Appeal 3300228

The appeal is dismissed.

The development has been carried out. It comprises a close boarded fence (the CBF), a weld mesh fence (the WMF), two similar metal railing fences (the MRF) and a brick wall and piers with metal railings on top and metal railing gates (the BW). The Council did not object to the WMF or the BW, other than regarding potential impact on trees, nor the associated works. I have determined the appeal on this basis.

In its decision notice the Council has cited policies from its emerging Local Plan Pre-Submission Document, September 2021 (the LP). This plan was submitted to examination in December 2021. Although the LP is at an advanced stage of preparation, all except Policies M11 and M13 referred to by the Council are subject to unresolved objections. I have not, therefore, taken the other [name] into account in determining the appeal.

I have also dealt with another appeal (Ref: APP/T2215/D/22/3295132) on this site. It is the subject of a separate decision.

The appeal site is in the Green Belt and the main issues are: • whether the CBF or the MRF is inappropriate development in the Green Belt, having regard to local and national planning policy; • if the CBF or the MRF is inappropriate development, the effect on the openness of the Green Belt; • the effect of the CBF and the MRF on the character and appearance of the area, including the effect of these fences and the WMF and the BW on trees protected by a tree preservation order; and • whether any harm by reason of inappropriateness, or any other harm, is clearly outweighed by other considerations to amount to very special circumstances required to justify the development.

Policy CS13(a) of the [name] 2011 (the CS), Policy DP22(1) of the Dartford Development Policies Plan 2017 (the DPP) and LP Policy M13 resist inappropriate development in the Green Belt. DPP Policy DP22(2) and LP Policy M13 set out that inappropriate development will only be approved in very special circumstances.

These policies are consistent with objectives of the National Planning Policy Framework (the Framework) to protect Green Belt land and to regard the construction of new buildings as inappropriate development in the Green Belt. The Framework sets out that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

There is no dispute that constructing the CBF and the MRF is ‘development’. The Framework does not define ‘building’ but section 336 of the 1990 Act1 does. It includes ‘any structure or erection, and any part of a building, as so defined’. On this basis the CBF and the MRF are buildings for the purposes of the Framework.

The appellants allege that the Council treated a previous planning application for a similar close boarded fence elsewhere at the appeal site as not inappropriate development in the Green Belt2. However, the excerpt from the Council officer report provided does not explain the Council’s position on inappropriate development (or openness) in that case. The appellants have therefore not demonstrated that the Council has been inconsistent in its approach to close boarded fencing at the appeal site (in either respect).

The appellants have not sought to justify the CBF or the MRF by any exception to inappropriate development in the Green Belt set out in the Council’s adopted or emerging development plan or in the Framework, including paragraph 149(c)3. There have been no other representations from the appellant as to why either fence would not constitute inappropriate development.

Accordingly, I find that the CBF and the MRF result in the construction of buildings and are inappropriate development in the Green Belt. Consequently, this development does not comply with CS Policy CS13(a), DPP Policy 22(1) or LP Policy M13. 1 Town and Country Planning Act 1990 (as amended) 2 14/00059 3 The Council has referenced the equivalent ‘paragraph 145’ from a previous superseded version of the Framework

The CBF has timber boards supported by concrete posts and gravel boards. It is narrow in cross-section but is 2m tall and over 50m long. It is therefore a significant ‘solid’ vertical and horizontal structure with substantial surface area. Although running along part of the appeal site boundary, the CBF is close to the edge and gives an overbearing pronounced sense of enclosure along a significant part and one side of this section of [site address] . It is a strong linear barrier that cuts through this part of the Green Belt. As such it has appreciable permanent spatial and visual presence and considerably reduces openness. The low timber post and rail fence (the PRF) along the back edge of the verge that it replaced was innately a more ‘open’, less enclosing structure so its removal does not off-set the effect of the CBF on openness.

The MRF is in two short rows 2m high either side of the BW, largely angled away from the road, enclosing two small sections of the appeal site boundary. A lower horizontal band contains more numerous and closely spaced vertical rails than an upper band, all supported by horizontal rails and metal posts. Though permanent in nature this inherently mainly open structure is limited in extent with little spatial and visual presence; more so than a previously approved [address] boarded fence (the previous fence) that it replaced on one side. As such it causes no material harm to openness.

Part of the previous fence has been replaced by the WMF. The WMF is innately a more open structure but this part of the previous fence did not face [site address] . Part of the previous fence has also been replaced by the BW but it is set further back from the road and contains a row of railings along the top, so overall the BW is a more open structure.

Nevertheless, the loss of openness due to the CBF does not preserve the openness of the Green Belt, which is one of its essential characteristics. As a result, the CBF is contrary to the Council’s objectives for CS Policy CS13(a), [name] DP22(1)(2) and (7) and LP Policy M13. It also conflicts with the fundamental aim of Framework paragraph 137 to keep land in the Green Belt permanently open.

The appeal site contains a large, detached house ( [site address] ) in extensive landscaped grounds. Though not far from the main built-up area of Hextable the site is in the countryside. This part of [site address] is a narrow-unmade lane. While there is some close boarded fencing, including around part of the appeal site, it is still mainly edged by trees, hedgerow and shrubs and, on one side opposite the site, a similar fence to the PRF which allows foliage to appear through and over it as part of a landscaped verge. The few other dwellings near the site are also mostly set back from the lane and sporadic in siting. The lane retains a distinct verdant, rural feel in contrast to more densely developed residential development and associated domestic paraphernalia in Hextable.

On the south side of the BW the MRF replaced a short section of the previous fence which was dark stained with timber posts and gravel boards. On the north side the MRF replaced part of the PRF. The CBF replaced the rest of the PRF. This part of the site had therefore made a significant positive contribution to the distinctive character and appearance of the area.

The light colour of the CBF timber boards is conspicuous. While there is no certainty these would weather to a darker colour a condition could ensure they were stained dark brown. This would match the close boarded fence elsewhere at the site further along the lane and better assimilate this part of the CBF against background tree trunks or branches. A condition could also ensure additional planting along the verge to eventually screen these parts of the CBF.

However, the CBF has significantly increased (almost doubled) the perimeter of [address] board fencing at the site, which now runs along most of this part and side of the lane. It is also plainly more substantial in form than the PRF it replaced and no longer allows planting to bleed through from the site into the verge. This gives a stark, overly hard edge to the lane, manifestly out of kilter with the similar PRF opposite. While the entire close boarded fence cannot be seen at once its unexpected continuity and presence is gradually revealed to passers-by as they traverse along the lane and around the bend.

The light grey smooth cast concrete posts and gravel boards are an overtly manufactured feature of the CBF, repeated in sequence along it. They are conspicuous in public views in both directions along the lane and give the CBF a manifestly urban impression out of keeping with its rural setting. Even if the concrete could be painted or stained a dark colour it would retain an engineered look, distinctly different to timber posts and gravel boards used in the close boarded fencing elsewhere at the site along the lane. Planting along the verge would not overcome these inherently undesirable features.

I have been referred to some other close boarded fencing with concrete posts in the lane. However, it is relatively short with few concrete posts and set much further back from the lane edge. Other boundary treatments are lower, not as long or are walls, including in the more built-up part of the lane further to the northeast. These are therefore not directly comparable and do not have the same adverse effects.

The MRF is seen in a more limited context and as part of the BW and vehicular entrance into the site, including that the railings match the gates and the railings along the top of the wall. Their mainly black colour and mostly narrow profile recede against a background of tree trunks and other foliage or branches within or next to the appeal site, some of which partly protrude through the railings reducing their prominence. Additional landscaping could also have this effect and be required by a planning condition. The setback and angled alignment to the lane means that the MRF does not intrude significantly into the wider streetscene and there are metal railings (or gates) at two other properties near the site in the lane ([address] and [address]). The MRF is therefore compatible in this part of the lane.

The appellant’s tree report4 has been prepared by a suitably qualified professional. Construction of the BW has not stressed trees protected by a woodland tree preservation order (the TPO)5 nor would it cause stress in the future. There are no recommendations for any mitigation in these regards. This report did not consider the effect of the WMF, the CBF or the MRF on any other trees at the site which are also covered by the TPO. The WMF is supported by thin metal posts and though the CBF and the MRF posts are more substantial these do not intrude into a large part of any root protection area. There is no 4 Tree Survey/Arboricultural Impact Assessment by Alltree Consultancy Ltd, 26 May 2022 5 [name].5 1978 evidence that the integrity of trees important to the overall visual amenity of the area would be lost because of this development and these works.

Nevertheless, I find that the CBF causes significant unacceptable harm to the character and appearance of the area. It does not therefore comply with [name] DP2 and DP7 or with LP Policy M11. Amongst other things these policies seek to reinforce and enhance positive aspects of the local environment, create high quality places with a sense of place and ensure that development does not erode local character. Other considerations

The appellants own two Rottweiler dogs, kept off-leash in part to deter crime at the site such as burglary. The CBF provides a means to restrain these dogs from physically interacting with people using the lane (including for safety reasons) and avoids potential distractions to the dogs, thus undue stress to people and the dogs as well as reduced noise and disturbance. The CBF also improves security in this secluded location by deterring means of access and prevents casual observation of some of the site or the house from this part of the lane. I have no reason to believe that properties in nearby Swanley and in rural areas of Kent are not susceptible to burglary or that this is not a national phenomenon.

Such preferences are private benefits and would prevail for the duration of the appellants occupation of [site address] . There is no certainty that future occupiers of the house would require the CBF for these same reasons. These personal circumstances have modest weight in support of this development.

The appellants say it was unreasonable of the Council to remove permitted development rights by a condition attached to a previous planning permission for a replacement dwelling at the site. No details of this condition or its scope are before me in this appeal but this matter is not within the remit of this appeal. In any event, the CBF is adjacent to a highway used by vehicular traffic and it exceeds 1m in height as well as the height of the original PRF. Having regard to the relevant limitations and conditions6, this means of enclosure is not permitted development. There is therefore no fallback position in this respect and this consideration has no weight in this appeal.

The appeal site is not in an area of outstanding natural beauty or in a conservation area and is not at risk of flooding. The house is not a heritage asset and there are no nearby listed buildings, public rights of way (other than [site address] ) or site of special scientific interest. The absence of harm in these regards is a neutral factor.

The CBF and the MRF are inappropriate development which is, by definition, harmful to the Green Belt. Moderate harm to the openness of the Green Belt 6 Schedule 2, Part 2, Class A of the Town and Country Planning (General Permitted Development) (England) Order 1995 (as amended) arises due to the CBF and is at odds with local and national policy to protect the Green Belt. Framework paragraph 148 sets out that any harm to the Green Belt carries substantial weight.

The CBF and the MRF are important to and valued by the appellants. However, there is no compelling evidence or other convincing justification that the CBF is the only alternative to meet the needs suggested. Whereas the CBF (or a future replacement) would be a permanent structure in the Green Belt and harm in this respect would endure.

In addition, the design, siting and linear extent of the CBF causes significant unacceptable harm to the character and appearance of the area and, as such, has appreciable weight in this appeal.

I recognise that dismissing the appeal would interfere with the appellants’ private rights to enjoyment of their possessions, to family life and their home7. Nevertheless, these factors must be weighed against the wider public interest.

For the reasons given above, the development harms the Green Belt and the character and appearance of the area. I am satisfied that these legitimate aims can only be adequately safeguarded by the refusal of permission for the development. I therefore consider that dismissing the appeal for these reasons would be a proportionate outcome.

The other considerations outlined above are, therefore, individually and cumulatively of insufficient weight to clearly outweigh the totality of the harm in this appeal. Consequently, very special circumstances to justify the development do not exist. As such, it does not comply with DPP Policy DP22(2), LP Policy M13 or Framework paragraph 148.

The development does not accord with the adopted and emerging development plan taken as a whole and it conflicts with the Framework. There are no material considerations which outweigh these findings.

Consequently, for the reasons given above the proposal is unacceptable and therefore the appeal does not succeed.

The appeal is dismissed.

The date the application was refused in the banner above is taken from the Council’s decision notice. It is common ground that it should have been 4 January 2022.

I have also dealt with another appeal (Ref: APP/T2215/D/22/3300228) on this site. It is the subject of a separate decision.

The appeal site is in the Green Belt and the main issues are: • whether the proposal is inappropriate development in the Green Belt, having regard to local and national planning policy; • if it is inappropriate development, its effect on the openness of the Green Belt and the purposes of including land within it; and • whether any harm by reason of inappropriateness is clearly outweighed by other considerations to amount to very special circumstances required to justify the development.

Policy CS13(a) of the [name] 2011 (the CS) and Policy DP22(1) of the Dartford Development Policies Plan 2017 (the DPP) resist inappropriate development in the Green Belt. DPP Policy DP22(7) permits extensions to buildings in the Green Belt that are proportionate and subservient in appearance to the original building and would not result in a disproportionate addition to the original building, which in this policy is defined as no more than a 30% volumetric increase over and above the original building. DPP Policy DP22(2) sets out that inappropriate development will only be approved in very special circumstances.

These policies are broadly consistent with objectives of the National Planning Policy Framework (the Framework) to protect Green Belt land and to regard the construction of new buildings as inappropriate development in the Green Belt, subject to certain exceptions. The exception at paragraph 149(c) is relevant in this case. It relates to the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building. The Framework does not refer to subservience or volumetric increase but these are two aspects of size. I have taken this into account in determining the appeal.

The large, detached two-storey house on the appeal site was granted planning permission in 2009 and replaced a Victorian house. It has been extended on one side linking it to a previously detached outbuilding. This link would be demolished. The proposed link would connect the house to the outbuilding.

DPP Policy DP22 defines ‘original building’ as ‘a building as it existed on 1 July 1948 where it was built before that date, and as it was built when initially built after that date’. This is consistent with the Framework1, including for the purposes of paragraph 149(c); namely, ‘a building as it existed on 1 July 1948 or, if constructed after 1 July 1948, as it was built originally’. Consequently, the house as it was built (detached from the outbuilding) is the original building and baseline against which extensions to it should be measured, not the Victorian house. The building volume of the (then proposed) house in 2009 was 1142.46cu.m, excluding basement.

The proposed link building would have 60cu.m or 63.53cu.m according to the appellant and Council respectively. This extension would therefore increase the building volume of the original building by between approximately 5.25% and 5.56%. Either way, significantly below 30%.

The main parties do not agree about the relevance of the outbuilding to inappropriate development. On the extracts before me the development plan does not define the circumstances in which an outbuilding might form part of a dwelling. There is, though, no dispute that the proposed link would physically attach and internally interconnect the outbuilding to the house. On this basis, although it already exists (and even if it was built before the house) the outbuilding would form an extension to the house. The Council considers that the proposed link and the outbuilding would cumulatively increase the building volume of the original building by 35% (a figure not in itself challenged by the appellant) and ‘only marginally’ above the 30% volumetric limitation. Nonetheless, it would still be above this limitation.

According to the submitted plans, the proposed link would be approximately 2.5m high to eaves, 3m high to the top of a parapet wall and 3.5m high to a main ridge. The floorplan would be about 6m wide and 4m deep with about 20sq.m internal floor area. The house is substantially larger than the proposed 1 Appendix 2: Glossary link in all these dimensions. This limited nub of built form would be sited on one side of the house, set well back behind the front elevation.

The outbuilding has a low-pitched hipped roof and is also not a tall building compared to the house but is near it on one side. The front elevation is more than half the width of the house and though set back, it is sited towards the plane of the front elevation of the house. Taken with the proposed link there would be a long, continuous façade protruding a significant distance off to one side of the house. Albeit single storey this would almost double the width of the house with a similar impression at the rear. The outbuilding also extends a substantial distance to the rear with an east side elevation considerably more than half the depth of the house. Its floor area taken with the proposed link would approach a doubling of the ground floor area of the house.

Considering all the above, by the Council’s own volumetric limitation the proposal would not result in a proportionate extension of the original building but be a disproportionate addition. As such, it does not comply with DPP Policy DP22(7). Furthermore, it would result in disproportionate additions over and above the size of the original building and so fail to meet the exception at Framework paragraph 149(c). Accordingly, I find that the proposal would be inappropriate development in the Green Belt. It therefore also conflicts with CS Policy CS13(a) and DPP Policy DP22(1).

The single storey and mostly glazed proposed link would take the form of an orangery and give the impression of a ‘light’ structure in between, and separating, the brick and tiled house and outbuilding. Nonetheless, while a relatively small building, and mostly see through, it would be timber framed and express a structure with appreciable scale and massing. It would span the gap between the house and the outbuilding and fill most of this space.

Consequently, this building would have a permanent visual and spatial presence and establish significant built form on part of the site where there was none originally. This part of the site would no longer be undeveloped and ‘open’ in any equivalent or comparative sense. Limited public visibility from [site address] would not mean absence of intrinsic impact on the Green Belt.

The development would not spread beyond the residential curtilage of the house and into the wider countryside. However, it would result in a further consolidation of built form on the site and, as such, not safeguard this part of the countryside from this limited encroachment.

This small loss of openness would not preserve the openness of the Green Belt, which is one of its essential characteristics, and be at odds with a purpose of including land within the Green Belt set out in Framework paragraph 138. As a result, the proposal is contrary to the Council’s objectives for CS Policy CS13(a) and [name] DP22(1)(2) and (7). It also conflicts with the fundamental aim of Framework paragraph 137 to keep land in the Green Belt permanently open. Other considerations

The appellants like the design of the proposed link and consider that this part of the garden would otherwise be underused. It would provide safe and convenient enclosed pedestrian movement between the house and the outbuilding. One of the appellants’ elderly parents has stayed in the outbuilding during periods of illness so care could be given with a degree of independent living. These would be private benefits and these preferences would prevail for the duration of the appellants occupation of [site address] . There is no evidence that future occupiers of the house would use the proposed link (or the outbuilding) in the same way. As such, these personal circumstances have limited weight in support of the proposal.

The appellants suggest that the Victorian house could have been very significantly further extended, or outbuildings erected on the appeal site, using residential permitted development rights (PDR)2. That may be so, but this house was demolished some years ago and no longer exists. Any such potential PDR have been lost.

Planning permission for a replacement house on the site was granted in April 2009 and for a similar proposal in December 20093. In each case condition No.5 removed PDR including for extension of the replacement house and erection of outbuildings on the site. A subsequent application4 was made for development described as ‘provision of alterations to drive and levels, details of main entrance pond fountain and gates (revisions to previously approved planning permission DA/09/01326/FUL)’. It was approved in September 2010 without condition No.5 or an equivalent condition.

In this appeal I have no reason to find that development at the site did not reflect the 2010 revisions, as the appellant suggests. However, the only relevant plan before me in this respect is annotated ‘site plan showing drive, fountain, slab levels’. It is therefore consistent with the description which has a narrow scope and unambiguously states the revisions were to the December 2009 (ie parent) planning permission. There is no compelling objective evidence before me that the 2010 revisions were an ‘alternative to the original planning permission’, that the development as a whole only reflected the 2010 revisions or that further development at the site is free from condition No.5.

As this plan is a site plan, it is unsurprising that the by then already approved house is shown in it. The plan does not refer to the erection of a house or to ‘small amendments to the ground floor layout’ of the approved house or as seeking approval for the outbuilding. Nor have I been provided with any elevation or floor plans for the house or the outbuilding as part of the 2010 revisions. The appellants anyway contend that the outbuilding was constructed before the house, if so its presence in this plan is not unexpected.

It is not clear to me precisely when either development occurred. The Council accepts that the outbuilding ‘appears to have been built at some point between 2007 and 2012’. However, even if it has existed for more than 10 years and was ‘constructed under permitted development’ when the Victorian house still existed, this would not alter my finding above that the proposed link would physically attach the outbuilding as an extension to the house. 2 Schedule 2, Part 1 of the Town and Country Planning (General Permitted Development) (England) Order 1995 (as amended) 3 09/00160/FUL and 09/01326/FUL respectively 4 10/00963/FUL

The main parties dispute the lawfulness of the existing link (including therefore the in-principle acceptability and baseline of a link and the relevance of comparisons made between the size of it and the size of the proposed link). This is not within the remit of this appeal. While it has existed for some years and even if it took the Council a corresponding time to become aware of it, at the appellants’ own volition, this is not uncommon. In this appeal there is no certainty the existing link would remain, such as a lawful development certificate (LDC), so the fact that it currently exists does not justify or mitigate the adverse impacts of the proposed link. It would anyway be demolished so the starting point in this appeal is the proposed link building.

Notwithstanding the above, there are no specific plans or schemes before me to demonstrate the voracity of claims made in respect of any alleged historic or current PDR at the site, including with reference to relevant limitations or conditions of potentially relevant PDR. Nor is there any LDC to this effect or to substantiate alleged existing or proposed lawful development.

Consequently, I am not satisfied the appellant has demonstrated or justified that the house can be extended, or any outbuilding constructed at the site using PDR. There is also no definitive objective evidence, such as an LDC about the lawfulness of the existing link building or the outbuilding (including about its first use once constructed or its use now). The appellants’ claims in these respects are, therefore, largely unsubstantiated assertion or speculation. In these circumstances, there is no real prospect of a fallback position in these regards, so these alleged permitted and lawful development considerations have little weight in this appeal.

The appeal site is not in an area of outstanding natural beauty or a conservation area and is not at risk of flooding. The house is not a heritage asset and there are no nearby listed buildings, public rights of way (other than [site address] ) or site of special scientific interest. The proposed link would be energy efficient and high quality in design and external materials, sympathetic to the house and outbuilding in these regards. The proposal would have no adverse effect on the character and appearance of the area or trees on the site protected by a tree preservation order5 and be acceptable in terms of parking provision. It would not affect the living conditions of the occupiers of any nearby dwellings. The absence of harm in these regards is a neutral factor.

The proposed link building is inappropriate development which is, by definition, harmful to the Green Belt. The limited harm to the openness and purposes of the Green Belt is at odds with local and national policy to protect the Green Belt. Framework paragraph 148 sets out that any harm to the Green Belt carries substantial weight.

The proposed link building would be important to and valued by the appellants. However, there is no compelling evidence or other convincing justification that it is the only alternative to meet the needs suggested. Whereas the proposed link would be a permanent building in the Green Belt and harm in this respect would endure. 5 [name].5 1978

I recognise that dismissing the appeal would interfere with the appellant’s private rights to enjoyment of their possessions, to family life and their home6. I have also had due regard to the age protected characteristic in this appeal for the purposes of the Public Sector Equality Duty7, including the need to eliminate discrimination and advance equal opportunity. Nevertheless, these factors must be weighed against the wider public interest.

For the reasons given above, the development harms the Green Belt. I am satisfied that these legitimate aims can only be adequately safeguarded by the refusal of permission for the proposal. I therefore consider that dismissing the appeal for these reasons would be a proportionate outcome.

The other considerations outlined above are, therefore, individually and cumulatively of insufficient weight to clearly outweigh the harm to the Green Belt. Consequently, very special circumstances to justify the proposal do not exist. As such, it does not comply with DPP Policy DP22(2) or Framework paragraph 148.

The proposal does not accord with the development plan taken as a whole and it conflicts with the Framework. There are no material considerations which outweigh these findings.

Consequently, for the reasons given above the proposal is unacceptable and therefore the appeal does not succeed.