Paul G Tucker QC and Philip Robson overcome 7 reasons for refusal in a significant appeal win in Bath

Paul G Tucker QC and Philip Robson were instructed by Josh Risso-Gill, Partner at CMS Cameron McKenna, acting for Summix LRB Developments, were successful at appeal for a large mixed use development in Bath.  The scheme included an 80-bed purpose-built student accommodation (PBSA), B1c light industrial and D2 assembly and leisure uses.  A great result for the team overcoming all seven of the original reasons for refusal.  

The site was an existing employment site in a designated employment zone, with no allocation for PBSA.  Furthermore, the proposed development is opposite a listed building, in a conservation area which encompasses a World Heritage Site.  There was also an initial objection from Natural England on the grounds of impact on the SPA.  

Following a 4-day hearing, conducted remotely, Inspector John Woolcock allowed the appeal for the scheme, dismissing all seven reasons for refusal - impact on employment uses; impact on economic strategy; over provision of PBSA; flood risk; trees; ecology; and, living conditions.  

With so many reasons for refusals, there are a number of important points of general application to be taken from the decision:

• PINs are more willing to take complex appeals with numerous technical arguments at hearings, including at remote hearings.  This requires a structured and well led team to ensure the best case is put. 
• Jobs led, as well as space led, approach to employment provision can be persuasive.  In this case, higher job density and a greater floor space than the employment development currently on site, won the day.  As we enter turbulent economic times, the weight to increased jobs provision will only grow.  See also the importance of increased jobs provision in outweighing floor risk, below.
• Councils should look to conditions to overcome potential reasons for refusal.  Here, conditions for noise insulation address noise impacts, and lighting conditions for impacts on bats.
• For the purpose of applying the flooding sequential test to mixed use schemes, the uses can be disaggregated.  That decision is a matter of planning judgement, considering the functional and operational links between the uses.
• NPPF §158 on the sequential test is not an automatic refusal if "reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding" are available.  There remains some discretion for the decision maker.  In this case, other sites were identified that are appropriate and reasonably available for the PBSA.  Nonetheless, the appeal was allowed because the alternative sites would not be sufficient to meet PBSA need.  The Inspector found accordance with the sequential test on this basis.
• For clarity, the Inspector found that if he was wrong about the sequential test and the scheme did not meet it, then other material considerations outweighed the conflict, specifically the increase in job provision and provision of PBSA.
• Freeing up houses currently used as HMOs to become market housing is a strong point in favour of PBSAs.  The devil is in the detail as the effect is only felt where it is not taken up by increasing student numbers.  

Paul and Philip were greatly assisted by Josh Risso-Gill’s team, particularly Nicola Insley, Gael Hardie and Ciara Berry-Downs.  The team included Patrick Marks - Planning (Senior Planner, AGM Ltd), Stuart Black (Development Director, Summix Developments Ltd), Matthew Bowen - PBSA Need (Partner, Knight Frank), Colin Scragg - Employment Land Need (Partner, Carter Jonas), Trevor Furse - Landscape (Director, Furse Landscape Architects Ltd), John Blanchard - Transport (Director, Hydrock), Joanna Freyther - Flood Risk (Associate Planner, SLR Consulting), Jacob Hepworth-Bell - Ecology (Associate Director, Ecology Solutions Ltd), Alex Robinson - Heritage (Director, Pegasus Group), Vince Taylor - Noise (Senior Acoustic Consultant, Hydrock).

VIEW THE APPEAL DECISION HERE