Appeal 6000778

The appeal is dismissed.

An application for costs was made by Cordage 11 Ltd against Isle of Wight Council. This application is subject of a separate decision.

The appeal application form described the proposal as for 9 No dwellings and the accompanying plans detail the layout and appearance of the scheme for the same number. For reasons unclear, the Council’s decision notice refers to a scheme for 8 No dwellings. As this was erroneous, I have determined the appeal proposal for 9 No dwellings.

A number of revised plans1 were submitted with the appeal which remove the fenestration from the eastern elevation of Plot 1. Given the minor nature of the changes, I do not consider that any prejudice would be caused by me taking these plans into consideration when considered in the context of the principles established in the Wheatcroft and [name] cases2.

The Council’s fourth reason for refusal (RfR) referred to the potential effects on the site’s biodiversity value, including on [name]. Following receipt of information submitted with the appeal, and subject to conditions, the Council accepted that it no longer needed to contest this RfR. I find no reason to reach an alternative conclusion in this regard.

A unilateral undertaking (UU) made under s106 of the Town and Country Planning Act 1990, dated 19 September 2025, was submitted with the appeal. The UU 1 Plan references: 23.3494.100 P20 Proposed Site Plan; 23.3494.101 P4 [name] and [address] 1; 23.3494.108 P11 Proposed Site Section; and 23.3494.109 P10 Landscaping Plan 2 Wheatcroft Ltd V SSE [1982] and Holborn Studios Ltd v CLBH [2017] EWHC 2823 provides for an affordable housing contribution and habitat mitigation contribution under the terms of the [name].

Additional detail not previously seen in connection with flood risks and means of drainage was submitted by the appellant at final comments stage in response to the Council’s Statement. So as to avoid prejudice to any interested parties, this additional information was the subject of further consultation.

The main issues in the appeal are: • the effects of the proposal on the character and appearance of the area and whether it would preserve or enhance the character or appearance of the Brading Conservation Area (BCA); • whether the housing mix would adequately address local housing need; • the effects of the appeal scheme on any archaeological features; • the effects of the appeal scheme on trees; • whether the appeal scheme would adequately address flood risks and provide adequate drainage infrastructure; • the effects on the adjacent Public Right of Way (PROW); • the effects on the Solent Special Protection Area (SPA); • whether the appeal scheme would contribute towards the provision of affordable housing; and • whether the scheme would provide adequate [name] (BNG).

The appeal site is located within the centre of the village of Brading, comprising the hard surfaced parking area to the [site address] , together with an undeveloped parcel of land to the east which extends southwards. The eastern part of the site is roughly vegetated, has an Oak tree and another group of trees which offer some amenity value. It also has watercourses running along the northern and eastern boundaries. The PROW, footpath B7, runs through the northern part of the site, leading from the [address] and through the public house car park, linking to another footpath to the rear of the site.

Part of the site is within the BCA, with most of the site outside of, but adjacent to it. The significance of the BCA is primarily derived from its medieval street pattern and a long, tightly knit high street lined by a range of simple but pleasing historic buildings, starting in the north around the Church and ending near the former Chapel at The Mall. Red brick, red clay roof tiling, rendered vernacular cottages and stone boundary walling are typical features found throughout the BCA. The [site address] itself is one of the historic buildings which defines the [address] as a narrow, medieval street. Its car park, accessed to one side, is an uncharacteristic feature of the BCA due to its openness and the way it affords a longer-range view beyond the built extent. Insofar as the heavy through-flow of traffic is noted as being a detracting feature of the BCA, the car park is similarly a detracting feature as it is simply a large expanse of hard surfacing which typically accommodates a collection of parked cars. It does not contribute to the significance or special interest of the BCA. The vegetation on the outer edges of the eastern part of the site provide a soft contrast to the built environment and minimise the visibility of the later housing development that surrounds this part of the site.

The works to reconfigure the car park would not result in a material change that would directly harm the character or appearance of the BCA. However, the works proposed beyond the BCA boundary to the east have the potential to give rise to effects on the significance of the BCA through development within its setting.

The nine proposed dwellings would be situated either side of a turning head beyond the reconfigured car park. The access to the dwellings would be separated from the car park through the provision of a boundary. The parking provision would include a mix of parking alongside dwellings, either tandem or side-by-side, and one parking court. The dwellings closest to the car park would be separated by a 1.8m high timber fence and one of these dwellings (House 1) would have a particularly visible blank gable end at a key focal point of the development.

Whilst the description of the site as having a verdant character may be an overstatement, the Oak tree and limited group of trees are positive features of the site that would have dwellings built in close proximity to them. This would particularly evident when looking at House 1 which would have a contrived relationship with the retained Oak tree. By reason of its siting, orientation and appearance, House 1 would be an ill-considered feature of the appeal scheme. The highway aspects, such as the parking and turning head, would otherwise appear as a dominant feature, with dwellings and gardens fitted into the available space.

The form and appearance of the proposed dwellings would not be materially dissimilar to later developments that are visible from within the car park. However, the relatively cramped arrangement and the limited sense of place that would result from the appeal scheme would be harmful to the character and appearance of the area. Despite that the appeal site is currently a neutral feature in the BCA, the appeal scheme’s occlusion of views of trees and vegetation and the introduction of a scheme lacking local distinctiveness would have a minor erosive effect on the character and appearance and thus, significance of the BCA.

For the above reasons, the proposal would conflict with, in particular, policies DM2 and DM11 of the Island Plan Core Strategy (2012) ([name]). These policies collectively seek to ensure that development compliments the character of the area and relate positively to the conservation, enhancement and enjoyment of the Island heritage assets and public realm.

Under the terms of the National Planning Policy Framework (the Framework), the failure to preserve the character or appearance of the BCA as identified would amount to a less than substantial harm and at the lower end of such a scale of harm. Paragraph 215 of the Framework sets out that where a proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal. I return to this in the overall balance below.

The appeal proposal would comprise a mix of the following dwellings: 1 x 2 bedroom (11%), 5 x 3 bedroom (56%) and 3 x 4 bedroom (33%).

Policy DM3 of the [name] requires proposals to reflect the most up-to-date Strategic Housing Market Assessment, contribute to meeting the identified housing need for the local area and contribute to meeting specialist housing requirements. The Brading Neighbourhood Plan 2015-2027 (Neighbourhood Plan) policy HD1 supports appropriate new housing that meets the needs of the local community, with policy HD2 requiring applications to demonstrate that housing types and tenures contribute to meeting the most up-to-date housing needs survey. The Isle of Wight Council’s recent Housing Needs Assessment (HNA) 2022 suggests the following balanced mix of market dwellings: 5% 1 bedroom, 35% 2 bedrooms, 40% 3 bedrooms and 20% 4+ bedrooms.

Notwithstanding the need to round up or down to the nearest whole number, if the proposal had been devised to most directly align with the percentages recommended by the HNA, it would have included a mix similar to the following: 1 x 1 bed dwelling, 3 x 2 bed dwellings, 4 x 3 bed dwellings and 2 x 4 bed dwellings. The fact that it includes a greater proportion of larger units and fewer smaller when considered against the recommended percentages indicates that the proposal would not fully contribute to meeting the identified local housing need by the means outlined in the [name] and accompanying evidence base, including the HNA.

In view of the above, the proposed housing mix would not adequately address local housing need such as to comply with Policy DM3 of the [name] or policies HD1 or HD2 of the Neighbourhood Plan.

The appeal has been submitted with an updated archaeological desk-based assessment (DBA) which concludes that the site is within an Area of [name] and that there is a genuine high potential for medieval and post medieval archaeological remains, and moderate to high potential for prehistoric and Roman remains being found at the site.

The difference between the parties is whether pre-determination evaluation is necessary to understand the compatibility of the proposal and all necessary intrusive groundworks, including its drainage scheme, with any features that may be present on the site, or whether all archaeological features could be adequately identified and protected by way of planning condition.

A field evaluation of the site prior to determination would meet the expectations of [name] policy DM11 insofar as it requires developments to be informed by sufficient evidence to reveal impacts upon the significance of heritage assets; the likely presence or insignificance of which have not been eliminated through the DBA. Framework paragraph 207 also outlines that, where necessary, field evaluation should be undertaken where sites have the potential to include heritage assets with archaeological interest. In the absence of such, there is conflict with, in particular, [name] policy DM11 in this regard.

A single Oak tree exists close to the northern boundary of the site and there is a large mixed group of trees within the southern portion of the site. Both the Oak and separate group of trees are protected by a Tree Preservation Order.

Though the design adaptations would mean that no windows would be present in the side elevation closest to the tree, the crown of the Oak tree would initially be lifted due to its physical proximity to ‘House 1’. Though these initial works would be relatively modest and though there would be no direct encroachment onto its root system, due to the closeness of the tree to the dwelling, the relationship would appear cramped and would limit the long-term ability of the tree to thrive and contribute to public amenity.

The protected tree group to the south of the site includes Sycamore, Hawthorn and Willow tree species. The group of trees collectively contribute to the character of the area, providing some greenness and relief from the built form. The layout of the development would ensure greater separation between the tree group and Houses 6 and 9 than would be the case with the aforementioned Oak tree and House 1. Though the relationship would be relatively close and the tree group would be less visible from the public realm, shading impacts and direct limitations on future growth would not be so inevitable or likely that it would harm the future of the tree group.

Insofar as the proposal would result in harm to the protected Oak tree, the proposal would raise a degree of conflict with policies SP5, DM2 and DM12 of the [name]. Amongst other things, these policies seek to optimise the potential of sites with regard to existing constraints such as adjacent buildings, topography, views, water courses, hedges, trees, wildlife corridors or other features which significantly contribute to the character of the area.

Whilst the appeal site was originally identified as falling within [name] 2 and 3, the release of updated data from the Environment Agency changed this to [name] 1 in terms of fluvial flood risk, but within an area at risk of flooding from surface water with a greater than 3.3% likelihood of a flood event occurring in any given year. During the 3.3% annual exceedance probability (AEP) flood event, the surface water flood risk is shown along the access to the site, ponding in the centre and along the eastern boundary with variable flood depths of between 0.00 and 0.90m deep. The risk of flooding is related to the proximity of the watercourses with one running along the northern boundary of the site, the [name], and another unnamed watercourse which runs along the eastern boundary. The central and eastern areas of the site were also boggy at the time of my visit, indicating that the site is poorly draining in at least these areas.

The Framework sets out that a sequential risk-based approach should be taken to individual applications in areas known to be at risk now or in future from any form of flooding. The aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source. Development should not be permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding.

Due to the earlier identification of the site as being within [name] 2 and 3, a [name] was undertaken and submitted. A range of sources were checked with a defined set of search parameters, including the [name], commercial agents’ websites and Strategic Housing Land Availability Assessment database. The conclusion of the [name] was that there were no reasonably available alternative sites suitable for the type of development proposed which are at a lower flood risk.

There is an absence of cogent evidence from the Council to contradict the findings of the appellant’s [name]. Whilst it is less clear if these findings still hold true in light of the changes to the flood risk categorisation of the site and the alternatives considered, this is not a decisive matter.

Once the sequential test has been passed, the exception test must be applied. This requires demonstration that: (a) the development would provide wider sustainability benefits to the community that outweigh the flood risk; and (b) the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.

In respect of (a), providing 9 dwellings in a sustainable location with associated affordable housing contribution whilst making an efficient use of underutilised land amount to wider sustainability benefits that outweigh the flood risk.

In respect of (b), whether the development would be safe over its lifetime and at least avoid increasing flood risks elsewhere, the parties maintain disagreement as to the accuracy of the level of detail submitted to date and whether conditions could be used to require final details prior to commencement of any development.

It is proposed to manage surface water run off generated by the proposed development via permeable paving and an attenuation tank, with a controlled discharge to the [name]. It does not appear that hydraulic modelling of the [name] has been undertaken to be certain that the controlled discharge of surface water can be accommodated without increasing the risk of flooding downstream of the site, particularly given the presence of a downstream culvert/footbridge. Similarly, little is known about the condition or capacity of the other adjoining unnamed watercourse. I accept that the site does not appear suitable for infiltration-based drainage on my observations of the site visit. However, it should not have been necessary to look to third party correspondence to corroborate this point as an alternative to providing the results of infiltration testing. Furthermore, there are a number of other aspects that ought to be fixed as part of the scheme that should be informed by a full understanding of the flood risks and surface water context and drainage strategy without an over-reliance on assumptions and in-built headroom. These include the finished floor levels of the proposed dwellings, demonstration of safe access and egress for both pedestrians and vehicles during flood events on site and adequate distances between the banks of the watercourses. There is a similar lack of clarity and coherence on aspects such as the differences between the volumes of surface water at the current baseline compared with a post-development scenario, overland flow route details and any potential changes to the quality of receiving waters further underline the potential risks associated with the scheme.

Therefore, my view is that whilst details such as long-term management and maintenance responsibilities and construction phase surface water drainage details could be secured by way of planning conditions, basic agreement on the other parameters should not be resolved after the grant of planning permission. The examples where other planning permissions have been granted with conditions requiring final details of surface water schemes may have some similarities with the appeal scheme, however, given the site’s particular characteristics including its current and future risk of surface water flooding, the evidence of interested parties, and relationship with the adjoining watercourses, the potential for an increased risk of flooding elsewhere appears a greater likelihood and as such, I require further certainty that such would not be inflicted on future occupiers or others. It is not my experience to find LLFAs unreasonably obstructive and the examples where conditions have been recommended highlight that a pragmatic approach can be adopted where there is sufficient evidence of a workable solution being found. That the caveated support has been withheld in this case is evidence of gaps in the understanding of this site in the context of heightened risks which should not be downplayed.

For the forgoing reasons, it is not sufficiently clear that the development will be safe for its lifetime or that it would avoid an increased risk of flooding elsewhere, thus failing the second part of the exceptions test outlined in the Framework. Consequently, the appeal proposal also conflicts with, in particular, [name] SP5, DM12 and DM14 which, amongst other things, expect development to provide appropriate on-site sustainable drainage systems, reduce flood risks and not impact on water quality.

Footpath B7 is a PROW that runs through the north of the appeal site. The Definitive Map showing the alignment of the PROW is not digitised or at a scale that allows a full and clear understanding of whether its recorded alignment differs with its physical presence on the ground.

The appeal proposal has not been consulted upon as directly affecting the PROW by way of diversion or otherwise. The Council alleges that the proposal would necessitate a diversion and that, without enhancements secured by way of legal obligation or financial contribution for such, there would be harms to PROW users.

From the evidence before me, it is not entirely clear that the PROW would be diverted from its recorded alignment, but this would not strictly be authorised without a separate process under s257 of the Act in any event. If a boundary adjacent to the PROW were proposed to provide separation from the car park, such could be required by way of planning condition.

In view of the above, the proposal would not conflict with policies SP7, DM2 or DM17 of the [name] which seek to provide and improve accessibility.

The appeal proposal has the potential to affect the SPA which is designated under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations). The mudflats, shingle and saltmarshes of the [name] provide essential winter feeding and roosting grounds for overwintering waterbirds, including Dark-bellied brent goose, Eurasian teal, Ringed plover, Black-tailed godwit and Little tern. The wide range of recreational activities which take place on this coast can result in disturbance to the birds, albeit often unintentional, from activities such as especially walking and dog walking or water sports. Any proposal within 5.6km ‘Zone of Influence’, that may result in additional recreational disturbance is likely to have an adverse effect on the integrity of the SPA, contrary to its stated conservation objectives.

The appeal site is located within the 5.6km zone of influence (ZoI) of the SPA. The proposal is not directly connected with or necessary for the management of the protected site. However, the proposal, given its scale, nature and distance within the ZoI of the protected site, would be likely to have significant effects either alone, or in combination with other projects. The effects of the proposal cannot, therefore, be screened out and in adopting a precautionary approach, the development would give rise to likely significant effects on the SPA such as to require an Appropriate Assessment under the Habitats Regulations.

In this case, a planning obligation has been secured which requires proportionate recreational mitigation payments under the [name] (2017). I am satisfied that these measures meet the appropriate tests and are therefore obligations I can take into account.

As competent authority, I am satisfied that the mitigation measures secured through the planning obligations will ensure that the developments would not result in an adverse effect on the integrity of the SPA and thus, complies with policy DM12 of the [name].

Policy DM4 of the [name] requires that developments of 1-14 dwellings in [name] and 1-9 dwellings in [name] and rural areas to provide financial contributions towards affordable housing for developments. The contributions are set out in the Island Plan Affordable Housing Contributions Supplementary Planning Document (2017) ([name]).

Whilst the Council dispute the form of the UU that has been provided, it contains an obligation for the appellant to pay an affordable housing financial contribution per dwelling prior to occupation of each respective dwelling based on a formula that has been carried over from the [name].

As the UU provides for the proportionate contribution towards affordable housing to be made prior to any respective occupations on site, the scheme would make adequate provision for affordable housing in accordance with [name] policy DM4 and would comply with guidance in the [name].

The appellant has provided updated details in relation to the pre-development BNG value which reflected the pre-degradation habitat value based on the best available evidence. The Council’s Ecology Officer has further questioned the accuracy of the inputs and raised issues with the loss of an area reedbed which is a high distinctiveness habitat. The appellant’s final comments clarify the consideration of all relevant watercourses, riparian zones and the consideration of the loss of the reedbed in the context of the BNG hierarchy. Further evidence in relation to the post-development values has also been provided and indicate that the development could at least secure a 10% uplift. Based on the submitted evidence, I am clear that the minimum information requirements have been met and that the biodiversity gain objective can be achieved. Notwithstanding the Council’s preference for a planning obligation to be secured, planning conditions can be used to secure the biodiversity gain plan and monitoring requirements.

In view of the above, subject to conditions, the proposal would deliver the mandatory BNG3 and complies with policy DM12 of the [name] which seeks to support proposals that conserve, enhance and promote the landscape, seascape, biodiversity and geological interest of the Island.

The Council concedes that it cannot demonstrate a 5 year supply of housing land with the appropriate buffer as required by the Framework. The current position is that there is around a 3.5 year supply4, and by my calculations, this must equate to a shortage of in excess of 1,000 dwellings which is significant.

The appeal scheme would result in numerous harms and policy conflicts, ranging from its effect on the character and appearance of the area; the less than substantial harm to the significance of a designated heritage asset; harm to archaeological features; the variance of the proposed housing mix from the identified local housing need; the harm to at least one notable tree; and the lack of clear and robust evidence to prove that the development would not result in an increased risk of flooding. Whilst the BNG, SPA, affordable housing and PROW aspects may have been satisfactorily addressed or capable of being made so by planning conditions or obligations, the aforementioned numerous harms still result in the scheme conflicting with the development plan when taken as a whole.

As there is an acknowledged housing land supply shortfall, the provisions of paragraph 11d) of the Framework are engaged. This requires that planning permission should be granted unless: i. the application of Framework policies that protect areas or assets of particular importance provide a strong reason for refusing the development proposed; or ii. any adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes.

The conflict with the policies requiring a housing mix with which the appeal scheme differs attracts reduced weight given the modest scale of the scheme and in light of the Council’s housing land supply shortfall.

The low level of less than substantial harm to the BCA as a designated heritage asset would be clearly outweighed by the key public benefit of providing nine dwellings in the context of an undersupply of housing. 3 As required under Schedule 7A ([name] in England) of the Town and Country Planning Act 1990 4 Based on the unchallenged supply assumptions as set out in the Council’s Annual Position Statement on 1st April 2024

The Framework indicates in footnote 75 that only non-designated heritage assets of archaeological interest, demonstrably of equivalent significance to scheduled monuments, should be considered subject to the Framework policies for designated heritage assets. There is no evidence of the archaeological features that may be present at the site being of demonstrable equivalence to scheduled monuments. As such, whilst there is a conflict with policy, the threshold of harm in relation to the operation of Framework paragraph 11 d) is not met in this regard.

As confirmed in footnote 7 of the Framework, areas at risk of flooding are protected under specific Framework policies. As the risk of flooding at the appeal site and elsewhere has not been sufficiently addressed, this amounts to a strong reason for refusing the development proposed. Therefore, the presumption in favour of sustainable development does not apply.

Returning to the ordinary planning balance, in terms of the benefits of the scheme, the delivery of 9 dwellings in a sustainable location on an underutilised site should attract great weight, particularly in the context of a housing land shortfall. The proportionate payment towards affordable housing provision would also be beneficial. There would be further minor benefits from the construction phase economic boost, through future occupiers’ support for local services and businesses. There would also be the provision of BNG. Though the host business, The [site address] , may be able to invest receipts into the business, this has not been robustly secured and therefore, this attracts limited weight. However, even when taken collectively, the identified benefits do not outweigh the conflict with the development plan such as to indicate that a decision should be made other than in accordance therewith.

For the foregoing reasons, the appeal should be dismissed.