Appeal 6000176

The appeal is dismissed.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) introduced a statutory framework for biodiversity net gain (BNG)1. The proposal is advanced on the basis that, as self-build, it is exempt from the mandatory BNG requirement to deliver at least a 10% increase in biodiversity.

I have sought the views of the appellant and the Council as to whether the proposal complies with the definition of self-build, how this could be secured and any implications in relation to the statutory biodiversity net gain framework. No response was received from either party.

Even though the validity of the exemption from the mandatory BNG did not constitute a reason for refusal, BNG is a matter subject to a statutory framework. Accordingly, the proposal’s degree of compliance with it is an important planning consideration and I have elevated this to a main issue in my determination of the appeal.

Therefore, the main issues are: • Whether the proposed development would provide suitable living conditions for future occupiers in respect of the amount and quality of outdoor amenity space, privacy and outlook; and • Whether the proposed development would deliver BNG. 1 It applies to all minor development submitted after 2 April 2024

The appeal site has a roughly triangular rear garden enclosed by a boundary fence to the neighbouring property, no [address]. The only window serving the proposed bedroom of the ground floor flat, would be located just 0.5 metres from the boundary fence. The shape of the site means that the fence dissects the view from the window such that the outlook from the bedroom would be compromised.

However, the window would be a good size, affording the occupier of the unit the ability to stand in a position where they could see part of the garden. The provision of 2 rooflights would provide additional natural light to the room. On balance, I am satisfied that the shortcomings would not result in a poor-quality living environment.

The plans indicate a shared rear garden space for both the dwelling and the flat. This would not provide sufficient privacy to the ground floor windows or guard against noise and disturbance from the use of the space to either property. This would result in unacceptable living conditions.

However, I saw at my site visit that the rear garden had already been subdivided by a fence, providing a garden to the existing dwelling and a separate garden space for the proposed flat. The resulting garden for the flat, although small and enclosed, was sufficient to enable washing to be hung out, cycles and refuse to be stored and provide space for the occupiers to sit. Its easterly aspect meant that it benefitted from morning sun and did not feel oppressive. Subdividing the rear garden would provide the occupiers of both properties with sufficient protection from noise, disturbance and a loss of privacy. This could be secured in the long term by a suitably worded condition and prevent unacceptable harm arising to the occupiers of either property.

I have had regard to the previous appeal decision2 at the property but as this related to the creation of two studio flats and would have been a more intense use of the property than the one before me, it carries limited weight in my assessment of the current proposal.

Together, I am satisfied that the proposed development would provide suitable living conditions in terms of the amount and quality of outdoor amenity space, privacy and outlook. [name] find no conflict with Policy D6 of The London Plan, adopted March 2021 (TLP) and Policies 7 and 9 of the Havering Local Plan 2016-2031, adopted November 2021 (LP) which permit the subdivision of existing residential properties to self-contained homes and seek high quality design to ensure that the amenity and quality of life of future residents would not be adversely impacted.

In order to qualify as self-build and custom housebuilding, for the purposes of the relevant BNG legislation, the development would need to comply with the definition contained in Section 1(A1) of the Self-Build and Custom Housebuilding Act 2015. That is, ‘the building or completion by individuals, associations of individuals or persons working with or for individuals or associations of individuals of houses to be occupied as homes by those individuals, but it does not include the building of a 2 Appeal Ref: APP/B5480/W/21/3275373 Conversion of garage and part of ground floor of the dwelling to create two studio flats. house on a plot acquired from a person who builds the house wholly or mainly to plans and specifications decided or offered by that person.’ This makes it clear that new dwellings must be occupied by the person or persons responsible for carrying out or commissioning the building.

Even if I concluded that the subdivision of the building to provide a flat, constituted the ‘building or completion of houses’ as set out in the definition, there is no indication as to who the occupier of the new unit would be, nor indeed whether their identity is yet known. There is also no indication that the occupiers would be persons who have had a primary input to the design and layout. There is therefore no clear evidence that the development would be capable of meeting the definition of self-build or custom housing.

I also have nothing before me to secure the units as self-build. There is no legally binding mechanism such as a planning obligation before me and a condition could not be used to control the final design, layout, construction and occupation by a particular person as this would not in my view meet the tests in Paragraph 57 of the National Planning Policy Framework (the Framework). This means that there is no certainty that the proposed scheme would be carried out or occupied as a self-build development. It follows that the proposal does not qualify on these grounds for the relevant exemption from the BNG legislation.

Given that the appellant believed that a self-build exemption applied to the proposal, the planning application was not accompanied by any information to demonstrate that a 10% increase in biodiversity could be delivered. In these circumstances, the absence of the required BNG information means that the BNG statutory requirement has not been fulfilled. This is a matter of importance and failure to comply is a fundamental flaw of the proposal.

The appeal site is close to local services, facilities, recreational facilities and transport options. The proposal would make optimal use of land by providing an additional small unit of housing through the subdivision of an existing dwelling. There would also be economic benefits arising from its occupation. The provision of a small unit of housing would make an important but minor contribution to housing supply. Together, I give these benefits modest weight.

The proposal exceeds the [name] (NDSS) in terms of the floorspace which would be provided. However, there is an expectation that new housing development should meet this, in order to be acceptable and therefore this is neutral in my assessment.

I have considered the summary of appeal decisions3 provided by the appellant but they do not deal with the issue of BNG. The previous appeal decision was issued prior to the BNG requirements coming into force.

Whilst bringing cycles and refuse through the house from the rear garden is not ideal, this is not an uncommon arrangement particularly in urban areas. 3 Appeal Refs: APP/R5510/W/21/3288333; APP/X5990/W/19/3242318; APP/B5480/W/23/3322033

Sound insulation could be secured by condition to prevent noise transferring between the two units.

I have considered other matters raised by interested parties including, but not limited to, parking and noise but given that I have identified harm in respect of the main issues, these are not matters on which my decision turns.

The Council cannot demonstrate a 5-year supply of housing land. At just 3.4 years, this is well below Government expectations. Therefore, the Council’s policies which are most important for determining the application are deemed out-of-date and Paragraph 11 d) of the National Planning Policy Framework is engaged. This means that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole.

The appellant has sought to overcome the Council’s earlier concerns with regards to living conditions and I have found the proposal to be acceptable in these respects. Benefits would arise from the proposed development to which I attach modest weight and there are neutral factors such as compliance with the NDSS.

However, due to the legislative requirements and the Framework objective of improving biodiversity, I assign significant weight against the proposal in respect of the lack of BNG. This outweighs the modest benefits of additional housing.

Therefore, the adverse impacts of the development would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.

The proposed development would not benefit from the presumption in favour of sustainable development. Consequently, with reference to Section 38(6) of the Planning and Compulsory Purchase Act 2004, the appeal is dismissed.