Appeal 3309118

The appeal is allowed and the planning permission [name]/21/03055/FL for demolition of two semi-detached bungalows replaced with two detached 1.5 storey dwellings at Fernbank, [site address] , [site address] [postcode] granted on 17 August 2022 by Tonbridge and Malling Borough Council, is varied by deleting condition No 9.

The site was under construction at time of my site visit.

The main issue in this appeal is the effect of removing the disputed condition on the rural amenity of the surrounding area.

Condition no 9 removes a range of permitted development rights relating to the enlargement, improvement, or other alteration of the dwellings, such as the erection of extensions and outbuildings and additions or alterations to the roof.

Paragraph 54 of the Framework indicates that planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so. The Planning Practice Guidance states that conditions restricting the future use of permitted development rights may not pass the tests of reasonableness and necessity1. 1 Paragraph: 017 [name]: 21a-[phone]

The appeal site is separated from [site address] ’s main built area by a rail line which forms the site’s side boundary. Whilst only a short distance from the built-up area, land to the southern side and rear of the site is undeveloped, agricultural land. The area surrounding the appeal site therefore has a predominantly rural character.

The appeal site is situated on a narrow, single-track lane with no pedestrian footway. The site is elevated, and views into the site are concealed by steep embankments with dense vegetation on either side of the lane. A raised bank and dense vegetation along the site’s boundaries limits views into the site from surrounding agricultural land. Views from passing trains on the adjacent rail line would be only fleeting glimpses of the rear side of dwellings and would be partly obscured by vegetation along the site boundary. Whilst the development would be visible to residents and visitors from the shared driveway access, views into the site from surrounding land, including public vantage points such as the highway, are highly limited.

The proposed dwellings will be substantial in size, and the Council suggests that further enlargement or incidental structures would result in plots appearing dominated by development. The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) includes provisions which limit the overall scale of development that can take place under permitted development rights. Namely, [name] and E included an upper threshold for the area of the curtilage covered by extensions and outbuildings, Class B includes a maximum limit for additional volume to roof spaces, and Class AA would not apply to development constructed after 28 October 2018.

Since the site is well-screened, development carried out within the site through exercising permitted development rights would not be visually prominent and thus would not detract from the site’s rural landscape setting.

Consequently, there is insufficient justification to impose additional restrictions on permitted development rights beyond those limitations which already exist within the GPDO. I therefore conclude that the disputed condition is not reasonable nor necessary to conserve the rural amenity of the surrounding area, and thus does not satisfy the tests set out at paragraph 56 of the Framework.

For the reasons given I conclude that the appeal should be allowed, and I vary the planning permission by deleting the disputed condition. Other conditions imposed on the planning permission remain in effect.