Appeal 6000506

The appeal is dismissed.

An application for costs was made by [name] & [name] against South Oxfordshire District Council. This application is the subject of a separate Decision.

The description in the banner heading above is taken from the Decision Notice as it more accurately describes the proposal, and I note that the revised description has been used on the appeal form. However, I have omitted the superfluous words that are not acts of development.

An amended Proposed Site Access Plan1 was submitted by the appellant as part of the appeal, which shows an alternative access arrangement from [address]. The proposed amendment does not fundamentally change the proposal, nor were interested parties prejudiced as they had the opportunity to consider the proposed amendment as part of the appeal process. For the avoidance of doubt, I have therefore considered the amended plan in the determination of the appeal.

The main issues are the effect of the proposed development on highway and pedestrian safety; and whether the proposal would make appropriate provision for biodiversity net gain.

The appeal site comprises [site address] (No.37) and its garden. The appeal proposal would see the construction of a new dwelling on the front part of the site, between the host dwelling and [address]. The new dwelling would be served by the 1 drawing ref 1235.G.12 160124 existing vehicular access to the site from [address], with a new vehicular access off [address], proposed to the rear of the site, to serve No.37. The Council’s main concern is the effect of the new access from [address] on highway and pedestrian safety.

[address] is a single track no through road which currently serves 3 residential properties. It is a narrow rural lane, devoid of streetlighting and pedestrian pavements. For these reasons, vehicles travelling along [address] would be likely to be travelling at very reduced speeds. It is also a Public Right of Way (PRoW) that continues beyond the appeal site and the part of [address] used by vehicular traffic, which provides access for pedestrians and cyclists to the [address] from The Moorlands.

The Council’s refusal reason refers firstly to the visibility at the proposed new access from the site to [address]. The Highway Authority’s appeal submissions confirm that it does not raise an objection to the proposed access to the site from [address]. In an earlier consultation response highway officers confirmed that additional information in the form of an updated [name] (dated October

demonstrated that visibility splays from the proposed access onto [address] to the west (left when egressing), was considered appropriate and that pedestrian visibility could be achieved. Even if visibility was reduced in an easterly direction, as suggested in the officer report, traffic leaving the site would be likely to do so at a very slow speed, taking account of the road conditions at this point and any potential oncoming users of the PRoW. In addition, pedestrians and cyclists emerging from the section of the PRoW to the east of the proposed access, would be aware of any vehicles leaving the site, including occasional larger vehicles that may need to reverse onto the carriageway, as they approach it, so as to avoid any conflict.

In light of the above considerations, when taken together with the likely low volume and slow speeds of traffic generated by the [address] to the proposed access, and the position at the end of the no through road, I have no reason to reach a different conclusion. Furthermore, the amended plan appears to increase visibility in an easterly direction through the repositioning of the access.

Although not specifically referred to in the refusal reason, the Council’s submissions also raise concern regarding the visibility at the existing junction of [address] and [address], particularly for vehicles egressing [address]. While visibility in a southerly direction at the junction is restricted, there is no clear evidence to indicate that the existing junction arrangement, despite its deficiencies, is operating to the detriment of highway safety. The appellant indicates that a review of records of personal injury collisions (PICs) using the Crashmap reveals that there have been no PICs reported along [address] or its junction with [address] over the past 25 years.

I am mindful that the 15mph speed limit on [address] is advisory only, nonetheless, given the restricted width of [address] in the vicinity of the junction, together with the presence of individual access driveways off it, and the shared surface arrangement for pedestrians and vehicles, it is unlikely that actual traffic speeds would be excessive. In addition, those exiting [address] onto [address] are also likely to do so with precaution, given the current configuration, notwithstanding the gradient.

Despite the not insignificant proportional increase in traffic using the junction as a result of the proposal, given the uplift in the number of additional vehicles overall, as a consequence of the appeal proposal, any effects would be limited. Moreover, while I appreciate the concern raised, there is no clear reason why any flooding which may occur at this junction would hinder pedestrian safety. Taking these factors into account, there is no compelling evidence to demonstrate that the proposed access from the site onto [address], or the increase in the use of the junction of [address] and [address], of the scale proposed, would have an adverse impact on highway safety.

I turn now to the intensification of the use of [address], which is also a PRoW, by virtue of additional vehicular traffic and the subsequent effects on pedestrian safety. Interested parties have expressed concern regarding the accuracy of the appellant’s count of vehicular and pedestrian movements, including in relation to the duration and timing of the survey. Nevertheless, even taking the worst-case scenario, as indicated by the residents’ survey, of up to 29 pedestrians and [address] on a mid week day between 0900 and 1700, its relatively lightly trafficked, with under 4 pedestrian and 0.75 cycle movements an hour over the survey period.

The appellants submissions indicate that, applying the [name] (TRICS) Database, a single residential dwelling, privately owned in this type of location, would typically generate around 4.3 vehicle trips per day as measured over a 12 hour period between AM and PM peaks. Using this recognised methodology, the appeal proposal would generate one additional vehicle trip every 2.[address] during a 12 hour period. I acknowledge that specific individual circumstances relating to the occupiers of the dwellings may give rise to a greater number of trips, however, in the absence of any substantive evidence to the contrary, I have no reason to discard this figure, in this case. The vehicle movements associated with one additional dwelling, would therefore not be significant.

Thus, based on the evidence before me, the likelihood of a pedestrian or cyclist encountering a vehicle on the narrowest part of [address] would be very low. Moreover, given the good visibility along the narrowest section of the lane between the junction with [address] and the proposed access, pedestrians or cyclists on [address] would therefore be clearly visible to drivers of vehicles and vice versa, such that conflict between users of the lane could be avoided.

Even if vehicles and pedestrians or cyclists did meet on [address], and some manoeuvring of vehicles was required, including reversing back into a driveway or onto [address], given the likely very low speeds of vehicles, there is no clear evidence that this would be unsafe, including during the hours of darkness. In any case, given the likely modest increase in vehicle and pedestrian/cycle movements associated with one additional dwelling, the probability of this scenario increasing in any tangible way, so as to give rise to a significant increase in conflict between the users of [address], that would undermine safety, would be low. For these reasons, based on the evidence before me, I find that the additional vehicular and other movements associated with the proposal would be unlikely to increase the potential for vehicle and pedestrian/cycle conflict to the detriment of highway or pedestrian/cyclist safety.

The National Planning Policy Framework (the Framework) sets out that development should only be prevented or refused on highway grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network, following mitigation, would be severe. Considering the specific circumstances before me, neither of which would be the case with respect to the appeal proposal. Furthermore, given that I have found the appeal proposed development would not make the pedestrian environment less desirable or safe, the proposal would not undermine the aims of the paragraph 117 of the Framework which, among other things, require new developments to prioritise pedestrian and cycle movements and minimise the scope for conflicts between pedestrians, cyclists and vehicles.

Even if an alternative means of access to the proposed dwelling would be arguably better, I am required to determine the appeal based on the proposals put forward by the appellant, which I have found to be acceptable. Any rights of access over third-party land which may be required is a civil matter that falls outside of the planning regime.

For the foregoing reasons, I conclude that the proposed development would not have an unacceptable impact on highway or pedestrian safety. In that regard it would not conflict with the aims of Policy TRANS5 of the South Oxfordshire Local Plan 2011- 2035, adopted December 2020 (SOLP), which sets out that proposals for development will, where appropriate, will be require to, among other things, provide for a safe and convenient access for all users to the highway network and be served by an adequate road network which can accommodate traffic without creating traffic hazards or damage to the environment.

Under the statutory framework for biodiversity gain, 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. The planning application form indicates that, as the proposed dwelling would be self-build, the requirement for a statutory 10% biodiversity gain under the [name] (as set out in Paragraph 13 of Schedule 7A of the Town and Country Planning Act 1990 would not apply.

In order to qualify for this exemption, there must be an effective mechanism through which the property could be secured as a self-build unit. The appellants set out, in the form of a Statement of Intent to [name] with the Self-build and Custom Housebuilding Act 2015 (as amended), that it is their intention to construct a self or custom-build home, as outlined in the legislation, of which they would be the occupiers. I also note the appellants’ willingness to accept a condition to secure the unit as such. However, a planning condition would fail to satisfy the tests in the Framework, with regard to enforceability.

Despite this, in the absence of a mechanism, in the form of a planning obligation pursuant to Section 106 of the Town and Country Planning Act 1990, to ensure the dwelling would be self or custom build, the exemption is not secured with any degree of certainty. Consequently, in light of the above considerations, it has not been demonstrated that the proposal would be exempt from the provision of biodiversity gain. Nor is there any evidence to indicate that the biodiversity gain objective would be met by other means.

The proposal therefore fails to demonstrate that it would make appropriate provision for biodiversity net gain. Accordingly, it would fail to comply with the aims of Policy ENV3 of the SOLP which set out that all development should provide a net gain in biodiversity where possible and should be supported by evidence to demonstrate a biodiversity net gain using a recognised biodiversity accounting metric. It would also conflict with paragraph 187 of the Framework insofar as it requires planning decisions to contribute to and enhance the natural and local environment by providing net gains for biodiversity, and Schedule 7A of the Town and Country Planning Act 1990 (as amended), which mandates a minimum 10% biodiversity net gain for new developments.

There have been many representations about various other matters but, as I am dismissing the appeal, my decision would not result in any adverse impacts in those regards.

The Council confirm that it cannot currently demonstrate a 5 year housing land supply, although this has not been quantified. In this scenario, paragraph 11d) of the Framework falls to be considered. Thus, permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole, having particular regard to key policies.

The scheme would offer benefits in terms of housing delivery and would accord with the Government’s objective of significantly boosting the supply of homes set out in the Framework. Given the housing supply position in the district, while a single dwelling would not greatly improve total supply, the additional provision, while modest, would nonetheless be valuable. I have found that the proposal would not harm highway or pedestrian safety and as such would not conflict with Policy TRANS5 of the SOLP. As this is a normal expectation of new development, it would be of neutral weight.

Set against this, in the absence of a suitable mechanism, to provide certainty that the proposal would be delivered as a self-build dwelling, or any supporting information to demonstrate that requirements with respect to biodiversity net gain could be achieved, the proposal would conflict with the aims of Policy ENV3 of the SOLP and the relevant policies in the Framework which seek net gains for biodiversity. This conflict, when considered in combination with the failure to comply with Schedule 7A of the Town and Country Planning Act 1990, carries substantial weight. I therefore find that, in this case, the adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole. The proposal would therefore not benefit from the presumption in favour of sustainable development.

The proposal would conflict with the development plan, read as a whole. Having had regard to all material considerations, it has not been demonstrated that there are any of sufficient weight to indicate that a decision should be taken otherwise than in accordance with it. The appeal is therefore dismissed. [planning inspector] INSPECTOR