Appeal 6000415

The appeal is dismissed.

The second reason for refusal cites harm to the character, appearance and special interest of [site address] , which is a Grade II Listed Building1. This reason for refusal however makes no reference to Policy 38 of the Council’s Local Plan (LP) (adopted 2019) which governs Statutory Listed Buildings. I have therefore determined this appeal having regard to this policy. As both main parties refer to this policy in their evidence, there is no procedural unfairness.

I have also dealt with another appeal2 at this site for the construction of a subterranean helicopter lift. 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; • the effect on the character and appearance of the area, with particular regard to the special interest of the Chislehurst Conservation Area and the setting of the Grade II Listed Building of [site address] ; 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. 1 Historic England List Entry Number: 1064397 2 Appeal Ref: 6000414

The proposal site is within the Green Belt as designated on the [name]. The main dwelling of [site address] is however not in the Green Belt, as the [name] shows the Green Belt boundary line to run between the main dwelling and the proposal site.

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 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. The Council contends that the proposed car lift does not comprise an extension or alteration to an existing building, but rather amounts to the construction of a new building to the east of the main dwelling, with no internal or external connection.

Case law3 has also 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.

However, I also find the Green Belt boundary dissecting the appeal site to form an important additional material consideration. The main dwelling is not within the Green Belt, and the boundary line appears to have been consciously drawn to delineate the easternmost elevation of the main dwelling from its grounds beyond. LP Policy 51 thus falls away as a relevant policy in the consideration of this appeal.

For the above reasons, it would be illogical to treat a detached development within the Green Belt as an extension to the main dwelling. Even if such development is akin to a modern domestic garage close to me main dwelling, as proposed, it would nonetheless conflict with the essential characteristics of Green Belts, which the Framework states as being their openness and their permanence.

It follows that the appeal proposal is not a type of development that benefits from the criterion c) exception within Framework Paragraph 154, and as also reflected in LP Policy 49. The proposal’s modest size relative to the main dwelling does not alter this conclusion. 3 Warwick District Council v SSLUHC [2022] v EWHC, [name] and [name] [2022] EWHC 2145 (Admin)

Another LP Policy 49 listed exception put to me is the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces. This exception also forms criterion d) within Framework paragraph 154.

I found the existing man-made boundaries proposed for replacement to have physical size and permanence as structures. Section 336 of the Act4 defines “building” as including any structure or erection. The proposed perimeter fencing therefore involves the provision of replacement building.

I accept that many residential dwellings contain defensible boundaries in the form of formal boundary treatments and fences. The proposed 2.4m high steel mesh perimeter fencing would however be discernibly higher than the existing timber and loose mesh fencing in which it would replace. I only saw a limited amount of barbed wire on the existing fencing. In comparison, the proposed addition of rotating spinners on top of and along the new fencing would add further built form above the height of the existing fencing.

Given the above factors along with the long continuous span of enclosure, the abovementioned element of the proposal would not be modest in spatial terms when considered against the existing boundary baseline. Conversely, it would be materially larger in terms of overall built form. Whilst the mesh would be finished in green and would have a partially translucent appearance that could also facilitate climbing ivy, this would not diminish the overall additional size of the enclosure. This aspect of the proposal 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 law5 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 proposed car lift would be limited relative to the large size of the [site address] main dwelling. It would however be located beyond its eastern boundary and while it would be opposite the existing modern garage building to the north, to the south there are no buildings in the vicinity for some distance. It would therefore not be set within a group or row of existing buildings.

The proposed 2.4m high steel mesh perimeter fencing would demarcate the appeal site’s boundary with undeveloped woodland beyond, which could be described as a 4 Town and Country Planning Act 1990 ([name]) 5 [name] v SSCLG, Gravesham Borough Council [2015] [name] 195 natural conclusion of the Chislehurst settlement. However, as the fencing 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 abovementioned elements of the appeal proposal do not amount to limited infilling in a village. They are thus not development types that benefit 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 car lift would have a physical size and permanence as a structure, as it includes a solid surround structure to house motor vehicles underground. Moreover, Section 336 of the Act6 defines “building” as including any structure or erection. This development therefore involves both engineering operations and the provision of a new building.

When in the “open” position, the car lift would have the form and appearance of an above ground structure. Even if it would only be in this position when parking or removing private motor vehicles, and would not have fully enclosed elevations, the structure would nonetheless be harmful to the openness of the Green Belt.

Whilst storage underground would be the least visually impactful option, and the proposed lift lid would be finished with the same hardcore material finish as the existing courtyard, this would replace an existing grassed area that also contains shrubbery. This proposal would therefore result in a spread of development. Moreover, the submitted plans indicate that vehicles would be parked atop of the car lift when in the “closed” subterranean position.

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 car lift 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 6 Town and Country Planning Act 1990 ([name]) infilling in a village, its size relative to [site address] , its existing fencing 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 additional and improved private vehicle parking and storage within the appeal site, in respect of safety, maintenance and security. 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”.

Given the site’s location near facilities and services and that that its existing car parking provision is already in excess of the London Plan standards, the proposal would 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 proposed car lift and replacement 2.4m high perimeter fencing with rotating spinners 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.

I therefore conclude that the proposal is inappropriate development in the Green Belt having regard to the Framework and Policy 49 of the LP. In this respect, the scheme also conflicts with Policy G2 of the London Plan which states that the Green Belt should be protected from inappropriate development. Character and appearance

The [site address] Grade II Listed Building (LB) is of 1880s origin and is situated within the Chislehurst Conservation Area. 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. LP Policy 38 states, amongst other things, that applications for development involving a listed building or its setting will be permitted provided that the character, appearance and special interest of the listed building are preserved and there is no harm to its setting.

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.

Whilst intervisibility with the LB is largely restricted by mature shrubbery, I found that some gaps in the shrubbery allowed for fleeting views of the LB from the public footpath in [name], beyond and along the appeal site’s eastern boundary. I have already found the proposed 2.4m high perimeter fencing with rotating spinners to be materially larger than the fencing it would replace.

Whilst the mesh would be finished in green and would have a partially translucent appearance that could also facilitate climbing ivy, the overall design and scale of this fencing, in particular the rotating spinners, would depart from and go beyond the design and scale of defensible boundaries typically found in residential dwellings. Its scale and positioning would further disrupt and detract views towards the LB when compared to the existing boundary treatment. This element of the proposal would therefore fail to preserve this setting of the LB that contributes to its special architectural and historic interest.

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.

Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special attention be paid to the desirability of preserving or enhancing the character or appearance of a Conservation Area. This statutory duty is reflected in LP Policy 41, which also states that new development within a conservation area will need to respect or complement the layout, scale, form and materials of existing buildings and spaces, and use high quality materials.

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.

The proposed 2.4m high perimeter fencing with rotating spinners would not be sympathetic to its verdant setting along the public footpath in [name], which is also within [name] 2. Its utilitarian design and scale would detract from this natural landscape when compared to the existing boundary treatment. This element of the proposal would therefore fail to preserve the character, appearance and special interest of the CCA.

For the above reasons, the proposed 2.4m high perimeter fencing with rotating spinners would harm the character and appearance of the area, including the special interest of the CCA. It would also fail to preserve the setting of the [site address] LB that contributes to its special architectural and historic interest.

The abovementioned element of the proposal is thus contrary to Policies 38 and 41 of the LP, the relevant requirements of which are already set out above. It follows that the proposal is also contrary to Policy HC1 of the London Plan which states, amongst other things, that development proposals affecting heritage assets and their settings should conserve their significance, by being sympathetic to the assets’ significance and appreciation within their surroundings.

The impacts on designated heritage assets (DHAs) amount to less than substantial harm, having regard to the Framework. This falls at the lower end of the scale due to the extent of intervisibility with [site address] and the extent of public views.

LP Policy 38 sets out that where a proposal is judged to cause harm to a Listed Building, it will be assessed against the relevant test in the Framework. No reference to the Framework is made within LP Policy 41. Framework paragraph 215 however states that where a development proposal will lead to less than substantial harm to the significance of a DHA, this harm should be weighed against the public benefits of the proposal. No such public benefits are advanced by the appellant, nor have I identified any.

The proposed alterations to the existing modern garage include replacing all three existing garage doors with two wider doors, to facilitate a more spacious layout for two vehicles to park. The Council raised no objection to the proposed alterations to this building and following my site visit, I have no reason to take a different view.

Satellite imagery before me shows several vehicles kept in open-air storage on hardstanding within [site address] ’s demise, and several vehicles were parked along this area during my visit. The appellant deems the current overall storage and parking provisions for high-value private motor vehicles to be not suitable in terms of safety, maintenance and security.

It was evident during my visit that the existing fencing is showing signs of failing, much of which is in close proximity to mature trees and vegetation. [name] 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. I am also not persuaded that the appeal proposal is the only or least harmful way to provide adequate parking, storage and security provisions.

For the above reasons, it has not been demonstrated that the appellant’s need for the proposed car lift and 2.4m high perimeter fencing with rotating spinners 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.

I accept that a dwelling would, irrespective of its Listed status, ordinarily benefit from PD rights for outbuildings, subject to certain limitations and conditions. The location of the proposed car lift does not appear to benefit from PD as it is within a Conservation Area. I also note that one other PD limit is a maximum height of 3m. When in full operation, the proposed car lift would as a structure would have a maximum height greater than 3m.

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 of the GPDO. [name] right is limited to purposes incidental to the enjoyment of the dwellinghouse. In the absence of an indicative hardstanding layout, the appeal submission does not adequately demonstrate a PD fallback to justify the proposal.

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.

The Council’s Conservation Officer (CO) has raised no objections in relation to the proposed car lift and alterations to the existing modern garage, despite their proximity to the LB. The CO’s objection to the proposed boundary enclosures is limited to the high security fencing and the rotating spinners on top of that fencing. Following my site visit, I have no reason to dispute the CO’s assessment. The lack of harm in respect of the abovementioned elements of the overall proposal is however a neutral factor that neither weighs in favour nor against allowing the appeal.

The proposed car lift and replacement 2.4m high perimeter fencing with rotating spinners 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.

I have identified further conflict with Policies 38 and 41 of the LP and Policy HC1 of the London Plan in respect of harm to the special interest of the CCA, and the setting of the LB that contributes to its special architectural and historic interest. There is sufficient conflict with [name] 38, 41 and 49 and London Plan Policies G2 and HC1 arising from the above harms that amounts to conflict with the development plan as a whole. Framework paragraph 212 sets out that great weight should be given to the conservation of DHAs, even if the potential harm amounts to less than substantial harm to its significance.

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.