Appeal 6000414

The appeal is dismissed.

I have also dealt with another appeal1 at this site for the reconfiguration of an existing garage, erection of a subterranean car lift and replacement of perimeter fencing. That appeal is the subject of a separate decision.

The main issues are: • whether the proposed development is inappropriate development in the Green Belt having regard to the National Planning Policy Framework (the Framework) and relevant development plan policies, including the effect on the openness and purposes of the Green Belt; and • whether any harm by reason of inappropriateness, and any other harm, would be clearly outweighed by other considerations so as to amount to very special circumstances required to justify the appeal scheme.

It is put to me that the Council’s approval is not required for helicopter activity for up to 28 days per year, or for temporary storage structures. The appellant also contends that the garden land where the proposal site is located has been continuously used over some 20 years for the taking off and landing of helicopters, which has been disputed as set out in representations received from neighbours.

The lawful use of the appeal site is not a matter that can be formally determined under this section 78 appeal. That being said, the right to use land for 28 days per 1 Appeal Ref: 6000415 year, and the provision on land of any moveable structure for the purposes of such use, without planning permission from the Council, does not apply to land within the curtilage of a building2. This is noteworthy as upon my reading of the appeal submission, both main parties consider the proposal to be located within the curtilage of [site address] .

The evidence before me is limited in respect of demonstrating a continuous use of the appeal site as described above. I can therefore only afford the above matters limited weight as a baseline justification for the appeal development.

The proposal site is within the Green Belt as designated on the [name] of the Council’s Local Plan (LP) (adopted 2019). Policy 49 of the LP is consistent with the Framework insofar as it sets out that, apart from a number of exceptions, the construction of new buildings in the Green Belt is inappropriate. Permission will not be given for inappropriate development unless very special circumstances can be demonstrated that clearly outweigh the harm by reason of inappropriateness or any other harm.

One listed exception in LP Policy 49 is appropriate facilities for outdoor sport and outdoor recreation which preserve the openness of the Green Belt and do not conflict with the purposes of including land in it. This reflects Framework paragraph 154b), and there is no restriction of such development within private gardens.

I accept that the proposed subterranean helicopter lift would be only visible for a temporary period when in the “open” position, to allow either storage of a helicopter or its removal from within the proposed structure. The development would otherwise be in a “closed” position below and level with the ground, with its roof finished with grass.

Although the proposal would not be a fully solid structure when open, it would have a significant width and height. Whilst this size is commensurate to a helicopter’s overall span, it cannot reasonably be described as small scale. Therefore, even if the proposal would be less visually intrusive than an alternative above-ground storage structure, it would nonetheless harm the openness of the Green Belt.

Whilst the impact in visual and spatial terms would be minor, the development would nonetheless fail to preserve the openness of the Green Belt. The specific domestic purposes of the appeal site helicopter use are not borne out in the evidence before me, and it has therefore not been demonstrated that the appeal proposal amounts to the provision of a facility for outdoor sport and recreation. It follows that as a matter of fact and degree, I conclude that the appeal scheme is not a type of use or development that benefits from the criterion b) exception within Framework Paragraph 154, and as also reflected in LP Policy 49.

Another LP Policy 49 listed exception put to me is the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building. This exception also forms criterion c) within Framework paragraph 154. 2 As set out in Schedule 2, Part 4, Class B of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended)

Case law3 has held that Framework paragraph 154c) is not to be interpreted as being confined to physically attached structures, and an extension for the purpose of this criterion can include a structure physically detached from a building. The same case law also held that whether or not a detached structure would amount to an extension of the existing building is a matter of fact and degree having regard to the proximity of the new building to the existing building, the purpose and use of the buildings, and factors such as the size of the buildings.

[site address] is a large dwelling and its overall private garden area is also large. Despite this, given the significant distance between [site address] and the proposal, the appeal scheme cannot reasonably be described as an extension to [site address] . It is therefore not a type of development that benefits from the abovementioned exception.

LP Policy 49 also lists limited infilling in villages as one of its exceptions, which forms criterion e) within Framework paragraph 154. Neither the LP nor the Framework define the term “village”. Chislehurst is not explicitly referred to as a town in the LP, which instead defines this settlement as a local centre. I also note that Chislehurst does not have a Town Centre boundary, but contains Local Retail Frontages, as annotated on the [name]. For the purposes of this appeal, I have treated Chislehurst as a village.

Whether or not a site falls within a village is not solely determinative on the boundary of a village defined in a local plan, or a Conservation Area boundary. Case law4 has held that this matter is essentially a question of fact and planning judgement for the decision-maker. I see no reason why this should not include an on-the-ground assessment of the appeal site and the proposal.

The proposal would be limited relative to the large size of the [site address] dwelling, and the appeal site’s eastern boundary with undeveloped woodland beyond could be described as a natural conclusion of the Chislehurst settlement. However, as the proposal would be located significantly beyond the existing buildings of [site address] , and at significant distance away from neighbouring buildings, it would not be set within a group or row of existing buildings. It therefore follows that the appeal proposal does not amount to limited infilling in a village and is thus not a type of development that benefits from this exception.

LP Policy 49 and Framework paragraph 154h) set out certain other forms of development that are not inappropriate in the Green Belt, provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land within it. These forms of development include engineering operations.

Even when fully subterranean, the proposed development would have a physical size and permanence as a structure, as it includes a concrete surround structure to house the helicopter underground. Moreover, Section 336 of the Act5 defines “building” as including any structure or erection. The proposal therefore involves both engineering operations and the provision of a new building. 3 Warwick District Council v SSLUHC [2022] v EWHC, [name] and [name] [2022] EWHC 2145 (Admin) 4 [name] v SSCLG, Gravesham Borough Council [2015] [name] 195 5 Town and Country Planning Act 1990 ([name])

When in the “open” position, the development would have the form and appearance of an above ground structure. Even if it would only be in this position when storing or removing a helicopter, and would not have fully enclosed elevations, the structure would nonetheless be harmful to the openness of the Green Belt.

I accept that storage underground would be the least visually impactful option and that public vantage points beyond the site would be limited. Whilst the harm to openness would therefore be minor, and even if the remainder of the garden remains open, the development would nonetheless fail to preserve the openness of the Green Belt and would thus conflict with the purposes of including land within it. Therefore, the scheme would not fall within the engineering operations exception outlined within LP Policy 49 and Framework paragraph 154 h) (ii).

In order to conclude whether the appeal site comprises grey belt land, I must assess whether it strongly contributes to any of Green Belt purposes a), b), or d) as set out in Framework paragraph 143. I have had regard to the Green Belt Planning Practice Guidance, as it includes advice on how to determine whether land constitutes grey belt in decision making.

Purpose a) is to check the unrestricted sprawl of large built-up areas. The appeal site is enclosed by shrubbery and fencing which restricts and contains development. [name] have found that the proposal would not amount to limited infilling in a village, its size relative to [site address] and other buildings in the wider vicinity would avoid an incongruous pattern of development.

Purpose b) is to prevent neighbouring towns merging into one another. Purpose d) is to preserve the setting and special character of historic towns. As already set out above, Chislehurst is not explicitly defined as a town in the LP. In this context, the proposal site does not form a substantial part of a gap between towns or form part of the setting of a historic town.

In conclusion, based on the evidence before me, the appeal site does not strongly contribute to Green Belt purposes a), b), or d) in paragraph 143 of the Framework. It can therefore be described as grey belt land for the purposes of this appeal.

Paragraph 155 of the Framework sets out that development in the Green Belt should not be regarded as inappropriate where all the following apply: a. The development would utilise grey belt land and would not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan; b. There is a demonstrable unmet need for the type of development proposed; c. The development would be in a sustainable location, with particular reference to paragraphs 110 and 115 of this Framework; and d. Where applicable the development proposed meets the ‘[name] requirements set out in paragraphs 156-157 below.

The LP Policies Map shows an extensive expanse of Green Belt land beyond the appeal site’s eastern and southern boundaries. The appeal site is of small size by comparison and is contained along its other boundaries by residential plots. The remaining countryside would thus be safeguarded from encroachment, and there would also be no conflict with the other Green Belt purposes as listed in Framework paragraph 143. The development would therefore not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the plan area.

It is put to me that there is a clear and demonstrable need for safe storage of a helicopter within the appeal site, in respect of safety, maintenance, security and regular access and use. Based on the evidence before me, this amounts to a private need relating to the appeal dwelling, and cannot reasonably be described as a demonstrable unmet need in the terms of the Framework. The scheme therefore fails to meet exception b. under Framework paragraph 155. This issue is addressed further below under “Other considerations”.

The proposal would offer an alternative choice of transport mode to the private car. It would thus not conflict with the aims of Framework paragraphs 110 and 115. As the proposal does not comprise major development , the Framework’s ‘[name] are not applicable. Framework Paragraph 155 d. is therefore not applicable.

For the above reasons, the appeal scheme amounts to inappropriate development in the Green Belt when having regard to the development plan and the Framework. The development plan conflicts includes Policy G2 of the London Plan which states that the Green Belt should be protected from inappropriate development.

Currently, any helicopters landing on the appeal site have to remain in situ or moved off-site due to the grounds being open to the elements. It is put to me that this, along with the site’s proximity to a pedestrian footpath and bridleway along [name], increases the potential for damage to the appellant’s property. However, whilst I accept that the appellant perceives a genuine security risk, there is no specific evidence before me of property damage or other security threat or incident having occurred at the appeal site.

Reference is also made to potential insurance implications. The proposed subterranean lift would ensure that the appellant can locate their helicopter out of view in a more covered and protected location. However, the specific purposes of the appeal site helicopter use are not borne out in the evidence before me. Interested parties have also highlighted that the appeal site is within reasonable commutable distance to [address] airport. The site is also not in a particularly remote location to justify the proposal.

For the above reasons, it has not been demonstrated that the appellant’s need for the proposal is particularly unique or pressing in comparison to perceptions and aspirations no doubt shared by many other householders in large sites. The above considerations are therefore only afforded limited weight.

The appeal scheme includes an extensive amount of new planting around the garden area. The Council's Tree Officer raised no objection, subject to conditions securing tree protection and landscaping measures. Some positive weight can be given to the proposed landscaping scheme.

It is put to me that [site address] benefits from Permitted Development (PD) rights for extensions under Schedule 2, Part 1, Class A of the GPDO. That would however be subject to Listed Building Consent, and no such consent is before me.

The appellant also contends that [site address] benefits from PD rights for the provision of hardstanding as set out in Schedule 2, Part 1, Class F. However, this PD right is limited to purposes incidental to the enjoyment of the dwellinghouse. Given the limited evidence before me in respect of this matter, and in the absence of an indicative hardstanding layout, I cannot safely conclude under this Section 78 appeal that a helipad surface within the appeal site would be incidental to the enjoyment of [site address] as a dwellinghouse.

It is open to the appellant to apply to the Council for a separate formal determination on the above matter under sections 191 or 192 of the Act, regardless of the outcome of this appeal. However, for the above reasons, the appeal submission does not adequately demonstrate a permitted development fallback to justify the appeal proposal.

[site address] is a Grade II Listed Building6 (LB) of 1880s origin, and it is situated within the Chislehurst Conservation Area (CCA). Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires me to have special regard to the desirability of preserving the listed building or its setting. Section 72 requires special attention be paid to the desirability of preserving or enhancing the character or appearance of a Conservation Area.

From what I have seen and read, the significance of this LB is in part derived from its irregular footprint, roof forms and fenestration, including prominent chimney features, Tudor-style timber gables, and some sashed and stained-glass windows. Its architectural interest as a late-Victorian country residence can therefore still be appreciated. Despite the addition of several modern dwellings within some of its former grounds to the west and at a further distance to the south, the LB is still afforded spacious grounds immediately beyond its eastern elevations. This setting therefore also contributes to the LB’s historic interest.

The appeal proposal would be within the setting of this LB. However, given the siting at an angle away from its eastern elevations facing towards [name], the character, appearance and special interest of [site address] would be preserved and there would be no harm to its setting.

The CCA covers a large area of Chislehurst, and the main dwelling of [site address] is within Sub-unit 12 of the CCA comprising [site address] , [address] and subsidiary streets, as identified in the CCA Supplementary Planning Guidance (2001 version). Land to the east of [site address] , including the proposal site, is within Sub-unit 2 which covers areas around and close to the commons which Chislehurst has developed around.

The CCA’s significance is derived from its diversity of forms of development and open space, including some earlier buildings retained amongst later development, and the sensitive relationships between properties with frontages to the commons that provide a wooded, semi-rural character. The appeal site reflects the above characteristics and therefore contributes positively to the CCA’s significance. 6 Historic England List Entry Number: 1064397

Notwithstanding the Green Belt harm I have identified, the scale and positioning of the development would avoid harm to the character and appearance of the CCA as a whole. The CCA would thus be preserved and its significance as a designated heritage asset (DHA) would not be harmed. The lack of harm to DHAs is however a neutral factor that neither weighs in favour nor against allowing the appeal.

The proposal is inappropriate development in the Green Belt that is, by definition, harmful to the Green Belt. Whilst the harm to openness is minor, this nonetheless remains contrary to the Framework which states that an essential characteristic of Green Belts is their openness, and that substantial weight should be given to any harm to the Green Belt.

The above is reflected in the supporting text of LP Policy 49 which sets out that great consideration and restraint should be given to any potentially harmful activities on the Green Belt. Whilst supporting text does not have the same force as policy and cannot trump it, it is nonetheless relevant to its interpretation. There is sufficient conflict with LP Policy 49 and London Plan Policy G2 arising from the Green Belt harm that amounts to conflict with the development plan as a whole.

LP Policy 49 and the Framework both set out that very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. Collectively, the other considerations in this case do not clearly outweigh the harm that I have identified. Consequently, the very special circumstances necessary to justify the development in Green Belt policy terms do not exist. Nor are the other considerations material, so as to justify a decision other than in accordance with the development plan.

For the above reasons, the appeal is therefore dismissed.