Appeal 6000183

The appeal is dismissed.

The main parties were given the opportunity to provide comments in respect of the proposed development’s claimed exemption from mandatory [name] (BNG). I have had regard to the comments received from both main parties.

I am aware that the appeal site has an extensive planning history dating back to 1970. Most recently, an outline scheme (with all matters reserved) for redevelopment of the site to provide one dwelling was refused by the Council in 2022 and dismissed at appeal in February 20231 (“the previous appeal decision”). Whilst the planning history and the previous appeal decision are significant material considerations, I must also have regard to the submitted evidence for this appeal and the current local and national planning context. I have determined the appeal on this basis.

In light of the above, the main issues are: • whether the proposed development is exempt from BNG and if not exempt, whether the proposal would secure BNG; • whether the proposal is inappropriate development for the purposes of the National Planning Policy Framework (the Framework) and the development plan; • the effect on the character and appearance of the surrounding area; and • the effect on the living conditions of occupiers of Claremont and [address], with particular regard to outlook. 1 Appeal Ref: APP/G5180/W/22/3299014

On 02 April 2024, the Environment Act 2021 statutory provisions relating to BNG came into force for smaller sites such as the appeal site. This is principally set out under Schedule 7A ([name] in England) of the Town and Country Planning Act 1990 ([name]). Under this statutory framework, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the condition that the biodiversity gain objective is met. This objective is for development to deliver at least a 10% increase in biodiversity value relative to the pre-development biodiversity value of the onsite habitat.

Article 7(1A) of the Town and Country Planning (Development Management Procedure) Order 2015 ([name]) requires applications for planning permission to be accompanied by certain information relating to BNG, except where one of the exemptions specified in the legislation applies. The information required includes a declaration as to whether the applicant believes the BNG provisions apply to the application, and if not, the reasons why.

The appellants have indicated on the application form that the appeal scheme would be a type of self-build and custom development that is exempt from BNG. Additionally, they have provided a [name] (CIL) form claiming exemption from CIL on the basis that the proposal comprises a self-build project for the purposes of the CIL Regulations.

To qualify for this BNG exemption, the appeal scheme would need to comply with the definition contained in Section 1(A1) of the Self-Build and Custom Housebuilding Act 2015. This definition establishes that the new dwelling must be occupied by the person or persons responsible for carrying out or commissioning the building. The appellants have stated that they would be the future occupants of the proposed dwelling.

There is common ground between the main parties that, in the event that I allow the appeal, a pre-commencement condition could be imposed to govern the self-build and custom build requirements. Such a condition would have required, amongst other things, details of the initial owner who has had primary input into the proposed dwelling’s final design and layout, as well as requiring the dwelling to be occupied by such owner with any resident dependants for a period of three years after first occupation of the dwelling.

However, such a condition would fail to satisfy the tests in paragraph 57 of the Framework. This is because the absence of an appropriate legal mechanism before me, such as a S106 agreement or unilateral undertaking, means that the BNG exemption is not secured with any degree of certainty. [name] acknowledge that the appellants’ intention is to build and occupy the proposed dwelling, this is not enough, on its own, to qualify as a self-build or custom dwelling.

I also accept that in the event that I allow the appeal, and a S73 application was then subsequently lodged to vary or remove the above proposed condition, the standard BNG Plan condition could then be added by the Council if such a S73 application were to be granted. There is however insufficient certainty that such a S73 application would be submitted and determined as such by the Council.

In light of all the above, in the specific circumstances of this case, I am not satisfied that it has been demonstrated that the appeal scheme before me could be secured as a self-build and custom development. It thus does not qualify for the legislative exemption from BNG in this respect, and the submitted evidence before me does not demonstrate that any of the other BNG legislative exemptions would apply.

Where none of these BNG exemptions apply, the applicant is required to provide a completed biodiversity metric calculation demonstrating the on-site habitat value, as well as a number of other related details as listed in sub-paragraph (c) of the aforementioned Article. Such information is however not before me. Adequate provision of BNG has therefore not been demonstrated.

In conclusion, for the above reasons the proposal fails to demonstrate adequate BNG legislative exemption or provision. It would therefore conflict with the statutory provisions relating to BNG, as already set out above. In this respect, the proposal also conflicts with Policy G6 of the London Plan which requires development proposals to aim to secure net biodiversity gain. It would also conflict with the paragraph 187(d) of the Framework which requires planning decisions to provide net gains for biodiversity.

My attention has been drawn to a recently allowed appeal2 at Chelmsford. That appeal however refers to a submitted, signed and dated planning obligation, and such an obligation does not form part of the current scheme before me. That recently allowed appeal therefore does not justify allowing this appeal.

The appeal site is within the Green Belt as designated on the [name] of the Council’s Local Plan (LP) (adopted 2019). There are detached dwellings to each side, and a dwelling almost directly opposite the vehicular access off [site address] , which is a relatively narrow lane with rural characteristics.

The Framework outlines that the construction of new buildings, other than in connection with a number of exceptions, should be regarded as inappropriate in the Green Belt. Inappropriate development according to the Framework is harmful to the Green Belt and should not be approved except in very special circumstances.

Policy 49 of the LP is consistent with the Framework in this respect, as it sets out that within the Green Belt, permission will not be given for inappropriate development unless very special circumstances can be demonstrated. Construction of new buildings on land falling within the Green Belt will be inappropriate, unless it is for a certain list of purposes. - Previously developed land

One of the Framework exceptions put to me as applicable to the proposal is criterion g) within Paragraph 154. This allows for limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings), which would not cause substantial harm to the openness of the Green Belt.

This Framework exception in part reflects one of the Green Belt purposes listed under LP Policy 49: limited infilling or the partial or complete redevelopment of 2 Appeal Ref: APP/W1525/W/25/3367892 previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.

There is no definition of “previously developed sites (brownfield land)” within the LP. Annex 2 of the Framework however defines previously developed land (PDL) as land which has been lawfully developed and is or was occupied by a permanent structure and any fixed surface infrastructure associated with it, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed).

[name] definition also includes land comprising large areas of fixed surface infrastructure such as large areas of hardstanding which have been lawfully developed. PDL excludes some matters that are potentially relevant to this appeal: land that is or was last occupied by agricultural or forestry buildings; land in built-up areas including residential gardens; and land that was previously developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape.

The lawfulness of all development within the appeal site is not a matter that can be formally determined under this section 78 appeal. That being said, I must have enough certainty that there is sufficient lawful existing development within the site for it to be considered as PDL for the purposes of the Framework.

Based on the evidence put before me and my site visit observations, it appears that the timber dwelling has been in situ at the same location within the site since at least August 2021. The timber shed and brick garage structures have been in situ since at least 2016. There is no evidence before me that the Council has taken planning enforcement action against any of these structures. It therefore appears that the abovementioned timber dwelling, timber shed and brick garage structures3 are, as permanent structures, immune from planning enforcement action as set out in section 171B of the Town and Country Planning Act 1990 as amended.

The aerial photographs provided also show that an area of hardstanding has been developed within the site since at least 2010. The 2016 aerial photograph shows this hardstanding expanded towards the rear of the site, and this appears to correlate with what I saw during my visit. There is no evidence before me that the Council has taken planning enforcement action against this hardstanding. It therefore appears that this operational development is also immune from planning enforcement action as set out in the above Act.

The appeal site’s planning history refers to the remains of a previous dwelling, which I also observed on site. This therefore indicates that the appeal site was not last occupied by an agricultural or forestry building. I found [site address] to be rural in character. The site therefore cannot reasonably be described as being within a built-up area.

The Inspector determining the previous appeal decision found the remains of the previous dwelling to have blended into the landscape. I noted during my visit that the remnants of this previous dwelling were mainly obscured by dense shrubbery, 3 As shown on [name]. BGR-984-PD-000 present along the remaining walls, and also around and within them. These remnants are therefore still blended in to the landscape.

This previous dwelling is therefore discounted as PDL, in line with the Framework’s definition as set out above. Its positioning within the site however means that it is clearly within the curtilage of existing developed land that I have found to be lawful. The Framework’s definition of PDL provides some flexibility insofar as it does not require every part of the site to be PDL.

For the above reasons and based on the submitted evidence and my site visit observations, I have found that the appeal site taken as a whole constitutes PDL as defined by the Framework. The presence of the remains of the previous dwelling as a parcel which is not PDL does not alter my conclusion that the appeal site is PDL when taken as a whole. - Openness

In Green Belt terms, openness is the absence of the development, and can have spatial and visual effects. The appeal scheme would include removal of the existing timber dwelling, timber shed and brick garage structures. [name] found the remains of the previous dwelling to have blended into the landscape, it cannot reasonably be considered to contain a footprint in the same manner as a building that is in regular use. My assessment of the existing development within the appeal site therefore cannot include this remnant dwelling.

On this basis, the proposed dwelling’s footprint would be some 67% greater than the timber dwelling, timber shed and brick garage structures in which it would replace. This calculation is based on the appellants’ existing and proposed gross external area figures, which are not disputed by the Council. The dwelling would also have a discernibly greater volume on account of its steep pitched roof form, which would be more visually apparent in the street scene. However, the proposal would consolidate the existing development that is spread through the site to provide one main dwelling.

The precise amount of proposed hard surfacing is not indicated on the submitted plans. However, I am satisfied that a substantial reduction from the existing spread of hardstanding could be achieved by means of a suitably worded landscaping condition, had I been minded to allow the appeal.

From a visual perspective, the existing timber dwelling can be seen from [site address] despite its low profile. Given this along with its long driveway, front lawn and front boundary enclosed by metal railings and gate supported by brick pillars and dwarf wall base, the appeal site already has a domestic appearance.

The proposed dwelling would not appear as a substantial development from [site address] , due to the significant setback distance and the declining ground level from the highway. Although it would have a more central position within the plot and a wider frontage than the existing timber dwelling, it would be set back noticeably further away from the road. The dwelling would also be set away from each side boundary to retain a degree of openness around it.

Whilst intervisibility with [address] when viewed from the road is substantially restricted by mature shrubbery surrounding this neighbour, the dwelling would only appear marginally higher than Claremont on its other side. For the above reasons, the proposed dwelling would therefore not appear disproportionately dominant in the streetscene.

The proposed dwelling cannot reasonably be described as being modest in size. However, taken all the above matters in the round, the overall proposal would not cause substantial harm to the openness of the Green Belt in visual or spatial terms when compared to the existing PDL within the site.

I therefore conclude that the proposal is not inappropriate development for the purposes of the Framework and the development plan, which also includes Policy G2 of the London Plan and states that the Green Belt should be protected from inappropriate development. I therefore need not consider whether or not the proposal complies with the other relevant Framework exceptions put before me.

The first reason for refusal also cites conflict with Policies 4 and 37 of the LP and Policies D3 and D4 of the London Plan. However, as they do not refer to the Green Belt, they are not relevant to this main issue.

The existing site already has a suburban appearance to a degree and is flanked by detached dwellings to each side. There are a variety of dwelling styles in the wider vicinity along [site address] . Due to the setback distance from the highway and the slightly declining ground level, the dwelling would not appear excessive in terms of bulk and scale.

The plot width of the appeal site adjoining the road is noticeably narrower than the surrounding plots, and is of more irregular overall shape. However, this plot width significantly increases throughout the deep site. The overall size of the plot is therefore sufficient to accommodate the width of the proposed dwelling. Whilst its siting is significantly behind the neighbouring dwellings, this utilises the wide plot width and the lower ground level from the highway to avoid a cramped or overly dominant impact.

I accept that the proposed pitched roof would be steep in comparison to the single storey eaves level below. The dwellings of Claremont and Dovedale to the north however have similar proportions between their single storey eaves levels and their roof heights. I understand that these dwellings were granted planning permission by the Council in recent years to replace two bungalows.

I therefore conclude that the proposed development would not harm the character and appearance of the surrounding area, to comply with Policies 4 and 37 of the LP and Policy D3 of the London Plan. These policies require, amongst other things, all new housing developments to enhance the quality of local places, to complement the scale, proportion, form, layout and materials of adjacent buildings and areas, positively contribute to the existing street scene, and enhance local context by delivering buildings that positively respond to local distinctiveness.

The second reason for refusal also cites conflict with Policy D4 of the London Plan. This policy refers to masterplans and design codes based on the requirement set out in [name] of Policy D3 of the London Plan. This part of Policy D3 however refers to higher density developments. Therefore, Policy D4 is not relevant to the appeal scheme comprising one dwelling within a relatively large plot.

The first-floor side rooflights of [address] do not directly face towards the proposed dwelling, as it would sit deeply into the site behind this neighbour’s rear elevation. However, the rear garden side boundary of [address], beyond its rear garage, contains high and dense shrubbery, which would clearly restrict views of the proposal from this neighbouring garden. Views from the window of the first-floor rear elevation of the main dwelling of [address] would also appear to be significantly restricted by its garage and hedgerow along the side boundary. This neighbouring elevation also tilts away from the appeal site.

Towards the other side, the proposed dwelling would also be sited behind the rear elevation of Claremont. However, views between these dwellings would be at an angle, and the nearest first floor windows of this neighbour to the proposal are rooflights. The proposed dwelling would also be sited at slightly lower ground than the main dwelling of Claremont and although it would remain visible, this neighbour has a very deep rear garden, and the proposed dwelling would be set well set away from its side boundary. The proposed single storey eaves level would also reduce the visual impact.

The above juxtapositions would avoid an intrusive or overbearing relationship with the abovementioned neighbours. The proposal would therefore not adversely harm the living conditions of current and future occupiers in terms of outlook.

For the above reasons, the proposal would comply with Policy 37 of the LP and Policy D4 of the London Plan. These policies require, amongst other things, development to respect the amenity of occupiers of neighbouring buildings, provide healthy environments and deliver appropriate outlook, privacy and amenity.

The lack of flood risk, landscape, heritage or highways-based reasons to resist the proposal weigh neither in favour nor against allowing the appeal. Reference has also been made to houses in the locality that have been given various types of permission, including new builds. The specific details of such examples are not before me but in any event, I must determine the appeal scheme on its own site-specific merits and having regard to the evidence before me.

I have found that the proposal complies with Policies 4, 37 and 49 of the LP and Policies D3 and G2 of the London Plan. I have however found fundamental conflict with Policy G6 of the London Plan which requires development proposals to aim to secure net biodiversity gain. This amounts to conflict with the development plan taken as a whole. Given the statutory requirement to secure BNG for new development such as that proposed, I afford this conflict substantial weight.

The officer report refers to an appeal decision made in October 20244 whereby the Council’s housing supply was tested under a Public Inquiry. The Inspector for that appeal found the Council’s supply to be 2.4 years. There is no evidence before me to indicate a change to this situation. 4 Appeal ref: APP/G5180/W/24/3340223

The 2023 [name] (HDT) results published by the Government in December 2024 shows the Council's HDT result as 58% (i.e. between the financial years of 2020-2023, there were only 58% as many completions as the number of homes required). It is also put to me that the Council’s Local Plan is not likely to be adopted until late 2027 at the earliest, which has not been disputed by the Council. The above evidence indicates that there has been a substantial and persistent shortfall in housing delivery across the Council in recent years. In the absence of an imminent new Local Plan, this shortfall could continue in the coming years.

There is nothing before me to indicate that the policies in Footnote 7 of the Framework are relevant in this case. Hence, the balance in Framework Paragraph 11d)ii is applicable. This states that permission should be granted unless any adverse impacts would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having particular regard to specified key policies.

Of particular relevance to the issues in which this decision turns on, the scheme would make an efficient use of land to provide a well-designed development that would give the plot a new lease of life. The proposal derives support from Framework Paragraphs 129 and 139 in this respect.

Framework Paragraph 73 also sets out that small and medium sized sites can make an important contribution to meeting housing requirements of an area, and are often built out relatively quickly. Having regard to the extent of existing housing shortfall and the scale of the proposed development, I afford moderate weight in favour of the delivery of one new-build dwelling within a previously developed site, and the associated benefits to the local economy and social vitality.

I accept that there would be some visual betterment through removing the existing buildings and hardstanding on the site. I only afford this matter limited weight, as Policy 4 of the LP and Policy D3 of the London Plan in any event require new development to enhance the quality of local places and local context.

[name] to allow the appeal, this would also provide an opportunity for the Council to control the site through appropriately worded planning conditions. However, in the absence of evidence to the contrary, allowing this appeal would lead to fundamental conflict with Policy G6 of the London Plan, the statutory provisions relating to BNG, and Framework paragraph 187(d) which requires planning decisions to provide net gains for biodiversity. Taking all matters into consideration, I conclude that the adverse impacts that would arise from this would significantly and demonstrably outweigh the benefits.

Material considerations in this case do not indicate that the proposal should be determined other than in accordance with the development plan.

For the reasons given above, the appeal is dismissed.