Appeal 6001050

The appeal is dismissed.

An application for costs was made by [name] and [name] and Stevens against East Lindsey District Council. This application is the subject of a separate Decision.

The main issues are: • Whether the proposal would be in an appropriate location having regard to flooding; • Whether the proposed houses provide appropriate living conditions for future residents; and • The effect of the proposal on protected trees.

There is no dispute that the proposed two houses would be acceptable in Grainthorpe, classed as a large village in the settlement hierarchy in the spatial strategy in the East Lindsey Local Plan Core Strategy 2018 (the Local Plan), as well as an acceptable location for self-build dwellings. However, the appeal site is within [name] 3 and the coastal hazard zone designated by the Council.

Policy SP18 of the Local Plan supports housing in the coastal area that already has planning permission, is on a brownfield site or supports affordable housing and specialised forms of housing for vulnerable or minority groups provided there is an evidenced local need. None of these relates to the proposal which is for two self-build units on a greenfield site in the coastal area.

Given the location in [name] 3 the National Planning Policy Framework (the Framework) requires that a sequential risk based approach be undertaken so that new development is steered to areas subject to the lowest risk of flooding from any source.

Bearing in mind advice within the Planning Policy Guidance (PPG) regarding development to sustain existing communities in large areas of [name] 3, the Council is satisfied that the proposal would meet the sequential test and that there are no sites available in the local area that would be at less flood risk. I see no reason to disagree.

As the proposal would lead to more vulnerable development in [name] 3 then it would also need to pass both parts of the exception test. It would comply with the standing advice from the Environment Agency regarding finished floor levels which goes some way to ensuring that the proposal would be safe for its lifetime. However, details relating to flood resilient construction details are missing, but could realistically be the subject of a condition should I be minded to allow the appeal.

The other part of the exception test requires that the development provides wider sustainability benefits to the community that outweighs the risks. The PPG provides guidance on what constitutes such benefits, none of which apply to the proposal. This is not a closed list, and I understand the proposal would contribute two dwellings towards the housing land supply at a time when the Council is unable to demonstrate a housing land supply. However, this is not sufficient on its own, nor is there any compelling evidence before me to suggest that there would be wider sustainability benefits to the community and therefore the exception test is failed. In this instance the PPG advises planning permission should be refused.

Although the proposal is for two self-build units, there is nothing before me such as a S106 agreement to secure them as such. Imposing a condition requiring that the houses be occupied by those who built them would unlikely be reasonable or enforceable and therefore not meet the tests set out in paragraph 57of the Framework.

For the reasons above, I conclude that the proposal would not be in an appropriate location having regard to flooding. It would be contrary to the requirements of the Framework and PPG in this respect.

Along the front and rear of the appeal site are a number of trees. The plan associated with the [name] 1 Tree Preservation Order 1987 shows an area of three trees which traverses the boundary of the neighbouring property Dornbirn. They are identified as a Sycamore, Ash and [name]. Although the appellant’s [name] 2022 (the AR) identifies the quality of each tree, it does not identify species and therefore it is difficult to ascertain which trees are covered by the TPO, and certainly not all along the rear boundary are. Nevertheless, all the trees are large and provide a substantial tree screen which, together with those on the frontage of the site contribute to the verdant nature of the area which is mainly characterised by larger houses set back from the road, behind front gardens which are well planted with trees, shrubs and hedges.

The houses would be set back from the road and would be relatively large with principal windows on the front and rear elevations facing out to the trees. It is evident, both from my site visit and the proposed site plan that the canopy of the trees would cover some of the front and most of the rear gardens of the properties. Consequently, the outlook from rear windows and the private rear space, particularly within the summer when people are more likely to utilise the areas, are likely to be dark and oppressive. Furthermore, I noted that the canopy of at least two of the trees to the rear would be likely to be within touching distance of the houses.

While people would be aware of the limitations when moving in, there would be nothing to stop the trees not subject to the TPO from being felled or severely trimmed back in order to make a usable garden space. Even those the subject of the TPO would be vulnerable to change. Many of these have been assessed as being [name] or B trees which are trees of high or moderate quality with 40-20 years expectancy, respectively. They would therefore be capable of growing much larger in their current unrestricted state. Their loss or severe pruning to allow a meaningful rear garden space would have a considerably harmful effect on the character and appearance of the area. Tree size can be controlled through correct arboricultural management. However given the proximity of the trees to the house it is my view that there may be pressure for their complete removal.

Trees T16 and T17 have been categorised as [name] which are of low quality with about a 10 year expectancy. I would agree and it is likely these trees could be removed should development go ahead as recommended in the AR. However trees T13, T14 and T15 are [name] and should be retained but would be subject to pressure from occupiers of the house to the north west of the appeal site.

The AR concludes that trees can tolerate a certain amount of changes in the rooting environment and with careful consideration to below ground constraints and above ground constraints from the size and location of the trees the author is confident the site could be developed without an adverse impact on the trees. I would agree. However, the proposed siting of the house to the north west of the appeal site has not given careful consideration to the above ground constraints and for the reasons above the proposal would not provide acceptable living conditions for future residents of that plot and would have a harmful effect on the trees, particularly those to the rear of the site. It would therefore be contrary to Policies SP10 and SP24 of the Local Plan and the Framework. Together these support well designed sustainable development which protects and enhances landscapes as well as a high standard of amenity for future users.

I also note that the AR is dated 2022 and it states that the results are only valid for 12 months. However, I found it a useful basis for my assessment aided by my observations on site.

The appellants refer to a number of cases which they consider are similar in the coastal zone and some in the open countryside1. However, the Council advises that one is not in the flood zone, and Planning Committee applied weighting to other matters on the other two such they were granted planning permission. I have found differently.

The appellants go on to refer to an application in Grainthorpe and an appeal decision in Mablethorpe which they also consider raise similar issues2. However, the application site in Grainthorpe is in [name] 1 so is not similar. The appeal site referred to is in [name] 3, but the development was for a change of use and therefore a sequential test was not required, In addition, the site in that case already had planning permission for a dwelling. Therefore, it is also not similar to the proposal before me now.

I have also had regard to what the appellants consider to be similar relationships between trees and a house at the neighbouring property. However, the tree canopies there are not as close to the house as they would be on the proposal before me now.

I understand the appellants have concerns with the way the Council dealt with the planning application. However, those concerns should be made to the Council, I have determined the appeal on the planning merits only.

The Council is unable to demonstrate a five year housing land supply and therefore two dwellings would contribute significantly to that supply. The houses are proposed to be self-build, however there is nothing before me such as a S106 legal agreement to ensure that they are provided as such. I therefore give this matter limited weight. There would be moderate economic benefits from construction, and the future spend of residents in the local economy.

[name] have found that the proposal would not accord with the Framework or the PPG with regard to flood risk. Paragraph 11d of the Framework is invoked due to the lack of housing land supply. However, paragraph 11di states that planning permission should be granted unless the application of policies in the Framework that protect areas or assets of particular importance, including areas of flood risk, provides a strong reason for refusal. In my view the application of policies relating to flooding provides a strong reason for refusal.

Consequently, the proposal is contrary to the development plan as a whole and the considerations I outline above, including the Framework, are not sufficient to outweigh that conflict.

For the reasons above the appeal is dismissed.