Appeal by Weld Enterprise LTD.
Site at Lulworth Cove - From The Mill Pond To The Beach, West
Lulworth,
BH20 5RQ
Appeal Decision
Site visit
made on 24 March 2014
by Pete Drew BSc (Hons), Dip TP (Dist) MRTPI
an Inspector appointed by the Secretary of State for Communities
and Local Government
Decision date: 31 March 2014
Appeal Ref: APP/B1225/A/13/2203587
Lulworth Cove, from the Mill Pond to the Beach, West Lulworth,
BH20 5RQ
• The appeal is made under section 78 of the Town and
Country Planning Act 1990
[hereinafter “the Act”] against a refusal to grant planning
permission.
• The appeal is made by Weld Enterprises Ltd against the
decision of Purbeck District
Council.
• The application Ref 6/2012/0757, dated 28 September 2012,
was refused by notice
dated 13 May 2013.
• The development proposed is improvements around the Mill
Pond (including demolition
of the kiosk and replacement of the bin store), improvements to
Fisherman's Green
(including provision of new public toilets in the existing
waterworks building, conversion
of the existing public toilets to a cafe and kiosk and demolition
of the existing
dilapidated kiosk) and improvements to the beach (including an
extension to the beach
cafe).
Decision
1. The appeal
is dismissed insofar as it relates to improvements to the beach
(including an
extension to the beach cafe, new decking area and retaining
wall). The
appeal is allowed insofar as it relates to improvements around Mill
Pond
(including demolition of kiosk and replacement bin store) and
improvements
to Fisherman's Green (including provision of new public toilets in
the existing
waterworks building, conversion of the existing public toilets to a
cafe and kiosk
and demolition of the existing kiosk). Planning permission is
granted for
improvements around Mill Pond (including demolition of kiosk and
replacement
bin store) and improvements to Fisherman's Green (including
provision of
new public toilets in the existing waterworks building, conversion
of the
existing public toilets to a cafe and kiosk and demolition of the existing
kiosk) at
Lulworth Cove, West Lulworth, BH20 5RQ in accordance with the
terms of the
application, Ref 6/2012/0757, dated 28 September 2012, subject
to the
conditions set out in the Schedule of Conditions attached to the decision.
Procedural matters
2. The
description of development appears to have changed during the processing
of the
application, as set out on the Council’s decision notice. The appeal form
records this
was agreed. In the circumstances I shall deal with this appeal on
the basis of
the revised description: “Improvements around Mill
Pond (including
demolition of kiosk and replacement bin store), improvements to
Fisherman's
Green (including provision of new public toilets in the existing
waterworks
building, conversion of the existing public toilets to a cafe and
kiosk and
demolition of the existing kiosk) and improvements to the beach
(including an
extension to the beach cafe, new decking area and retaining wall)”.
3. The
Council’s Committee report says that the proposed development would
take place in
3 separate areas. Paragraph 5.1 of the Council’s appeal
statement
makes clear that the proposed development around the Mill Pond
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and
Fisherman’s Green areas are considered to be acceptable, subject to the
imposition of
the suggested planning conditions. On this basis The Planning
Inspectorate
wrote to both main parties in advance of the site inspection being
convened to
question, without prejudice to the Appellant's case that the whole
scheme should
obtain planning permission, whether it was agreed that a split
planning
permission could be issued. The Appellant subsequently confirmed its
position and I
have already noted the position the Council took in its
Committee
report. Given objections from third parties, I still need to test this
aspect of the
proposal against relevant Development Plan [DP] policies, but the
position of
the main parties is material to my determination of this appeal.
4. Advice in
Planning Practice Guidance [hereinafter the Guidance], which was
issued after
the parties had prepared their respective cases, says: Express
powers to issue split decisions are given to the Secretary of
State and
Inspectors in Section 79 of the Town and Country Planning Act
1990. In cases
where the local planning authority considers part of the
development to be
unacceptable, it will normally be best to seek amended details
from the
applicant prior to a decision being made. In exceptional
circumstances it may
be appropriate to use a condition to grant permission for only
part of the
development. Such conditions should only be used where the
acceptable and
unacceptable parts of the proposal are clearly distinguishable and
with the
agreement of the applicant [Source:
Paragraph: 013 Reference ID: 21a-013-
20140306]. The
main parties have not put forward conditions to specifically
address the
split permission scenario but, where appropriate, I shall review
those that
have been suggested further below.
5. In the
circumstances The Planning Inspectorate also gave both main parties
the
opportunity to make comments on the Guidance and I have taken account
of the
representations that have been made. Amongst other things the
Appellant has
previously made reference to Circular 07/09 “Circular
on
Protection of World Heritage Sites”, but this was cancelled by the Guidance.
6. Since the
planning application was refused the beach café has sustained
serious damage
due to the winter storms. Both main parties have provided
photographs
that show that a sizeable proportion of the building has been
demolished,
including the roof, the south-west elevation and large parts of the
front
elevation and north-east gable. The Appellant’s letter dated 3 March
2014 says that
the balance of the building “…will be retained in its current
form
pending the outcome of the appeal”. However my site inspection confirmed
that there is
really very little left of the building. Noting that section 55 of the
Act defines
building operations to include rebuilding and that this might not fall
within the
exemption in section 55 (2)(a)(ii) of the Act, planning permission is
likely to be
required for works of reinstatement. This change in circumstances
is highly
material to my decision and I shall consider this further in due course.
Main issue
7. In the
context of the agreement between the main parties regarding the
proposed
development around the Mill Pond and Fisherman’s Green areas, the
main issue is
the effect of the proposed works to the beach on the character
and appearance
of Lulworth Cove and, amongst other things, whether those
works would,
at a minimum, preserve West Lulworth Conservation Area [CA].
The planning policy context for this appeal
8. The DP
includes the Purbeck Local Plan Part 1 [LP], which was adopted in
November 2012.
Relevant LP Policies include D, LHH, CO and TA. The refusal
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reasons do not
allege a conflict with the Dorset Area of Outstanding Natural
Beauty [AONB]
Management Plan 2009-2014, “A Framework for the Future”
[AONB MP], and
so I have not been provided with a copy or relevant excerpts.
However I
attach moderate weight to the AONB MP insofar as there has been
reference to
its contents, specifically the statement of significance.
9. I have been
provided with limited excerpts from the “Dorset
and East Devon
Coast World Heritage Site Management Plan 2009-2014” [WHS MP]. I attach
significant
weight to its identification of the site’s significance. Noting that the
reason for
refusal does not allege a conflict with the aims and policies of the
WHS MP, I
attach moderate weight to them because the Guidance requires
relevant
policies in management plans to be taken into account1. Although I
have not been
provided with copies they are referred to in the correspondence.
Reasons
10. Lulworth
Cove is part of the Jurassic Coast World Heritage Site [WHS] and lies
within the
Dorset AONB, the Purbeck Heritage Coast [HC] and the CA which,
whilst
covering much of the settlement, appears to be focussed on the Cove.
The WHS MP
identifies the significance of the WHS in relation to 5 key values,
namely
geological, palaeontological, geomorphological, history of science and
research and
educational values. It would appear that the International Union
for
Conservation of Nature [IUCN2] agreed Lulworth Cove met its first criterion,
earth’s history and geological features, but not its third one, superlative natural
phenomena or natural beauty and aesthetic importance. The evidence before
me suggests
that the significance of the WHS is fundamentally its geological
interest. At
Lulworth Cove the rocks have been heaved into a near vertical
orientation
and hence this is the classic place to study the evolution of bays
and headlands
as the soft and hard rock layers are eroded at different rates.
11.
Nevertheless, according to the WHS MP, the IUCN acknowledged that under its
third
criterion the Dorset coast “…is of national importance" and this is evident
from its
designation as part of the AONB and HC. It would be hard to disagree
with the
statement of the Dorset AONB Partnership that many special qualities3
underpin the
Dorset AONB, including an exceptional undeveloped coastline,
uninterrupted
panoramic views and a sense of tranquillity and remoteness.
The Council’s
Design and Conservation Officer says Lulworth Cove is one of the
best known
parts of the Jurassic Coast because it represents “…a visually and
geologically outstanding piece of natural ‘sculpture’”. I agree with this view
and stress
that whilst its designation as a WHS appears to be solely by reason
of its
geological interest, it is also significant by reason of its unique natural
beauty. Given
these complementary designations, as WHS, AONB and HC, an
assessment of
the impact of the proposed development should not be confined
to its
significance in geological terms. A broader perspective is necessary.
12. Section 72
of the Planning (Listed Buildings and Conservation Areas) Act 1990
requires that:
“…special attention shall be paid to the
desirability of preserving
or enhancing the character or appearance” of the CA. The National Planning
Policy
Framework [the Framework] says, at paragraph 115, that: “Great weight
should be given to conserving landscape and scenic beauty in
National Parks,
the Broads and Areas of Outstanding Natural Beauty, which have the
highest
status of protection in relation to landscape and scenic beauty”. Noting that
Annex 2 of the
Framework defines a designated heritage asset to include a
1 Paragraph No 18a-034-20140306.
2 UNESCO’s technical advisors for
natural World Heritage Sites.
3 This appears to be a cross-reference
to the MP Statement of Significance.
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WHS and CA,
paragraph 132 of the Framework says: “When considering the
impact of a proposed development on the significance of a
designated heritage
asset, great weight should be given to the asset’s conservation.
The more
important the asset, the greater the weight should be”. Annex 2 of the
Framework also
defines a HC as: “Areas of undeveloped
coastline which are
managed to conserve their natural beauty and, where appropriate,
to improve
accessibility for visitors”. LP Policy
LHH requires proposals for development to
conserve the
appearance, setting, character, interest, integrity, health and
vitality of
the landscape and heritage assets [my emphasis throughout]. The
common test is
one of conservation, together with preservation of the CA.
13. The
proposed works in the vicinity of the beach include: (i) a new timber
sleeper wall
running in front of the beach café and the concrete plinth adjacent
to the café
and fisherman’s hut; (ii) reinforcement of the steep bank behind the
existing
concrete plinth with a low retaining wall; (iii) a new timber deck to the
south-west,
south-east and north-east sides of the café and around the hut,
enclosed by
timber post and rail fencing and galvanised post and rail guarding,
which would
have tables and chairs placed on it to facilitate its use as an
outdoor
extension to the cafe; (iv) a single storey extension to the south-east
side of the
café to enlarge the seating area, which would have a slate roof and
large areas of
glazing facilitating views over the Cove. Other alterations to the
café include a
new slate roof and white painted timber framed sliding windows.
Internal
alterations include the re-configuration of the kitchen and counter
areas and the
provision of a toilet; and (v) conversion of the existing profiled
metal hut to provide
a seasonal ‘crab shack’ and table
and chair store, with
access through
the north-western end of the café, via the new decked area.
14. In the
context of what remains of the former café building, which represents a
limited
fallback position in terms of built form, the proposals cannot be said to
conserve or
preserve Lulworth Cove. The proposed elevations on drawing No
0730.28A
represent a significant encroachment of built form into a heritage
asset that
forms part of this exceptional undeveloped coastline. As one comes
down the road
towards the Cove views are somewhat contained by the
recessed
nature of the route, but as one arrives the view opens out around the
Cove, now
unconstrained by the mass of the former building. The destruction
of the
building has undoubtedly resulted in an enhancement of this important
public view. I
appreciate the site is untidy at present but even this transient
feel does not
detract from the fully revealed sweeping view around the Cove.
15. In its
appeal statement the Council, almost prophetically, said: “The existing
café building, concrete slabs and fisherman’s shed already intrude
into the
setting of the Cove and it could be argued that the character of
the Cove would
best benefit from their removal, which would enhance the setting
of, and better
reveal the significance of, the World Heritage Site geology”. The winter storms
have started
to deliver the Council’s aspiration, insofar as the café building has
been largely destroyed,
and whilst I acknowledge that the condition of the site
is
unattractive at present, e.g. temporary fencing and the like, I attach this
factor limited
weight; it is not a justification for the proposed development.
16. In
addition to the increased size of the cafe, the proposed development would
be visually
obtrusive due to the large footprint of the decked area, its design
and the nature
of its proposed use. I appreciate that photographs4 show the
beach on a
sunny afternoon and, whilst unclear, I have no reason to doubt that
customers
might take say an ice cream outside and sit on the plinth. However
4 Most notably the photograph labelled
“Existing” on photomontage 4 [drawing No 0730.41C].
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what is
proposed is of a different magnitude. The proposed block plan shows
11 tables with
44 chairs on the rear deck. This is in addition to the tables and
chairs shown
at the front and in the flank extension. The proposed deck would
be
significantly longer than the former building and incorporates ranch style
fencing, which
has drawn criticism from the Dorset AONB Partnership for not
reflecting the
high quality of the built environment. My view that such fencing
is acceptable
in the settlement, or what I might call the broader built envelope,
does not
justify its use within the Cove itself. Although I have noted the offer
to accept a
condition to require a rope running between timber uprights this
would not
overcome all of my earlier concerns. The rear deck would incorporate
the existing
shed, which has survived the winter storms, which is proposed to
be converted
into a ‘crab shack’, but that
serves to underline the increased
intensity of
use that the proposed development would be likely to generate.
17. In the
context of an exceptional undeveloped coastline that has a sense of
tranquillity
and remoteness, this large decked area would have an urbanising
effect. The associated
noise due to the outdoor restaurant use, including
cutlery and
china clinking, chairs being dragged on the decking and the sheer
increase in
numbers of people that could be accommodated in a more formal
manner, would
be alien to the natural, quiet, environment of Lulworth Cove.
18. All of
these points lead me to find that this aspect of the proposed development
would not, at
a minimum, preserve the character and appearance of the CA,
conserve the
landscape and scenic beauty of the AONB, conserve the natural
beauty of the
HC or otherwise comply with DP Policies, including LHH. This
aspect of the
proposed development would be conspicuous from a number of
public
vantage-points within, into and out of the CA, including from the Downs.
This wider
rugged landscape of predominantly rough open grasslands provides
the setting
for this dramatic coastline. I acknowledge that buildings are widely
visible in the
exposed landscape, but whereas the village is set back from the
coast this
aspect of the proposed development would appear to be the largest
built form on
this section of coastline.
19. The World
Heritage Site Team5 has drawn
attention to aims and policies in the
WHS MP. Aim 1
is to protect the Site’s Outstanding Universal Value and
integrity by
allowing the natural processes which created it to continue. Policy
1.2 is to
protect the Outstanding Universal Value of the site through prevention
of
developments that might impede natural processes, or obscure the exposed
geology. The
Design and Access Statement acknowledges a long history of
beach loss and
resultant undermining of existing structures and the winter
storms have
wreaked much greater damage, rather than just undermining the
structure. The
World Heritage Site Team say maintenance of existing defences
“may” not impact on the Site’s
Outstanding Universal Value, but continue by
saying “the new wall will be vertical and we know that this tends to
encourage
beach lowering as the waves reflect off the wall and scour the
beach. Any
increased interference with the mobility of the beach does have
the potential to
change the detailed character of the beach which is an integral
part of its
coastal geomorphology”. The section on drawing No 0730.28A
is annotated
“sleeper wall set in concrete footings and fixed to mass concrete” and, as such,
the scheme
represents a material increase in the hard defences. The Council’s
engineer says
extending seaward will increase the tendency for erosion6.
5 Correspondence dated 20 December
2012.
6 Consultation response dated 13
December 2012.
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20. The expert
opinion7 that appears
to have accompanied the application says that
changes to the
wall are insufficient to change “significantly” the existing beach
levels, but
this suggests that there might be some change. The expert opinion
confirms that
vertical walls are well recognised as causing waves to reflect from
them and scour
beaches down. In these circumstances I am concerned that
the reinstatement,
reinforcement and extension8 of the existing concrete plinth
would have the
potential to impede the natural processes, contrary to the WHS
MP. If the
chalk cliffs were to enter a phase of increased failure, acknowledged
in the expert
opinion to be possible and borne out by recent falls that have led
to the closure
of this section of cliff path9, there is a real risk that the proposed
wall would
have an effect on the evolution of bay. The expert opinion says the
removal or failure
of the present wall “would” initiate slope failures immediately
behind the
café. The converse must be that the proposed wall would prevent
such falls and
whilst that might be positive, in the sense that it might protect
the coast
path, it seems to me that the corollary is that the new wall has the
potential to
impact upon the significance and geological interest of the WHS.
The World
Heritage Site Team said “…the existing defences have
already
started to affect the shape, form and therefore the evolution of
the Cove”.
As I
understand it the refraction of the waves in the Cove matches that of the
circular beach
and so a man made defence in this position has the potential to
compromise the
distinctive and characteristic shape of Lulworth Cove.
21. The Guidance
says: “Effective management of World Heritage Sites
involves
the identification and promotion of positive change that will
conserve and
enhance their Outstanding Universal Value, authenticity, integrity
and with the
modification or mitigation of changes which have a negative impact
on those
values”10. The use of the word integrity here is in the sense of being
whole.
The Glossary
to the Framework defines significance, for heritage policy, as “The
value of a heritage asset to this and future generations because
of its heritage
interest”. I am unclear of the circumstances
in which the former cafe building
came to be
erected in the Cove but it appears to have been there for perhaps
the whole of
the twentieth century. It is conceivable, even allowing for climate
change, that
the proposed development might be there for the next 100 years
or more.
Within that timeframe the proposed sea defences have the potential
to cause
substantial harm to the significance of the heritage asset, not just its
setting. It goes
to the very evolution, intactness and integrity of the Cove.
22. The loss
of the café building is a unique opportunity to, as the World Heritage
Site Team put
it, albeit prior to the storms, allow natural processes to
reassert
themselves in this very special place. Although I accept that it is a matter for
others to
determine what happens to the remains of the café building it is in
prospect that
the removal of the north-west wall might reveal the geology for
which the WHS
is recognised; by default another winter like the last might
destroy what
remains of the cafe. The converse is however true and to grant
planning
permission for what is proposed would obscure the geology of the
Cove for
current and future generations, contrary to Policy 1.2 of the WHS MP.
In that sense
I find substantial harm to the significance of the heritage asset.
23. The
Outstanding Universal Value is based, amongst other things, on coastal
exposures of
significance for research and teaching. In contrast to the majority
of Lulworth
Cove, where the exposed geology can be readily understood and
7 Emeritus Professor of Coastal
Geomorphology and Conservation.
8 As shown on drawing No 0730.34A.
9 Noting it was closed at the time of
my inspection because of falls higher up along the chalk cliff.
10 Source of quote: paragraph No
18a-026-20140306.
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appreciated,
this is not true of that portion of the beach within the appeal site.
The Council
has drawn attention to advice in paragraph 137 of the Framework,
which says
that local planning authorities should look for opportunities for new
development
within Conservation Areas and World Heritage Sites to enhance or
better reveal
their significance. The removal of the café building has already
better
revealed the significance of the Cove in the new panorama evident from
the road and
the opportunity to remove the building would reveal the geology.
In the context
of the scheme as a whole I consider this advice does apply.
Public benefits of the proposal
24. Paragraph
134 of the Framework says where a proposal will lead to substantial
harm to a
designated heritage asset, planning permission should be refused,
unless it can
be shown that the substantial harm is necessary to achieve
substantial
public benefits that outweigh that harm, or various criteria are met.
25. The
Appellant has drawn attention to the Guidance, which gives advice on what
is meant by
public benefits. It says: “Public benefits may follow
from many
developments and could be anything that delivers economic, social
or
environmental progress as described in the National Planning
Policy Framework
(Paragraph 7). Public benefits should flow from the proposed
development.
They should be of a nature or scale to be of benefit to the public
at large and
should not just be a private benefit. However, benefits do not
always have to
be visible or accessible to the public in order to be genuine
public benefits.
Public benefits may include heritage benefits, such as: sustaining
or enhancing
the significance of a heritage asset and the contribution of its
setting; reducing
or removing risks to a heritage asset; and securing the optimum
viable use of a
heritage asset in support of its long term conservation”. The Appellant initially
identified 6
public benefits and I shall deal with each in turn.
26. The first
is enhancing and improving dilapidated buildings but to a large extent
this has been
overtaken by events. I have already found that enhancement of
the current
condition of the environs of the former café is not a justification for
the proposed
development as it appears to be a transitory situation. I attach
this factor
very limited weight. Even if no action is taken to improve the
appearance of
the site it is in prospect that further storm events will, over
time, remove
and/or improve the legacy of the former café building.
27. The second
is removing from public view a very large unsightly lump of
concrete sea
defence, which is claimed would improve the setting of the WHS.
The Glossary
to the Framework defines the setting of a heritage asset as “The
surroundings in which a heritage asset is experienced. Its extent
is not fixed
and may change as the asset and its surroundings evolve. Elements
of a
setting may make a positive or negative contribution to the
significance of an
asset, may affect the ability to appreciate that significance or
may be neutral”.
I have doubts
as to whether the sea defences comprise the setting, which is
arguably the
broader landscape, as opposed to being part of the WHS, which is
the approach
that I have taken in reaching my earlier findings. However in
terms of the
substantive point this is an extension of the first alleged benefit
and for the
same reasons I attach this factor very limited weight.
28. The third
is improving the setting of the designated heritage assets, comprising
the CA and
WHS. The plan of the CA with which I am provided appears to
include the
whole of the appeal site, perhaps down to low water mark. In the
circumstances
I am not concerned with the setting of the heritage assets but
rather the
heritage assets, as defined in the Framework, themselves. For this
reason I
attach this factor very limited weight.
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29. The fourth
is protecting access to the Cove. I accept that the block plan shows
that there
would be a pedestrian route through the café above maximum still
water level. I
also note a flight of steps adjacent to the north-east gable, but
there is no
obvious connectivity to the line of the coast path via this route. In
any event both
routes only gain access to the decked area, which would be
enclosed by
the proposed post and rail fence. Accordingly I am unclear on what
basis this
claim is being advanced. Drawing No 0730.34A shows that the plinth
would be
extended in several locations and so access to the Cove at high water
would not be
any easier as a result of the proposal. I have noted reference in
the Design and
Access Statement to the opportunity for improved visitor access
to and along
the beach arising from works to one of the slipways and repairs to
the boat store
hardstanding, but am unconvinced this is the same as protecting
access to the
Cove. In the circumstances I attach this factor limited weight.
30. The fifth
is making a positive contribution to the economic vitality of this rural
area. The
application form does not identify any new employees although I
anticipate
that the employees that were required to service the former café
would, at a
minimum, be re-employed and, noting the increased number of
covers there
might be a need for additional employees. There is a public
benefit from
safeguarding and possibly increasing employment, as well as the
multiplier
effects for the supply chain in the local economy. Noting the third
core planning
principle in the Framework I attach this factor moderate weight.
31. The sixth
is contributing to economic growth and the protection and creation of
jobs in a
rural community. This appears to be a restatement of the fifth and
my earlier
comments apply. I therefore attach this factor moderate weight.
32. The final
comments also refer to the public benefit of the replacement of the
existing
toilets but I am far from persuaded that this is directly linked to the
works proposed
at the beach. The various components appear to be severable.
The final
comments assert that in “…order to deliver these
improvements, the
Appellant must maximise the available commercial benefit, without
increasing
the number of commercial outlets and ensuring that the overall
impact of
development…is no more than existing” [my emphasis]. However the package,
taken as a
whole, appears to propose an increase in the number of commercial
outlets; the
existing green kiosk is “empty” [drawing No 0730.22] and so the
bistro appears
to be an additional outlet. Even if, in pure numerical terms, the
claim might be
correct, the package proposes a material increase in the
commercial
floor space11 and a
significant improvement in qualitative terms.
This is
without taking account of the loss of the beach café, the use of which
might have
been lost with the demise of the building that facilitated the use.
33. I recognise
that my decision has significant implications for the South West
Coast Path at
Lulworth Cove. I have no reason to doubt the Appellant’s final
comments,
which say that if the cliff behind the café building is lost that the
path “…would need a diversion of half to three quarters of a mile away
from the
coast. This is unarguably for the public benefit”. It is and I attach this factor
significant
weight. Nevertheless, again noting that the path was closed because
of cliff falls
further along the Cove at the time of my inspection, the views of
the World
Heritage Site team are of note: they acknowledge that a move away
from hard
defences would result in “…the eventual loss of the
coast path at
that point”. However given the aim, consistent
with the WHS designation, of
allowing the
natural processes which created the Cove to continue, I too regard
11 The application form identifies a net
increase in A3 use of 89 sq m and whilst there would be a small loss in A1
floor space the “other”, presumably toilet/pump house etc, is not
commercial floor space.
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this to be
inevitable. It remains to be determined whether other landowners
might agree to
it being re-routed, but even if such a large diversion were
necessary this
factor does not clearly outweigh the substantial harm identified.
34. The
Appellant’s letter dated 28 March 2014 also suggests that the creation of a
seating area
to allow patrons to view the Cove should be considered a public
benefit and
given the definition in the Guidance I agree. However I attach this
factor limited
weight because of the views that are available from the Downs
and the wide
panorama revealed by the loss of the building. This factor does
not clearly
outweigh the substantial harm identified.
35.
Cumulatively I consider that it has not been shown that the substantial harm is
necessary to
achieve substantial public benefits that outweigh that harm. In
the
alternative, whilst I have considered the criteria set out in paragraph 133 of
the Framework,
they appear to be of limited relevance to this case. It is clear
that not all
of them apply and so the proposed development should be refused.
Overall conclusion on the main issue
36. On the
main issue I conclude that the proposed works to the beach would harm
the character
and appearance of Lulworth Cove and fail to preserve the CA. As
such I find a
conflict with LP Policies D, LHH and CO, and relevant advice in the
Framework to
which I have referred. In particular the proposed works would
fail to comply
with LP Policy D because the development would not positively
integrate with
its surroundings. It conflicts with Policy LHH because it does not
conserve the
appearance and character of the landscape and heritage assets.
It fails to
comply with Policy CO to the extent that the proposed works would
not make a
positive contribution to landscape character. The public benefits
put forward in
respect of the proposal do not outweigh the substantial harm
that I have
identified would occur to the significance of the WHS.
Other matters
(i) The proposed works to the beach
37. The
Framework identifies the 3 dimensions of sustainable development to be
economic,
social and environmental; paragraph 8 emphasises that to achieve
sustainable
development, economic, social and environmental gains should be
sought jointly
and simultaneously through the planning system. However I
have given
reasons in my earlier reasoning why the proposed development
would not
deliver the environmental dimension of sustainability. It is material
that paragraph
28 of the Framework is qualified in its support for sustainable
rural tourism
developments because they need to respect the character of the
countryside. I
have also taken account of the advice in paragraph 131 of the
Framework,
particularly the third bullet-point, but it does not alter my view
that the
proposed works to the beach would not be sustainable. My
assessment is
that specific policies in the Framework, including those related to
AONB, HC and
heritage assets, indicate that development should be restricted.
38. The
Appellant has drawn attention to the sixth aim of the WHS MP, which
includes
enabling visitors to enjoy a welcoming experience and high quality
facilities,
including support for the tourist industry. However my inspection
confirmed that
there is a well-developed range of visitor services in the area
and I turn to
consider how that might be enhanced by other aspects of the
proposed
development below. In the circumstances I find that this factor is
not of
overriding importance in undertaking the planning balancing exercise.
39. I
recognise that my substantive reasoning goes somewhat wider than the
Council’s
reason for refusal, but it seems to me that this is an inevitable
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consequence of
the material change in circumstances over the winter period.
It is a matter
for the Council to consider whether it could support the rebuilding
of the café building
or even, as previously indicated, a small extension to the
south-east of
the beach café. However that does not alter the position that I
take in this
appeal. Amongst other things the scheme before me amounts to
more than the
re-use, alteration, extension or replacement of a rural building,
as referred to
in LP Policy CO, given that replacement relates to the situation
where a
structural survey shows the existing building is of permanent and
substantial
construction. As a point of principle there is no structural survey
but it seems
unlikely that this definition could be met if one were undertaken.
40. I have
taken account of the submitted photomontages. I have also noted
advice in the
Guidance to strike a balance between the needs of conservation,
biodiversity,
access, the interests of the local community, the public benefits of
a development
and the sustainable economic use of the World Heritage Site in
its setting,
including any buffer zone. However this principle applies when
developing
local plan policies. It would appear that the WHS MP, whilst plainly
not a local
plan, does seek to balance these competing needs and I have taken
account of the
policies in the WHS MP in reaching my decision. I recognise that
the proposed
development represents a significant and comprehensive package
of proposals
to effectively manage visitor pressures and to provide facilities to
enhance the
appreciation of the village and the Cove, but it is agreed that the
components are
severable. There is nothing to show that the scheme as a
whole would be
unviable without permission being granted for the beach café.
Neither these
material considerations nor any other matters raised clearly
outweigh the
harm and conflict with DP policies that I have identified.
(ii) The proposed works around the Mill Pond
41. The
proposed works include: (i) the removal of kiosk, wall and picket fence and
its
replacement with timber railings to reveal views of Spring Pond; (ii) the
replacement of
the enclosure around the gardens to the north-east end of the
Coastguard
Cottages with a stone wall; (iii) removal of part of the hedgerow to
the west of
Mill Pond and its replacement with railings to open up views over
the pond to
the Cove; (iv) the removal of tarmac and its replacement with turf
and benches,
together with a footpath along the western edge of the Mill Pond,
to create a
stronger link to the Downs; and (v) replacement of the dilapidated
bin store with
a single storey, pitched roof bin store with clay tiled roof12 and
timber
boarding walls, together with the extension of the existing stone wall.
42. I am in no
doubt that these works would, individually and collectively, result in
an enhancement
of the CA. The Dorset AONB Partnership expressed similar
sentiments but
sought a decorative iron fence in preference to the timber fence
proposed.
However the simple ranch style fencing proposed would represent
an enhancement
compared, in particular, to the suburban white picket fence
and so it is
not necessary to require revised detail by imposition of a condition.
Opening up the
area in front of the Spring Pond would enhance the setting of
the adjacent
listed buildings known as Spring Cottage and Cove Cottage.
43. Concerns
have been expressed regarding the proposed materials for the bin
store but the
existing tired structure is wooden and tiles are characteristic of
the building
opposite, Beach Hotel13. In that
context the timber boarding and
clay tile roof
would be appropriate to its context. I acknowledge that the roof
12 The annotation on drawing No 0730.21
refers to a “slate” roof [MP5] but the detailed elevations on drawing No
0730.25 refer to a “clay tiled” roof and I propose to deal with
this appeal on this basis.
13 As referred to on the submitted
plans, but now trading as Dandelion Café Bistro.
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of Mill Pond
Cottage is slate but the proposed bin store would be separated
from that
dwelling by the existing single storey element with a corrugated roof
and so it is
not crucial to match the existing roof. On the dwelling’s lower side
is an existing
single storey structure finished in tiles and since those buildings
sit happily
together what is proposed would do likewise. The addition of a
pitched roof
to the bin store would not significantly impact on views towards
the sea
because it would be seen against the higher gable of Mill Pond Cottage.
44. I
acknowledge that the removal of the hedgerow adjacent to the Mill Pond
would result
in some loss of soft landscaping and habitat. However in my view
this is
outweighed by the enhancement to the CA from opening up views over
the Mill Pond
to Lulworth Cove. It would also reveal the attractive stone wall
around the
Mill Pond, which is listed in its own right. In reaching this view I
have taken
account of the Arboricultural Survey, which found that “this is a
poor section of hedge” comprising of elder, euonymous and
ivy, which was
confirmed by
my own inspection, and the biodiversity report, which identified
no protected
species in this area. Any future change of use of the bin store
that might be
proposed would need to be assessed on its merits at that stage.
45. The Dorset
AONB Partnership said that the proposed benches should reflect the
high quality
of the built environment. Drawing 0730.25 identifies 2 benches
but few
details, such as elevations or materials, are specified. In my view it
is necessary
to impose a condition to require such details to be agreed in the
interests of
the finished appearance of the scheme and the CA. Subject to this
and other
suggested conditions, which I shall review below, the proposed
works around
Mill Pond would enhance the character and appearance of the CA
and reveal and
enhance listed buildings. For these reasons this aspect of the
scheme
complies with LP Policies D, LHH and CO, and advice in the Framework.
(iii) The proposed works around Fisherman's Green
46. The
proposed works include: (i) the conversion of the existing toilet block into
a bistro,
which would comprise a single storey, pitched roof building with slate
roof and
Purbeck stone walls with painted timber louvres on the south-west
elevation and
painted timber windows. The proposal involves replacing the
existing flat
roof with a pitched roof and a lean-to extension to the south-east
of the
building. An outdoor seating area is proposed to the front of the bistro,
behind a new
stone wall; (ii) the conversion of the north-west part of the
existing
toilet block, following its separation from the remainder, into a retail
kiosk as a
replacement for the existing wooden kiosk to the south-east of the
toilets, which
would be demolished and the area reinstated to grass; (iii) the
conversion of
the flat-roofed, brick, former pump house into public toilets,
together with
the use of the flat roof of the old pump house as a bistro terrace,
with level
access from the Downs via a small timber bridge. A new painted
timber
handrail is proposed around the roof terrace; (iv) alterations to the old
coastguard
store building [Cove Fish], including a small lean-to extension to its
south-west
side, a new window and the provision of an enclosed storage area.
47. The most
significant change would be the new bistro. The Council’s report,
sensibly in my
view, says that whilst the site is in open countryside, Lulworth
Cove presents
a unique situation, with existing tourist related development
outside of the
settlement boundary. LP Policy TA only permits proposals for
new tourist
and leisure attractions where they accord with LP Policy CO. This
permits
development where it does not have a significant adverse impact on
the
environment, visually, where it comprises the re-use or extension of a rural
building of
permanent and substantial construction for tourist accommodation
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or community
facilities. There is some doubt as to whether a bistro falls into
either
category; the toilets would be a community facility but the bistro is
arguably not.
However paragraph 28 of the Framework supports sustainable
rural tourism
and leisure developments that benefits businesses in rural areas,
communities
and visitors, and which respect the character of the countryside.
Given my
finding on the main issue the bistro can effectively be seen to be a
replacement
for the demolished beach café. In practical terms it delivers on
the aspiration
of the World Heritage Site team to move the café back from the
shoreline.
Taken together, even if I were to find that the proposed use would
not strictly
comply with LP Policies TA and CO, these material considerations
would clearly
outweigh any such conflict.
48. In terms
of the physical alterations, the Dorset AONB Partnership considers
that the new
bistro building should respect the scale and height of the Pump
House and the
elevations appear to demonstrate this; I agree. The pitched
roof that is
proposed would be finished in slate, to match Mill Pond Cottage,
which would
set the context for pedestrians’ views from the main road as they
walk back up
the hill. The ridge would not exceed that of the proposed kiosk.
The lean-to
extension would be seen against the mass of the existing building.
The new stone
wall would be seen as a natural extension of what exists and
would clearly
define the public and private space such that the outside terrace
would be, to a
significant extent, screened on approach from the Cove. On
balance,
noting the rather tired condition of the existing building, I consider
that this
aspect of the proposal would enhance the appearance of the CA.
49. Turning to
the kiosk, I am in no doubt that, as a package, this would represent
a clear
enhancement of the character and appearance of the CA. The removal
of the rather
dated wooden kiosk would open up views towards the Cove at a
significant
point along this main pedestrian route down to the sea. Returning
the footprint
of the building and the adjacent paved area to grass would be a
positive
change that would, visually, link the area back to the Downs beyond.
The conversion
of the toilet to a replacement retail kiosk would be a sensitive
change that
would make the best use of the existing building. In use terms,
given that
this is a replacement facility which, in floor space terms is likely to
be very
similar to the old kiosk, no wider policy considerations are engaged.
50. The
conversion of the flat-roofed, brick, former pump house into public toilets,
together with
the use of the flat roof of the old pump house as a bistro terrace
would, as the
Dorset AONB Partnership observe, bring activity to a redundant
building. My
inspection confirmed that whilst the existing public toilets are an
invaluable
visitor asset, they are in a poor condition, do not provide wheelchair
accessible
facilities and occupy a prominent position adjacent to the main road.
The proposed
layout addresses all of these problems and, in particular, because
the pump house
is recessed from the pedestrian route and the entrance would
be at the side
the facility, the proposed toilets would be less conspicuous.
51. At ground
floor level the proposed conversion of the old pump house enhances
the architectural
characteristics of the building which, by virtue of its distinctive
design, is
visible in views within the CA, particularly on approach up the hill.
Subject to the
suggested condition with regard to a record of the old pumping
machinery, the
re-use of the building would be a positive change. I very much
doubt whether
members of the public would pay to see the old machinery and
the re-use of
the building accords with the thrust of current planning policies.
52. The use of
the roof of the old pump house as a terrace in association with the
bistro is
arguably the most controversial aspect of the development proposed
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in Fisherman’s
Green. However neither the Dorset AONB Partnership or the
Council raise
objection to the principle of such use. The use of the dumb waiter
to service
this level, together with the new timber bridge to access the terrace
from the
adjacent Downs, represents an efficient and minimalistic approach to
the use of the
roof. On a sunny day this would be an attractive vantage-point
from which
visitors would be able to view the Cove but because it is in close
association
with the existing complex of buildings it would not be too assertive.
53. Conditions
could be imposed to restrict times of use and, in particular, lighting.
In my view
this solution would be preferable to a large new terrace at ground
level, which
might encroach further into open countryside. Views towards the
roof terrace
from the main road near the Cove would largely see it against the
trees and/or
hills beyond rather than the skyline. Whilst concerns have been
raised about
the proposed handrail I see no objection to this minor feature,
which is
clearly required for safety reasons. Nevertheless precise details are
required, e.g.
of colour and finish, and so a planning condition is necessary.
54. Local
residents have raised concerns that famous views would be interrupted
by the roof
terrace, that it would be a source of noise pollution and give rise to
a loss of
privacy for neighbours. I have given reasons why the terrace would
not compromise
views from below; when seen from above, e.g. adjacent to the
Mill Pond, it
appears to me that views would be filtered by the existing trees. I
acknowledge
that some works are proposed to trees in this area, e.g. removing
a hawthorn and
reducing the height of a willow, and that drawing No 0730.21
suggests views
would be obtained over the Mill Pond. This vista was evident to
me when I made
my inspection. Even if I am wrong about the filtered views
from above,
any such views would be transient and not out of place given the
height of the
existing elevated path that serves Mill Pond Cottage. Although I
acknowledge
that the handrail would be around 4 m above the finished floor
level of the
toilets, the development would be acceptable in wider views given
the difference
in ground levels in the vicinity of the old pump house. My visit
confirmed that
the terrace is below the level of the Downs at its nearest point.
55. In terms
of noise pollution, the pump house is set back over 60 m from the
Cove and
whilst I accept that there would be noise arising from patrons using
the outdoor
terrace, it is most unlikely to intrude into the Cove itself. Lulworth
Cove is a
popular tourist destination and this new source of noise is unlikely to
exceed that
arising from visitors walking back and forth along the main road
when assessed
from the beach or elsewhere in the Cove. The Downs to the
west of the
pump house appear to be intensively used as an outside amenity
space and,
noting the prevailing wind, this new source of noise is unlikely to be
intrusive or
compromise the enjoyment of this wider area, including Stair Hole.
56. The
nearest dwellings to the proposed roof terrace are Mill Pond Cottage and
Bishops
Cottage. However there would be a reasonable degree of separation
between the
respective properties such that the privacy that any occupiers
currently enjoy
would not be compromised. In particular views from the roof
terrace of the
pump house towards Bishops Cottage would be of the public face
of the
dwelling, which fronts onto the main road. Noting that Mill Pond Cottage
has a
relatively small private rear garden, the existing trees would be likely to
screen and/or
filter views from the proposed roof terrace to the rear of this
property. For
these reasons I can be satisfied that the proposed scheme would
not compromise
neighbours’ living conditions by reason of a loss of privacy.
57. Finally
the proposed alterations to the Cove Fish building would be modest.
The lean-to
would provide a new store and bin store, which are reasonably
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related to the
use of the building, and since it would be away from the main
road the
proposed extension would not be a conspicuous addition. Given that
the height of
the lean-to would not project beyond eaves height, it would not
compromise
wider views towards the Cove for pedestrians using the main road.
On balance I
consider that this component of the proposed development would
preserve the
character and appearance of the CA.
58. Subject to
the imposition of the identified conditions, together with those
suggested by
the Council which I shall review below, the proposed works
around
Fisherman’s Green would preserve and, cumulatively, enhance the
character and
appearance of the CA. For these reasons this aspect of the
scheme
complies with LP Policies D, LHH and CO, and advice in the Framework.
Conditions
59. The
Council has suggested 11 conditions, all of which are acceptable to the
Appellant
insofar as they relate to the development that I propose to grant
planning
permission. I propose to test the suggested conditions against the
advice in the
Framework and the Guidance.
60. The first
is the standard commencement condition, which is a requirement of
the Act. The
second identifies the approved plans, which is necessary in the
interests of
proper planning and for the avoidance of doubt, but I have revised
the list of
drawings suggested to exclude Nos 24, 28A and 34A, which relate to
the beach area
that is not the subject of this planning permission.
61. The third,
requiring details of external materials to be agreed, is necessary to
ensure a
satisfactory external appearance. The fourth, relating to the
biodiversity
mitigation plan, is necessary in the interests of protecting and
enhancing the
biodiversity value of the site. The fifth, regarding an
arboricultural
method statement, is necessary to protect existing trees, but I
have updated
one rogue reference to refer to the 2012 British Standard.
62. The sixth
proposes first occupation of the new kiosk as the trigger for
demolition of
the old, which is not unreasonable, because it does not need to
be a condition
precedent, and necessary, in the interests of the appearance of
the landscape.
However because the works of demolition can only take place
at certain
times of the year I shall vary this to 3 months from the date of first
occupation in
case the new retail kiosk is up and running this summer.
63. The
seventh requires details of the protection or relocation of water supply and
waste water
apparatus to be agreed, which is necessary to ensure its provision.
The eighth
requires a scheme for the recording of the contents of the former
pump house to
be agreed, which is necessary in order to preserve a record of
its historical
significance. The ninth requires implementation of the flood risk
management
measures contained in the Flood Risk Assessment, which are
necessary in
the interests of flood management, but this must be interpreted
sensibly as
relating only to the development that is being permitted.
64. The tenth
requires details of external lighting to be agreed, which is necessary
in the
interests of the appearance of the landscape. The eleventh suggested
condition
precludes use of the outdoor terrace of the bistro between dusk and
dawn. The
Appellant took issue with this insofar as it related to “the use of the
beach café terrace” but not otherwise. Such a
restriction is precise because it
would be
self-evident when it was getting dark. No issue has been taken with
suggested
condition 10 that proposed a restriction on external lighting of the
bistro roof
terrace. This appears to be the corollary of that restriction.
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65. I have
already given reasons for imposing additional conditions to require more
details of the
proposed benches and the handrail to the terrace, but in respect
of the latter
I consider it is actually covered by the Council’s third suggestion.
Conclusion
66. For these
reasons, having regard to all other matters raised, I conclude that
the appeal
should be allowed insofar as it relates to the proposed works around
Mill Pond and
Fisherman's Green. However for the reasons set out above,
having regard
to all other matters raised, I conclude that the appeal should be
dismissed
insofar as it relates to the proposed works to the beach.
Pete Drew
INSPECTOR
Schedule of Conditions
1. The
development hereby permitted shall be begun before the expiration of
3 years from
the date of this permission.
2. The
development hereby permitted shall be carried out in accordance with
the following
approved drawing Nos: 0730.21 [except insofar as it relates to
the “Beach”
area and points B1 to B4 annotated thereon], 0730.22,
0730.23,
0730.25, 0730.26 and 0730.27.
3.
Notwithstanding the submitted drawings, details of all external facing,
roofing,
fenestration, railings and fencing materials shall be submitted to and
approved in
writing by the Council before development commences.
Development
shall be carried out in accordance with the approved details.
4. The
development shall be implemented in accordance with the Biodiversity
Mitigation
Plan by Lowans Ecology and Associates dated 4 August 2012,
approved by the
DCC Natural Environment Team on 7 August 2012.
5. An
Arboricultural Method Statement (AMS) prepared by a qualified tree
specialist
providing comprehensive details of construction works in relation
to trees that
have the potential to be affected by the development shall be
submitted to,
and approved in writing by the Council before the demolition/
development
begins. All works will be carried out in accordance with the
approved
details. In particular, the method statement must provide the
following: a)
a specification for protective fencing to trees during both
demolition and
construction phases which complies with BS5837 (2012) and
a plan
indicating the alignment of the protective fencing; b) a specification
for
scaffolding and ground protection within the tree protection zones in
accordance
with BS5837 (2012); c) a schedule of tree work conforming to
BS3998; d)
details of general tree matters such as the area for storage of
materials,
concrete mixing and use of fires; e) plans and particulars showing
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the siting of
the services and piping infrastructure; f) details of the works to
be carried out
by the developers tree specialist, including details of the
frequency of
supervisory visits and procedures for notifying the Council of
findings of
the supervisory visit; and g) details of all other activities which
have
implications for trees on or adjacent to the site.
6. The
existing retail kiosk at Fisherman’s Green shall be demolished and
removed from
the site and the area reinstated to grass within 3 months of
the approved
new kiosk first being brought into use.
7. Before the
development commences, a scheme of works for the protection
or relocation
of water supply and waste water apparatus shall be submitted
to, and agreed
in writing with the Council in conjunction with Wessex Water.
The
development shall be carried out in accordance with the approved
details.
8. Before any
development commences on the approved works to the former
pump house
building, a scheme for the recording of the building’s contents
and the
provision of a permanent, public, historical record of the building
shall be
submitted to, and approved in writing by, the Council. The
development
shall be carried out in accordance with the approved details.
9. The
development shall be carried out in accordance with the flood risk
management
measures contained in the Flood Risk Assessment Rev A by
Such, Salinger
Peters dated September 2012 submitted with the planning
application.
10. Details of
all external lighting will be submitted to, and approved in writing
by, the
Council before development commences. There shall be no external
lighting to
the bistro roof terrace. The development shall be implemented in
accordance
with the approved details.
11. The bistro
roof terrace shall only be used between dawn and dusk.
12. Details of
the proposed benches, including elevations and materials shall be
submitted to
and approved in writing by the Council before development
commences.
Development shall be carried out in accordance with the
approved details.
