Appeal 6000182

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). 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. I have had regard to the responses I have received.

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 considered this as a main issue in my determination of the appeal.

Therefore, the main issues in this appeal are: • the effect of the proposed development on the character and appearance of the host dwelling and the area; • the effect of the proposed development on the living conditions of future occupiers; and • Whether the proposed development would deliver BNG.

[address] consists of mainly detached houses, of varying designs with a prevalence of hipped roofs. The appeal site comprises a detached dwelling under a hipped roof with a single storey flat roof garage and kitchen to the side.

The appeal proposal includes a two storey extension to the side and raising the ridge of the building. This would result in a crown roof with the appearance of a hipped roof from the street. The proposed dormer on the rear roof slope would be well set in from the sides of the roof and would not be highly visible from the street. Single storey extensions to both the front and rear elevation would not be out of keeping with those on other properties in the street. Taken together, the proposed extensions and alterations would not harmfully detract from the character and appearance of the existing building.

Located at the entrance to [address] adjacent to the rear service area of the parade of shops on [address], the environs of the appeal property are spacious. The two-storey side extension would be set in one metre from the side boundary. This would retain a feeling a spaciousness and provide an appropriate stepped change between the three storey properties on [address] and the two storey properties on [address].

The neighbouring property at No. 1 lies on lower ground, and the proposal would result in an increase in the scale, height, massing and bulk of the appeal building. However, the use of hipped roofs to the extensions and a crown roof to the main dwelling would reflect the character of surrounding development and would not appear incongruous. While properties along [address] share similar proportions, the stepped ridgelines created by the road’s topography mean that the proposed increase in height would not appear out of keeping with the established pattern of development.

My attention has been drawn to the [name] Planning Document adopted July 2023 but the evidence from the Council does not indicate how the proposal conflicts with its requirements.

I therefore find no conflict with Policies D3, D4 and H2 of The London Plan adopted March 2021 (TLP) and Policies 4 and 37 of the Bromley Local Plan adopted January 2019 (BLP) which require high quality design which complements the scale, proportion, form and layout of adjacent buildings and areas and provide support for new homes on small sites.

The Council acknowledge that each of the 5 units would exceed the minimum internal space standards set out in the nationally designed space standards (NDSS)1 and Policy D6 of TLP.

However, Flat 1 would have a sitting area which would not achieve the minimum width of 3 metres set out in the London Plan Guidance - [name] adopted June 2023. Nevertheless, the flat would have an ‘L’ shaped living/dining 1 ‘Technical housing standards – nationally described space standard’ Department for Communities and Local Government March 2015 and kitchen area measuring 6 m by 5.2m at its widest point. With the kitchen being provided at the narrowest end of the room, this would enable larger pieces of free-standing furniture such as a settee to be adequately accommodated. For these reasons the living accommodation would not be compromised to a harmful extent.

[name] 2, the ensuite bedroom would be accessed from the hall via a small lobby area, which would not provide usable floorspace. That said, even if this area were excluded from the calculation of floorspace for that room, the remaining floor area would still exceed the minimum internal space standards set out in the NDSS and Policy D6 of the TLP.

In this respect, no conflict would arise with Policy D6 of TLP and Policies 4 and 37 of the BLP which require a high standard of design and layout including adequately sized rooms with comfortable and functional layouts.

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 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. This is further clarified in the Planning Practice Guidance: “In considering whether a home is a self-build or custom build home, relevant authorities must be satisfied that the initial owner of the home will have primary input into its final design and layout. Off-plan housing, homes purchased at the plan stage prior to construction and without input into the design and layout from the buyer, are not considered to meet the definition of self-build and custom housing.”2

Even if I concluded that the conversion of the building into flats constituted the ‘building or completion of houses’ as set out in the definition, there is no indication as to who the occupier of each of the new units 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.

The Council have suggested that a condition could secure the completion and occupation of the units as self-build and have provided wording for this. However, a condition which seeks to control the final design, layout, construction and occupation by a particular person would not in my view meet the tests in Paragraph 57 of the National Planning Policy Framework (the Framework). In the absence of a legally binding mechanism such as a planning obligation, I have nothing before me to secure the units as self-build. 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 2 Paragraph: 016 [name]: 57-[phone] 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.

I note concerns from interested parties which include parking, pedestrian safety, noise, holiday lets, transient tenants, overlooking, privacy, and sewage infrastructure. As the Council addressed these in its decision, and I have found harm on a main issue, considering these afresh would not change my conclusion on the appeal.

There is an extant planning permission3 for works to extend the existing dwelling. However, as householder applications are exempt from the BNG statutory requirement, this carries very limited weight in favour of the proposal.

The evidence before me indicates that the Council’s five-year housing land supply sits at 2.4 years which is a very significant level of undersupply. Therefore, the Council’s policies which are most important for determining the application are deemed out-of-date and Paragraph 11 d) of the 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.

With this level of undersupply, the contribution that four additional units would make to the supply of housing would be moderate and there would be economic benefits arising from the construction and occupation of the units.

[name] have found the proposed development acceptable in respect of internal space provision and the effect on the character and appearance of the host dwelling and area, these do not weigh positively in the planning balance and are neutral.

With regard to exemption from the BNG requirement, this would require the proposed development to be self-build and has not been secured. I therefore cannot attach any positive weight in respect of the provision of self-build units. 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 moderate benefit of additional housing.

Therefore, the adverse impacts of the development would significantly and demonstrably outweigh the benefits. The development would not accord with the policies in the Framework taken as a whole and the appeal should be dismissed.