Case Reference: 3360987

Appeal Decision
Site visit made on 2 September 2025
by M Aqbal BA (Hons) DipTP MRTPI
an Inspector appointed by the Secretary of State
Decision date: 21 October 2025
Appeal Ref: APP/E3335/W/25/3360987
Plots 5, 6, 8, 10 and 12 Mill Meadow, Parsonage Lane, Kingston St Mary, Taunton,
Somerset TA2 8HL
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as amended)
against a refusal to grant planning permission under section 73 of the Town and Country Planning
Act 1990 (as amended) for the development of land without complying with conditions subject to
which a previous planning permission was granted.
• The appeal is made by [APPELLANT] against the decision of Somerset Council.
• The application Ref is 20/24/0007.
• The application Ref 20/2006/038 was approved on appeal, by decision dated 10 March 2008 subject
to conditions.
• The development permitted is amendment to wording of condition 06 of permission 20/2005/022 at
Mill Meadow, Parsonage Lane, Kingston St Mary.
• The conditions in dispute are Condition 1 and Condition 7, which state that:
Condition 1: The chalets shall be occupied for tourism purposes only and shall not be occupied as a
persons sole or main residence. The site operator and owners shall maintenance an up to date
register of the names of all owners/occupiers, including their guests of individual chalets on site and
of their main home addresses, and shall make this information available at all reasonable times to
the local planning authority, and
Condition 7: Any holiday let cabin that is unoccupied for more than a 24 month period shall be
demolished and/or removed including the removal of any foundations and/or floor slabs.
• The reasons given for Condition 1 and Condition 7 are:
Condition 1: Not specified.
Condition 7: The site lies within open countryside in an attractive rural area where new development
is strictly controlled by Taunton Deane Local Plan Policy S7. This permission is only acceptable for
holiday use to encourage tourism in the area in compliance with Taunton Deane Local Plan Policy
EC24 and the retention of the buildings for other residential uses when the holiday use ceases would
be contrary to Taunton Deane Local Plan Policy S7.
Decision
1. The appeal is allowed and planning permission is granted for erection of 13 log
cabins for holiday let at Plots 5, 6, 8, 10 and 12 Mill Meadow, Parsonage Lane,
Kingston St Mary, Taunton, Somerset TA2 8HL, in accordance with the application
Ref 20/24/0007, without compliance with condition numbers 1 and 7 previously
imposed on planning permission Ref 20/2006/038, dated 10 March 2008 and
subject to the Schedule of Conditions to this Decision.
Preliminary Matter
2. I acknowledge the description provided on planning permission Ref 20/2006/038.
However, that permission was granted following an application under Section 73
(‘S73’) of the Town and Country Planning Act 1990, which sought to vary or
remove a condition attached to an earlier permission Ref 20/2005/022. For the
purposes of my Decision, I have relied on the description of the act of
development, as set out on planning permission Ref 20/2005/022, because this
more accurately reflects the nature of the originally approved development.
Background and Main Issues
3. The appeal site forms part of a wider development which was initially for the
erection of a number of log cabins for holiday use and through subsequent
planning permissions has been extended. Some of the plots have been developed
and subsequently varied through planning consents, removing the requirement for
them to be used solely for holiday use. Collectively, the wider development is
known as Mill Meadow.
4. The appeal before me relates to five undeveloped plots within Mill Meadow and is
one of six linked appeals relating to sites at Mill Meadow that I am currently
determining.
5. The application before me was submitted under S73 to remove disputed condition
1 of planning permission Ref: 20/2006/038 and disputed condition 7 which was
carried forward from planning permission Ref 20/2005/022. In short, this would
allow the proposed plots to be developed and retained for open market dwellings
instead of those approved only for tourism use.
6. In summary, the Council’s first reason for refusal says that the proposed
development lies outside the designated settlement boundary, placing it within
open countryside and that this location is considered unsustainable, as future
residents would be heavily reliant on private motor vehicles.
7. Following the December 2024 revision of the National Planning Policy Framework
(‘the Framework’), the Council can no longer demonstrate a five-year housing land
supply, which on the evidence available to me is about 3.1 years. Consequently,
and although the Council maintains that the site is in an unsustainable location,
having regard to paragraph 11(d) of the Framework, it has concluded, that the
harm does not clearly outweigh the benefits of new dwellings. Therefore, the
Council is no longer pursuing refusal of the proposal based on its location,
provided other outstanding issues are resolved. Even so, because this is largely a
matter of planning judgement for the decision maker, this remains a main issue for
the purposes of my Decision.
8. Accordingly, and based on the Council’s reasons for refusal, the main issues are:
i) Whether a S73 application can be used to vary conditions on an area which
relates to part of a wider application site and whether this would conflict with
the original description of development;
ii) Whether the removal of disputed Conditions 1 and 7 is acceptable with
regard to:
• Supporting market housing in the proposed location;
• Flood risk; and
• Affordable housing provision.
Reasons
The validity of the submitted S73 application.
9. Based on the information available, the current proposal relates to a smaller part of
the site as approved under planning permission Ref: 20/2006/038. More precisely,
it concerns a number of plots that were approved as part of the wider
development. I have not been directed to any statutory provision or case law that
would prohibit a S73 application from being made in respect of only a part of a site
originally granted permission. Indeed, if this appeal succeeds, this will result in a
new planning permission that applies specifically to the smaller site area and the
identified plots within this.
10. The Planning Practice Guidance (‘PPG’) says that S73 cannot be used to change
the description of the development. This is supported by several decisions made
by the Court of Appeal Judgments including that of Finney v Welsh Ministers & Ors
(Rev 1) [2019] EWCA CIV 1868 (Finney).
11. Planning permission Ref: 20/2005/022, included a condition which says, “the
occupation of the holiday accommodation shall be restricted to bona fide
holidaymakers for individual periods not exceeding 4 weeks in any total period for
12 weeks”. This condition was replaced through a S73 application
Ref: 20/2006/038, which was allowed at appeal. Condition 1 of the appeal
permission says: “the chalets shall be occupied for tourism purposes only and
shall not be occupied as a person’s sole or main residence…”. This change, as
confirmed at paragraph 7 of the appeal decision1, allowed the properties to be
occupied as second homes for unlimited period, provided the occupant had a
primary residence elsewhere.
12. It follows, from Finney, that where amending a condition would result in a conflict
between the new condition and the description of the development, that the
particular amendment is beyond the powers under S73 and cannot be made. A
fresh planning application is instead required. An amendment can only be made
provided the new condition does not fundamentally alter the proposal originally
granted permission. As already stated, the planning permission granted under
Ref: 20/2005/022, was for the erection of 13 log cabins for holiday lets.
13. As approved, the existing plots fall within the C3 use class of the Use Classes
Order and are dwellinghouses, albeit with a condition stating that they should be
occupied for tourism/second home use. By removing the occupancy condition the
property can be occupied as an unencumbered dwellinghouse. Notwithstanding
this, if the appeal succeeds, there is no planning requirement which would
preclude the use of the proposed properties to be occupied as second homes.
14. The term "log cabin" used in the development description on the original
permission gives a misleading impression of the nature of the proposed dwellings.
Based on the dwellings already constructed at Mill Meadow, these are of
substantial and permanent construction. As such, their designation as holiday
accommodation under the original approval does not affect their construction
standards or their suitability for use as primary dwellings under the current
proposal. The same applies for the proposed dwellings.
1 APP/0315/A/07/2048306
15. Given the above, the S73 application does have the ability to amend the disputed
conditions for selected plots that formed part of a wider development site.
Furthermore, the proposed residential use does not conflict with the approved
second home use. Consequently, the proposal can be determined under a S73
application.
Suitability of proposed location
16. There is no dispute between the main parties that the appeal site is outside of
settlement boundaries defined under Policy SP1 of the Taunton Deane Core
Strategy 2011 – 2028 Development Plan Document, September 2012 (‘CS’).
Therefore, the location of the appeal site is treated as countryside for planning
policy purposes. Policy KSM9 of the Kingston St Mary Neighbourhood Plan (‘NP’),
only supports new build housing within the settlement limits.
17. Policy SB1 of the Taunton Deane Adopted Site Allocations and Development
Management Plan (2016) (‘DMP’) says that in order to maintain the quality of the
rural environment and ensure a sustainable approach to development, proposals
outside of settlement boundaries will be treated as open countryside. It further
says that such proposals will be assessed against CS policies CP1, CP8 and DM2
unless it accords with a specific development plan policy. Policy CP8 of the CS,
largely relates to environmental matters and is not directly relevant to this main
issue.
18. CS Policy DM2 specifically supports community uses, business use, holiday and
tourism, non-residential agriculture and forestry buildings, replacement dwellings,
affordable housing, conversion of existing buildings and essential utilities
infrastructure. As a result, and although this Policy does not specifically exclude
residential development, this does not offer specific support for the proposal.
19. Policy CP1 of the CS says that development proposals should contribute to a
sustainable environment and, among other objectives, minimise the need to travel
through strategic locational choices. In support of this, and with regard to
accessibility, Policy A5 of the DMP requires that residential developments be
situated within walking distance of essential services and facilities. Specifically,
acceptable walking distances are defined as up to 400 metres to bus stops and up
to 800 metres to local shops.
20. Policies SP1 of the CS, SB1 of the DMP and Policy KSM9 of the NP, appear more
restrictive than the Framework, particularly in relation to development outside
defined settlements. Nevertheless, when taken together, these policies form the
areas spatial strategy and support key principles such as reducing the need to
travel through strategic locational choices, promoting suitable rural uses, and
ensuring new residential development is well-connected to essential services and
facilities. These aims are consistent with the Framework’s overarching goal of
fostering sustainable, inclusive, and well-integrated communities.
21. The village of Kingston St Mary does offer some amenities, including a primary
school, village hall, post office, public house and church. While there is a
permissive path through “The Spinney” Forest to the northeast of the appeal site
towards this village, I do not consider this route suitable for use during inclement
weather or for those with mobility issues. A bus stop is located about 300 metres
from the entrance to Mill Meadow. Nevertheless, the walk to this bus stop is along
a rural lane with limited lighting and pavements and therefore does not appear to
be particularly safe for walking.
22. Although the site is located on the designated Taunton Deane Cycle Route, I have
limited information regarding the quality of this. As such, I cannot be certain that
this route is suitable for all cyclists, including the elderly.
23. The appellant advises that the site is within 20 minutes of Taunton by bus.
However, the bus service from Kingston St Mary operates only every two hours on
weekdays. This level of service is insufficient to support regular, reliable access to
employment, education, healthcare, and shopping. Moreover, access to the bus
service from the appeal site is via roads, which are largely designed for vehicular
traffic. Overall, this route is unattractive and potentially unsafe for pedestrians,
further reinforcing car dependency.
24. While the site may be 10 minutes from Taunton by car, this undermines the local
and national planning policy aims to reduce reliance on private vehicles.
25. In light of the above, I do not consider the site’s location to be easily accessible
and therefore the occupiers of the development would be largely reliant on private
vehicles to access day to day services. It follows from this that the site is not
suitable for market housing development with regard to the spatial strategy for the
area.
26. As previously noted, the plots subject of this appeal have been approved for use
as second homes. According to the appellant’s submissions, second homeowners
often use such properties in a similar fashion to their main residences, albeit in a
different location. However, it is important to recognise that permanent residents
typically require regular access to essential day-to-day services such as
healthcare, employment, education, and local amenities. These needs are
generally less frequent or absent in the case of second home occupation. As a
result, while the appellant suggests there may be minimal differences in traffic
patterns and journey destinations, the nature and frequency of trips associated
with permanent residency are likely to be more intensive and service-oriented than
those generated by second home use.
27. As such, the proposal is contrary to the requirements of policies CP1, SP1 and
DM2 of the CS, policies A5 and SB1 of the DMP, and Policy KSM9 of the NP.
Flood Risk
28. Based on the information before me, the appeal site is located within fluvial Flood
Zones 2 and 3 (medium and high risk, respectively). In accordance with the
Framework: Inappropriate development in areas at risk of flooding should be
avoided by directing development away from areas at highest risk (whether
existing or future). Where development is necessary in such areas, the
development should be made safe for its lifetime without increasing flood risk
elsewhere. The Framework goes onto say that: ‘A sequential risk-based approach
should also be taken to individual applications in areas known to be at risk now or
in future from any form of flooding.’
29. There is some dispute between the main parties as to whether a sequential test is
necessary for the proposal. Irrespective of this, the PPG has been recently
amended and says that: The sequential test should be applied to ‘Major’ and ‘Non-
major’ development proposed in areas at risk of flooding, as set out in paragraphs
173 to 174 of the National Planning Policy Framework. Paragraphs 175, 176 and
180 set out exemptions from the sequential test. In applying paragraph 175 a
proportionate approach should be taken. Where a site-specific flood risk
assessment demonstrates clearly that the proposed layout, design, and mitigation
measures would ensure that occupiers and users would remain safe from current
and future surface water flood risk for the lifetime of the development (therefore
addressing the risks identified e.g. by Environment Agency flood risk mapping),
without increasing flood risk elsewhere, then the sequential test need not be
applied.
30. In this case, a site-specific Flood Risk Assessment has been submitted. This
confirms that the proposed dwellings would be constructed with finished floor
levels raised 600 mm above predicted flood levels. This elevation accounts for
extreme flood events and future climate change, helping to ensure the homes
remain safe. The use of Heli Pile foundations will allow water to pass beneath the
buildings, further reducing flood risk.
31. Some plots, especially Plot 12 could experience surface water depths between
600 mm and 900 mm during a flood event. Other plots (such as Plots 5, 6, 8, and
10) may see depths of 300 mm to 600 mm. However, the flood protection
measures designed for river flooding will also help mitigate surface water risks.
32. A nearby watercourse ‘Nursery Stream’ is identified as having a high risk of
surface water flooding. Even so, this flows beneath the road via a culvert that was
upgraded in 2017/2018. The new culvert, increased capacity by approximately
50%, which is likely to reduce flood risk in the area. Furthermore, the submitted
Unilateral Undertaking (‘UU’) includes an obligation in respect of the maintenance
of Nursery Stream. This obligation is necessary in order to make the development
acceptable in planning terms, directly related to the development, and reasonable
in scale and kind. This accords with the tests that are set out in the Framework
and Regulation 122(2) of the Community Infrastructure Levy Regulations (as
amended).
33. The main access route, Parsonage Lane, lies within Flood Zone 1, indicating a low
risk of flooding. This means safe access and exit should be possible with adequate
flood warning. In the event of sudden flooding, residents would have access to a
mezzanine level within the buildings, located 2.5 metres above the floor level and
above predicted flood levels. I understand a Flood Evacuation Plan is in place, and
residents would be encouraged to register for the Environment Agency’s flood
warning service.
34. I am also mindful that the plots which are the subject of this appeal already have
consent to be occupied as second homes. These are typically unoccupied for
periods of the year. As a result, the new dwellings would introduce a more
permanent pattern of occupancy, allowing residents to be better informed,
prepared, and responsive to flood warnings,
35. For the reasons outlined above, and even in the absence of a Sequential Test, the
proposal is considered safe for future residents and is unlikely to increase flood
risk elsewhere. Accordingly, the proposal does not conflict with Core Strategy
policies CP1 and CP8. Among other objectives, these policies seek to steer new
development away from areas at risk of flooding, including those that may become
vulnerable due to climate change and promote the incorporation of flood-resilient
design and construction measures.
Affordable housing
36. Policy CP4 of the CS, seeks to deliver around 4000 new affordable housing units.
A target of 25% of new housing should therefore be in the form of affordable units
over the Plan Period. Therefore, affordable housing is sought on sites of 5 or more
dwellings. The Council’s Housing SPD, adopted May 2014 says: Affordable
Housing maybe secured via on-site or off-site affordable housing provision,
whether provided in-kind or an equivalent financial contribution.
37. Because Mill Meadow was originally granted planning permission for holiday
accommodation, this was not subject to affordable housing requirements. As
already stated through subsequent planning permissions, several individual units
are no longer restricted to holiday use and have been approved for full residential
occupation. In this context, the Council considers that the cumulative effect of
these permissions alongside other applications and appeals relating to Mill
Meadow has resulted in the rural affordable housing threshold being exceeded. In
accordance with paragraph 65 of the Framework, policies in designated rural
areas may apply a lower threshold of five units or fewer. The Council therefore
maintains that the scale of residential development now proposed across Mill
Meadow triggers the requirement for an affordable housing contribution.
38. In respect of the above, I have been referred to case law2 that provides three
criteria to determine and assess the piecemeal development of sites or/and
aggregation of sites for the purposes of applying an affordable housing policy
threshold. The three criteria include: a. the ownership of the site; b. whether the
land could be considered to be a single site for planning purposes; and c. whether
the development should be treated as a single development. Whilst these criteria
are not determinative, they are useful in forming an overall planning judgement as
to whether proposals would be aggregate development or not.
39. With regard to the first and second criterion, while it is acknowledged that Mill
Meadow has been subdivided into individual plots since the original permissions in
2005 and 2006, this appeal relates to five plots that are in the same ownership and
are being considered collectively. This suggests a level of coordination that
undermines the argument for treating them as entirely independent planning units.
40. Regarding the final criterion, irrespective of whether the proposal before me should
be considered a single development, this involves multiple plots and this collective
scale triggers the development plan requirement for affordable housing
contributions.
41. Drawing on the above reasons, the proposal is required to make a contribution
towards affordable housing. To this end, the submitted UU, includes an obligation
to provide an affordable housing financial contribution in accordance with the
Council’s requirements.
42. Based on the evidence before me, I am satisfied that the affordable housing
contribution in the submitted UU is necessary in order to make the development
acceptable in planning terms, directly related to the development, and reasonable
2 R (Westminster City Council) v First Secretary of State & Brandlord Limited [2003] JPL 1066
in scale and kind. This accords with the tests that are set out in the Framework
and Regulation 122(2) of the Community Infrastructure Levy Regulations (as
amended). Therefore, the proposal accords with CS Policy CP4, which seeks to
ensure that developments of this scale contribute appropriately to affordable
housing provision.
Other Considerations
43. Because the Council is currently unable to demonstrate a 5-year supply of housing
land, Paragraph 11d) of the Framework is engaged.
44. If the appeal were to succeed the proposal would support the provision of 5 new
dwellings including a contribution towards affordable housing. This would support
the governments aims of boosting the supply of homes and supporting a range of
housing. Occupiers of the development would support local services and
contribute to the economy. As such, there would be some social and economic
benefits. Given the scale of the proposal (5 dwellings). This, and the benefits
associated with it attract more than limited weight.
Conditions
45. The Planning Practice Guidance states that decision notices granting planning
permission under Section 73 of the Act should repeat relevant conditions from the
original permission unless those conditions have already been discharged. S73 is
drafted broadly and, in addition to reviewing the disputed condition, provides the
authority to impose new conditions, omit previously imposed ones, or modify
existing conditions.
46. The Inspector allowed planning permission Ref 20/2006/038, subject to disputed
condition 1 and all the other conditions on permission Ref 20/2005/022, which
were still subsisting and capable of taking effect. Because these were not
specifically listed in the appeal decision, I have had regard to all these in
determining this appeal.
47. As part of the original development has already commenced, it is not necessary to
include the standard implementation condition (1) of planning permission Ref:
20/2005/022. However, in the interests of certainty I have specified a new
condition identifying the site of the development and plans and drawings submitted
during the application process.
48. Since it is unclear whether conditions 2, 4, 5, 10 and 14 of planning permission
Ref: 20/2005/022 have been discharged, I have reimposed them for the same
reasons as originally stated. If they have already been discharged, this is a matter
for the main parties to clarify. I have also restated those undisputed conditions that
are still subsisting and capable of taking effect.
49. Condition 8 of planning permission Ref: 20/2005/022, relates to visibility splays
and refers to an unspecified drawing. Therefore, this condition is unenforceable
and I have not specified this for the purposes of my Decision.
50. Where necessary and in the interests of clarity and precision, I have altered the
conditions to better reflect the relevant guidance.
Planning Balance and Conclusion
51. The proposal would introduce open market dwellings in a location which is not
easily accessible and is contrary to the spatial strategy for the area. Therefore, the
occupiers of the development would be heavily reliant on private vehicles to
access day to day services. That said, when compared to the approved second
home use, the extent of this is likely to be modest. As such, any harm resulting
from the proposal would be limited. On the other hand, the proposal would provide
benefits which are consistent with the Framework and these are afforded more
than limited weight.
52. As a result, when assessed against the policies in the Framework, the adverse
impacts associated with the proposal (removal of disputed conditions 1 and 7),
would not significantly and demonstrably outweigh the benefits arising from this.
Consequently, the presumption in favour of sustainable development applies and
this indicates that planning permission should be granted, and the appeal is
allowed.
53. Accordingly, condition 1 and 7 of planning permission Ref: 20/2006/038 are not
necessary.
M Aqbal
INSPECTOR
Schedule of Conditions
1) This permission relates to the following approved plans and drawings: Location
Plan - Plan Reference Number: TQRQM24066065322756, dated 6 March 2024
and Proposed Layout Drawing no. 12. Rev D, House Type A Cross Section,
House Type A External Front, House Type A External Front 2, House Type A
External Rear, House Type A External Rear 2, House Type A Ground Floor,
House Type A First Floor, Ark 1 dated 13.4.2023, Ark 2 dated 13.4.2023, Ark 3
dated 13.4.2023 and Ark 4 dated 13.4.2023.
2) Prior to any above groundworks commencing in association with the
development plots hereby permitted, details of all existing trees on the
development site shall be submitted to and approved in writing by the Local
Planning Authority. No trees identified for retention shall be felled, lopped,
topped, lifted, or otherwise disturbed without the prior written consent of the
Local Planning Authority.
3) (i) A scheme for the planting of trees, shrubs and hedges, including details of
species, siting and numbers to be planted and a timetable for implementation,
shall be submitted to and approved in writing by the Local Planning Authority
prior to the completion of the first dwelling hereby permitted.
(ii) The approved scheme shall be implemented in accordance with approved
timescale, or as otherwise agreed in writing by the Local Planning Authority.
(iii) For a period of five years following the completion of the planting scheme, all
planted trees, shrubs and hedges shall be protected and maintained to the
satisfaction of the Local Planning Authority. Any specimens that fail to establish
or die shall be replaced with plants of similar size and species, or as otherwise
agreed in writing by the Local Planning Authority.
4) Prior to the construction of the emergency spillway for the western stream,
details of this and bank levels shall be submitted to and agreed in writing by the
Local Planning Authority. Thereafter, the emergency spillway shall be
constructed in accordance with the approved details.
5) Prior to their installation, details and samples of materials to be used on all
external surfaces of the development hereby permitted shall be submitted to and
approved in writing by the Local Planning Authority. The development shall be
carried out in accordance with the approved materials and thereafter so retained.
6) Prior to their installation, details of all boundary walls, fences or hedges forming
part of the development (including a timetable for implementation) shall be
submitted to and approved in writing by the Local Planning Authority. Any
approved wall, fence or hedge shall be erected/planted in accordance with the
approved timetable and thereafter maintained.
7) Prior to their installation, details of any soakaways (including a timetable for
implementation) shall be submitted to and approved in writing by the Local
Planning Authority. Any such soakaways shall be installed in accordance with
approved details and retained for the life of the development.
8) The development hereby permitted shall be undertaken in accordance with the
approved flood risk mitigation measures / recommendations set out in the Flood
Risk Assessment, dated 30 May 2024. Any variation to the approved flood risk
mitigation measures / recommendations shall be agreed and approved in writing
by the Local Planning Authority, prior to their implementation.
9) Badgers are known to be active in the vicinity of the approved development site.
All contractors and site personnel shall be briefed on the presence of badgers
and the relevant legal protections under the Wildlife and Countryside Act 1981
(as amended) and the Protection of Badgers Act 1992. As a precautionary
measure, any open excavations shall be securely covered overnight or fitted with
escape ramps to prevent accidental harm to wildlife.
10) Notwithstanding the provisions of the Town and Country Planning General
Permitted Development Order 1995 (or any subsequent order amending or
revoking and re-enacting that Order) there shall be no addition or extension to
the buildings hereby permitted (including the insertion of dormer windows)
unless an application for planning permission is first submitted to and approved
by the Local Planning Authority.
11) Notwithstanding the provisions of the Town and Country Planning General
Permitted Development Order 1995 (or any subsequent order amending or
revoking and re-enacting that Order), there shall be no further building, structure
or other enclosure constructed or placed on the development site unless an
application for planning permission is first submitted to and approved by the
Local Planning Authority.
12) Notwithstanding the provisions of the Town and Country Planning General
Permitted Development Order 1995 (or any subsequent Order amending or
revoking and re-enacting that Order), no gate, fence, wall or other means of
enclosure shall be erected on the development site unless an application for
planning permission is first submitted to and approved by the Local Planning
Authority.