Appeal Decision Hearing held and site visit made on 17 February 2016 by Tim Belcher FCII, LLB, Solicitor (Non-Practising) an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 7 June 2016

Appeal Ref: APP/F4410/C/13/2211079 & 2211080 Ten Acres Farm, Norton Common Road, Norton, , DN6 9HP  The appeal is made under Section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 (the 1990 Act).  The appeal is made by Michael V. Dear & Linda Anne Dear (the Appellants) against an Enforcement Notice issued by Doncaster Metropolitan Borough Council (the Council) on 29 November 2013. The Council's reference is 13/00021/ENFNOT.  The breach of planning control alleged in the Enforcement Notice is failure to comply with: a) Condition No. 1 of a planning permission (Planning Inspectorate Ref APP/F4410/C/09/2103691 & 2103692) granted on 14 December 2009, and b) Condition No. 1 of a planning permission (Planning Inspectorate Ref APP/F4410/C/09/2103693 & 2103694) also granted on 14 December 2009. The development to which planning permission (Planning Inspectorate Ref APP/F4410/C/09/2103691 & 2103692) relates is the change of use to a mixed use for the keeping of horses and as a residential caravan site on land at Norton Common Road, Askern, Doncaster DN6 OES. The Condition in question is No. 1 which states that: “1) The use hereby permitted shall be for a limited period being the period of three years from the date of this decision. At the end of this period the residential caravan use shall cease, all materials and equipment brought on to the land in connection with the use shall be removed, and the land restored to its former condition in accordance with a scheme previously submitted to and approved in writing by the local planning authority.” The Enforcement Notice alleges that the Condition has not been complied with in that the permission expired on 14th December 2012. It appears to the Council that the condition has not been compiled with in that the residential use of the site has not ceased, that the materials and equipment brought onto the land in connection with the use have not been removed and that no scheme for the restoration of the land to its previous condition has been submitted for approval to the local planning authority. The development to which planning permission (Planning Inspectorate Ref APP/F4410/C/09/2103693 & 2103694) relates is the carrying out of engineering works consisting of the layout and formation of hardstanding on land at Norton Common Road, Askern, Doncaster DN6 OES. The Condition in question is No. 1 which states that: “1) The operational development hereby permitted shall be for a limited period being the period of three years from the date of this decision. At the end of this period the hardstanding shall be removed and the land restored to its former condition in accordance with a scheme of work previously submitted to and approved in writing by the local planning authority.” The Enforcement Notice alleges that the Condition has not been complied with in that the permission expired on 14th December 2012 and the hardstanding had not been removed and that no scheme for the restoration of the land to its previous condition has been submitted for approval to the local planning authority.

 The requirements of the Enforcement Notice are: (i) Cease the use of the site for residential occupation and remove all caravans and structures in connection with the

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residential use. (ii) Remove all the hard standing other than the hardstanding shown hatched red on Plan B attached to the Enforcement Notice. (iii) Remove from the land all materials and rubble arising from compliance with the above, (iv) and restore the land to its condition before the breach took place by levelling the ground and re- seeding it with grass.  The period for compliance with: (a) requirement (i) above is 6 months. (b) requirement (ii) above is 7 months. (c) requirement (iii) above is 8 months. (d) requirement (iv) above is within the next available planting season (April to November) following the date specified in requirement (iii) above.  The appeal is proceeding on the grounds set out in Section 174(2) (a), (f) & (g) of the 1990 Act. Summary of Decision: The appeal on Ground (a) is dismissed but succeeds in part on Grounds (f) and (g). The Enforcement Notice is upheld as varied in the terms set out below in the Formal Decision below.

Definitions

1. I will refer to:

a) The land to which the Enforcement Notice relates as the “Appeal Site”.

b) The planning permissions granted on 14 December 2009 “the 2009 Planning Permissions”

Procedural Matters

2. At the commencement of the Hearing I handed out a document entitled “Minor Amendments to the Enforcement Notice”1. I considered that these amendments were necessary to fully explain the alleged breach of planning control. I also explained in that document a minor typographical error in Paragraph 5 (ii) of the Enforcement Notice. All of these amendments were agreed by the parties. It was also verbally agreed between the parties that paragraph 5(iv) should be varied to delete part of that requirement. No injustice arises from these corrections and variations.

Relevant Planning History following the Grant of the 2009 Planning Permissions

3. On 31 January 2012 an Inspector appointed by the Secretary of State granted planning permission for the erection of a stable block on the Appeal Site. I will refer to the building permitted by that permission as “the Stable Block”. The Stable Block has been erected.

4. On 7 October 2013 the Council refused planning permission for, amongst other things, permanent or temporary consents for the 2009 Planning Permissions. I will refer to that refusal of planning permission as “the 2013 Refusal”.

5. On 22 January 2014 Inspector B Hellier held a Hearing into an appeal made by the Appellants against the 2013 Refusal. On 23 January 2014 the Secretary of State recovered the appeal relating to the 2013 Refusal for his determination.

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6. Inspector Hellier‘s Report to the Secretary of State was dated 4 March 2014. I will refer to this as (“the Inspector Hellier Report”).

7. The Secretary of State dismissed the Appellants’ appeal against the 2013 Refusal by way of his decision dated 10 June 2014 (“the Secretary of State Refusal”).

8. The Secretary of State Refusal was challenged by the Appellants in the High Court pursuant to Section 288 of the 1990 Act. The Hearing into that appeal was held on 11 December 2014. The Appellants appeal was dismissed by Her Honour Judge Belcher on 19 January 2015.

9. In late April 2015 the Court of Appeal refused permission for the Appellants to appeal the decision of Her Honour Judge Belcher.

Background Information

10. Debbie Smith (Ms Smith) is the sister of Linda Anne Dear (“Ms Dear”).

11. Details of the personal circumstances which impact on Ms Dear and Ms Smith are set out in Document 5 and need not be repeated in this Appeal Decision.

12. Part of the Stable Block is used as a dayroom which contains an open plan kitchen, dining area and living area, a separate bathroom and a utility room. No enforcement action has been taken against the residential use of part of the Stable Block.

13. Ms Dear and Ms Smith are on the Council’s waiting list for pitches on the Council run caravan site known as “White Towers”.

What does Ms Dear seek through this appeal?

14. Ms Dear seeks a minimum three year temporary consent to continue the residential use of the Appeal Site.

What Matters Are Agreed Between the Ms Dear and the Council?

15. That the Appeal Site is within the South Green Belt.

16. That Ms Dear and Ms Smith are gypsies as defined in Planning Policy For Traveller Sites (PPTS). The only other adult living on the Appeal Site is Michael Valence. I am advised that he “travels for roofing work and horse dealing. He has a driving licence but is not legally old enough to tow a caravan so travels with others and stops with family and friends or has to lodge”. On the limited information I have I consider that Michael Valence is also a gypsy as defined in PPTS.

17. That the unauthorised development carried out at the Appeal Site:

a) Is inappropriate development in the Green Belt.

b) Results in loss of openness within the Green Belt.

c) Results in encroachment into the open countryside.

d) Harms the character and appearance of the open countryside.

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18. As regards harm to the character and appearance of the countryside Ms Dear’s agent (Ms Heine) accepted that there was harm but explained that, in her opinion, the harm to the character and appearance had diminished since Inspector Hellier’s site visit in January 2014 because of physical changes carried out at the Appeal Site. These changes are set out in paragraph 2 of Document 5 and need not be repeated here. One of the changes specified is that, “kennels have been removed”. However, it was clear that kennels still exist and are in use at the Appeal Site.

19. Whilst I did not see the Appeal Site prior to the changes referred to in Document 5 I agree with Ms Heine that it is difficult to see the caravans on the Appeal Site although there are some longer distance views of the residential paraphernalia such as the large gas bottles and children’s play equipment. These can be seen from the entrance to the Appeal Site off Norton Common Road. Whilst I accept that the changes referred to are likely to have reduced harm to the character and appearance of the area I remain of the view that there is material harm caused by the unauthorised development.

Policy

20. The Development Plan for the area includes Policies CS3 and CS13 of the Doncaster Core Strategy (the Core Strategy) and saved Policy ENV3 of the Doncaster Unitary Development Plan (the UDP). There has been no change regarding Development Plan policies since the Secretary of State Refusal. The Secretary of State explained that the relevant policies of the Core Strategy and the UDP were consistent with the National Planning Policy Framework (NPPF) and PPTS. I am aware that PPTS has been amended since the Secretary of State Refusal as regards certain matters but there were no representations made that the changes to PPTS altered the overall planning considerations. Accordingly, the unauthorised development remains contrary to the Core Strategy and the UDP.

Main Issues

21. I have explained above those matters that are agreed by Ms Dear. Having regard to those agreed matters I consider the main issue is whether the other considerations in this case that weigh in favour of the continued residential use of the Appeal Site clearly outweigh the harm to the Green Belt and the other harm agreed above?

Other Considerations

General Need for gypsy and traveller accommodation in the Borough.

22. There was a lot of discussion about this issue at the Hearing. The Council carried out a Gypsy and Traveller Accommodation Needs Assessment (GTANA) in March 2015. This concludes that the Borough will have a surplus of 12 pitches over the next 5 years. I am aware that there are many criticisms of the GTANA aired by Ms Heine and others at planning appeals involving the reliance by the Council on the GTANA. However, the GTANA’s methodology and data sources were independently reviewed by Professor Robert Home (MA DipTP PhD MRTPI) to provide an impartial assessment and validation of their suitability and relevance. The GTANA’s methodology has

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been adapted and modified to take account of the recommendations of Professor Home.

23. The GTANA (which may be used as the evidence base for a relevant development plan document) has not been independently examined in public by the Planning Inspectorate.

24. The waiting list for Council run gypsies and travellers caravan sites shows that only two households are waiting housing on the Council run sites.

25. I note that an Inspector dealing with an application for a gypsy and traveller’s site in relation to land off Jossey Lane2 concluded having had regard to the GTANA that, “it is probable that the Council does not have a five year supply”.

26. Further, another Inspector dealing with gypsy sites at The Thistles and Meadow View3 which are very close to the Appeal Site had regard to the GTANA and she concluded that, “… on balance, taking all these matters into account is that the Council has not yet demonstrated that it has a five-year supply of sites, although further work may resolve the uncertainties I have identified.”

27. Finally, I was referred to another Inspector’s Appeal Decision dated 10 December 2015 relating to Willow Garth, Kings Road4. He found that, “it is likely that the GTANA underestimates the level of need for gypsy and traveller sites.”

28. The Inspector Hellier Report concludes that, “there is patently not a five year supply of deliverable sites”. The Secretary of State states in the Secretary of State Refusal that he, “… agrees with the Inspector that there is considerable unmet need for Gypsy and Traveller sites in the Borough, and that there is no five year supply of sites.”

29. I have had regard to the limitations of dealing with this issue through a Section 174 appeal Hearing. The most appropriate method of testing the robustness of the GTANA is through the adoption of a development plan document which is based on the evidence contained in the GTANA (or an update of that document). In this way the GTANA can be examined in detail, all the relevant parties, including site owners, would have the opportunity of participating in the examination and the evidence contained in the GTANA can be fully tested. I have come to the conclusion that whilst the Council are striving to address the issue of providing a five year housing land supply for gypsies and travellers that this has not been achieved as yet. This matter therefore weighs in favour of the appeal.

What are the accommodation needs of Ms Dear and others currently living at the Appeal Site?

30. As at the date of the Hearing the Appeal Site was occupied by:

1. Ms Dear and her three children:

2 Document 11 3 Document 12 4 Document 13

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a) Michael Valence (19).

b) Nikita Dear (17). Nikita lives with her partner Michael Maughan at the Appeal Site. Nikita was expecting the couple’s first child. The birth was due shortly after the close of the Hearing.

c) Vienna Phyllis Dear (11). Vienna Phyllis currently attends Askern Spa Junior School. I understand that she will transfer to Secondary School in September 2016.

2. Ms Smith and her three children:

a) Jacob (16). Jacob is being home educated.

b) Ben (12). Ben is also being home educated.

c) Natalia (5). Natalia attends Littlemoor Nursery in Doncaster.

31. The occupiers of the Appeal Site live in four touring caravans and there is access to those residential facilities explained above that are within the Stable Block. The Inspector Hellier Report states that there were three caravans on the Appeal Site when he carried out his inspection.

32. I have mentioned above that Ms Dear and Ms Smith have applied for pitches on the Council run site at White Towers. No-one was able to give me any indication as to the likely timescale as to when vacancies on that site may come forward. However, I note that the background information provided by the Council on which the GTANA was based indicates that there are 23 pitches at White Towers and there were two vacant pitches when the survey was undertaken. It therefore seems likely to me that vacancies at White Towers could become available in the near future.

33. I was also advised by Ms Dear that she would not preclude living in bricks and mortar accommodation on the basis that she could use the house like a dayroom (with the same facilities as provided within the Stable Block) but continue to sleep within a caravan parked within the curtilage of the dwelling-house.

Personal Circumstances of Ms Dear and the Others Living at the Appeal Site?

34. I have noted the problems which may face Ms Dear and Ms Smith if they had to live on a public site. These problems are set out in various places within paragraph 3 of Document 5. I am not convinced that these problems amount to an insurmountable barrier in the event that the Appeal Site has to be vacated.

The Rights of the Children Living on the Appeal Site.

35. The needs of the children who are on the Appeal Site have been my primary consideration. Further, I have had regard to safeguarding and promoting the welfare and well-being of those children. I have no doubts that the needs of the children will be fully met by their parents and carers who, for the reasons explained above, should be able to secure alternative appropriate accommodation without resorting to roadside encampments. In this way the

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children will be able to maintain their current education at schools or at home.

Temporary Planning Permission

36. I have given consideration as to whether a further temporary planning permission should be granted in this case. Below, I have explained that I consider that a twelve month compliance period is adequate and would allow the occupiers of the Appeal Site to secure alternative appropriate accommodation without resorting to roadside encampments.

37. I these circumstances I do not consider that it is appropriate to grant a further temporary planning permission for development that is causing substantial harm to the Green Belt and other material harm to the character and appearance of the area.

Balancing of Considerations and Conclusion

38. I have explained that I consider that the occupiers of the Appeal Site are gypsies or travellers as defined in PPTS.

39. It is agreed that the unauthorised development causes substantial harm to the Green Belt by reason of it being inappropriate development. Further harm arises for the reasons explained above.

40. Against these harms I have noted the views of other Inspectors regarding the supply of pitches for gypsies and travellers in the Borough. I have given limited weight in favour of the continued use of the Appeal Site because of the lack of a demonstrable five year supply of sites.

41. I have also given further limited weight in favour of the continued use of the Appeal Site to the fact that there is no obvious or certain place where the occupiers of the Appeal Site could currently reside. I have explained the options for residential accommodation for the occupiers of the Appeal Site which appear to me to be possibilities and the Council have powers to extend the compliance period if Ms Dear or the other occupiers of the Appeal Site can show that they will be moving off the Appeal Site and there are good reasons why it is likely to take more than the twelve month period to be allowed by the Enforcement Notice.

42. I have given further limited weight to the continuation of the residential use of the Appeal Site due to the personal circumstances of Ms Dear, Ms Smith and the other occupiers of the Appeal Site. I consider that these personal circumstances can be adequately addressed by securing appropriate alternative accommodation.

43. However, having regard to all of these matters I conclude that the other considerations explained above that weigh in favour of a grant of a further temporary planning permission do not outweigh the harms caused by the unauthorised development. Accordingly, the appeal should not succeed. I shall uphold the Enforcement Notice with the amendments explained in this Appeal Decision and refuse to grant planning permission on the deemed application.

Ground (f) that the steps required by the Enforcement Notice to be

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taken, exceed what is necessary to remedy the breach of planning control

44. It was agreed between Ms Dear and the Council that Plan B attached to the Enforcement Notice could be amended to allow:

a) The hardstanding that provides the access track between the Stable Block and Norton Common Road to remain, and

b) Some of the hardstanding around the Stable Block to remain.

The additional areas of hardstanding would be retained in connection with the lawful use of the Stable Block. A substitute Plan B was agreed at the Hearing and I will substitute that for the original Plan B.

45. I do not consider that the Enforcement Notice requires that part of the Stable Block that is being used as a dayroom to be removed. The unauthorised use of part of the Stable Block in association with the residential use of the Appeal Site is a matter which the Council will need to address if that use does not cease.

Ground (g) - that the period specified in the Enforcement Notice falls short of what should reasonably be allowed.

46. The Enforcement Notice allows a period of six months within which to cease the use of the site for residential occupation and remove all caravans and structures in connection with the residential use. I consider that a longer period should be allowed in this case. This is necessary because of the need to find alternative appropriate accommodation either by moving to a Council run site or finding a private site (if possible) or using the bricks and mortar option referred to above.

47. Further, it is likely that there is now a very young baby living on the Appeal Site and the child’s parents may need to make provision for their own accommodation needs. I therefore intend to amend the Enforcement Notice to allow a period of 12 months. The other compliance periods specified in the Enforcement Notice will also be amended to reflect the change explained above.

Public Sector Equality Duty

48. I have had due regard to the PSED contained in the Equality Act 2010. The Equality Act 2010 legally protects people from discrimination in wider society. The occupiers of the Appeal Site are gypsies or travellers as defined in PPTS. The other occupiers of the Appeal Site are the children of the adult occupiers. All of them have a protected characteristic for the purpose of the PSED. The difficulty of finding a lawful site in the Borough may indicate inequality of housing opportunities for gypsies or travellers. However, to allow this appeal and to grant planning permission for development that is unacceptable in planning terms and which would not be in accordance with the Development Plan would fail to foster good relations between the occupiers of the Appeal Site and the settled community.

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Human Rights

49. Dismissing this appeal would interfere with the human rights of the occupiers of the Appeal Site to family life and to their home. They would be displaced from their homes with no currently identified sites to relocate to and there may be disruption to the family and the education of the younger children living on the Appeal Site. However these matters must be balanced against the harm:

a) To the Green Belt (which is substantial).

b) To the openness of the Green Belt.

c) Harm to the character and appearance of the countryside.

50. I am satisfied, on the basis of the various harms identified above, that the dismissal of this appeal is necessary and proportionate in the public interest.

The Rights of the Child

51. I am aware of the obligations under the United Nations Convention on the Rights of the Child including Article 3. As explained above the needs of the children who are on the Appeal Site have been my primary consideration. I have no doubts that the needs of the children will be fully met by their parents and carers who, for the reasons explained above, should be able to secure alternative appropriate accommodation without resorting to roadside encampments.

52. The matters which I have dealt with in paragraphs 48 to 51 above do not alter my overall conclusions set out in paragraph 43 above.

Decision

53. The appeal is allowed on Grounds (f) and (g) and it is directed that the Enforcement Notice be corrected and varied by:

a) The substitution of plan B annexed to this Appeal Decision for plan B attached to the Enforcement Notice.

b) The deletion of the words in paragraph 3 and their substitution with:

“On 14th December 2009 planning permission was granted on appeal under 177(5) of the Town and Country Planning Act 1990 (as amended) by an Inspector appointed by the Secretary of State for Communities and Local Government under reference number APP/F4410/C/09/2103691 & 2103692 for the change of use of land to a mixed use for the keeping of horses and as a residential caravan site on land at Norton Common Road, Askern, Doncaster, DN6 OES subject to conditions.

One of those conditions states that:

“(1) The use hereby permitted shall be for a limited period being the period of three years from the date of this decision. At the end of this period the residential caravan use shall cease, all materials and equipment brought on to the land in connection with the use shall be removed, and the land restored to its former condition in accordance with

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a scheme previously submitted to and approved in writing by the local planning authority.”

The permission therefore expired on the 14th December 2012 being 3 years from the date of the planning permission. It appears to the Council that the condition has not been complied with in that the residential use of the site has not ceased, that the materials and equipment brought onto the land in connection with the use have not been removed and that no scheme for the restoration of the land to its previous condition has been submitted for approval to the local planning authority.

In addition, by way of a second appeal (Appeal B) and on 14th December 2009, appeal references APP/F4410/C/09/2103693 & 2103694 the Inspector appointed by the Secretary of State for Communities and Local Government quashed an enforcement notice issued on 15th April 2009 and granted planning permission for the carrying out of engineering works consisting of the layout and formation of hardstanding on land at Norton Common Road, Askern, Doncaster, DN6 OES. Permission was granted on a temporary basis for a period of three years. Condition 1 of the planning permission states that:

“1) The operational development hereby permitted shall be for a limited period being the period of three years from the date of this decision. At the end of this period the hardstanding shall be removed and the land restored to its former condition in accordance with a scheme of work previously submitted to and approved in writing by the local planning authority.”

It appears to the Council that the condition has not been compiled with, in that the time period expired on the 14th December 2012 and the hardstanding has not been removed and that no scheme for the restoration of the land to its previous condition has been submitted for approval to the local planning authority. c) The deletion of the words “hard standing” and the substitution of the word “hardstanding” in paragraph 5(ii). d) The deletion of the word “red” and the substitution of the word “black” in paragraph 5(ii). e) The deletion of the words “by levelling the ground and re-seeding it with grass” in paragraph 5(iv). f) The deletion of “6” and the substitution of “12” in paragraph 6(i). g) The deletion of “7” and the substitution of “13” in paragraph 6(ii). h) The deletion of “8” and the substitution of “14” in paragraph 6(iii).

Subject to these corrections and variations the Enforcement Notice is upheld, and planning permission is refused on the application deemed to have been made under Section 177(5) of the 1990 Act. Tim Belcher

Inspector

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Plan

This is the plan referred to in my Appeal Decision dated 7 June 2016 by Tim Belcher FCII, LLB (Hons), Solicitor (Non-Practising) Ten Acres Farm, Norton Common Road, Norton, Doncaster, DN6 9HP Reference: APP/F4410/C/13/2211079 & 2211080 Do Not Scale

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APPEARANCES

FOR THE APPELLANTS

Alison Heine BSc (Hons), MSc, MRTPI - Heine Planning Consultancy

Ms L. A. Dear – Appellant

FOR DONCASTER METROPOLITAN BOROUGH COUNCIL

Garry Hildersley BA(Hons) MPlan – Principal Planning Officer

Andy Brown BSc(Hons) – Strategy & Performance Unit

Gareth Stent – BA (Hons), DipTP, MRTPI - Principal Planning Officer (Development Management)

Ned Westaway of Counsel

INTERESTED PERSONS

Councillor Alan Jones – Ward Councillor

DOCUMENTS

Document 1 – “Minor Amendments to Enforcement Notice”. Document 2 – “Policy Referred to During the Appeal”. Document 3 – Gypsy and Traveller Accommodation Needs Assessment” March 2015. Document 4 – Letter from Dr B J McKenna dated 16 December 2014. Document 5 – “Update Since Appeal Was Submitted” – prepared by Alison Heine. Document 6 – Note from Mr. J. Smith (Pony Paddocks) dated 24 September 2015. Document 7 – Note from William Adams (Glen Bungalow) dated 26 August 2015. Document 8 – Note from Jane Harker (Stockbridge Caravan Site) dated 25 September 2015. Document 9 – Letter from Heine Planning Consultancy to the Council dated 27 January 2016 re: Millfield Caravan Site. Document 10 - Draft Statement of Common Ground. Document 11 - Appeal Decision dated 31 July 2015 – Land off Jossey Lane. Document 12 – Appeal Decisions dated 14 August 2015 – The Thistles & Meadow View. Document 13 - Appeal Decision dated 10 December 2015 – Willow Garth. Document 14 - Appeal Decision dated 15 December 2015 – Land at The Stables, Station Road.

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PLANS

Plan A – Identifying Environmental Agency Flood Zone 3; Countryside Protection Area & Green Belt.

Plan B – Extract from UDP showing settlements of Norton, Campsall & Askern in relation to the Appeal Site.

Plan C – Plan identifying an agreed area of the hardstanding which would remain to serve The Stables.

Plan D – “Plan 2 – Site Development Plan”.

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