Appeal 6000820

The appeal is dismissed.

An application for costs was made by [name], the appellant, against the Council of the London Borough of Havering. This application is the subject of a separate decision.

The appellant advances the proposal on the basis that it would be a self-build development. As such, the proposal would be exempt from the requirement to deliver at least 10% increase in biodiversity value relative to the sites pre-development biodiversity value, the statutory biodiversity net gain.

I sought the views of the appellant and of the Council on matters surrounding the mechanism to secure the proposed dwelling as a self-build property, and the associated exemption from delivering the mandatory net gain as a result. The need for a planning obligation to secure the proposal as self-build development, and therefore exempt from the mandatory net gain, has not been disputed.

The matter of securing the proposal as a self-build dwelling, and the validity of the exemption from the mandatory BNG, did not constitute a reason for the Council to refuse the planning application. However, given that BNG is a matter subject to a statutory framework, the proposal’s degree of compliance with it is an important planning consideration and a substantive matter in the appeal.

The main issues are therefore: • Whether the proposal qualifies as an exception from the mandatory [name] (BNG) and, if not, the implications of this; • The effect of the proposal on the character and appearance of the area; and • The effect of the proposal on the living conditions of the neighbouring occupiers with specific regard to outlook.

The appellant has provided a [name] (UU), which remains unsigned at the time of my decision. I therefore cannot be certain that it would ensure that the proposal would be delivered as self-build.

I have considered whether, in the event that I were to allow the appeal, a planning condition would be capable of securing the proposal as a self-build dwelling. However, I have not been provided with sufficiently compelling evidence to show that a condition of this nature would meet the tests set out within the National Planning Policy Framework (NPPF).

I have also considered whether, in the absence of either a signed planning obligation or condition to secure the proposal as a self-build dwelling, the biodiversity gain condition could be imposed. However, I have not been provided with the minimum information as set out in Article 7 of The Town and Country Planning (Development Management Procedure) (England) Order 2015, which would allow me to impose the condition.

Accordingly, in the absence of a signed and completed planning obligation, the proposal cannot be secured as a self-build dwelling, and therefore does not meet the exemption requirements for providing BNG, which is a statutory requirement. It therefore is in conflict with paragraph 193 d) of the NPPF which advocates that developments provide for biodiversity net gains.

[site address] is lined with terraced dwellings which are highly similar in their scale, massing and design. They are set behind a small front garden with a consistent building line which follows the curve of the road. The boundary of the long gardens of the dwellings on [address] abut [site address] , creating a sense of openness above the fence line. This feature is common throughout the area, and is one of the few views which show the length of the plots in the area. This pattern of development contributes positively to the character and appearance of the area.

The appeal site is a fenced parcel of land that sits at the end of the gardens of 73 and [address]. As such, the depth of the plot is limited compared to neighbouring properties. The dwelling would be sited in the corner of the plot, near to 2 [site address] , with the rear elevation sitting very near to the rear boundary which is shared with [address]. Owing to its position within the plot, the main garden space would be to the side of the dwelling.

The plot would be different to the surrounding pattern of development, having a wider frontage and limited depth. The comparative width of the plot would be noticeable within the street scene, given that the surrounding terraced dwellings fill the entire width of their narrow plots. However, the length of the plots on [site address] is not easily visible within the street scene owing to the tight building density of the terraced dwellings. The appeal site would be positioned at the end of the row on terraced dwellings. Despite the obvious departure from the proportions of surrounding plots, the existing long and narrow plot sizes on [site address] would be retained and the appeal site would not detract from their contribution to the character and appearance of the area. In this regard, despite being different, the proposal would not be at odds with the surrounding pattern of development.

The distance between [address] and 2 [site address] provides a sense of openness above the boundary fence. The introduction of a new dwelling near to the boundary of No 2 would retain a fair distance between No 73 and the appeal site. As such, although the proposal would result in reduction of openness, it would retain the spacious character of the rear garden setting of the dwellings fronting [address]. It also follows that the proposed position near to the boundary of No 2 would help the dwelling to assimilate with the existing terraced dwellings adjacent, mirroring the existing gaps between the rows of terraces on [site address] .

The proposal would have a similar building line to the terraced properties adjacent while following the curve of the road. Given the limited depth of the plot, to achieve a largely cohesive building line, the proposal would be positioned near to the shared boundary with [address]. Although this would be different to the existing pattern of development, the relative position of the dwelling within the plot would be unlikely to be detected from within the street scene. The position of the dwelling would therefore not appear to be cramped within its plot, and the consistent building line would be in accordance with the prevailing character and appearance of the area.

The terraced dwellings on [site address] share consistent features including a projecting bay window. The design of the proposed dwelling would include a bay window which would echo the existing rhythm of the street scene. The dwelling would have a hipped roof which would have a similar eaves height to the adjacent terraced properties. Despite the increased width of the dwelling and slightly lower ridge height, the shared features would help to unify the proposal with the existing street scene.

My attention has been drawn to previous dismissed appeal decisions of a similar nature on this site, to which I have had regard. The full details of appeal ref APP/B5480/W/15/3134966 have not been provided in the evidence and so it is not possible to make direct comparisons between that scheme and the proposal which is before me in the current appeal. As such, I can only attribute limited weight to my colleague’s findings. In any event, I have determined the current appeal on its own merits and the evidence presented in this case.

However, I have been provided with details of dismissed appeal ref APP/B5480/W/21/3277027 on the same site. This differs from the proposal before me in so far as the Inspector noted that it had a lower eaves line and was smaller and wider than any other house in the street. As identified above, although the current appeal proposal would be wider than others on the street, it would share common features with the adjacent terraced properties which would assimilate the proposal into the street scene. me, I am therefore satisfied that the circumstances of this previously dismissed appeal are materially different from those of the current appeal.

An appeal decision for a similar scheme at [address] has been provided to me (appeal ref APP/B5480/W/15/3004368). The proposal at No 44 shares similarities with the appeal before me with a similar plot size and layout at the end of gardens, together with its in keeping design within its own street scene. While the similarities are noted, the sites are not identical. I have considered the current appeal on its own merits.

Given my findings above, the provision of a detached dwelling on a compact plot which echoes the design and detailing of the surrounding terraced properties would be consistent with the character and appearance of the area. The proposed development would not be cramped, contrived or discordant within the plot or the wider street scene, as alleged by the Council. As such, the proposal would be in accordance with Policies 7 and 26 of the Havering Local Plan 2016-2031 (Local Plan) which collectively seek to ensure that developments are of a high quality design that are informed by, respect, and complement the distinctive qualities and character of the local area.

The existing separation distance between 2 [site address] and 73, 75 and [address] is considerable, given the length of the gardens together with the length of the unoccupied appeal site. The proposed dwelling would introduce a tall flank elevation which would be nearer to the dwellings on [address]. However, the siting of the proposal near to the boundary of No 2 would maximise the distance, limiting the impact of the proposal on the dwellings on [address]. Given the distance between Nos 73-77 and the flank elevation of the proposal, the proposal would not have an overbearing impact on the occupants of Nos 73-77.

Owing to the depth of the plot, the rear elevation of the proposal would not project as far as the stepped rear elevation of No 2. Although the proposal would introduce built development near to the boundary, the distance between the garden space of No 2 and the rear elevation of the proposed dwelling would be such that it would maintain an acceptable outlook.

I have regard to my colleagues’ previous appeal decision on the site (ref APP/B5480/W/21/3277027), where no harm was found in relation to the living conditions of the neighbouring occupiers. The appeal proposal before me differs from that of the previous appeal decision, in so far as the alignment of the dwelling is against the rear boundary, and the eaves and ridge height have been marginally increased. However, for the reasons set out above, this would not result in harm.

The proposal would not result in harm to the living conditions of the neighbouring occupiers. Accordingly, the proposal would comply with Policies 7, 10 and 26 of the Local Plan, which collectively seek to ensure that development does not have a significant adverse impact on the living conditions of existing and new occupants.

The appellant contends that the proposal would provide a number of benefits, to which I have had regard. The proposal would provide a dwelling that exceeds space standards with a practical and comfortable living environment. It would provide a 2-bedroom dwelling suitable for smaller householders which could be delivered without delay. I find that these matters have limited positive weight.

The appellant also advances the benefits of the proposal in so far as it would protect the living conditions of neighbouring occupiers with regards to light, outlook, privacy and noise, as well as respecting the character of neighbouring properties. [name] have concluded that the proposal would not harm the character and appearance of the area, nor would it harm the living conditions of neighbouring occupiers, these are not considered as benefits of the proposal and therefore weigh neutrally.

The Council says that it cannot demonstrate a deliverable 5-year supply of housing land. As such, paragraph 11 d) of the NPPF applies. The application of paragraph 11 d) requires me to consider whether the adverse impacts of permitting the development would significantly and demonstrably outweigh the benefits when assessing against the NPPF’s policies as a whole.

I am informed that the housing delivery test result for 2022 was 61% and there is little to suggest that the situation has improved since that time. The proposed development would boost housing supply. It would provide a 2-bedroom dwelling suitable for smaller households, which could come forward on a deliverable site without delay. It is in an established suburban area and appears to be in an accessible location. Although the contribution to the housing supply would only be modest, given Havering’s housing position, it would be valuable. I therefore attribute a good deal of weight to it as a benefit.

I have not identified any conflict with policies within the Local Plan, and I have concluded that the proposal would not harm either the character and appearance of the area, or the living conditions of the neighbouring occupiers. I have set out other benefits of the proposal in my other matters, which collectively would be limited.

However, I have identified that the proposal does not meet the exemption requirements for providing mandatory biodiversity net gain, owing to an absence of a completed planning obligation which would secure the proposal as a self-build dwelling. As such, I have identified conflict with Paragraph 193 d) of the NPPF as a result. The proposal’s position in respect to the statutory biodiversity net gain framework is a factor which weighs very substantially against the appeal proposal.

Given the heavy weighting I have applied to the proposal’s situation with respect to biodiversity, and that the provision of BNG is a statutory requirement, the adverse impacts of granting planning permission in this case would significantly and demonstrably outweigh the benefits which would stem from the proposal’s contribution to housing supply. Therefore, the proposal does not benefit from the presumption in favour of sustainable development.

The proposal conflicts with the NPPF as a whole, and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Therefore, I conclude that the appeal should be dismissed.