Yr Arolygiaeth Gynllunio, Adeilad y Goron, The Planning Inspectorate, Crown Buildings,

Parc Cathays, Caerdydd CF10 3NQ Cathays Park, Cardiff CF10 3NQ
029 20823889 Ffacs 029 2082 5150 029 20823889 Fax 029 2082 5150
e-bost wales@planning-inspectorate.gsi.gov.uk email wales@planning-inspectorate.gsi.gov.uk

Penderfyniad ar yr Apêl Appeal Decision

Ymchwiliad a gynhaliwyd ar 18 a 19 Medi, a Inquiry held on 18 and 19 September, and 17
17 Tachwedd 2008 November 2008
Ymweliad safle a wnaed ar 18 Medi 2008 Site visit made on 18 November 2008

gan/by Hywel Wyn Jones BA (Hons) BTP MRTPI

Arolygydd a benodwyd gan y Gweinidog an Inspector appointed by the Minister for
dros yr Amgylchedd, Gynaliadwyedd a Environment, Sustainability and Housing,
Thai, un o Weinidogion Cymru one of the Welsh Ministers

Dyddiad/Date 01/12/08

Appeal Ref: APP/Z6815/A/08/2075016

Site address: Land at The Pantmawr Inn, Tyla Teg, Rhiwbina, Cardiff,
CF14 7TL
The Minister for Environment, Sustainability and Housing has transferred the
authority to decide this appeal to me as the appointed Inspector.
• 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 Charles Church Wales and Mitchells and Butlers against the decision
of Cardiff County Council.
• The application (ref: 07/01980/W), dated 25 July 2007, was refused by notice dated
22 April 2008.
• The development proposed is described as “36 dwellings”.

Decision

1. For the reasons set out below I dismiss the appeal.

Procedural and Preliminary Matters

2. The description of the proposed development in the above bullet point reflects
that set out in the planning application form. Prior to the Council’s determination
of the application the scheme was amended to 34 dwellings. I have determined
the appeal on the basis of the revised scheme, satisfied that to do so would not
cause injustice to any party.

3. A signed unilateral undertaking under Section 106 of the above Act was
submitted during the Inquiry. It undertakes to provide financial contributions to
the Council for the purposes of improving nearby bus stops and the provision or
improvement of local public open space and community facilities. The
requirement for such contributions arises from local planning policies and is
detailed in supplementary planning guidance. On this basis I attach significant
weight to this Undertaking as it is relevant to the development and aligns with the
policy tests set out in Circular 13/97: Planning Obligations.

Main Issues

4. The main issues in this case are the effect of the proposed development on:
Appeal Decision APP/Z6815/A/08/207516

(i) the character and appearance of the surrounding area;

(ii) the living conditions of neighbouring residents and prospective occupiers

particularly in terms of any overlooking, overshadowing, visual intrusion
or loss of outlook in the case of the former and, in the latter, any
overlooking and the provision of outdoor amenity space; and

(iii) the provision of local community facilities, in the light of local and
national planning policies.

Planning Policy

5. The development plan for the area is the South Glamorgan (Cardiff Area)
Replacement Structure Plan 1991-2011, adopted 1997, and the City of Cardiff
Local Plan, adopted 1996. I have taken into account all the policies from these
documents to which the parties have referred, including those listed in the
Statement of Common Ground. Of particular relevance to my assessment of the
main issues are Local Plan Policy 11 which deal with design and aesthetic quality;
Policy 30 which seeks to protect existing spaciousness and privacy by avoiding
insensitive or inappropriate infilling; and Policy 31 which requires a satisfactory
level and standard of open space for all new housing developments.

6. The Council has also produced the Deposit Draft Cardiff Unitary Development
Plan. Given that it has not been scrutinised at public inquiry and that the Council
has decided to abandon further work on it in favour of preparing a local
development plan, the weight that I can attach to it is limited. However, insofar
as they relate to the appeal scheme many of the UDP policies drawn to my
attention, including 2.24 on residential amenity and 2.26 which seeks the
provision of open spaces, broadly seek to continue the effect of policies contained
in the development plan or to reflect latest national policy. This is not the case
for Policy 2.21 which is cited by local residents in objection to the scheme.
Accordingly I attach little weight to this policy which is permissive of the
redevelopment of redundant previously developed land for residential use
provided, among other matters, that there is no over-riding need to retain the
existing use of the premises.

7. During the Inquiry the Pantmawr Action Group drew my attention to certain
supporting statements in the Preferred Strategy Report for the Cardiff Local
Development Plan, October 2007, but as the Council has yet to consider
responses to its public consultation exercise on this document, I attach little
weight to it.

8. The Council has also produced a series of supplementary planning guidance, of

particular relevance are: Access, Circulation and Parking Requirements, 2006;
Community Facilities and Residential Development, 2007; Open Space, 2008; and
the Cardiff Residential Design Guide, 2008. These have been approved by the
Council following public consultation.

9. I have also taken into account relevant national planning policy and guidance, in
particular Planning Policy Wales, March 2002 as revised by the Ministerial Interim
Planning Policy Statements (MIPPS) including 02/2005: Planning for Retailing and
Town Centres and 01/2006: Housing and 01/2008: Planning for good design.

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Reasons

Character and Appearance

10. The Pantmawr estate is a mainly 1950s and early 60s housing development on
the outskirts of the city. Although mostly characterised by two-storey semi-
detached and detached dwellings it has no dominant architectural style. Within
the estate there are a few prominently sited three-storey blocks of flats, whilst
alterations and extensions to many of the dwellings also add variety to the
appearance of the estate.

11. There was no dispute that the proposed development would be over 3 times the
density of the existing, sub-urban surroundings. This is not in itself
objectionable; indeed it accords with latest national planning policy which, in the
interests of achieving more sustainable patterns of development, promotes more
efficient use of land. However, Government policy makes clear that the pursuit of
this objective must be balanced against other considerations, including the
character of the surroundings as well as the living conditions of residents.

12. There is no dispute that the scale and massing of the proposed development
would differ from that which would surround it, however, the site’s set back from
adjacent streets would provide a significant element of self-containment to the
development, including when viewed from the backs of adjacent properties. The
degree of screening from public vantage points provided by existing houses would
mean that its impact from the adjacent streets would generally be limited to
narrow views along the access and in between properties. From these positions
the blocks of terraced dwellings and flats, although somewhat larger than their
neighbours, would not appear discordant.

13. The scheme was amended following discussions with the Council’s planning
officers who considered the design of the revised scheme to be acceptable. In my
opinion the detailed design of the buildings would provide interest and variety in
the elevational treatment as well as achieving an architectural coherence to the
composition.

14. I conclude on this first main issue that the proposed development would not harm
the character or appearance of the surrounding area. Thus, in this respect, the
scheme accords with local and national policy. In reaching this conclusion I have
taken into account the appeal decisions cited by Mr Payne, but these do not alter
my findings that the scheme before me would not harm its surroundings.

Living Conditions

15. The Council’s Residential Design Guide provides that a 21m separation between
facing elevations will avoid intrusive overlooking. In terms of the proposed
relationship with existing houses it is common ground that this separation
distance is achieved in relation to all but 2 dwellings - Nos 86 and 90 Cae’r
Wenallt. The Design Guide provides that where the elevations of facing buildings
are not parallel, as in the case of these properties, a relaxation of the 21m
separation may be acceptable where the juxtaposition achieves an angle of more
than 30 degree from a perpendicular line drawn from the opening. It was agreed
that the angle in the case of No. 90 was 30 degrees and for No. 86 it was
significantly greater at 43 degrees. No further guidance is provided on the

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allowance to be factored into such situations. Bearing in mind that these figures
are guidelines, I am satisfied that the combination of the angle of orientation and
separation distance is sufficient in both cases to ensure that any overlooking
between such openings would not be intrusive.

16. In terms of potential overlooking of adjacent garden areas the separation

distance combined with existing and proposed screening measures would ensure
that existing residents would continue to enjoy a reasonable standard of privacy
within these areas.

17. Concerns have been raised regarding potential overshadowing and overbearing
effects on the nearest neighbours. There can be no question that, given the large
areas of undeveloped land presently within the site, the erection of the proposed
new buildings closer to the periphery than at present would affect the open
aspect enjoyed by many adjoining residents. Nevertheless, I consider that the
combination of the separation distance, the orientation of the existing and
proposed buildings, and the differences in ground levels, mean that none would
be unacceptably affected by the physical presence of the envisaged buildings.

18. I turn now to consider the living conditions that would be experienced by future
occupiers of the proposed units. As Ms Howard pointed out at the Inquiry, the 3
storey block of two-bedroom flats that would front the proposed courtyard would
be appreciably closer than 21m from the envisaged three-bedroom terraced
dwellings to the north. Mr Williams explained that it was intended that this
relationship would introduce a degree of intimacy to this open communal yard.
He also pointed out that in similar circumstances elsewhere the Council had
relaxed the 21m separation in order to facilitate the more efficient use of land.

19. It seems to me that the degree of privacy that future occupiers of these flats and
houses should reasonably expect in this suburban location would be greater than
in certain other parts of the city. The proximity of directly-facing windows at first
and second floors serving bedrooms and kitchen areas would compromise the
privacy of residents. In the case of the houses this would be compounded by the
fact that they would face pairs of French doors at first and second floor serving
bedrooms that would open onto modest balconies. In this respect I note that the
Design Guide Obj 2.2 seeks to avoid balconies in suburban areas, partly because
of the potential for significant overlooking.

20. In relation to residential flats the Design Guide acknowledges that it may be
impractical to provide fully private amenity space and provides that alternative
provision may be appropriate which, in the case of sites within suburban locations
characterised by larger rear gardens, should take the form of communal gardens.
The scheme proposes that each of the proposed blocks of flats would be served
by modestly sized communal garden areas. In the case of the proposed provision
for the 14 flats closest to Tyla Teg the open space would be bounded by a two-
and-a-half storey block of flats on one side and a row of tall trees, the subject of
a tree preservation order, on its southern side. This would result in an oppressive
ambience, indeed much of the space would be under the canopy of trees. It
would not, in my opinion, serve as a pleasant amenity space that would be used,
for instance, as a sitting out area. Such a provision would be in stark contrast to
the large gardens serving existing housing that would lie directly adjacent to it.

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21. On the second main issue I conclude that the scheme would not harm the living
conditions of neighbouring residents, including in terms of any overlooking, visual
intrusion, overshadowing or loss of outlook. However, I further conclude that the
scheme would fail to provide reasonable living conditions for future residents of
some of the proposed residential units, in terms of privacy and outdoor amenity
space provision. In this respect the proposed development would not align with
the development plan or the Council’s supplementary planning guidance.

Community Facility

22. Although there are no development plan policies that seek to retain community
facilities, the Local Plan pre-dates the latest expression of national policy. Given
that paragraph 10.3.9 of MIPPS 02/2005 recognises the positive economic and
social role of public houses and that their loss can be damaging to a local
community, the implications of the loss of this facility is a material consideration.
In my assessment of this issue I have borne in mind the appeal decisions brought
to my attention by the Action Group, including the Radyr Arms case in 2003, as
well as The Greendown case in 2006 which was provided by the appellant.

23. The Pantmawr Estate has a discreet community entity, which is reinforced by its
degree of physical separation from neighbouring parts of the city. The volume of
correspondence from local residents indicates that the public house is regarded as
a community facility, which is particularly valued as it is the only facility that
serves as a meeting place for residents, following the closure of the shopping
parade several years ago. It is used by all ages in the community and is
particularly suitable for young families given that it provides an extensive and
secure children’s play area. Whilst local residents describe the play area as being
akin to a public open space, the appellant confirmed that it is a facility provided
for the use of public house patrons.

24. On the evidence before me, it is likely that, in the event of the premises closing,
some residents who use the Inn would choose not to frequent any other nearby
public house, whilst the remainder would be dispersed among several of the
closest alternatives which are all at least a km or so away. Thus, none of these
other hostelries would replace the Inn’s role as a focal point for the Pantmawr
community. Its loss would deprive the community of a readily accessible centre
for social interaction, and in this respect it would conflict with national policy.

25. Miss Ellis, for the appellant, referred to the findings of Lord Bridge in Westminster
City Council v British Waterways Board [1985] A.C. 676, that it must be
necessary to show on the balance of probability that, if permission is refused for a
proposed use, the site would be put to the use it is sought to preserve.

26. In support of its case the appellant points out that it would not require planning
permission to permanently cease the present use by razing the building to the
ground. However, the public house is presently continuing to operate and no
evidence was forthcoming to indicate that such irreversible steps would be
undertaken without first securing planning permission for its redevelopment.

27. I turn now to consider whether the use of the premises as a public house would
be likely to continue in the event that the appeal is dismissed. In this respect I
heard conflicting views on the matter of future viability from two expert witnesses
– Mr Stapleton for the appellant and Mr Morgan for the Action Group. Both have

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significant relevant experience but neither could provide any empirical evidence,
such as detailed trading accounts relating to the business, to reinforce their
positions.

28. It appears that the viability of the premises was considered as being marginal by
the owners in 2003. At that time Rosebud Inns Limited took on the business, and
was the only business at the time willing to do so. The success of the business
was not assisted by worsening relations with many local residents over its period
of tenure. It seems to me that the terms of the lease, including the level of rent,
represented a significant challenge which the inexperienced operators were
unable to meet. In the absence of any trading figures, the failure of the business
cannot be relied upon to prove that business could not be viable in the hands of
another operator. After the failure of this venture the owners sought to dispose
of the property for alternative uses. It was confirmed that there have been no
efforts made to sell the property as a public house.

29. In contrast, the apparent success of the present business is likely to have been
partly attributable to the nominal rent now being levied. Mr Morgan referred to
his informal telephone conversation with the present operator of the business, Mr
Bassett, in which he had expressed his enthusiasm for continuing to run the
business. This positive attitude is consistent with the impression I gained of the
physical condition of the premises during my visit which suggested a sense of
vibrancy to the operation in which internal and external décor and signage were
well maintained. The public house appears to be well run and popular. Even
though the future of the establishment has been uncertain over recent times
there has been a clear commitment to run the business effectively. Mr Morgan
suggested that the present operation would be able to sustain a significantly
higher rent than the current level. I recognise that the recent increased
patronage of the establishment may be partly the result of increased awareness
and community activity associated with the campaign to preserve it, but as local
residents point out, it also derives from good customer relations that have been
fostered by the publican in recent times.

30. Whilst Mr Morgan considers that the residential estate provides a sufficient
customer base to sustain the business I favour, Mr Stapleton’s assessment that it
would be likely that, were the business to remain in operation, it would need to
promote itself as a “destination” attracting food-based trade from further afield.
Indeed the present operators have sought to establish and advertise
competitively priced fare, despite the limitations of the present kitchen. Whilst, in
terms of passing trade, its location away from main thoroughfares is a
disadvantage, the site offers the benefits of a pleasant environment in spacious
grounds with ample car parking. Whilst I have noted Mr Stapleton’s considered
opinion that the business is not viable in today’s market place, the efforts of the
existing operator in particular lead me to find that, on the balance of probability,
the public house could continue to operate as a viable business venture.

31. Whilst changes in the operation of the business that would reduce its community
contribution cannot be ruled out, it seems to me that its primarily residential
location would mean that such uses are unlikely to be established, not least given
the licence restrictions that are currently in force.

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32. I conclude on this last main issue that the scheme would lead to the permanent
loss of a valued community facility, and thus would run counter to national
planning policy.

Other Considerations

33. With regard to highway matters I consider that, bearing in mind the
Government’s Manual for Streets, an acceptable access could be designed to
serve the site. Whilst the scheme is likely to increase vehicular flows using the
site the effect on the volume of traffic on the local road network would not be
significant. The proposed car parking provision aligns with the standards set out
in the Council’s supplementary planning guidance and reflects latest national
policy. There is no reason to depart from this approach in this case. I am also
mindful that the Council’s highways specialist did not offer any objection to the
scheme.

34. I have taken into account all other matters raised in objection to the project by
local residents, including water supply, and drainage matters. Given the scope to
address certain matters through planning conditions none of these would have
been sufficient to warrant withholding permission.

35. In reaching my findings I have noted the comments of Mr Chris Franks AM, Mr
David Melding AM, Jonathan Morgan AM, Ms Leanne Wood AM, Ms Julie Morgan
MP, and Mr Jonathan Evans MEP.

36. I am mindful that the scheme would contribute to the local supply of housing on
previously developed land with reasonably good accessibility to services and
facilities by modes of transport other than a car. In these respects the scheme
performs well in terms of securing more sustainable patterns of development,
which underpins national policy. This does not, however, outweigh the harm that
I have identified in terms of two of the main issues.

Overall Conclusion

37. Although I have concluded on the first main issue that the scheme would not
harm the character or appearance of the area, I consider that, on balance, this is
insufficient to overcome the harm that I have identified in relation to the other
main issues.

Hywel Wyn Jones

INSPECTOR

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APPEARANCES

FOR THE LOCAL PLANNING AUTHORITY:

Ms Clare Parry of Counsel Instructed by the City and County Solicitor, Cardiff
County Council

She called

Ms J Howard MRTPI Planning Officer, Cardiff County Council

FOR THE APPELLANT:

Miss Morag Ellis QC Instructed by Mr R Williams

She called

Mr M Stapleton FCMA FIH Director Mike Stapleton & Associates Ltd

Mr R Williams BTP Managing Director, Aspri Planning Limited

DipSurv MRTPI MRICS

FOR THE PANTMAWR ACTION GROUP:

Mr C Hopkins Solicitor, Earth Rights Solicitors

He called

Mr H Payne Chairman Pantmawr Action Group, 115 Cae’r

Wenallt, Pantmawr, Cardiff, CF14 7FJ

Mr D Morgan FRICS MEWI Managing Director, Cookseys DMP

MRPAS

INTERESTED PERSONS:

Cllr A Robson Local County Councillor, representing fellow ward

Councillors – County Hall, Atlantic Warf,
Cardiff, CF10 4UW

Ms G Irwin 4 Llwyn Onn, Pantmawr, Cardiff, CF14 7TS

Ms J Jones 13 Dan-y-Graig, Pantmawr, Cardiff, CF14 7HJ

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DOCUMENTS

1 Council’s letters of notification of the Inquiry

2 Landscaping Plan, TDA.1688.01, Revision B

3 Technical Note – Savill Bird & Axon

4 Drawing 07018/022 - Apartments Section

5 Opening Statement of Miss Ellis

6 Council supplementary planning guidance - Access, Circulation and

Parking Requirements

7 E-mail correspondence between Cllr Jayne Cowan and Mr Martin Morris

8 Bundle of Rebuttal Proofs on behalf of Pantmawr Action Group

9 Cardiff Local Development Plan, Preferred Strategy Report, October 2007

10 Extract from Cardiff Residential Design Guide

11 Appeal Decision – The Greendown Inn, Nr Cardiff, 2006

12 Signed Unilateral Undertaking and associated Power of Attorney note

13 Block plan showing position of existing building superimposed by Mr Payne

14 Bat Survey and subsequent correspondence with Countryside Council for

Wales

15 Council’s Summary of Unilateral Undertaking

16 Bundle of appeal decisions submitted by Council

17 Drawing 07018/024 - Apartments Section & Elevation

18 Statement by Cllr Robson

19 Closing Submissions of Mr Hopkins

20 Closing Submissions of Ms Parry

21 Closing Submissions of Miss Ellis

22 Report of Westminster City Council v British Waterways Board, 1984

23 Agreed list of amended plan required

24 Bundle of local planning policies and supplementary planning guidance

relating to financial contributions to local services