Case Reference: 3361031

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/25/3361031
Cuckoo Lodge, 7 Mill Meadow, Parsonage Lane, Kingston St. Mary, Taunton
TA2 8HL.
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as amended)
against a grant of planning permission subject to conditions.
• The appeal is made by [APPELLANT] against the decision of Somerset Council.
• The application Ref is 20/24/0009.
• 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: None 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 Cuckoo Lodge, 7 Mill Meadow, Parsonage Lane, Kingston
St Mary, Taunton, Somerset TA2 8HL, in accordance with the application
Ref 20/24/0009, 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 an existing holiday let 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 approved building plots to be retained as an open market dwelling
instead of one 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 a new dwelling. 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; 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 plot 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 building falls within the C3 use class of the Use Classes
Order and is a dwellinghouse, albeit with a condition stating that they should be
occupied for tourism/second home use. By removing the occupancy condition the
appeal property could be occupied as an unencumbered dwellinghouse.
Notwithstanding this, if the appeal succeeds, there is no planning requirement
which would preclude the use of this dwelling as a second home.
14. The term "log cabin" used in the development description on the original
permission gives a misleading impression of the nature of the approved building.
Based on my observations this is of substantial and permanent construction and
this does not affect its suitability for use as an open market dwelling.
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.
1 APP/0315/A/07/2048306
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 existing building at the appeal site has been approved for
use as a second home. 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.
Affordable housing
28. 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.
29. 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.
30. 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.
31. With regard to the first criteria, since the original permissions were granted in 2005
and 2006, Mill Meadows has been divided up into individual plots some of which
have been constructed and sold. The constructed plots are all in private freehold
ownership. I am also advised that the owners of all of the sites for the current
applications are different. Fragmentation of legal ownership over time indicates
that the original planning unit has evolved into distinct, individually managed plots.
32. In terms of the second criteria, the appeal site is considered to be a single site for
planning purposes. This is because other than a shared road into Mill Meadow and
a management company responsible for maintaining its wider grounds, in general
each plot would have its own access and services.
33. With respect of the final criteria, given the above, the current proposal relates to an
individual plot. The division of ownership at Mill Meadows occurred well before the
introduction of the designated rural area threshold in 2014. In any case, this
proposal falls below the present threshold in the development plan and therefore
does not trigger affordable housing requirements.
34. Drawing on the above reasons, the original permissions at Mill Meadow are
historic and given the changes in plot ownership over time, separate planning units
have been created that should not be pooled for the purposes of affordable
housing thresholds. As such, affordable housing is not necessary to make the
proposal acceptable in planning terms. Therefore, the proposal does not conflict
with CS Policy CP4.
Other Considerations
35. Because the Council is currently unable to demonstrate a 5-year supply of housing
land, Paragraph 11d) of the Framework is engaged.
36. If the appeal were to succeed the proposal would support the provision of a new
dwelling. This would support the governments aims of boosting the supply of
homes. 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 small scale of the proposal (1 dwelling). This, and the benefits
associated with it attract more than limited weight.
Conditions
37. 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
2 R (Westminster City Council) v First Secretary of State & Brandlord Limited [2003] JPL 1066
authority to impose new conditions, omit previously imposed ones, or modify
existing conditions.
38. 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.
39. 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 a plan showing the site of the development.
40. 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.
41. 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.
42. 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
43. The proposal would introduce an open market dwelling 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.
44. 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.
45. 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: TQRQM24072054406471, dated 12 March
2024.
2) Before the commencement of any works hereby permitted, details or samples of
the materials to be used for all the external surfaces of the building(s) shall be
submitted to and be approved in writing by the Local Planning Authority, and no
other materials shall be used without the written consent of the Local Planning
Authority.
3) The recommendations of the Flood Risk Assessment received 18th July, 2005
shall be carried out prior to the commencement of the development hereby
approved to the satisfaction of the Local Planning Authority. Any variation of the
recommendations implementation shall be agreed and approved in writing by the
Local Planning Authority.
4) (i) Before any part of the permitted development is commenced, a scheme of
planting of trees, shrubs and hedges, which shall include details of the species,
siting and numbers to be planted, shall be submitted to and approved in writing by
the Local Planning Authority. (ii) The scheme shall be completely carried out within
the first available planting season from the date of commencement of the
development, or as otherwise extended with the agreement in writing of the Local
Planning Authority. (iii) For a period of five years after the completion of the
planting scheme, the trees, shrubs and hedges shall be protected and maintained
to the satisfaction of the Local Planning Authority and any trees, shrubs or hedges
that cease to grow shall be replaced by trees, shrubs or hedges of similar size and
species, or the appropriate trees, shrubs or hedges as may be approved in writing
by the Local Planning Authority.
5) Before any part of the development hereby permitted is commenced detailed
drawings showing which trees are to be retained on the site shall be submitted to
and approved in writing by the Local Planning Authority and none of the trees so
shown shall be felled, lopped, topped, lifted or disturbed without the prior written
consent of the Local Planning Authority.
6) Soakaways shall be constructed in accordance with Building Research Digest 365
(September 1991).
7) Prior to the commencement of the development hereby approved details of the
western stream bank levels and the emergency spillway construction shall be
agreed and approved in writing by the Local Planning Authority.
8) 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.
9) 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 existing building (including the insertion of dormer windows) unless an
application for planning permission is first submitted to and approved by the
Local Planning Authority.
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 further building, structure
or other enclosure constructed or placed on the site 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), no gate, fence, wall or other means of
enclosure shall be erected on the site unless an application for planning
permission is first submitted to and approved by the Local Planning Authority.