Appeal 6000802

The appeal is allowed and planning permission is granted for construction of detached bungalow at [site address] in accordance with the terms of the application, Ref 24/1372/FUL, and the plans submitted with it, subject to the conditions in the attached schedule.

On 16 December 2025, the Government published a consultation on proposed reforms to the National Planning Policy Framework (the Framework). Whilst broad changes to the structure of the Framework are proposed as part of this consultation, these proposals could be subject to further change and can only be given very limited weight at this stage. It has therefore not been necessary to consult the parties on the proposed changes, and in reaching my decision, I have had regard to the Framework published in December 2024.

The main issues are • the effect of the proposal on the character and appearance of the site and its surroundings; and • the effect of the development on the [name] and East Devon Pebblebed Heaths Special [name] (SPAs) and the East Devon Pebblebed Heaths Special Area of Conservation (SAC).

The site is currently a rough, grassed area enclosed by a post and wire fence and shrubs on its southern side and a post and rail fence on its eastern side. A belt of mature trees lies along its northern boundary. Adjacent to its western boundary is a single storey, predominantly obscure glazed structure situated to the rear of the adjoining two storey dwelling. A bungalow lies to the south of the site across [address] with further dwellings beyond. Immediately to the east of the site is a tract of rough grassland which slopes down towards the partly wooded boundary with [address].

The site and the grassland immediately to the north east of the site form part of land designated as a ‘Valley Park’ in the East Devon Local Plan 2016 (EDLP). The EDLP indicates that such parks are to be used for informal recreational activities and that they also form an important visual amenity for nearby residents and act as wildlife corridors to the countryside. As a consequence policy EN2 states that development other than that to provide a safe corridor for pedestrians, cyclists and disabled users and for outdoor recreation will not be permitted. Whilst the site is in private ownership and does not have public access, the supporting text to EDLP policy EN2 indicates that there will not necessarily be public access to all parts of the Valley Parks. Policy EN2 of the Exmouth Neighbourhood Plan 2019 (ENP) also seeks to conserve and, where possible, enhance the existing Valley Parks in the town.

The proposal does not provide a safe corridor for pedestrians, cyclists and disabled users and would not be for outdoor recreation. Therefore it does not fall within one of the categories of development permitted by EDLP policy EN2. It would result in the encroachment of residential development beyond the eastern boundary of the northern segment of the designated Bapton Brook Valley Park. This would result in a small reduction in the size of the designated park and would erode the verdant character of the Valley Park at the eastern end of [address].

The visual effect on the character and appearance of the Valley Park however would be limited by the substantial tree screen along the northern site boundary which would restrict views of the dwelling from the north. The site boundary would not project further into the Valley Park than the existing eastern boundaries of the properties to the north of the site. As a result, when combined with the existing dwelling on the southern side of [address], which provides a sense of enclosure on the southern side of the site, the harm caused by the physical encroachment of development into the designated park would be limited.

Whilst the encroachment of the development onto the edge of the Valley Park would be noticeable from the eastern end of [address], the site’s location to the rear of the dwellings fronting [address] means that it would not have a harmful effect on the already restricted view of the Valley Park from [address]. Although the level nature of the site means that it could provide a viewpoint across the valley for users of the park if public access was gained in the future, the upper parts of the western edge of the existing fields in the park would still provide a range of alternative viewpoints.

The steeply sloping field which forms part of the Valley Park to the north east of the site provides a pleasant, green backdrop to views from [address] beyond. However, the position of the proposed dwelling on more level ground at the crest of the hill and the screening effect of the boundary trees means that the dwelling would not be prominent in views across the valley and would be seen in the context of the existing dwellings bordering the park on the southern side of [address]. A new hedgerow is proposed along the eastern site boundary which, in time, would further reduce the visual impact of the proposal on the park.

Whilst the Framework allows for local and neighbourhood plans to designate land as Local Green Space, Bapton Brook Valley Park is not designated in either the EDLP or ENP as Local Green Space as defined in the Framework. The EDLP makes clear that the plan does not designate any Local Green Spaces. Whilst the site and adjoining land is valued for its visual amenity, wildlife corridors and possible future recreational activity, the Council does not claim that the Bapton Brook Vally Park is a Local Green Space. I have no sound reason from the evidence before me to arrive at a different conclusion. Therefore, having had regard to the Lochailort judgement1, the Framework’s requirement that decisions managing development within Local Green Space should be consistent with national policy for Green Belts does not apply to this proposal.

Policy OL06 of the East Devon Local Plan 2020 to 2024 Regulation 19 Plan February 2025 applies to Local Green Spaces designated through [name]. As the site is not allocated as Local Green Space in the ENP and I have not been referred to any subsequent Neighbourhood Plan in which it is so designated, the proposal would not conflict with draft policy OL06.

Nevertheless, for the reasons given, the limited harm which would be caused to the character and appearance of the site and its surroundings results in conflict with Strategy 6 and policies EN2 and D1 of the EDLP and ENP policy EN2 which seek to protect the character of the site and its surroundings and conserve the Bapton Brook Valley Park.

The site is located within 10km of the SPAs and SAC. Regulation 63(1) of the Habitat Regulations requires me to make an appropriate assessment of the implications of the proposal for the conservation objectives of the SPAs and SAC. I have therefore carried out an appropriate assessment.

The Exe Estuary SPA includes the estuary waters, foreshore, saltmarsh and the sand dunes and spit of [name], and extends to Exeter at the northern end of the estuary. The mudflats and sandflats support eelgrass and beds which provide rich feeding habitats for wintering birds. Its qualifying features are that it supports populations of overwintering avocet, slavonian grebe, black-tailed godwit, dark-bellied brent goose, dunlin, grey plover, oystercatcher and a waterbird assemblage. The East Devon Pebblebed Heaths SPA lies to the north east of Exmouth. The qualifying features of the SPA are the populations of nightjar and Dartford warbler. The qualifying features of the SAC are its [name] wet heaths, wet heathland with cross-leaved heath, European dry heaths and populations of southern damselfly.

The evidence indicates that the proximity of the appeal site to the SPAs and SAC means that future occupants of the development could contribute to disturbance of these protected areas through recreational activities. The potential for adverse effects is likely to increase with the amount of residential development meaning that the combined effects could be significant and affect the integrity of the protected sites.

The Council has adopted a ‘South-east Devon European Site Mitigation Strategy’ 2014 which establishes a joint approach with adjoining Councils towards the 1 Lochailort Investments Ltd, R (On the Application Of) v Mendip District Council [2020] [name] 1259 mitigation of likely significant effects on the protected sites arising from cumulative residential schemes. A Habitats Mitigation Contribution is sought for each new dwelling which is then used to deliver mitigation for the recreational impacts on the protected sites. For this appeal, the appellant has submitted a [name] (UU) under section 106 of the Town and Country Planning Act 1990 (as amended) and a signed copy has been provided to me. It undertakes that a ‘[name] of £367.62 will be paid to the Council towards mitigating the effects of the proposal on the internationally protected sites before the first occupation of the dwelling.

The Council’s evidence indicates that the contributions are used to fund new habitat creation, manage habitats and provide on-site and off-site mitigation measures. I am satisfied that the contribution would be necessary to mitigate the impact of the development on the protected sites. It is also directly related to the proposed development and is fairly and reasonably related in scale and kind to the development.

I have consulted Natural England which has confirmed that the mechanism for securing the mitigation through the UU and the contribution which would be provided is sufficient to avoid adverse impacts on the protected sites. As the payment would be secured through the UU, I am satisfied that likely significant effects on the integrity of the SPAs and SAC would be avoided.

For these reasons, the proposal would not have an adverse effect on the SPAs and SAC. It would therefore comply with the Habitat Regulations and with [name] 47 which seeks to maintain the integrity of internationally designated sites.

Vehicular access to the site would be via [address] which is a private road. Whilst interested parties indicate that they own the private road and some boundary fencing, the appellant states that there is a right of way to the land within the appellant’s ownership. Notwithstanding that the existence of private rights of way are a civil matter, the site lies within the built-up area boundary of the town with bus stops within walking distance. As a consequence, future occupiers of the dwelling would not necessarily have to rely on the private car to reach local services and facilities in the town. I also saw on my site visit that on-street parking is available on [address]. Access to on-site parking for future occupiers of the dwelling would therefore not be essential to enable the development to proceed. The dwelling would be set back from [address] and as a consequence would not prevent access to the Valley Park from the cul-de-sac in the future if the appeal were allowed.

Whilst the proposal might result in a modest increase in vehicle movements along [address], the Council’s officer report concluded that there is good visibility onto the public highway. I also saw on my site visit that there is sufficient visibility at the junction of [address] and [address] to prevent harm being caused to highway safety.

The Arboricultural Impact Assessment and tree protection plan indicate that, provided the appropriate tree protection measures are adhered to, it is unlikely that there would be any direct adverse effects on the amenity of the trees along the northern site boundary. A tree protection barrier proposed within the site would provide a ‘construction exclusion zone’ within which any building operations would be supervised by an arboriculturist. Whilst the plans show a chimney, I have not been provided with any compelling evidence that the use of the chimney would cause harm to the trees. The Council has raised no concerns about the impact of the proposal on the trees and I have found no sound reason to come to a different

The proposed dwelling would be single storey and the distance between it and the neighbouring dwellings would be sufficient to prevent harm being caused to the living conditions of occupiers of the neighbouring dwellings as a result of loss of light or noise. The distance to the dwellings to the north and south of the site is sufficient to prevent harmful overlooking of the habitable rooms in those dwellings from the windows in the proposed dwelling. Whilst the swimming pool building located beyond the western boundary is largely obscure glazed, two clear glazed panels face towards the proposed hardstanding. The provision of appropriate boundary fencing would, however, prevent a loss of privacy to users of the pool. This could be secured by a planning condition if the appeal is allowed.

Although previous planning applications have been submitted for the development of the site, I am not aware of the full details of those proposals or the planning context in which they were considered. I have determined the appeal on its individual merits.

I have not been provided with any evidence that the proposal would result in an increased risk of flooding. Details of a foul and surface water drainage scheme together with a construction management plan could be secured by suitably worded planning conditions if the appeal is allowed. This would enable the Council to approve the proposed drainage arrangements and manage the construction of the development in the event that planning permission is granted.

The EDLP and ENP form the development plan for the area in which the site is located. [name] have not found conflict with [name] 47, the limited harm which I have identified would result in conflict with Strategy 6 and policies EN2 and D1 of the EDLP and policy EN2 of the ENP. The proposal would therefore conflict with the development plan when read as a whole.

The Council can only demonstrate 2.97 years supply of deliverable housing sites which is well below the minimum level required. The policies most important for determining the appeal identified above are therefore out of date for the purposes of the Framework. Consequently, with reference to paragraph 11 d) of the Framework, consideration of the presumption in favour of sustainable development is required.

Paragraph 232 of the Framework nevertheless states that due weight should be given to existing policies according to their degree of consistency with the Framework. The policies in the Framework require that planning decisions should be sympathetic to local character including the surrounding built environment and landscape setting. It also indicates that existing open space should not be built on unless specific criteria are met. Strategy 6 and policies EN2 and D1 of the EDLP and policy EN2 of the ENP are broadly consistent with these policies therefore conflict with them should be given substantial weight in this appeal.

The Framework highlights that small sites such as this can make an important contribution to meeting the housing requirement in the area and are often able to be built out relatively quickly. Taking into account the significant shortfall in the Council’s supply of deliverable housing sites, the benefit of an additional dwelling in a sustainable location therefore attracts substantial weight in favour of the proposal. There would also be moderate economic benefits during construction and from the spend by future occupiers on services in the local area.

Overall, the limited adverse impact of the proposal does not significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole having particular regard to key policies for directing development to sustainable locations. As a result, the presumption in favour of sustainable development applies to this appeal.

I have had regard to the conditions suggested by the Council and interested parties if the appeal is allowed. Conditions setting out the period for commencing the development and requiring that it be carried out in accordance with the approved plans are necessary to provide certainty. Whilst the plans indicate which building materials are proposed, it is also reasonable to require the submission of samples of them to ensure that they are compatible with the character and appearance of the area in accordance with EDLP policy D1.

It is also reasonable and necessary to impose a condition ensuring that the trees adjacent to the site of the proposed dwelling are suitably protected for the duration of the construction of the development in accordance with the submitted Tree Protection Plan. I have adjusted the suggested condition to make it more precise. The reference to the National Joint Utilities Group Guidelines by the Council has not been justified and their status is unclear. Therefore, it would be unreasonable to refer to the guidelines in a condition. It is, however, reasonable to impose conditions to require the submission and implementation of a detailed landscaping scheme in order to ensure that the development complements the open space to the east.

A condition requiring the submission of a construction management plan prior to the commencement of the development is reasonable to allow the Council to manage the construction of the development. I have adjusted the wording of the suggested condition to make it more precise. It is also reasonable and necessary to require the submission of foul and surface water drainage details. I have therefore imposed a condition requiring that these are submitted and approved by the Local Planning Authority prior to the commencement of the development. For the reasons already given, a condition to secure the provision of an appropriate boundary fence along the western site boundary is reasonable and necessary to protect the users of the adjoining swimming pool from a loss of privacy. A condition requiring a similar fence along the northern site boundary would not be necessary due to the intervening trees and shrubs along that boundary.

The proposed development would conflict with the development plan as a whole but material considerations, specifically the Framework, indicate that a decision should be made other than in accordance with it. For the reasons given above the appeal should be allowed.

The development hereby permitted shall be begun before the expiration of three years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the plans listed below: i. Location Plan ii. [name]. 985 [name] iii. Tree Protection Plan with AIA 05377 TPP 18.12.19

The development shall be carried out in accordance with the approved Tree Protection Plan with AIA 05377 TPP 18.12.19. The protective fencing shall remain in place until all works are completed and the development shall be carried out in accordance with the following restrictions: (a) No burning shall take place in a position where flames could extend to within 5m of any part of any tree or hedging to be retained. (b) No trenches for services or foul or surface water drainage shall be dug within the crown spreads of any retained trees (or within half the height of the trees, whichever is the greater) unless agreed in writing by the Local Planning Authority. (c) No changes in ground levels or excavations shall take place within the crown spreads of retained trees (or within half the height of the trees, whichever is the greater) unless agreed in writing by the Local Planning Authority. (d) No trees, shrubs or hedges within the site which are shown as being planted or retained on the approved plans shall be felled, uprooted, wilfully damaged or destroyed, cut back in any way or removed without the prior written consent of the Local Planning Authority. Any trees, shrubs or hedges removed without such consent, or which die or become severely damaged or seriously diseased within five years from the first occupation of the dwelling shall be replaced with trees, shrubs or hedge plants of similar size and species unless the Local Planning Authority gives written consent to any variation.

Prior to commencement of development a Construction Management Plan shall be submitted to and approved in writing by the Local Planning Authority. The Construction Management Plan shall include: (a) the timetable of the works; (b) proposed daily hours of construction; (c) any road closure; (d) proposed hours during which delivery and construction traffic will travel to and from the site, with such vehicular movements being restricted to between 8:00am and 6:00pm Mondays to Fridays inclusive and 8.00am to 1.00pm on Saturdays, and no such vehicular movements taking place on Sundays and Public Holidays unless agreed by the Local Planning Authority in advance; (e) the proposed number and sizes of vehicles visiting the site in connection with the development and the frequency of their visits; (f) the location of any compound where all building materials, finished or unfinished products, parts, crates, packing materials and waste will be stored during the construction phase; (g) areas on-site where delivery vehicles and construction traffic will load or unload building materials, finished or unfinished products, parts, crates, packing materials and waste with confirmation that no construction traffic or delivery vehicles will park on the highway for loading or unloading purposes, unless prior written agreement has been given by the Local Planning Authority; (h) hours during which no construction traffic will be present at the site; (i) the means of enclosure of the site during construction works; (j) details of proposals to promote car sharing amongst construction staff in order to limit construction staff vehicles parking off-site; (k) details of wheel washing facilities and their proposed use; (l) the proposed route of all construction traffic exceeding 7.5 tonnes; (m) details of the amount and location of construction worker parking; and (n) photographic evidence of the condition of the nearest section of the public highway prior to commencement of development. The construction of the development shall thereafter be carried out in accordance with the approved Construction Management Plan.

No development shall take place until a detailed foul and surface water drainage scheme for the site, based on sustainable drainage principles and an assessment of the hydrological and hydrogeological context of the development, has been submitted to and approved in writing by the Local Planning Authority. The submitted details shall: i) provide information about the design storm period and intensity, the method employed to delay and control the surface water discharged from the site and the measures taken to prevent pollution of the receiving groundwater and/or surface waters; ii) include a timetable for its implementation; and, iii) provide, a management and maintenance plan for the lifetime of the development which shall include the arrangements for adoption by any public authority or statutory undertaker and any other arrangements to secure the operation of the scheme throughout its lifetime. The development shall be carried out in accordance with the approved details. The foul and surface water drainage system shall be implemented in full prior to the occupation of the dwelling and thereafter be managed and maintained in accordance with the approved management and maintenance plan.

Notwithstanding the approved plans, no development above foundation level shall take place until samples of the materials to be used externally have been submitted to, and approved in writing by, the Local Planning Authority. The development shall be built in the materials approved.

Notwithstanding the approved plans, prior to occupation of the dwelling hereby approved a landscaping scheme shall have been submitted to and approved in writing by the Local Planning Authority; such a scheme to include the planting of trees, hedges, shrubs, herbaceous plants and details of areas of hardstanding. The scheme shall also give details of any proposed walls, gates, fences and other boundary treatment. The landscaping scheme shall be carried out in the first planting season after commencement of the development unless any alternative phasing of the landscaping is agreed in writing by the Local Planning Authority and the landscaping shall be maintained for a period of 5 years. Any trees or other plants which die during this period shall be replaced during the next planting season with specimens of the same size and species unless otherwise agreed in writing by the Local Planning Authority.

Prior to occupation of the dwelling hereby approved a 2 metre high fence shall be erected along the western boundary of the site in accordance with details to be submitted to and approved in writing by the Local Planning Authority. The approved fence shall thereafter be retained. END OF CONDITIONS