Appeal 3367807

The appeal is dismissed.

The appellant made an application for an award of costs against Waverley Borough Council. This is the subject of a separate decision.

I am aware that the Council altered the description of development from that was given on the application form. I have used the description of development as was given on the application form here.

The main issues are:

whether the proposal would be inappropriate development in the Green Belt having regard to the National Planning Policy Framework (the Framework) and relevant development plan policies including the effect of the proposal on the openness and purposes of the Green Belt,

the effect of the proposed development on protected species, and

whether other considerations clearly outweigh the harm to the Green Belt and any other harm so as to amount to very special circumstances.

The appeal site comprises a roughly rectangular parcel of land forming the internal area to a historic walled garden. The area of land is associated with the [address] as the main parent dwelling and the parties are in agreement that, notwithstanding the unusual arrangement with its host, the land falls within the domestic garden area to the [address]. It is set within the historic [name] which is formed of the [address], church and a variety of other buildings set within a [name] designed landscaped parkland.

The site is within the Green Belt (in addition to other designations) wherein most forms of development are inappropriate. Indeed, paragraph 142 of the Framework explains that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

Paragraph 154 details exceptions to the presumption against inappropriate development and this includes paragraph 154 d), that the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces. Policy DM14 of the Waverley Borough Local Plan Part 2 (adopted 2023) (WLP2) sets out that replacement buildings should be in the same use and should not be materially larger than the existing building. Aside from some slightly different wording in the WLP2 policy, the development plan’s expectation is consistent with that set out in the Framework.

In this instance, there is no existing building to replace. The appellant has provided extensive documentary evidence indicating that, historically, there was a structure in this location. There is compelling evidence to this effect in the form of historic mapping from between 1842 and 1961 which shows a structure in the same location along with aerial imagery from 1948. There are trace outlines, marked by differing patterns of vegetation growth in the ground, of the remnants of the former glasshouse. A different structure appears to be in place in a 1993 aerial image and as far as can be determined, this appears to be a polytunnel (or polytunnels) and the like in a differing arrangement to the earlier shown glasshouse. That there was a structure in this location is therefore not in dispute. Any buildings have, however, since been demolished and the later polytunnel has been removed.

Both Framework paragraph 154 d) and WLP2 policy DM14 are quite clear in stating, respectively, that any building should be “not materially larger than the one it replaces” or “not be materially larger than the existing building.” In both interpretations of the policy there is a clear emphasis that the point of reference is an existing building or the one to be replaced.

I am willing to concede that the proposed building is likely to be of a comparable size, or perhaps smaller in terms of footprint, than the original. However, whilst the appellant has made reference to the definition of “original building” in Annex 2 of the Framework and at paragraph 3.21 of the supporting text in the WLP2, this reference is moot as the tests at paragraph 154 d) and in WLP2 policy DM14 are clear in that they relate to an existing building. There is no existing building to replace.

That there is no definition of an “existing building” in the development plan or Framework does not mean that the approach simply defaults to being the “original building.” Indeed, I see no reason for it to be defined. “Existing” simply means something that exists now, and this is a plain dictionary interpretation.

The Officer’s Report (OR) does reference the building having some form of horticultural or mixed use. [name] accept the proposed structure is large for a glasshouse within a garden, I have no reason to conclude that it would be used for anything other than a domestic function. Its’ large size reflects the scale of the grounds and historic context here. Accordingly, I have not considered the proposal to represent a change of use of the land which, in any case, were permission to be granted, a condition could be imposed to limit such a use to an ancillary residential function.

On a similar theme, I have also considered the appellant’s suggestion that the proposal could be considered as an exception to the presumption against inappropriate development under paragraph 154 b) as having a horticultural use that would be appropriate within the Green Belt. However, the site is within the garden to the [address] and it follows that it would thus be in an ancillary residential use. The application was submitted as a householder proposal on the appropriate forms and not presented in any other manner. Moreover, the site is set within a somewhat constrained location due to its presence within the walled garden with access only practicably available via the parent dwelling or a very small gate to the side. It would thus present a challenging proposition to change the use of the site to some sort of commercial venture in a meaningful way.

Turning to a consideration of the proposal in relation to paragraph 154 g), the partial or complete redevelopment of previously developed land, whether redundant or in continuing use, which would not cause substantial harm to the openness of the Green Belt; the site is an area of garden which was occupied by a permanent structure and is not within a built-up area. I am thus willing to accept that the proposal could fall under the definition of previously developed land. However, this paragraph of the Framework requires that the development would not cause substantial harm to the openness of the Green Belt. The site is enclosed by the walled garden boundary, and this limits its potential effects on the visual aspects of openness. Even so, it would still be apparent in some contexts above the walls of the garden due to its height, and this would have an effect on openness. Moreover, the development of a relatively large structure on presently unbuilt-upon land would cause harm to the Green Belt in a spatial dimension. The proposal thus conflicts with the requirements of paragraph 154 g).

The development of homes, commercial and other development in the Green Belt should also not be regarded as inappropriate under paragraph 155 of the Framework. Given my conclusions above and Annex 2 of the Framework, it is reasonable to find that the site is previously developed land. Having regard to advice in the Planning Practice Guidance (PPG), it does not contribute to any purposes under paragraphs 143 a), b) or d) as it would not result in sprawl of a large built-up area or result in neighbouring towns merging. Whilst the site has a historic setting it is not in, or near to, a historic town. The site is well removed from the largest built-up area of Godalming so it would not influence its setting.

The proposal would not fundamentally undermine the purposes of the remaining Green Belt across the area of the plan. However, considering paragraph 155 b. of the Framework, I do not accept that there is a demonstrable unmet need for the type of development proposed. The buildings use for the propagation of vegetables, fruits and other plants is no doubt laudable and in conformity with the Council’s Climate Change and Sustainability Supplementary Planning Document in that it supports local food growing. It also reflects the National Trust advice that has been presented to me. However, there is no requirement for a structure of this size to deliver such an outcome. I accept it may be regarded as desirable and indeed would be a pleasing reflection on historical development, a matter I will return to, but this is different to showing a demonstrable unmet need. Accordingly, the requirements of paragraph 155 b. are not met, and I have therefore not gone on to consider whether the proposal would meet the remaining tests under paragraph 155.

Wrapping up my conclusions here, it follows that the proposal would amount to a form of inappropriate development in the Green Belt and would harm its openness in both a visual and spatial dimension. The proposed development thus conflicts with policy RE2 of the Waverley Borough Local Plan Part 1 (adopted 2018) (WLP1), policy DM14 of the WLP2 and provisions of Chapter 13 of the Framework.

The appellant has advised that an ecological survey was completed in order to respond to the Council’s second reason for refusal. However, as new evidence that could be interpreted as an attempt to evolve the scheme without due consultation and assessment, this was not accepted as part of this appeal. [name] minded to grant planning permission for this proposal, consideration as to whether to seek or to accept this additional information would have been explored. However, as the proposal is to be dismissed on other grounds, I have not done so here.

Accordingly, I must have regard to the advice provided by the Surrey Wildlife Trust and heed their concerns regarding potential impacts on protected species. [name] recognise that an ecological survey may detail suitable mitigation or perhaps indicate this is not even required; as I do not have sight of this, I am unable to reach a firm conclusion here. Therefore, in the absence of this detail the proposal conflicts with policy NE1 of the WLP1, policy DM1 of the WLP2 and Chapter 15 of the Framework.

The Framework explains at paragraph 153 that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. Very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.

The proposal is linked to the surrounding [name] listed walls to the walled garden in addition to being close to the [name] listed [address], [name]* listed [name] along with numerous other listed buildings including the [name] listed [address]. Moreover, the site is set within the Peper Harrow Park and Garden and Peper Harrow Conservation Area. The significance of these assets are primarily related to their historical and architectural interest relating to their age, surviving architecture and building style.

The Peper Harrow Park and Garden derives its significance from being an extensive [name] designed parkland with fine specimen trees. The significance of the assets is interlinked, centred around the main house and the associated feudal village and landscaped grounds. Listed building consent has already been granted for this proposal, and I am therefore satisfied that there would not be an adverse effect on the special historic interest of these assets covered by the Peper Harrow Conservation Area.

The proposal would be similar to the form and layout of the historic outbuilding on the site and would be a typical feature of an historic walled garden as exists. Its appearance and materials would be in keeping with the heritage assets and therefore there would be no harm to their significance. I also note that the Council has granted listed building consent for this proposal. This reinforces my conclusions on this issue. Accordingly, I do find that the proposal would introduce a historically appropriate structure that would potentially breathe new life into this otherwise rather isolated area. I do, therefore, attach a great degree of weight to the benefits of the proposal due to its potential to enliven the area within the walled garden and bring it back into a traditional use.

Other benefits have been put forward by the appellant. It is here, important to note that as the proposal does not have an adverse effect upon any heritage assets, it is not a requirement for me to go on to consider the public benefits of the scheme. The benefits highlighted by the appellant include providing an opportunity to grow food at home in accordance with the Council's Climate Change Strategy and it could thus be regarded as a form of sustainable development. I do recognise these, but the proposed building is not essential to deliver them. This could be achieved with a smaller building or, indeed, without one at all.

Accordingly, I can only attach limited weight to this argument. The area in and around the appeal site is exceptionally well maintained and I am not aware that any of the surrounding structures are designated as being at risk and nor do they show any obvious evidence of being uncared for. There is thus no compelling argument that the development is necessary for the long-term viability of any

Matters presented as other considerations or very special circumstances, summarised by the appellant at paragraph 7.55 of the appeal statement, have been explored in my commentary above. These are an assessment against Green Belt policy as opposed being very special circumstances. I have not attached weight to other neutral considerations including there being no adverse effect on neighbours living conditions or any adverse flood risk. Equally, although the ecological survey that was prepared could have factored in as an other consideration, I cannot include it in here so as to tip the balance here such that it could amount to a very special circumstance.

Ultimately, I do acknowledge the fact that the building emulates a historic glasshouse structure on the site and that a predecessor for it was in situ for centuries. However, I am unable to reconcile the size of this proposed building with current Green Belt policy. [name] have attached great weight to the heritage aspects, the requirements of the Framework are that harm to the Green Belt must be clearly outweighed by other considerations. In this case, I must conclude that this high bar has not quite been reached.

The proposed development amounts to inappropriate development in the Green Belt and thus conflicts with the development plan. Whilst recognising the other considerations, especially the historic relevance of the proposal, these do not amount to the very special circumstances to justify such a form of inappropriate development. The material considerations do not indicate that the appeal should be decided other than in accordance with the development plan and for the reasons given above the appeal should be dismissed.