on wildlife. Surface water run-off is dealt with under the Building Regulations. 11. The proposal is not in strict accordance with the Strategic Plan, but would cause no material harm to matters of public interest. The development plan does not have primacy in making decisions on planning applications on the Island. The Planning Committee was entitled to have regard to other material considerations as potentially outweighing any conflict with the development plan. The modest economic benefits, and the improvements to the building's appearance, outweighed any concerns about sustainability in transport/location terms. There is no overriding reason to refuse the proposal. The appeal should be dismissed. With respect to the request for a change to the occupancy condition to allow longer lets in the autumn/winter, the Committee did not consider or endorse such a variation.
The material points are: 12. The applicant concurs with the Planning Authority's case. The proposal would not be fully within the policies cited, but the intent and meaning of most sections would be complied with. The following points are made with respect to the policies:
the proposal relies on part (b) of General Policy 3 which supports conversion of redundant rural buildings of architectural, historic or social value and interest; the building is no longer needed for storage use, the applicant has no other use for it and so it is redundant; it is not of architectural interest, but it has been present on the site for a long time and so has a history;
the criteria of Environment Policy 4 are met; there would be no adverse impact on the environment;
parts (a)-(c) and (e)-(f) of Environment Policy 16 are met; with respect to part (d) insignificant extra traffic would result, and this is unlikely to have any impact on other users of the lane;
the proposal is wholly within Business Policy 11;
the intent of Business Policy 12 is fully embraced;
with respect to Business Policy 13, the amenities of neighbours would not be compromised;
the intent of Business Policy 14 is met, as the proposal is for conversion of a barn the redundancy of which has been established;
with reference to Transport Policy 7, there would be adequate parking and turning space on the site; one parking space would be provided in accordance with current standards.
A preliminary matter concerns the right of way to the site. Whether or not any existing right of way would allow access to the tourist unit is a private legal matter. Any doubts that exist about the extent of any right of way do not provide a reason to refuse planning approval. A grant of planning approval would not give the applicant any right of way to his property which does not already exist.
The main issues are: (i) the extent to which the principle of the development accords with/conflicts with the relevant development plan policies; (ii) the adequacy of access and parking arrangements and the impact of additional traffic; (iii) the effect on the character and appearance of the area; (iv) the impact on the living conditions of occupiers of nearby properties; (v) the effect on wildlife and nature conservation interests; (vi) whether the proposal would constitute sustainable development, with reference to the location and transport considerations; and (vi) whether on the balance of considerations the proposal would cause material harm sufficient to justify its refusal.
The site is in the open countryside and so Spatial Policy 5 and General Policy 3 of the Strategic Plan provide that development will not be permitted unless it falls within specified exceptions. Only exception (b) in General Policy 3 is of potential relevance. It provides for the conversion of redundant rural buildings which are of architectural, historic, or social interest. The appellant has queried whether the building is redundant, but the best available evidence on that matter is that of the applicant. There is no substantial alternative evidence to challenge his statement that the building is no longer needed for storage and that he has no other use for it. I find no reason to question this evidence. Nevertheless, although the applicant has argued the building has a history, it is of utilitarian form and appearance and there is no evidence to establish that it has any specific historic or social value or interest. Having regard to the somewhat wider wording of part (b) of Environment Policy 16 of the Strategic Plan, it is not a building which is "otherwise of visual attraction".I have concluded that the proposal does not fall within the exceptions to the restrictions that normally apply to development in the countryside.
The farm drive is unmade and quite narrow. Its surface is in a poor condition, with potholes and areas where water remains after rainfall. It would not provide a suitable access to any major development, but this proposal does not involve the erection of new buildings, and the unit to be created would be small, with only one bedroom. The bathroom would only be accessible through the bedroom. Taking into account also that the only other room would serve a combined function as kitchen/lounge, there is no real prospect that the unit could be occupied by more than 2 people, and so it is unlikely that tourists staying at the unit would have more than one car or more than 2 motorcycles. Some occupiers of the unit could make several journeys a day from and to the site. However, the farm track serves a limited function as the access to Ballaconley Farmhouse, to Fell View and to the appeal site, and to give access for farm vehicles/equipment to the land along it. No evidence has been given of the traffic volumes, but bearing in mind the limited function of the track, and having regard to my observations at my visit, I find that it is likely that volumes are very low. There is no evidence to show that any substantial congestion or obstruction of traffic flows or movements of farm machinery have occurred in the past, and I have found no basis on which it could be concluded that the limited levels of traffic generated by this one small tourist unit would cause any significant congestion or interruption of flows/movements in the future. Even allowing for the nature and condition of the track, it would be unreasonable to conclude that it is unsuitable to cater for the traffic to and from the proposed unit.
No specific parking provision is shown on the drawings, but the defined site is the whole curtilage of Lough Ny Shuin, where there is a sizeable area available for parking. This would more than provide for the parking of an extra vehicle for the tourist unit as well as providing 2 spaces for the dwelling in line with parking standards. There is no reason why parking should take place on the track outside the site.
The main matter of planning relevance regarding access relates to any effect on the public highway. The Highways Division has raised no objection, and there is no evidence to show that the junction of the farm track with the B3 would be inherently unsafe for the limited extra traffic through that junction that would arise. Taking account of all these matters, I have concluded that the access and parking arrangements would be adequate to serve the proposal without causing undue harm to the safety or convenience of users of the track or of the public highway. There would be no conflict with the parking requirements of Strategic Plan Transport Policy 7. With reference to part (d) of Environment Policy 16, there would be no unacceptable implications in terms of traffic generation.
No extensions are proposed. The alterations would improve the building's appearance by providing slate roofs to replace the existing roofs. Alterations to the elevations would be limited and nonintrusive. The character and appearance of the building and the area would be enhanced. On this issue there would be no conflict with part (c) of Strategic Plan Environment Policy 16 or the partly similar provisions of part (d) of Housing Policy 11, to which there is cross-reference in Business Policy 12.
There are no dwellings immediately adjacent to the site. Ballaconley Farmhouse and Fell View are sufficiently far away as to be unaffected by conventional living condition concerns such as loss of light, overlooking and disturbance. The limited extra traffic would not pass Ballaconley Farmhouse, and would be unlikely to cause material disturbance to Fell View. While residents of those dwellings might on occasions have to give way to and pass traffic to/from the tourist unit on the track, such effects would not be of a significance which can reasonably be regarded as materially harmful to the amenities of those residents. Given the relative locations of the appeal site and Ballaconley Farmhouse, and the fact that users of the tourist unit would not have to pass the Farmhouse to reach their accommodation, I can find no basis on which it could be concluded that there would be material harm to the appellant's privacy or security. There is no evidence to support the contention that occupiers of the unit might try
to enter farm buildings. I have concluded that the proposal would cause no material harm to the living conditions of the occupiers of nearby properties. There would be no conflict with the aim of Business Policy 13, which seeks to avoid compromising the amenities of neighbouring residents where the use of private residential properties as tourist accommodation is proposed. It is unclear whether that policy strictly applies as this proposal relates to an outbuilding, but the aim of the policy is of relevance. 24. Ballaconley Dub may have some wildlife/nature conservation interest, but there is no evidence that it has any international, national or local importance in the terms of parts (a), (b) and (c) of Environment Policy 4 of the Strategic Plan. Although the appellant fears that tourists using the unit could affect wildlife, the Dub is separate from the appeal site and there is nothing inherent in this proposal which would of necessity cause harm in this respect. There are no grounds for concluding that the proposal would cause any substantial or material harm to wildlife and nature conservation interests. 25. The site is remote from services and facilities, and users of the unit would be wholly reliant on private cars or motor cycles, and so the proposal would not strictly accord with the aim of Strategic Policy 10 of the Strategic Plan to promote a more integrated transport network. It would not serve to minimise journeys, especially by private car, or to make best use of public transport, or to encourage pedestrian movement. However, it is my view that the weight which should be attached to those matters in the case of this proposal for tourist accommodation is not the same as would apply to a proposal for development for permanent occupation. Due to the reasons for their visit, many tourists are likely to wish to reach places which are remote and less easy to get to without a car. That is reflected in the recognition in paragraph 9.5 .3 of the Strategic Plan that the unique historical landscape is one of the Island's primary assets to tourists. The proposal would have a sustainability benefit in that it would make use of existing built fabric, and avoid a loss of resources already expended which might otherwise lack a sustainable future. Although the proposal would not be sustainable development in terms of the location and transport considerations, this matter should not weigh heavily against the proposal. 26. Much of the questioning of the Planning Authority's case was directed at the fact that the proposal does not fall within the terms of relevant Strategic Plan policies, as was accepted by the Authority and the applicant. There was a focus on policies including Spatial Policy 5, which states that development will "only" be permitted in the countryside in accordance with General Policy 3. However, it is relevant that Section 10(4) of the Town and Country Planning Act 1999 requires that in dealing with a planning application regard shall be had not only to the provisions of the development plan, so far as material to the application, but also to other matters including "all other material considerations". Therefore, the conflict with the development plan is not determinative that approval must be refused. With regard to other material considerations, it is necessary to assess what material harm would be caused. This provides the essence of the final issue, which requires balancing the relevant considerations. 27. The only substantial way in which the proposal conflicts with the development plan is that the building does not have historic, architectural or social interest. The absence of such interest does not in itself constitute harm which would justify refusal. I have found no harm with respect to parking and traffic considerations, or impact on the living conditions of nearby residents, or effects on wildlife and nature conservation. Although the site would be reliant on private motor vehicles, sustainability matters do not in my assessment weigh significantly against the proposal. The scheme would be beneficial to the character and appearance of the building and the area, and there would be likely to be some benefits for the local economy in terms of money spent by the tourists. Although that benefit has not been quantified, it merits some weight in support of the proposal. Taking all these matters into account, I have concluded that the balance of considerations weighs in favour of dismissal of the appeal and confirmation of the planning approval. In reaching that conclusion, I have taken account of all other
matters drawn to my attention, but I have found nothing of overriding significance. I have given consideration to whether condition 3 should be amended to allow longer periods of occupation at certain times of year. However, that is in my view a matter which should not be considered without proper consultation on a further application. Given the size and layout of the proposed unit, there is no justification for adding a further condition to limit the number of occupiers.
Stephen Amos MA(Cantab) MCD MRTPI Independent Inspector
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