Appeal 6000961

The appeal is dismissed.

An application for costs was made by [name] against Exeter City Council. That application is the subject of a different decision.

The appeal site is located within a conservation area. In making my determination I have been mindful of the statutory requirements placed upon decision-makers by section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended) (the Act).

Several revised and new drawings have been submitted with the appeal documentation. These include photo montage visualisations, street elevation drawings, a footprint area comparison drawing, elevation drawings and a landscape plan. It is not clear from the evidence, whether the Council has re-consulted on these revised drawings. Even so, it is apparent that the revised and new drawings do not materially evolve the scheme, when compared to that determined by the Council at application stage. For the avoidance of doubt, I shall consider these revised/new plans for information purposes. I am content that no party with a potential interest in the outcome of the appeal, is prejudiced by me taking this approach.

The main issue is whether, or not, the development proposal would preserve or enhance the character or appearance of the St Leonards Conservation Area (CA).

The appeal site is one of a group of six bungalows at the junction of [address] and [address], constructed in the 1960’s on the plot of a former property known as ‘[address]’ and referred to locally as the [name]. The properties are within central sub-area 1 of the CA, though are described in the CA appraisal and management plan, as buildings which do not make a positive contribution to the character and appearance of the CA.

Insofar as it relates to this appeal, the CA, which includes 123 listed buildings and 23 locally listed buildings, derives its significance from its concentration of high quality C19 and early C20 historic buildings, the importance of historic routes through the area, which date back to Roman times, and the development of the area as a C19 leafy suburb of the City.

The existing property is a detached mid-century bungalow, finished primarily in red brick with an isolated painted render detail around its primary window. It has a pitched and gabled roof, finished in profiled concrete tiles, with a shallow pitched roof garage, which is semi-detached with a garage to the adjacent property, and which sits in front of the property’s principal elevation. The front garden of the property has been almost fully surfaced to provide a parking forecourt, resulting in the property being highly visible from the highway. However, the mix of mature evergreen and deciduous trees and major shrubs, opposite the site and in the immediate surrounding area, gives a mature, green, verdant character to the area.

Whilst the six properties which form the [name] are noted as not making a positive contribution to the CA, they do share a common pattern of development and palette of materials, which form a coherent grouping at the junction of [address] and [address].

The proposal would replace the existing dwelling with a bungalow with rooms in the roof space, akin to two-storey development. The walls to the front and rear elevations would be red brick, whilst most of the side elevations would be finished in painted render. The roof would be a dark grey coloured metal standing seam finish, with several roof windows of varying size, together with integrated solar panels between the standing seams on the road facing roof slope. An integrated box gutter system is proposed, flush with the external face of the wall, which has the effect of raising the visual height of the wall in the principal elevation.

The roof which fronts the highway would be a crown topped gable. Whilst the ridge height of the existing roof is proposed to be maintained in the proposal, the flat roof lights proposed on the crown sections of roofs, would project above this height, breaking the ridge line and being indicative of a mass of development behind the frontage. To the rear of the proposal, there would be a large mass created by a mix of development, in part rising to the same ridge line. This development, where rising to the ridge line, would be pitched to each side elevation, but with a further dual slope crown roof to the centre with flat roof lights within the crown roofs.

The visual size of the principal elevation to [address] would be marginally larger than that of the existing dwelling. However, the overall mass of development would be significantly greater than the existing, due to the significant increase in the depth of the proposed property. The rear of the proposal would project several metres beyond the line of the rear elevations of adjacent properties, even allowing for the enlargement of the adjacent property at No 4. [address]. Whilst evidence regarding the daylight and sunlight effects to adjacent properties, confirms this has negligible harmful effect, because of the increased mass and the materials chosen, the proposal would be prominent in views from the rear of properties within the CA on [address], and which are located at higher relative ground levels.

The proposal would introduce a discordant element within this particular grouping of properties, and therefore within the street scene, primarily due to the combination of the crown top roof format, the roof lights breaking the roof line and the selection of materials, particularly to the roof. The increased mass of the proposal would be visible from the public realm, through the gapping between adjacent properties, which would also be affected by the increased mass of the proposal. Whilst the render to the side gables of the proposal would also be prominent, were I minded to allow the appeal, I acknowledge this is something that could be addressed by a suitably worded materials condition, which would reflect the potential revised elevation drawings submitted at appeal.

There are several examples of more contemporary design within the CA. However, these tend to be on plots where there is both more space between adjacent properties, with wider variation in their architectural language, thus allowing more scope for individual design within the plot. By contrast, the appeal site is a constrained plot, located closely between two very similar properties, such that the introduction of more contemporary design and materials to one plot, would act to further diminish the already somewhat modest contribution that the group cumulatively makes to the CA.

For the above reasons, I conclude that the proposal would fail to preserve or enhance the character or appearance of the CA. It therefore harms its significance as a designated heritage asset. Paragraph 212 of the National Planning Policy Framework (the Framework) advises that when considering the impact of development on the significance of designated heritage assets, great weight should be given to their conservation.

[name] have found harm to the CA, I would assess this as being less than substantial harm for the purposes of the Framework, with the level of harm being at the lower end of this category. Paragraph 215 of the Framework requires this harm to be weighed against any public benefits of the development. The development would provide economic benefit during construction, further economic benefit from long term occupation of the dwelling, and there would be environmental benefits from the creation of an energy efficient home, and the provision of new planting to encourage biodiversity.

However, the economic benefits from construction are for a limited timescale, they therefore carry limited weight. Similarly, the proposal is a replacement dwelling, and so there would be no net gain in the number of residential dwellings and therefore no noticeable net gain in long term economic benefits from occupants above that which currently exists. Whilst a new build property would be energy efficient, and some potential to encourage biodiversity would exist, such benefits would also carry limited weight, as the effects of demolition and replacement of existing built structure has embedded carbon implications. I have no convincing evidence otherwise of public benefits that would outweigh the harm I have found to the CA which would result from the appeal development.

Having regard to my duties under the Act, I conclude that the appeal development would fail to preserve the character or appearance of the CA as a designated

It follows therefore that I find the appeal proposal to be contrary to Objectives 8 and 9 and Policy CP17 of the Exeter City Council Core Strategy (2012), and saved Policies C1 and DG1 of the Exeter Local Plan First Review (2005), and policies in the Framework which, amongst other things, require that proposals are of a high standard of design that relate well to the character or appearance of the area and that pay special attention to the desirability of preserving or enhancing the character or appearance of the Conservation Area.

The application is for the development of a self-build/custom-build dwelling. Accordingly, it would benefit from an exemption to the statutory requirements of the Environment Act (2021) (the EA), to deliver a mandatory biodiversity net gain of at least 10%. However, it is essential that the self-build/custom-build form of development is secured. The appellant has not submitted a completed deed of [name] under s106 of the Town and Country Planning Act 1990, which would be required, were the appeal to be allowed, to secure the self-build/custom-build use. However, as I have found the proposal to be contrary to the development plan, it has not been necessary to go back to the main parties in this regard.

My attention has been drawn to a potential fallback position1 which the appellant considers they could enact, and which they consider would be more harmful than the appeal proposal, were the appeal to be dismissed. This position is supported by two applications made to the Council for a Certificate of Lawfulness of [name] or Development (CLOPUD).

It is not within my remit within an appeal under section 78 of the Town and Country Planning Act 1990 (as amended), to determine the legality, or otherwise of CLOPUD proposals, these are matters for resolution under CLOPUD applications to the Council, for determination against the Town and Country Planning (General Permitted Development) (England) Order 2015.

Having examined the evidence, the appellant has a CLOPUD2 decision which confirms on 21 November 2023 the proposed operations, as being lawful within the meaning of Section 192 of the Town and Country Planning Act 1990 (as amended) (the TCPA). There is no ambiguity within this, and therefore in line with caselaw3 it is a material consideration to be taken account of within the determination of an application and therefore, an appeal. However, whilst the CLOPUD decision notice and officer report has been provided, I do not have all the accompanying drawings that would allow me to fully assess the CLOPUD development against the appeal proposal. The appellant considers the fallback scheme included with the appeal is broadly similar, though the Council consider it to have differences.

A further CLOPUD4 was submitted by the appellant, the Council determining that on 14 August 2024 the operations described were not lawful, within the meaning of 1 As depicted on drawing P006.202 Rev P0 2 23/1414/LPD 3 Mansell v Tonbridge and Malling Borough Council & others (2017) [name] 1314 4 24/09333/LPD Section 192 of the TCPA. [name] is the subject of a yet undetermined appeal5. This second CLOPUD is considered by the Council to be closer in scope to the fallback proposal in the appeal.

With regards to caselaw6 I acknowledge more than a merely theoretical prospect of a fallback scheme occurring, which is sufficient to make the position a material consideration in this appeal. It is, therefore, necessary for me to examine the fallback scheme in comparison to the appeal proposal and assess the weight that it should be given in the determination of this appeal.

Having examined the fallback scheme proposal included with the appeal documentation, I make no comment in relation to its lawfulness. However, there are elements, such as the porches to the principal elevation, that do not replicate the type of accommodation being proposed in the appeal proposal, which to some degree, limits the direct relevance of such elements to my deliberations.

The fallback scheme would not result in any appreciable increase of visible mass from the public realm. It would retain the material palette of the existing and involve the introduction of windows within the roof slope facing [address]. However, these windows would be consistent with the adjacent property at No 4 and therefore would assimilate with the street scene. The rear extensions of the fallback scheme would not be visible from the public realm and would be of lesser massing when compared to rear elements of the proposal before me for determination.

For the above reasons, even if buildings were constructed to the full limit of any applicable permitted development rights, any built form would, by its nature, remain ancillary or incidental in form to the existing dwelling, and the height and massing of any rear extensions would be limited. Consequently, when considered in the context of the effects of the appeal scheme, I find the suggested fallback position to carry limited weight in the determination of the appeal.

The appeal site is located within the 10km zone of the River Exe Estuary Special Protection Area (SPA), and the East Devon Pebblebed Heaths Site of Special Scientific Interest (SSSI), SPA and Special Area of Conservation (SAC). These are designated [name], recognised for their National and International importance for nature conservation. They host protected priority habitats and species including Slavonian grebe, Dark-bellied brent goose, Eurasian oystercatcher, Pied avocet, Grey plover, Black-tailed godwit, Dunlin and Southern damselfly, together with other typical species of wetland, mudflat, sandflats and coastal lagoons, as well as [name] wet heaths with Erica tetralix, Wet heathland with cross-leaved heath and European dry heath areas.

Evidence shows that these protected [name] are under significant pressure from an increasing number of people living nearby. As the population grows, urbanisation and increased visitor number effects from human pressures and damage caused by domestic pets have the potential to cause ongoing adverse effects on the protected habitats and species.

Exeter City Council, together with [name] and Teignbridge Council’s and with advice and agreement from Natural England (NE), have prepared the [name] 5 APP/Y1110/X/25/3361520 6 Schneck v SSHCLG & [name] [2022] EWHC 3335 (Admin) [name] – [name] 2025-2030 (the JHSMS). This document sets out a strategy for avoidance and mitigation of impacts of new residential development upon [name], through a financial contribution from developers for either Suitable Alternative Natural Greenspace (SANG) or [name] and Monitoring (SAMM) mitigation schemes in the area.

However, the JHSMS only requires a contribution from developers where the proposed development would result in a net increase in the number of units. As the proposal would involve the demolition and replacement of a dwelling, it would not result in an increase in the total numbers of units. It would therefore not trigger the requirements of the JHSMS, or the need for an appropriate assessment on the basis of no likely significant effect on designated [name], either alone or in combination with other plans and projects.

The Council have a current published housing land supply of 4.26 years. Accordingly, paragraph 11(d) of the Framework is engaged for decision making purposes. However, I have identified harm to a designated heritage asset that would not be outweighed by the scheme’s public benefits. In such circumstances footnote 7 of the Framework indicates, that a strong reason for refusing the development is provided. Therefore, the presumption in favour of sustainable development set out in paragraph 11(d)(ii) does not apply in this case.

I have already found the proposal would harm the CA. A replacement dwelling would not result in a net gain in the number of residential units. Accordingly, there are limited public benefits arising from the scheme, that would be insufficient to outweigh the great weight, fairly apportionable, to the less than substantial harm that would be caused to the significance of the CA. Consequently, I have also found that the proposal would conflict with the Local Plan policies in these regards.

The Local Plan is well in excess of five years old. However, given that the policies with which I find conflict are consistent with the achieving well-designed places and historic environment conservation and enhancement policies of the Framework, I afford full weight to the development plan policy conflicts that I have identified.

For the reasons set out above, I conclude that the appeal development would be contrary to the development plan, read as a whole, and that there are no material considerations, including policies in the Framework, that would justify determining other than in accordance with it. Therefore, the appeal should be dismissed.