Appeal A: APP/T6850/C/15/ Site address: Mellowcroft, Llandegley, Llandrindod Wells, Powys, LD1 5UF.

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1 Penderfyniad ar yr Apêl Ymchwiliad a gynhaliwyd ar 13-15/10/15 Ymweliad â safle a wnaed ar 13/10/15 Appeal Decision Inquiry held on 13-15/10/15 Site visit made on 13/10/15 gan Janine Townsley LLB (Hons) Arolygydd a benodir gan Weinidogion Cymru Dyddiad: 29/01/16 Date: 29/01/16 by Janine Townsley LLB (Hons) an Inspector appointed by the Welsh Ministers Appeal A: APP/T6850/C/15/ Site address: Mellowcroft, Llandegley, Llandrindod Wells, Powys, LD1 5UF. The Welsh Ministers have transferred the authority to decide this appeal to me as the appointed Inspector. The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act The appeal is made by Mr Edward McIntosh against an enforcement notice issued by Powys County Council. The Council's reference is E/02/15. The notice was issued on 12 March The breach of planning control as alleged in the notice is without planning permission the unauthorised change of use of the land from agricultural use to a mixed use comprising agricultural use, allotment use, permanent residential use, use as a campsite, use for education, use for alternative therapy and recreation use and use for the siting of items listed in schedule 1 attached to this decision. The requirements of the notice are as set out in schedule 2 attached to this decision. The period for compliance with the requirements is nine calendar months. The appeal is proceeding on the grounds set out in section 174(2) (a), (b) and (f) of the Town and Country Planning Act 1990 as amended. Summary of Decision The appeal succeeds in part only. Otherwise the appeal fails and the enforcement notice as corrected and varied is upheld as set out below in the Formal Decision. Appeal B: APP/T6850/C/15/ Site address: Mellowcroft, Llandegley, Llandrindod Wells, Powys, LD1 5UF. The Welsh Ministers have transferred the authority to decide this appeal to me as the appointed Inspector. The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act The appeal is made by Mr Edward McIntosh against an enforcement notice issued by Powys County Council. The Council's reference is E/03/15. The notice was issued on 12 March The breach of planning control as alleged in the notice is without planning permission the unauthorised erection of a treehouse, single storey addition, balcony and external stairway situated at or about 3 on the attached plan; a classroom, associated decking and external stairway situated at or about 6 on the attached plan; a single roomed timber structure situated at or about 7 on the attached plan; a jetty situated at or about 15 on the attached plan; footbridges situated at or about 16 on the attached plan; excavation works to create two ponds

2 at or about 17 on the attached plan; and erection of a wind turbine at or about 26 on the attached plan. The requirements of the notice are as set out in schedule 3 attached to this decision. The period for compliance with the requirements is nine calendar months. The appeal is proceeding on the grounds set out in section 174(2) (a), (b), (c), (d) and (f) of the Town and Country Planning Act 1990 as amended. Summary of Decision: The appeal succeeds in part only. Otherwise the appeal fails and the enforcement notice as corrected and varied is upheld as set out below in the Formal Decision. Application for costs At the Inquiry an application for costs was made by Mr Edward McIntosh against Powys County Council. This application is the subject of a separate Decision. Background - Enforcement Notice (EN)A & EN B 1. The development subject to appeal is described by the appellant as a holistic retreat which includes sleeping accommodation and facilities for visitors to the site. Regular events are also held, some of which last in excess of one day and therefore involve overnight stays at the site. There are a number of timber structures on site for use by visitors, some of which are used for overnight accommodation. There is a classroom structure which is used for education purposes and a treehouse which provides office and reception type facilities. The EN s list a number of other structures on site, all of which are stated by the Council to relate to the use of the land for the operation of the retreat. The land is also used for the siting of a residential motor home and touring caravan in which the appellant and his family reside. There is no objection to the use of the site as a holistic retreat in principle by the Council. 2. Within his written evidence and orally at the inquiry, the appellant has expressed concern over perceived bias from the case officer in dealing with these appeals and associated planning application. This is not a matter which has concerned me in addressing the planning merits of these appeals. Procedural Matters - EN A & EN B 3. This decision relates to two appeals which have been made in relation to two enforcement notices. Both relate to the same site but differ insofar as one relates to the alleged material change of use of the site as set out in EN A and the other to certain alleged building operations as set out in EN B. 4. A ground (d) appeal has been made in relation to EN B. The appellant s case is that the structures referred to in EN B are immune from enforcement action since they had been completed in excess of four years prior to the date of the notice. This is dealt with in this decision under the ground (d) appeal. No ground (d) appeal has been made in relation to EN A and there is nothing in the evidence to suggest the change of use of the land enforced against under EN A commenced over 10 years prior to the serving of the notice. In this regard, I have taken into account the Council s submissions on the application of case law 1 that irrespective of any finding of immunity as a result of the ground (d) appeal on EN B, that the structures referred to in EN B would still be required to be removed from site when complying with the 1 Somak Travel Ltd v Secretary of State for the Environment and Brent L.B.C [1987] J.P.L 630 2

3 steps required in EN A. The appellant agreed at the inquiry that the structures form part of the use of the site. It is clear to me that the structures referred to in EN B were constructed with the intention of serving the use of the site as a retreat, albeit the bridges were also, according to the appellant s evidence, intended to support the agricultural use of the site. For this reason, I consider a finding in the appellants favour in relation to the ground (d) appeal made against EN B would not have any effect on the requirement to remove the structures in compliance with the steps set out in EN A. 5. At the inquiry the Council sought an amendment to both notices by removing reference to two pools on the appeal site. The appellant agreed to this proposal. I am satisfied that the removal of reference of these features would not have an impact on the overall construction of the ENs and I shall vary the notices accordingly. Given that the appellant s ground (b) appeal on EN A relates only to these pools, with the agreement of the appellant, I confirmed at the inquiry that I should treat the ground (b) appeal as withdrawn. 6. During the inquiry, the appellant stated that the EN s failed to specify which of the fences and footbridges on site they related to. The response of the Council was that whilst the notices referred to fences and footbridges in plural, the EN plans identify only one area of fencing and one bridge, these being the fencing at point 25 of the plan attached to EN A and the bridge at point 16 on the plan attached to EN B. Section 173 (2) of the Act states that a notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters which appear to the local planning authority to constitute a breach of planning are. The notice is clear that the remedial steps required are to remove the fences from the land and demolish and remove from the land the footbridges and the EN cross references the plan which refers to a single area of fencing and a single footbridge. I consider the breach would be better described by referring to footbridge in the singular and therefore I shall correct the notices accordingly. 7. Similarly, there was some confusion expressed at the inquiry due to the various descriptions used within the evidence of the building described as a single roomed timber structure. The appellant s supplementary grounds of appeal document refer to the cedar shack (originally canvas shack) being identified as the timber structure located at or about point 7 on the plan. The appellant has therefore understood the matters considered to constitute a breach of planning control and what steps are required to remedy this. Consequently I consider that no injustice has been suffered by the appellant and the EN is sufficiently precise and clear. 8. Whilst there is no ground (c) appeal made in relation to EN A, the appellant s representations assert that there has been no breach of planning control in relation to the use of the land for camping use with the siting of tents, for the siting of a marquee and for allotment use with associated sheds and polytunnel. This issue was raised during the course of the inquiry and I do not consider there would be any injustice caused to the parties by considering this as effectively a ground (c) appeal. 9. EN A refers to the siting of a yurt. It is common ground between the parties that this structure had been removed from the land at some point prior to the Council officer s visit to the site in April I satisfied that this element of the EN has been complied with. 10.Both ENs refer to the inadequacy of information submitted to the Council to be able to assess the foul drainage arrangements to serve the development as a reason for 3

4 issuing the notice. Following the submission of further details in relation to drainage proposals, the Council s environmental health department and Natural Resources Wales confirmed details could be suitably controlled by condition. As a result of this, the Council has confirmed there are no longer any objections in relation to this issue and I shall proceed on this basis. Decision EN A The appeal on ground (c) 11.The ground of appeal is that there has not been a breach of planning control. There is no express ground (c) appeal in relation to EN A, however, it is clear that the appellant s evidence is that the use of the land as a campsite as part of the mixed use enforced against and the use of the land for the siting of a marquee on a seasonal basis are temporary uses and therefore benefit from permitted development rights. It is also clear from the appellant s evidence that his case is that the use of land for allotment use and the siting of a polytunnel and allotment sheds does not amount of development. Use of the land as a campsite and the siting of a marquee. 12.The appellant says that that tented camping has occurred only sporadically, generally for use by retreat visitors and volunteers during summer months and there is no evidence before me to contradict this assertion. Similarly, the appellant s position is that the marquee is used only for additional shelter during events. There appears to be no dispute between the parties that the marquee is removed from the land after each use. Following the site visit the Council expressed concern that yellowing of the grass was seen in the area the marquee was last sited. The Council felt this was suggestive of a longer period of use. I acknowledge the appellants response to this that it can take some time for grass to retain full colour following a period of being under cover and I do not consider that this factor is in itself is sufficient to challenge the appellants evidence that both the use of the land for camping and the siting of the marquee has occurred for in excess of 28 days in each calendar year. Schedule 2, Part 4 Class B of the General Permitted Development Order 1995 provides for the use of land for any purpose for not more than 28 days in any calendar year and for the provision on the land of any moveable structure. 13.However, it is clear that the camping use and the use of the marquee are intrinsically related to the alleged mixed use of the site; for the operation of the retreat. This is a change of use of land which has been operating on a permanent, year round basis. The camping use and the siting of the marquee occur each year as part of the retreat use. They therefore form integral parts of an ongoing mixed use rather than each being a separate temporary use of land for a period of up to 28 days in each consecutive calendar year. For this reason I find that the use of land is permanent in nature and therefore does not benefit from permitted development rights relating to the temporary use of land. The appeal on ground (c) in relation to the camping use and use for the siting of a marquee fails. 4

5 The allotments, sheds and polytunnel 14.The Council s position is that the growing of food for personal consumption amounts to a leisure use as opposed to an agricultural use. Ms Richards in her statement of evidence makes reference to case law 2 to support the Council s position that the allotments on the appeal site comprise a material change of use of the land since their use by members of the community renders the nature of the use as leisure. Whilst the case law referred to was not produced in evidence, it seems the Council has failed to draw a distinction between use of land for leisure purposes akin to a domestic garden, and use of land for the growing of fruit and vegetables for the purposes of consumption which falls within the statutory definition of agriculture 3 to include horticulture, fruit growing, seed growing. The allotments in this case are offered as a free resource for the use of local residents and the fact that users may gain some enjoyment from the process of growing fruit and vegetables, albeit principally for their own personal consumption does not, in my view, take the use out of the statutory definition. For this reason, the polytunnel and allotments and by implication the sheds and which are used in conjunction with the allotments, do not amount to development. For this reason there has been no breach of planning control and the ground (c) appeal insofar as it relates to the allotments, allotment sheds and polytunnel is allowed and I will amend the notice to take this into account. EN B The Appeal on Ground (c) The timber bridge at point 16 of the plan 15.The appellant s case is that permission is not required to build the timber bridge as its purpose is to facilitate safe movement around the land for agricultural use. 16.The appellant s evidence is that the bridge was constructed both for the purposes of agriculture and to facilitate movements around the site for visitors using the retreat. The bridge has a wooden base which the appellant asserts would allow passage by a tractor. There is no evidence before me which would lead me to doubt this assertion. Notwithstanding that, the low level of agricultural activity on site and the addition of willow handrails to the bridge lead me to conclude that the bridge has been designed and used principally for guests to traverse the site. 17.The appellant has not stated upon what legal basis he considers the construction of the bridge would not require planning permission. Section 55 (2) (e) of the Town and Country Planning Act 1990 provides that the use of land for the purpose of agriculture does not amount to development, however, this relates to the use of land as opposed to the construction of structures. In any event, the appellant states that the bridge is used for both agricultural purposes and for the benefit of guests traversing the site. There are no permitted development rights which may apply to the construction of the bridge. On this basis the appeal on Ground (c) in relation to the timber bridge fails. 2 Crowborough Parish Council v Secretary of State 3 Town and Country Planning Act 1990 s

6 The jetty 18.Although not referred to within the appeal document, the appellant s evidence states as with the bridge, that the jetty does not require planning permission. He does not set out the legal basis for his position. The reasons set out in paragraph 18 above apply also to the jetty, that is, that no permitted development rights exist for its construction. Consequently, the implied Ground (c) appeal in relation to the jetty must also fail. The Appeal on Ground (d) 19.The ground of appeal is that at the date the notice was issued, no enforcement action could be taken. In order to succeed on this ground it would be necessary for the appellant to demonstrate that the uses alleged took place for a period of in excess of four years before the EN was issued. The burden of proving this lies with the appellant and the relevant evidential test is the balance of probability. 20.The Council relies on the second bite provisions. An enforcement notice was served on the appellant in relation to the appeal site in 2013 (the 2013 EN). This alleged the change of use of the land from agriculture to a mixed use of agriculture, siting of mobile homes for residential purposes and use as a campsite, education and alternative therapy facility and the unauthorised erection of timber buildings/structures and a yurt. In this case, the facts of the allegation differ insofar as the current EN s refer to breaches which are not contained within the 2013 EN. The current EN s include a greater number of components than the 2013 EN, some of which are not merely a more accurate or detailed description of those in the 2013 notice. This includes the erection of a wind turbine and the siting of a container and static caravan for domestic storage purposes. EN A and B provide a more accurate description of the nature of uses and operations on site at the time those two notices were issued. Whilst the Council may have anticipated enforcing against the whole of the development in 2013, this was evidently not achieved through the 2013 EN which was withdrawn. I conclude that s 171B(4)(b) of the 1990 Act does not apply in this case. 21.In order to succeed under ground (d), the appellant must therefore demonstrate that the development referred to in EN B was substantially complete over four years prior to the date of the EN. The relevant date in this case is 12 th March Treehouse 22.The parties agree that the structure referred to in both notices as the treehouse has evolved over time to its current form. It currently comprises a two storey element which wraps around a tree with an external stairwell, first floor balcony area and a single storey addition to the rear which appears to have been constructed on stilts. The appellant recalled in evidence that the original structure around the tree and external stairway were built in Since that date it is agreed between the parties that since that time further work has been carried out. The appellant states that the single storey extension was added in 2012, this comprises a single ground floor room. He states that a seating area and balcony was added some time later. 23.In the Council s evidence, reference has been made to the constantly evolving nature of the treehouse. Whilst the structure has been informally named The Folly it is clear that over time, a purpose of the structure has evolved, and the appellant 6

7 acknowledged in evidence at the inquiry that the structure as it now appears is complete. In submissions, the Council has referred to case law 4 in this regard. In the light of the evidence given by the appellant, it seems that when the treehouse was first commenced, the appellant did not have in mind how the building might evolve. That is not to say he never intended the building to be complete and put to some useful purpose. The appellant acknowledged that when the treehouse was commenced, it was a platform suspended in the trees which may have collapsed. Taking into account all of the evidence, I consider that whilst the appellant may not have had a clear idea of the end appearance and use of the treehouse when the structure was commenced, he did not consider the structure complete until the ground floor extension and balcony were added at some time after For that reason I conclude that the treehouse was not substantially completed within four years prior to the date of EN B and for that reason, the ground D appeal in relation to the treehouse fails. Classroom 24.The Council states that the first time Council officers saw the classroom was in Notwithstanding this, according to the appellant s evidence, works to construct the classroom were commenced in The grounds of appeal state that the building was complete but with a tarpaulin roof in 2009 and a cedar shingle roof was added in 2010 meaning the structure was complete and being used by the end of the summer This was confirmed under cross examination. There appears to be no dispute of these dates by the Council and there is nothing before me to suggest this is incorrect and therefore, on that basis, I find the classroom had been substantially completed in excess of four years prior to the date of the EN. To that extent, the appeal made in relation to EN B on ground D meets with success. Single Roomed Timber Structure 25.The appellant stated in evidence that the cedar shack (also referred to in evidence as the canvas shack and in the EN as the single roomed timber structure), was built in 2009 and the appellant stated in his appeal form that it was built in 2009 and re clad and renamed as the cedar shack in I understand the appellant s case is that the structure was considered complete and was being used as overnight accommodation from 2009 and that the original canvas covering still exists beneath the cedar cladding. The issue is whether the structure was substantially completed prior to the addition of the cladding in The structure was initially covered in canvas and was in use as such and therefore it appears that the appellant originally intended that to be the finish of the structure. The Mellowcroft handbook refers to a recent addition of a new (waterproof) roof but since the appellant s evidence is that the structure was in use by guests and volunteers from I am satisfied with the appellant s explanation was this was a replacement roof and was water tight. I consider that the addition of the cedar cladding amounted to an improvement to an already completed structure and for this reason, I consider on the balance of probabilities it was completed in Therefore the appeal made in relation to the single roomed timber structure on ground (d) in relation to EN B should succeed. 4 Sage v secretary of State for the Environment, Transport and the Regions and others [2003] 1 W.L.R 983 7

8 Jetty 26.There is little evidence in relation to the construction date of the jetty, although the appellant stated in evidence that it was built in approximately 2008, and then completely replaced in approximately Without clear details of how the replacement was carried out, the appellant has failed to demonstrate on the balance of probabilities that the jetty as enforced against had been completed four years prior to EN B for this reason the ground (d) appeal in relation to the jetty fails. Footbridge 27.The appellant s evidence is that all footbridges on site were built in approximately 2006/7 and all have been improved with handrails and the addition of non-slip surfaces within the past four years. There is nothing in the Council s evidence to dispute this. Whilst the Council s position is that the addition of non-slip surfacing and handrails means the structure referred to in EN B is not immune from enforcement action, on the appellant s evidence, the footbridges were in use from 2007 and were used both on foot and by tractor. On this basis I consider the addition of non-slip surfacing and handrails to be improvements to an already completed structure. I am satisfied, therefore, on the balance of probabilities that the appeal in relation to the footbridge referred to in EN B should meet with success. Wind Turbine 28.The wind turbine, according to the appellant in the supporting documents to the appeal form has been attached to the power house since it was built in 2007, and has been used to generate off grid power since. The Council states that the wind turbine does not appear in photographs taken by Council officers until That, however, is insufficient to amount to a challenge to the appellant s evidence and in the absence of any contrary evidence, I conclude the appellant has established on the balance of probabilities that the appeal made in relation to EN B under ground (d) should succeed. The Appeals on ground (a) - EN A and EN B Main Issues 29.Ground (a) appeals have been made both in relation to the change of use of the site subject to EN A and in relation to the development comprising structures as detailed in EN B. From the evidence submitted in writing and at the inquiry, I consider that there are three distinct areas of dispute pertaining to the ground (a) appeals which apply to both appeals and for this reason, I will deal with both ground (a) appeals together in this section. Accordingly, I have identified the main issues as the following: The effect of the development on the safety and convenience of users of the adjacent highway network; The need for reports on the presence or otherwise of protected species; Whether the development would justify the establishment of a rural enterprise dwelling under the tests set out in national and local policy. 8

9 Highways 30.The appeal site is accessed off the A44, a single carriageway approximately 1 mile away from the village of Llandegley. The site is accessed via a private track from the A44. In the area of this junction the highway centreline is marked by double white lines (dashed relating to north bound traffic) restricting overtaking to one side of the highway since the forward visibility for drivers is below the minimum required for safe overtaking. The A44 has the appearance of a rural road at this location and the speed limit along the road is 60 mph. 31.The evidence before me makes reference to guidance contained within three publications: the Design Manual for Roads and Bridges (DMRB) which applies to trunk roads, the Manual for Streets (MfS) which applies to residential streets and Technical Advice Note 18 Transport (TAN18). The parties disagreed as to the applicability of DMRB and MFS to this appeal, however both appeared to agree on the applicability of the guidance contained within TAN 18. In this respect there was a consensus that table A of annex B of TAN 18 was appropriate for ascertaining the required stopping sight distance(ssd). In these circumstances I consider the guidance contained within annex B of TAN 18 applies in this case and I have determined the appeal accordingly. 32.During the course of the inquiry, Mr Von Weber acting as highways witness for the appellant and Ms Brown, The Council s highways officer, met on site in order to reach a consensus as to the width of the site access track from the A44 and the stop and sight distances when leaving the site. As a result of this meeting, two agreed documents were prepared by them entitled Visibility from the access and Access widths. These were submitted to the inquiry as evidence. Width of access track 33.The appellant considers that he is the legal owner of the access track leading from the A44 to the appeal site and whilst he had not, at the date of the inquiry, received confirmation of this, there is nothing before me to suggest his abilty to use and maintain the track is impeded. The agreed drawing entitled Access widths shows an available width of 7.2 metres at the site entrance. This narrows to 4.35 metres at a distance 4 metres back from the junction with the A44 and to 2.8 metres at 12 metres back from the junction. I heard evidence in relation to the width of the access track and the availability of space adjacent to the highway for two cars to pass. It is clear to me that where the access track meets the highway there would be sufficient space for two cars to pass. This would not be the case for all of the track, however, I am satisfied that the access track in its current form would allow for two cars to pass next to each other for a distance of in excess of 4 metres back from the A44. This, I consider would be sufficient to ensure no compromise to highway safety since there would be no need to have vehicles waiting to turn into the site on the A44. Should the appellant be able to establish ownership of the track, it may be the case that further works could be carried to increase the width of the access at certain points and this would further improve accessibility to the site. Visibility when leaving the appeal site 34.Policy GP4 Powys Unitary Development Plan (UDP) provides that permission for development proposals will be dependent on, inter alia, adequate provision for highway access including visibility. 35.In June 2015 the appellant undertook a speed survey. The speed of 200 vehicles travelling along the A44 in both directions were surveyed. From the data they 9

10 calculated the 85 th percentile speed to be 53 mph. The readings were taken over a seven day period and although the time of each individual reading was not collated, in evidence Mr Von Webber confirmed that generally all recordings were taken between the hours of 9am and 4 pm. Whilst these figures provide only an indication of average speeds taken during the course of the survey, the results accord with my observations whilst on site. 36.There is disagreement between the parties as to what the X distance should be. The X distance in this case is, the distance measured back from the junction with the A44, up the access track towards the site. The appellant s position is that an X distance of 2 metres would be appropriate in this case, however, the advice within TAN 18 is clear, that a minimum X distance of 2.4 metres should normally be used in most situations and that a reduction to 2 metres may be considered in some very lightly trafficked and slow speed situations. 5 The appellant s speed survey results have an 85 th percentile speed of 53 mph. Whilst lower than the speed limit of the road, it cannot be described as a slow speed. Similarly, there is no evidence before me to show that the A44 at this location is very lightly trafficked and whilst I observed that the road at this point does not appear to be particularly heavily used, I did observe a number of cars passing. For these reasons, I consider an X distance of 2.4 metres is appropriate in this appeal. 37.The agreed document Visibility from the Access 6 sets out the relevant Y distance calculation, that is the distance at which forward visibility is available in both directions for vehicles egressing the site taken from the X point. Whilst there was some disagreement between the parties as to whether the Y measurement should be taken to the edge or the centre of the carriageway, I am mindful of the advice contained within TAN 18, which states it is ordinarily taken from the kerb line. In any event adopting the appellant s preferred method of measuring to the centreline would not have such an effect on the visibility available, so to accord with the distances set out in Table A. 38.Using an X distance of 2.4 metres, and by reference to the agreed document entitled visibility from the access, the SSD to the north is 18.3 metres and 39.8 metres to the south. This is in contrast to the recommended SSD in Table A of annex B of TAN 18 which advises 160 metres in both directions. On the evidence presented there is also a shortfall in the forward visibility figures along the A44 to see cars turning into the site. 39.In an attempt to address the visibility from the access, the appellant made requests to the highways authority to carry out thinning works to the hedges either side of the site access. The Council s position is that there is no basis upon which they would carry out works to thin the hedge bordering the A44 in the vicinity of the site junction. I have nothing before me to suggest that there would be any requirement for the Council to carry out such work. 40.I acknowledge that the junction between the A44 and the appeal site is an existing access. Both parties have attempted to assess the traffic movements which would be reasonable in association with the existing lawful agricultural use. Ms Brown for the Council explained that the existing use of the site would be expected to generate Paragraphs B.5 and B.6 6 Prepared by Mr Von Webber and Ms Brown during the course of the inquiry. 10

11 trips per day to allow for animals to be checked etc. This would amount to amounting to 2190 traffic movements per annum. 41.TAN18 7 encourages a realistic assessment of traffic impact when considering development associated with farm diversification, with a view to reconciling traffic issues with the benefits of encouraging diversification. The appellant s business plan estimates 4076 trips per annum. In evidence, Ms Brown considered this to be a very significant increase in traffic movements. The Council has expressed some concern that the figures provided are unrealistic but in the absence of any objectively derived figures it is possible only to surmise what the increase in vehicle movements may be. In any event, I consider the nature of the use as proposed would inevitably result in some periods of significant additional vehicular use of the access, particularly during the holding of events. 42.Taking the above into account, I consider that the proposed use of the site as a holistic retreat would generate more traffic than the current lawful use of the site. In evidence, the applicant stated that the site could lawfully be put to use for events such as car boot sales and this would generate a significant amount of traffic. However, given there has been no proposal for the hosting of such events, I do not consider that such uses are reasonably likely and for this reason I have given limited weight to this consideration. 43.The lack of any recorded accidents on the A44 in the vicinity of the junction to the appeal site in the past 10 years is a material factor, but it is not sufficient to wholly rely on that factor when determining whether a proposed access is acceptable or not in terms of highway safety. There is nothing in TAN 18 to suggest this is the case. 44.I have taken into account whether improvements to visibility could be achieved by means of conditions. A letter from the owners of the adjacent land was handed in to the inquiry but it arrived at a very late stage of the proceedings and therefore did not afford the Council the opportunity to comment on or question the extent of works which would be offered. Therefore, it is not possible to make an assessment as to whether the proposed works would facilitate adequate visibility. For this reason, on the basis of the evidence before me I am not satisfied that works to improve visibility can be achieved and for this reason, it would not be appropriate to impose conditions requiring works to the hedges. 45.Overall, whilst taking into account the fact that this is an existing access and noting the lack of any recorded accidents in the area, I consider the shortfall in visibility from the access onto the A44 is significant and fails to accord with the guidance as set out in TAN 18. This accords with my observations on site that the hedges either side of the access impede visibility when egressing the site. As a consequence of this, the proposal would fail to respect the safety and convenience of users of the A44 at this location resulting in a significant increase in risk to highway safety. Thus it would fail to accord with policy GP 4 of the UDP. Ecology 46.The Council considers that the ground (a) appeals should fail, since the appellant has taken inadequate steps to establish whether otters and water voles are using the site. The guidance within Technical Advice Note 5, Nature Conservation and Planning (TAN 7 Paragraph

12 5), states that where a survey is required by an authority, the survey should be completed and any necessary measures to protect the species should be in place through conditions and/or planning obligations before the permission is given. 47.Both otter and water vole are legally protected species. Otter is a European protected species. In relation to otters, information gained by the Council from Local Records Centres Wales show four records of otter within 2 km of the appeal site between 1991 and There are also recorded sightings of water voles. 48.I have been referred to the publication; Otters: Guidelines for Developers. This advises that otters are mainly nocturnal and occupy large home ranges, up to 40km along a river for male otter, a wide variety of habitats and feed mainly on fish. They can travel some distance from a water source in the right circumstances. 49.Whilst there is no guidance specific to Wales available in relation to Water Voles, I have been provided with guidance issued by Natural England entitled Water Voles the Law in Practice Guidance for planners and developers. The advice states that water voles are rarely seen and therefore surveys should be carried out on the basis of characteristic signs. 50.Mr Box, on behalf of the Council, carried out a desk based study to inform his written evidence. This was followed by an addendum report prepared following a site visit which was held shortly before the inquiry. This confirms the conclusion in his main report that insufficient information was submitted to enable the Council to assess the ecological impact of the development on species, particularly otters and water voles. Mr Box s evidence is that there are habitats within the appeal site which have the potential to support the presence of otter. These include the watercourse, the fish pond, the wildlife pool, the marshy grassland, the wet meadow and the rough grassland. He also states that there are features that could provide a range of potential resting sites for otters. The fish pond would offer easy foraging opportunities and otters could be attracted via the stream passing through the site which has connectivity with Mithill Brook and the river Ithon. Both are designated as SSSI and SAC for which otter is included in the citation. In relation to water vole, the evidence on behalf of the Council states that the stream, as described within the appellant s phase 1 report, is considered to fall within the habitat ranges in which water vole would feasibly occur Dr. Botting, on behalf of the appellant, carried out a Phase 1 Habitat Survey which concluded no suitable habitat for otter exists on site and little exists for water vole. He states that whilst theoretically otter can be found anywhere in mid Wales, the appeal site would not be suitable habitat for otter as it is not wet enough, the stream is small and the stock of fish would not provide a sustainable food source. However, taking into account the evidence of the Council, I am satisfied that whilst the site may not offer a suitable habitat for otters to live in, there are features on site which could attract otters to pass through, feed and rest as part of their home range. Dr Botting stated in evidence that he had not been told that there had been a request from the Council for a survey to be carried out. 52.Given the past recorded sightings of both otter and water vole in the locality, the citations relating to otter and the potential of certain features on site to attract both otters and water voles to use the site, I consider it is not unreasonable for the Council 8 Para 3.30 Statement of Evidence of Mr. Box 12

13 to have requested a survey to confirm the presence or otherwise of otters and water voles. Without such survey, it is not possible to assess compliance with policy ENV 7 of the UDP which requires that where protected species are affected by a proposal, the appellant would be required to conform with any statutory protection provisions. 53.I consider the nature of the use of the site is such that at times there would be larger groups of people present with the potential for disturbance to any protected species which may be on site. This was acknowledged by the appellant s witness, Dr. Botting, at the inquiry. A finding that protected species are present on a site is not necessarily fatal to the development. It is not the intention of the law to prevent all development in areas used by protected species. However, legal protection does require that due attention is paid to the presence of otters and appropriate action is taken to safeguard otters and the places they use for shelter or protection. Without a survey it is not possible to firstly, confirm whether protected species are on site and secondly, detail how they are using the site. Without this information it is not possible to consider a package of protective measures. 54.Mr Box s addendum report concluded that the underside of the classroom structure on site provides an environment which would be capable of providing a resting site for otters. For this reason, compliance with the EN would require the submission of a report to finally determine the presence of otters and if found present, a license would need to be sought prior to compliance with the ENs. In this regard, I note the submissions made by the Council that any refusal to issue such a permit by Natural Resources Wales would amount to a good defence to any prosecution which may arise. For this reason, I do not consider any variation of the steps required under the notices is necessary. 55.Taking all of these considerations into account, I consider that without a survey, it would not be possible to identify measures to ensure the protection of otters and water voles. In this regard the development would fail to comply with the advice contained within TAN 5. Rural Enterprise Dwelling 56.The appellant made reference to a historic residential use of the site. Whilst no evidence was presented relating to this, there were anecdotal accounts at the inquiry In any event it is clear that the last residential use of the site was a very long time ago. For the avoidance of doubt, I conclude there is nothing before me to persuade me that the residential use of the site is lawful. 57.The appeal site is situated outside of any settlement boundaries and is therefore within the open countryside for the purpose of development plan policies. UDP policy HP6 sets a presumption against new housing in the open countryside which does not comply with the affordable housing policies, unless it relates to agricultural or forestry uses or in connection with a suitable rural enterprise. The policy requires that rural enterprise dwellings will be subject to criteria to establish a functional need and financial viability. Technical Advice Note 6 Planning for Sustainable Rural Communities (TAN6) states that one of the few circumstances in which new isolated residential development in the open countryside may be justified is when accommodation is required to enable rural enterprise workers to live at, or close to, their place of work. The TAN sets out the criteria to establish when a new dwelling on a new rural enterprise may be justified. These are considered in further detail under the relevant headings below. 13

14 58.The Council accepts that the proposal falls within the TAN 6 definition of a rural enterprise and that the permission sought for residential use is in connection with the rural enterprise 9. The evidence from the Council states that the appellant is seeking a temporary permission for a rural enterprise dwelling, however this does not reflect the development which is subject to enforcement action, nor does the appellant s evidence appear to be seeking anything other than a permanent rural enterprise dwelling. Notwithstanding this, TAN 6 advises that there may be circumstances where it would be appropriate to test the evidence submitted in support of a rural enterprise dwelling for a period of up to three years by granting a temporary permission. 59.The appellant and his family currently reside in a mobile home and touring caravan and therefore, the ground (a) appeals seek consent for this. The functional test 60.In order to satisfy the functional test, the appellant must demonstrate a need for a resident worker to be present at most times to ensure the proper functioning of the site. In evidence, the appellant explained there are a number of reasons why it is felt a full time worker should be permanently on site. Examples were given of medical emergencies which occurred late at night when he was able to take control of the situation until the emergency services arrived. He also pointed to sustainability reasons to avoid travel to and from the site and for security following incidents of attempted thefts and to provide instruction and advice to visitors. I heard evidence that the need to have a presence on site at most times results also from the remoteness of the site coupled with particular features of the business which have health and safety concerns. The appellant gave examples of a number of responsibilities including the need to ensure the safe operation of log burners in the timber structures, to ensure no one uses the hot tub if they have consumed alcohol, the operation of the outdoor baths (often a night time experience), to check the site and ensure all fires are settled down at the end of each evening and to ensure no guests are alone or vulnerable in this isolated, off grid location. The appellant also explained that heating for the hot tub and showers are provided by a vintage rayburn which needs to operate constantly. He stated that most guests would be unlikely to be able to operate this equipment independently. 61.The Council s evidence is that the development could function without a full time presence on site. I was referred to a previous appeal decision 10 as authority that a functional need cannot be established where instructions and signage would be suffice to allow guests to operate facilities on site independently. However distinctions can be drawn between the appeal proposal and the example given which related to a holiday park. In the present case, the off grid and isolated nature of the site, is not akin to a modern caravan site with more conventional means of heating and energy supply. Therefore, whilst I accept the Council s arguments that a functional need cannot be established for the purposes of security alone or to avoid a commute from an off site address, my overall conclusion is that someone needs to be present on site at most times or the enterprise would not operate effectively. The appellant also expressed a view that due to his and his wife s involvement in the development, they form an integral part of the experience and he felt guests would 9 Set out in paragraph of TAN 6 10 APP/A2280/A/14/

15 simply visit if they were not resident on site. I consider this is an additional factor which adds further weight to my conclusion that the functional need as set out in TAN 6 is met. The time test 62.TAN 6 requires evidence of the labour requirements of the enterprise. A business plan has been prepared by the appellant and this sets a time and motion study showing the hours required for the successful running of the enterprise. Doubt has been expressed by the Council as to the reliability of figures put forward by the appellant in support of the time test. This is because the time allocated for tasks such as administration and cleaning are constant throughout the year showing no fluctuation for a reduction in time during winter or off peak seasons. I accept that whilst the enterprise may be seasonal as acknowledged in the business plan, time may still be required to be spent in these activities. However, the time allocated, 60 hours per month administration and 30 hours per month cleaning, has not been fully justified by the appellant; no explanation has been provided as to why administrative tasks need to be carried out on site. Constant monthly hours are also recorded for the maintenance of structures, driveways and paths, maintenance of the ten wood burners, fire wood, maintenance of electrics and renewables and end of day fire safety checks. No explanation has been offered as to why all of these features require as much time to run the enterprise during off peak periods. Further, the figures provided appear to be a projection of the hours anticipated as opposed to a record of the time actually worked. I therefore conclude that the appellant has failed to fully evidence the labour requirements of the enterprise and in this regard fails to meet the test set out in TAN 6. The financial test 63.TAN 6 requires evidence that the enterprise has been planned on a sound financial basis. The figures produced for the year show that the net profit for the year did not generate a full time wage. Whilst the projected figures for show a full time wage being drawn, the Council is concerned this is dependent on an increase in revenue through additional visits. There is no tangible evidence that this is likely to happen. Whilst the TAN does not require evidence of an actual drawing of a wage, it does require that the business show a reasonable prospect of providing a market return for all operators, in this case, the appellant and his wife. In the absence of any firm explanation of how the revenue would increase to allow for the drawing of a full time wage, it is not possible at this stage to confirm the enterprise is financially sound. 64.I have taken into account the evidence given at the inquiry by Ms Ellis, an employee of Business Wales, who has been engaged by the appellant to appraise his business plan. I heard that there are a number of features of the enterprise which demonstrate a reasonable prospect of producing a profit in the near future including multiple income streams and an avoidance of reliance on subsidies which may be available. Whilst these are positive features, they do not establish how or when the business might reasonably be expected to be profitable. Ms Ellis acknowledged that her remit was to assess the feasibility of the enterprise for sustainability but not by reference to the tests set out in Tan 6 in order to justify a rural enterprise dwelling. 65.I empathise with the appellant s measurement of the success of the business in terms other than simply financial, a sentiment which is clearly shared by the significant interested party support at the inquiry promoting the community benefits of the 15