Appeal 6000991

The appeal is dismissed.

While the application form describes the proposal as a two‐bed self‐contained dwelling, the planning statement, submitted drawings and the Council’s decision all refer to a one‐bed unit. I have therefore determined the appeal on that basis.

On the information before me, new residential development in the proposed location would increase nitrogen and phosphorus entering the Solent Special Protection Areas (‘SPAs’), where such inputs are already contributing to eutrophication. As a result, nutrient‐mitigation measures are required to offset any additional loading from the proposal.

Although nutrient neutrality was not a reason for refusal, I have consulted the main parties on this matter. Based on the responses received, and given the statutory context, I have elevated this to a main issue in the appeal.

Accordingly, the main issues are: i) The effect of the proposal on the character and appearance of the area; ii) The effect of the proposal on the living conditions of the occupiers of the development, and iii) Whether the development would be likely to have a significant effect on the integrity of the [name].

The appeal relates to land to the south, and in front, of [site address] (‘No. 20’), a large two‐storey detached dwelling situated on higher ground relative to the appeal site.

The appeal site comprises an open frontage and contains a substantial detached garage constructed in brick with a tiled hipped roof. Two rooflights are positioned within the east and west roof slopes. A garage door and windows are located on the eastern elevation, with a pedestrian door on the southern elevation.

The proposal seeks to convert the detached garage into a one‐bedroom dwelling. The ground floor would provide an open‐plan kitchen and living area with a utility room, while the first floor, within the roof space, would accommodate a bedroom with an ensuite, together with a study and a WC.

On the north side of [address], both bungalows and houses are generally positioned centrally within their plots, with parking and garden areas to the frontage. Front elevations typically face the highway, and some properties incorporate outbuildings along their front boundaries. The appeal site reflects this pattern in relation to No. 20.

The proposal would introduce an uncharacteristic tandem arrangement, with a dwelling positioned forward of an existing one.

Nevertheless, the Council’s concern regarding development within front gardens carries limited weight in this case. An existing boundary fence already separates the appeal site from No. 20, which itself benefits from an unusually large frontage. The garage and associated hardstanding are already in situ, having been previously permitted and constructed. The proposal would therefore not introduce new built form into an undeveloped space but would involve the conversion of an existing structure that already forms a prominent feature within the street scene.

The external works required, including replacing the garage door with patio doors, erecting a set‐back fence to enclose the proposed garden, and reinstating a lower frontage wall with gates, are modest in scale and would not materially alter the building’s form or its visual relationship with surrounding properties. The new garden fence could, in any event, be erected under permitted development rights, and the proposed wall would be lower than the structure previously removed. The area between this boundary and the garden fence would be used for parking, but such activity already forms part of the established pattern of use on the site and would be largely screened by the boundary treatment. As such, the parking arrangement and associated works would not materially change the appearance of the frontage or introduce unacceptable visual intrusion.

Overall, given the existing context, any visual impact of the development on the street scene would be limited. However, if I were minded to allow the appeal, a condition requiring the submission and implementation of a modest landscaping scheme would be appropriate to soften the appearance of the new garden fence and ensure that this boundary treatment assimilates with the surrounding street scene.

Although the resulting plot arrangement would differ from the prevailing pattern, the neighbouring property at [address] (No. 1) demonstrates that a similarly sized plot, with a comparable footprint and relationship to the street, already exists nearby. The single‐storey scale of the existing garage would also provide a gentle transition between the double garage at [address] and the two‐storey dwelling at No. 1, thereby softening the building line rather than disrupting it.

The Council’s Design Supplementary Planning Document refers to a general guideline of 10.5 m for rear garden depth, but this is not an absolute requirement and must be applied with regard to context. The proposed garden would have a depth of about 11.1 m and a usable area of approximately 103 sqm. This would be sufficient to meet the needs of a one‐bedroom dwelling and would sit comfortably within the established plot structure without appearing cramped or contrived.

Taken together, these factors lead me to conclude that, although the arrangement would be atypical and the creation of a separate dwelling in this position would be unusual within the immediate context, the evidence before me indicates that the proposal would not result in harm to the character or appearance of the area.

I, therefore, find no conflict with Policy LP10 of the Gosport Borough Local Plan 2011–2029 (‘LP’) which seeks to ensure that development respects the character and appearance of the area and maintains an appropriate relationship with surrounding properties.

Although the proposal would introduce a dwelling adjacent to the access and parking area serving No. 20, the elevation of the proposed dwelling facing the driveway contains no openings. As such, there would be no direct overlooking or loss of privacy arising from vehicle movements or activity within this area.

Comings and goings associated with the use of the driveway would continue, but these would be modest in nature given that No. 20 is a single dwelling. Such activity is typical within residential environments and would not, in itself, result in undue noise or disturbance. Any effects would therefore remain limited and comparable to those commonly experienced between neighbouring properties.

Accordingly, I am not persuaded that the relationship between the driveway and the proposed dwelling would diminish the living conditions of future occupiers. I, therefore, find no conflict with Policy LP10 of the LP, which seeks to ensure that development is well‐designed, appropriately sited, and maintains a satisfactory relationship with surrounding properties.

As already noted, the development would lead to additional nutrient loading within the [name]. A completed Natural England nutrient budget calculator was submitted with the application, and the Council has indicated that mitigation could be secured by condition, referring both to its suggested pre‐occupation condition and to another appeal decision in the Borough where such an approach was said to have been accepted. However, no details of that case have been provided.

As the appeal site lies within the catchment of a designated European site affected by nutrient enrichment, the proposal triggers the need for an Appropriate Assessment under the Conservation of Habitats and Species Regulations 2017 (‘the Habitats Regulations’). The proposed dwelling would increase wastewater loading and therefore has the potential to increase nutrient inputs to the protected site. Under Regulation 63 of the Habitats Regulations, as the competent authority, I must be certain, beyond reasonable scientific doubt, that the proposal would not adversely affect the integrity of the designated site, either alone or in combination with other plans or projects.

Although the appellants have explored local mitigation schemes and expressed a willingness to secure nutrient‐neutrality mitigation, the Habitats Regulations require that such mitigation is secured and deliverable before planning permission is granted. A condition requiring mitigation to be identified or secured at a later stage, including a pre‐occupation condition, cannot satisfy this requirement, as it would defer the necessary certainty until after permission is issued.

Therefore, mitigation cannot be left to a future stage where uncertainty remains regarding its availability, adequacy, or deliverability. Granting permission subject to a pre‐occupation condition would allow development to proceed without first establishing that mitigation exists, is secured, and is capable of preventing adverse effects on the protected site. This would conflict with the precautionary principle embedded in the Habitats Regulations. While some authorities have used such conditions, this practice does not align with the legal requirements of Regulation 63 or the level of certainty required by the courts.

To lawfully conclude an Appropriate Assessment, mitigation must be fully secured before permission is granted to ensure that it is deliverable, enforceable and directly linked to the development. As no mitigation package has been provided, the proposal fails to demonstrate nutrient neutrality. In these circumstances, I cannot, as the competent authority, exclude adverse effects on the integrity of the designated site. As such, this is a significant shortcoming. The proposal therefore conflicts with LP Policy LP42, which requires development to avoid adverse impacts on internationally designated sites and reflects the statutory duties under the Habitats Regulations.

The absence of secured mitigation also brings the proposal into conflict with the National Planning Policy Framework (‘the Framework’) which requires that development affecting habitats sites proceeds only where it can be demonstrated that no harm will arise. In reaching my findings, I have had due regard to the advice submitted by Natural England in respect of the proposal.

I have had regard to the concerns raised by the occupiers of No. 1. This neighbouring property includes first‐floor rear‐facing windows, likely serving bedrooms, which look towards the appeal site. However, the elevation of the proposed dwelling facing No. 1 is single storey, and the proposed patio doors and ground‐floor windows would mainly serve living areas typically used during daytime hours. Combined with the intervening boundary treatment and the relative height difference between the properties, opportunities for direct overlooking or intrusive views would be limited. Any perception of mutual overlooking would therefore be minimal and would not result in material harm to the living conditions of neighbours.

The day‐to‐day comings and goings associated with a single one‐bedroom dwelling are likely to be modest, and there is no substantive evidence before me to suggest that its occupation, including the keeping of domestic pets typical of a small residential property and use of the garden would give rise to noise or activity beyond that ordinarily expected within a residential environment. Consequently, I am satisfied that the proposal would not result in harm to the living conditions of the occupiers of No. 1.

I have taken account of the appellants concerns regarding the way in which the Council, including its committee, determined the application. However, the decision‐making process at the local level is a matter for the Council.

The Council cannot demonstrate a five‐year supply of deliverable housing sites. Ordinarily, this would engage Paragraph 11(d) of the Framework. However, in this case the Framework’s policies relating to designated habitats sites provide a strong reason for refusing the proposal. As such, the presumption in favour of sustainable development does not apply.

Nevertheless, I recognise that the proposal would contribute an additional dwelling to the local housing stock with some associated benefits. In a context where the authority is unable to demonstrate that it can meet its identified housing requirements, this carries weight in favour of the scheme. Even so, because the proposal relates to a single dwelling, this attracts limited weight.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that decisions be made in accordance with the development plan unless material considerations indicate otherwise.

Based on my findings on the main issues, the proposal would not harm the character and appearance of the area or the living conditions of future occupiers.

However, the scheme fails to secure nutrient neutrality. As already stated, this represents a significant shortcoming, and the resulting conflict with the development plan and the Framework attracts substantial weight.

Having taken account of the other considerations in support of the proposal, to which I attach limited weight, I do not consider these to be sufficiently compelling to outweigh the identified harm or the conflict with the development plan. In this case, material considerations do not justify a decision other than in accordance with the development plan taken as a whole.

For the above reasons, I conclude that the appeal should be dismissed.