369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision Site visit made on 7 February 2023 By Terrence Kemmann-Lane JP DipTP FRTPI MCMI an Inspector appointed by the Secretary of State Decision date: 27TH March 2023 Appeal Ref: APP/D1590/W/22/3304800 Rear of 369 Westborough Road, Westcliff-on-Sea, SS0 9TS • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission. • The appeal is made by Mr Anthony Stavrinides against the decision of Southend-on-Sea Borough Council. • The application Ref 21/011988/FUL, dated 29 September 2021, was refused by notice dated 10 February 2022. • The development proposed is change of use of rear part of ground floor from ancillary storage space to the takeaway (class sui generis) to a house on ground and first floor (Class C3)(Retrospective). Decision 1.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision The appeal is allowed and planning permission is granted for the change of use of rear part of ground floor from ancillary storage space to the takeaway (class sui generis) to house on ground and first floor (Class C3), at the Rear of 369 Westborough Road, Westcliff-on-Sea, SS0 9TS, in accordance with the terms of the application, Ref 21/011988/FUL, dated 29 September 2021, subject to the following conditions: 1) The development shall be retained in accordance with the submitted plans: Sheet No.1 Rev 2 Site location plan (1:1250); Sheet No.2 Rev1 Site Location Plan (1:500); Sheet No.3 Rev 2 Pre-existing floor plan; Sheet No. 4 Existing floor plans (save where this conflicts with the layout on the following sketch plan); Sketch plan showing open plan kitchen and lounge; lounge 2/TV room, and master bedroom with dimensions.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision 2) Notwithstanding the provisions of Classes A, AA B, D, E and F of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), or any statutory amendment, modification or re-enactment or replacement thereof for the time being in force, no extensions, roof extensions, outbuildings or additional hard surfacing shall be erected or installed at the dwelling hereby approved without the receipt of express planning permission. Preliminary matter 2. The application described the development as a change of use to a flat. The Town and Country Planning (Development Management Procedure) (England) Order 2010 provides the definition of a flat as: ““flat” means a separate and

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision 2) Notwithstanding the provisions of Classes A, AA B, D, E and F of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), or any statutory amendment, modification or re-enactment or replacement thereof for the time being in force, no extensions, roof extensions, outbuildings or additional hard surfacing shall be erected or installed at the dwelling hereby approved without the receipt of express planning permission. Preliminary matter 2. The application described the development as a change of use to a flat. The Town and Country Planning (Development Management Procedure) (England) Order 2010 provides the definition of a flat as: ““flat” means a separate and | self-contained set of premises constructed or adapted for use for the purpose | | --- | | of a dwelling and forming part of a building from some other part of which it is |

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision | self-contained set of premises constructed or adapted for use for the purpose | | --- | | of a dwelling and forming part of a building from some other part of which it is | of a dwelling and forming part of a building from some other part of which it is https://www.gov.uk/planning-inspectorate Appeal Decision APP/D1590/W/22/3304800 | divided horizontally”. The important part of this definition, for present | | --- | | purposes, is “…it is divided horizontally”. Paragraph 7 below explains that the | | subject dwelling was created |

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision | divided horizontally”. The important part of this definition, for present | | --- | | purposes, is “…it is divided horizontally”. Paragraph 7 below explains that the | | subject dwelling was created |

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision ground and first floor at the rear of No.369, with no floor above or below. A wall was erected between the preparation and storage area of the takeaway and the lounge area (ground floor) of the flat. Thus there is complete separation between the commercial unit and the residential flat. From this it can be seen that the separation from the frontage building is in the vertical plane, and there is no separation of the dwelling from any part of the building in the horizontal plane. 3. This must mean that the proposed change of use that has occurred is to a house, attached to the frontage building, and not a flat. I sought the views of both the council and the appellant on this, and both agreed that the description of the development should be amended accordingly. This I have done in the heading above. Main Issues 4. The main issues in this case are: i) the effect of the development on the living conditions of neighbouring residential occupiers; ii) the lack of outdoor amenity space and waste and cycle storage; iii) the effect on the character and appearance of the area; iv) the effect on habitats and species in accordance with the Habitats Regulations. Reasons 5.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision This section of Westborough Road features a mix of units, with commercial on the ground floor and residential on the first floor. The surroundings are primarily residential, with dwellings on neighbouring Fleetwood Avenue and Hildaville Drive. The site is at the rear of a terrace, part of the local centre having a number of shops and services for everyday needs, and is therefore in a sustainable location. 6. Since this is a retrospective application, it is helpful to understand the background. Prior to 2008 the property consisted of a shop, with office space on the first floor, and a two-storey workshop at the rear. Despite these elements being part of the same building, the workshop and the rest of the ground floor were classed as 2 separate units and were subject to different council tax rates. In 2008 the appellant converted the first floor of the main unit (169a) into residential under permitted development. He lived there for about 8 years until 2016, before moving out and renting the property. In 2009 the ground floor retail unit was vacant and an application was made to change the use from retail to a takeaway. The application involved merging the workshop with the rest of the site.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision This was refused at application (09/01443/FUL), but was allowed at appeal in June 2010 (APP/D1590/A/09/2116702). Following this approval, works were undertaken and the entire ground floor, including the workshop area at the rear, was used as a takeaway and ancillary storage space. 7. A house, on the footprint of the original workshop, was created in the spring of 2018. It consists of a ground floor and a first floor. To enable this, the rear section of the ground floor was changed from ancillary storage space, in relation to the takeaway, to residential space. The dwelling consists of 2 bedrooms and a bathroom on the first floor and a lounge and a kitchen on the https://www.gov.uk/planning-inspectorate 2

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision This was refused at application (09/01443/FUL), but was allowed at appeal in June 2010 (APP/D1590/A/09/2116702). Following this approval, works were undertaken and the entire ground floor, including the workshop area at the rear, was used as a takeaway and ancillary storage space. 7. A house, on the footprint of the original workshop, was created in the spring of 2018. It consists of a ground floor and a first floor. To enable this, the rear section of the ground floor was changed from ancillary storage space, in relation to the takeaway, to residential space. The dwelling consists of 2 bedrooms and a bathroom on the first floor and a lounge and a kitchen on the https://www.gov.uk/planning-inspectorate 2

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision Appeal Decision APP/D1590/W/22/3304800 ground floor. The entrance for the house is located at the rear of the site, and is accessed from Fleetwood Avenue. A wall has been erected between the preparation and storage area of the takeaway and the lounge area of the house. Thus there is complete separation between the commercial unit and the dwelling. The use as a dwelling has not affected the takeaway’s ability to operate as a business; it is still open and continues to trade. The effect of the development on the living conditions of neighbouring residential occupiers 8. The concern here is that there is overlooking of the back gardens of the dwellings at the rear from the windows of the house. These windows are on the staircase and in the master bedroom. At my site visit I was able to look out of the bedroom window: effectively there was no view over the residential gardens at the back of the appeal property due to the amount of evergreen and other foliage just beyond the rear passageway. It is just possible to view the rear elevation of No. 78 Hildaville Drive, but the garden area is obscured by a garage building.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision I do not regard any view from the staircase as being of concern, but again the foliage acts as an effective barrier. The second bedroom is lit from a window in the side elevation, and therefore does not present a privacy issue. The lack of outdoor amenity space and waste and cycle storage 9. It is true that the house has no outdoor amenity space. However, there is the extensive and attractive Chalkwell park less that 500m away, so that whilst this is a shortcoming of the development, I do not see it as a matter that justifies the refusal of permission. This is particularly so when the appeal site is in a sustainable location, being adjacent to the local centre. In reaching this conclusion I am aware that visiting the park requires crossing a busy road, but there are safe means of doing so available. The frontage development on Westborough Road has flats above the shops and other commercial uses with, for the most part, very little or no outdoor amenity space. That is frequently the case in a dense urban area where the most benefit is sought from the existing built forms. The effect on the character and appearance of the area 10. As the officer’s report points out, there have been no external changes proposed.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision But the report continues; “However, to retain a dwelling at this position would fail to respect the history or general layout and grain of the vicinity. It would be harmful to the visual amenities of the site and wider area and would be contrary to development plan policies in these regards”. 11. I find it difficult to see what harm there is visually, since the access is down a paved alley, with the entrance door unobtrusively situated between the appeal site and the building at No.367. The grain of the area north of the frontage development on Westborough Road is formed by traditional residential frontage development on roads set out on a rigid north-south grid. But the appeal site is part of Westborough Road, running east-west, which in this vicinity consists mainly of commercial with flats over. I was not able to view the exact nature of the various buildings and structures at the rear of these premises, but it is clear from the map of the area that the ‘grain’ of the Westborough Road frontage is distinctly at odds with the housing that lines the side streets. I am https://www.gov.uk/planning-inspectorate 3

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision Appeal Decision APP/D1590/W/22/3304800 not persuaded that the appeal development has any appreciable effect on the character and appearance of the area. The effect on habitats and species in accordance with the Habitats Regulations 12. The site falls within the Zone of Influence for one or more European designated sites scoped into the emerging Essex Coast Recreational disturbance Avoidance Mitigation Strategy (RAMS). Any new residential development has the potential to cause disturbance to European designated sites and therefore the development must provide appropriate mitigation. As the competent authority in this case, I have concluded that the project will, without mitigation, have a likely significant effect on the sensitive interest features of the European designated sites. Taking into account Natural England’s advice, mitigation can take the form of a financial contribution in accordance with RAMS. I have been supplied with a copy of the receipt that shows that £147.71 has been paid by the appellant to the council in accordance with the scheme.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision I have therefore been able to conclude that the mitigation means that the development proposed would not have an adverse effect on the integrity of the European sites from recreational disturbance. Conclusions 13. Following from the above consideration of the objections to the grant of planning permission, I have concluded that there is no harmful effect from the development on the living conditions of neighbouring residential occupiers. There is a lack of outdoor amenity space and waste and cycle storage facilities, but this is a dense urban area and the situation is not unusual where residential accommodation is associated with long standing shopping and other commercial development. It is regrettable, and goes against the policies of the council, but in the circumstances of this case I am not persuaded that it should lead to a refusal of permission. The character and appearance of the immediate development to which the appeal property joins and its neighbours is very different from the character, appearance and grain of the residential development in the adjacent side streets. There is no appreciable impact on the character and appearance of the general area.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision The mitigation provided under the RAMS enables me to conclude that there is no harmful effect from this development on habitats and species in accordance with the Habitats Regulations. 14. For these reasons I will allow the appeal. Conditions 15. Since the appeal development has taken place, there is no requirement for the statutory condition that provides a time limit on the start of development. The council has suggested 3 conditions in the event that the appeal is upheld. I have considered these in the light of Planning Practice Guidance. 16. The first is that the development should be retained in the form shown on the drawings. This is necessary for clarity and certainty as to the development permitted. The second proposed condition seeks to require the submission of full details of secure a covered refuse and cycle storage. This does not seem to me to be reasonably practical and therefore does not meet the tests referred to in paragraph 56 of the National Planning Policy Framework: therefore, I will not impose it. The third proposed condition is to remove certain permitted https://www.gov.uk/planning-inspectorate 4

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Appeal Decision Appeal Decision APP/D1590/W/22/3304800 development rights. Whilst the scope in this case for such permitted development seems rather remote, if it did occur it could have serious consequences on the amenities of neighbours, and on the appearance of the area. Also, it does not appear to me to place any burden or unnecessary restriction on the appellant. Therefore I will impose it.

369 WESTBOROUGH ROAD, WESTCLIFF ON SEA, ESSEX, SS0 9TS — Southend-on-Sea City Council — Terrence Kemmann-Lane INSPECTOR https://www.gov.uk/planning-inspectorate 5