Appeal 6001073

The appeal is dismissed.

Though not referenced in the third reason for refusal, the Council’s officer report and appeal statement references the potential for [name] (LSEs) upon designated habitats sites due to increases in nitrate levels. Given my duties under the Conservation of Habitats and Species Regulations 2017 (as amended) (the Regulations) it is necessary I consider this as a main issue. The Council and appellant have had the opportunity to comment upon this in the appeal process, and by my seeking of further views, so would not be prejudiced by this approach.

The Government has commenced consultation on proposed reforms to the National Planning Policy Framework (the Framework) and other changes to the planning system. The changes to the Framework are in draft form and therefore may be subject to change before the document is published. Consequently, while I have had regard to the consultation and the draft Framework, they carry limited weight, and it has not been necessary to consult the parties upon these.

The main issues are: • whether or not the proposal is compliant with development plan policies for the location of new residential development; • the effect of the proposal upon the character and appearance of the area; • the effect of the proposal upon designated habitats sites; and, • whether or not the proposal would make adequate provision for mitigating effects upon the highway network.

Policy S2 of the Chichester Local Plan (2025) (the CLP) explains the settlement hierarchy is a framework to achieve the vision for the plan area, meet the scale of development required, and enhance the quality of the built, natural, historic, social and cultural environments, while sustaining the vitality of communities. The appeal site is outside a settlement within the Rest of the Plan area in which development is restricted to that which requires a countryside location, meets an essential local rural need, or supports rural diversification in accordance with CLP Policy NE11.

The substantive evidence does not demonstrate this new dwelling requires a countryside location or meets an essential local rural need. From the evidence before me the proposal would not comply with criterion a) of NE11, that sustainability is enhanced by improving or creating any opportunities for access by walking, cycling or public transport. For reasons set out below it would also not comply with criterion c) of NE11. Therefore, the proposal conflicts with Policy S2.

Policy OA1 of the Westbourne Neighbourhood Plan (2021) (the WNP) states that outside the settlement boundary, proposals will not normally be considered either appropriate or sustainable unless i) they comply with all other policy requirements of the development plan, or ii) is sustainable development where the benefits demonstrably outweigh the harm and is of a form or type that could not reasonably be located within the settlement boundary, or iii) is a rural exception site to meet local need.

In-light of the conflict with CLP Policy S2 the proposal does not comply with criterion i). It is not a rural exception site so does not meet iii). In respect of ii), though there are no specific Self-Build & Custom (SB&C) allocations in the WNP, the evidence does not demonstrate the proposal is a form or type of development that could not reasonably be located within the settlement boundary, or allocated sites. Therefore, the proposal does meet ii) as a whole.

Even were I to agree the evidence is sufficient to demonstrate the site is previously developed land (PDL), this would not obviate, mitigate or outweigh the policy conflicts. The Interim Position Statement (IPS) was produced to direct development to appropriate locations when the Council did not have a 5-year housing land supply (HLS). It was not a formally adopted policy and didn’t have the same status as a Supplementary Planning Document, but it is now withdrawn. As a material consideration it attracts limited weight, although scheme merits in respect of matters the IPS sets out are considered as appropriate below.

For the reasons set out, the proposal is not compliant with development plan policies for the location of new development. It conflicts with CLP Policy S2 and Policy OA1 of the WNP, the relevant provisions of which I have set out above.

The appeal site surrounds are characterised by generally attractive primarily residential buildings and garden land, off and around the rural thoroughfare of [site address] , agricultural land, and the settlement of Westbourne due broadly to the north. Rather than being part of a relatively continuous frontage of approximately 200m as described to me, only limited parts of this part of [site address] appear built-up and there are significant sections largely free of built development.

The Westbourne Village Design Statement (2017) (the VDS) in describing View 11, refers to the popularity of [site address] as a walking route and considers a walk around View 11 as probably one of the most spectacular walks in the village. It describes a feeling of rural tranquillity, an impression of open countryside and maintaining a view over open countryside1, which reflects what I saw at my visit. As quite open grassed land, with limited built development, bound by trees and hedgerows, the appeal site makes a significantly positive contribution to the character and appearance of the area.

This appeal scheme does appear to differ in form from a larger scheme dismissed at appeal in 2017. However, this proposal would still result a new significantly sized dwelling, associated hardstandings, paraphernalia, associated activity and vehicle movements, in a rural and quite open location close to the settlement edge. Even were I to agree its detailed design were appropriate and density reflective of those nearby, it would very much urbanise and change the character and appearance of the appeal site from an open rural site, to a residential one. This would be at odds with and harmful to its current contribution to the character and appearance of the area.

The building footprint does not appear to cross the annotated narrow line of View 11 in the VDS. However, from the VDS description2 the line does not appear to define the confines of the view. Notwithstanding the filtered visibility by existing and proposed vegetation, the proposal would inhibit, enclose and reduce the views over the countryside cited in the VDS. It would also adversely affect the feeling of rural tranquillity and the impression of open countryside. The harm would be visible from [site address] , nearby properties on three sides and surrounding rural land, including part of a public footway along the brook due northwest. I am not satisfied that suitably worded conditions in respect of matters such as landscaping and materials could adequately mitigate the harm.

Therefore, for the reasons set out above, the proposal would be harmful to the character and appearance of the area, in conflict with Policies P2 and NE11 of the CLP and Policy LD1 of the WNP. These seek proposals protect, reflect and enhance the positive characteristics, qualities and distinctiveness of a site and area, and the rural and landscape character of the countryside setting. It also conflicts with paragraph 135d) of the National Planning Policy Framework (2024) (the Framework) which requires proposals are sympathetic to local character and history, including the surrounding landscape setting.

Though not referenced in the reason for refusal, the appellant considers the scheme compliant with, Policies P1 and P3 of the CLP. However, insofar as amongst other things, Policy P1(1.) and P3(1.) have similar aims to those set out above, I cannot agree the scheme is compliant with all their listed requirements.

The Regulations require where a plan or project may result in LSEs upon designated habitats sites, a competent authority (CA) is required to make an 1 Para 8.10 of the VDS 2 ibid. Appropriate Assessment (AA) of its implications upon the integrity of the habitats sites in view of their conservation objectives. [name] need to be considered alone and in combination with other development, adopting the precautionary principle. Under the Regulations, as the CA, I may only agree to a plan or project, only after having ascertained it will not adversely affect the integrity of habitats sites, beyond all reasonable scientific doubt.

The appeal site is within certain catchments and zones of influence (ZoIs) of the Chichester and Langstone Harbours Special Protection Area (the CLHSPA) and the Solent Maritime Special Area of Conservation (the Solent) as designated habitats sites. The CLHSPA is designated due to its importance to a range of migratory, over-wintering and breeding waterfowl and waders, and waterbird assemblages, which are its qualifying features. The Solent is designated due to its extent, types and range of marine, inter-tidal and terrestrial habitats, and the plants and invertebrates it supports, which are its qualifying features.

The conservation objectives of the CLHSPA and the Solent are to maintain and restore the extent and distribution of the habitats of the qualifying features and species, the structure and function and supporting processes of the qualifying habitats and features, and the population and distribution of the qualifying features and species within the sites.

The appeal site is within a wastewater catchment identified as resulting LSEs to qualifying features due to nutrient discharge into the water which includes wastewater from houses, causing eutrophication. Without mitigation, by constructing a new dwelling in the catchment, alone and in combination with other development, the proposal would have LSEs due to increased nitrate inputs. This matter is not disputed by the appellant and one that NE has confirmed.

The appellant’s [name] (UU) proposes purchasing nitrate credits reflecting nitrates the proposal would generate. NE advises it considers the UU provisions sufficient to conclude no adverse effect on the integrity of the protected sites. However, while the UU specifies the value of credits, it does not detail the mitigation scheme they would be purchased from, so these are not secured against a specified scheme. Therefore, as the CA, I have no details for my consideration to be satisfied and have certainty a scheme is a sufficiently rigorous one, will deliver robust satisfactory mitigation in a timely manner in the location required, and is financially sustainable. My duty under the Regulations means this is not a matter that can be left to a planning condition or a subsequent approval.

I am informed the obligation is in the same format as a recently permitted appeal in a different authority area3. However, the evidence before that Inspector is unclear. Consistency of decision making is an important principle, however, the evidence before me, taking into consideration the duties of the CA, means I cannot allow this appeal, and this matter precludes the proposal from proceeding.

In consequence, it is not demonstrated the proposal makes adequate provision to mitigate LSEs and thus maintain the integrity of the habitats sites from increased nitrate inputs, so I cannot be certain, there would not be LSEs on the integrity of habitats sites. It is not demonstrated there are no alternative solutions, imperative reasons of overriding public interest do not exist and no other considerations clearly outweigh the harm to habitats sites. Given a CA may agree to a plan or 3 Ref. APP/B9506/C/23/3325725. project, only after having ascertained that it will not adversely affect the integrity of habitats sites, the Regulations preclude the scheme from proceeding.

Within the ZoI recreational activities such as walking, dog walking and water sports by visitors within the habitats sites result in disturbance to the qualifying features, also causing LSEs upon them. By introducing a new dwelling and occupiers, if unmitigated, this new dwelling within the ZoI, alone and in combination with other development, is likely to result in increased visits by residents, resulting in recreational disturbance.

There is an approved scheme through [name] to implement a strategic package of measures to mitigate recreational disturbance, to facilitate the delivery of new dwellings. I understand this is a specific examined and costed scheme that has been approved by NE. It is funded by a per dwelling tariff, secured against each new development. NE is satisfied contributing towards the scheme would be sufficient to avoid any LSEs from recreational disturbance upon the integrity of the habitats sites.

From what is before me, I am satisfied the sum would be directed by the Council and partner organisations as required through established arrangements towards approved robust mitigation. Therefore, the payment secured is an adequate mechanism to secure and enable the delivery of proportionate mitigation, in a timely manner to mitigate the LSEs from the appeal scheme. It would therefore not have an adverse effect upon the integrity of designated habitats sites in view of their conservation objectives, and meets the requirements of Policy NE8 of the CLP and the Framework in respect of recreational disturbance.

However, in respect of mitigating effects from increased nitrates, following an AA, I cannot be certain the proposal would not have LSEs upon designated habitats sites. It would conflict with Policy NE17 of the CLP which requires proposals demonstrate they do not have adverse effects upon water quality. I also cannot be certain the proposal would comply with Framework paragraph 193a) which requires that if significant harm to biodiversity cannot be avoided, adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused. Framework paragraph 195 confirms the presumption in favour of sustainable development only applies if an AA has concluded that the plan or project will not adversely affect the integrity of habitats sites.

Policy T1 of the CLP explains the need to deliver a package of improvements to junctions on the A27 [name] along with other small-scale junction improvements to increase capacity, reduce congestion, improve safety, air quality, and access, to cater for new development. Where new dwellings not yet subject to planning permission generate additional traffic on the A27, a per dwelling contribution will be sought to avoid adverse effects upon the A27.

The Chichester Bypass Mitigation Supplementary Planning Document (2024) (the CBSPD) explains the evidence and concerns surrounding congestion at junctions of the A27 [name], which in-turn lead to adverse effects on the local network, and drivers seeking alternative routes leading to further problems. It explains the position on funding secured, the costs of remaining improvements and the updated approach of how this would be met, including through a per dwelling tariff based upon dwelling location and size.

The appellant does not dispute the need for a contribution in accordance with the CBSPD and the UU includes a contribution for the required amount4. Having regard to the tests in the CIL Regulations5 and the Framework6, from the evidence before me, the contribution is necessary to make the development acceptable in planning terms, directly related to the development and fairly and reasonably related in scale and kind to it. This would be paid prior to the commencement of the development, which meets the requirements of the CBSPD.

Therefore, the proposal makes adequate provision for mitigating adverse effects upon the highway network. It is compliant with Policies I1, T1 and T2 of the CLP, which require proposals make provision to manage and mitigate their potential effects upon the highway network by, amongst other things, making contributions towards the delivery of necessary infrastructure projects and improvements. It would also comply with Framework paragraphs 8, 109, 110 and 115 which set out similar objectives to the CLP policies.

The site is in proximity to some non-designated heritage assets (NDHAs). Framework paragraph 216 states the effect upon the significance of a NDHA should be considered in determining applications. The appellant considers the proposal would not affect the setting of most and would enhance No 4 [name]. However, its special interest and significance, the contribution of its setting towards this, and the scheme’s affect, are not detailed.

No 4 is a redbrick rural cottage with traditional vernacular forms and features, from which its significance derives. The appeal site forms part of its lane-side rural setting that contributes to its significance. I fail to see how this scheme would enhance its aesthetic or historic values or significance, or the way in which this is experienced. From what is before me, subject to imposing suitably worded planning conditions, the effect overall might be regarded as a neutral one at best.

I note some references to the visibility of the church spire from the appeal site. As the appeal is being dismissed for other substantive reasons and a new dwelling will not result from this decision, I have not considered this matter further.

There would be some limited temporary economic benefits during construction and on-going spend and support to the vitality of rural communities, services and facilities once complete, attracting limited weight in favour of the proposal. Given the adoption of the CLP the Council can demonstrate a HLS of 5 years. Although this is not a ceiling, the 20% buffer from 1 July 2026 means a greater requirement going forward, and the evidence from the appellant suggests it is anticipated it may be that not all housing will be able to be found entirely from plan-led development7.

The Self-Build and Custom Housebuilding Act 2015 imposes a duty upon the Authority to grant permission for enough serviced plots to meet the demand for SB&C dwellings in its area arising in each base period. The UU seeks to secure 4 Table 2 and paragraph 4.12. 5 Regulation 122 of the Community Infrastructure Levy Regulations 2010. 6 Framework paragraph 58. 7 Paragraphs 8.4 – 8.7 of report to Ref. NM/24/02724/OUT. the appeal scheme an SB&C dwelling, although the UU does not appear to offer full certainty of its occupation as such.

Need is intended to be primarily addressed through strategic allocations and support for schemes by Policy H6 of the CLP. The appellant states that for the latest period (October 23 – October 24), there were 90 people on the register, 31 were added in that time and though 19 plots permitted, none are subject to SB&C obligations or conditions, so should not be counted. This is not dissimilar to the position in a decision letter8 the appellant refers to. I note the Inspector’s views upon the effectiveness of Policy H6 in delivering new SB&C consents in a timely manner, in attributing the benefits of that scheme substantial weight. I agree meeting current needs and legislative duties, and the related benefits, are important benefits weighing in favour of this appeal scheme.

It is not justified the CLP should be considered out of date due to being prepared based upon a previous version of the Framework or its references to PDL. It is a recently adopted plan and insofar as of relevance to this appeal scheme, PDL has a similar priority and emphasis in this iteration of the Framework to ones when the CLP was being prepared. The appellant assures me the proposal would be built out relatively quickly, and it gains support from the Framework aim to significantly boost housing supply. On the assumption the appeal site comprises PDL that the scheme may regarded as making a more efficient use of, it gains further support.

On the basis the appeal scheme is a SB&C dwelling it would be exempt from statutory [name] provisions. However, the appellant has outlined provisions for ecological enhancements, that subject to the imposition of suitably worded planning conditions, could potentially secure benefits of a magnitude that attract moderate weight in favour of the scheme. It is possible the appeal scheme might result in minor overall benefits in respect of drainage, however, the evidence suggests this would be likely to be a limited overall benefit. In combination the benefits of the appeal scheme attract weight of a high order.

[name] to agree the appeal scheme is, or subject to the imposition of suitably worded planning conditions could be made, compliant with policies and standards in respect of matters such as avoiding coalescence, the living conditions of future and neighbouring occupiers, infrastructure provision, highway safety, parking, access to services and facilities, flood risk, protected species, and arboricultural protection, these would be neutral matters in the balance. The substantive evidence does not demonstrate sustainability measures would result in a net benefit to renewable energy generation, so would also be a neutral matter.

The appeal scheme would be harmful to the character and appearance of the area, which is of a magnitude that attracts significant weight. Notwithstanding the accessibility to services and facilities and proximity to the settlement boundary, the conflict with policies for the location of new development in the WNP and the recently adopted CLP is still an important matter that attracts weight against the scheme. In the absence of the certainty of the form of mitigation in respect of nitrates, section 63(5) of the Regulations precludes the proposal from proceeding. Overall, the matters weighing against the scheme attract very substantial weight. Therefore, the appeal should not succeed. 8 APP/L3815/W/25/3361375.

The proposal conflicts with the development plan read as a whole, the Framework read as a whole, and the Regulations. There are no material considerations, including the policies of the Framework, which indicate the decision should be made other than in accordance with the development plan. Therefore, for the reasons given, the appeal should not succeed.