Appeal 6001256

The appeal is dismissed.

During the appeal, to address the Council’s third reason for refusal, the appellant submitted a signed and dated Section 106 [name] (UU). This provides for the payment of [name] and Monitoring and [name] contributions, as well as an Air Quality Monitoring contribution to mitigate potential impacts upon the New Forest European Protected Sites (EPS). This is a matter to which I later return.

The main issues are: • The effect of the proposal on the character and appearance of the Fordingbridge Conservation Area (the FCA); • The effect of the proposal on the living conditions of the occupiers of No.[address], with particular regard to privacy; and • Whether the proposal would provide adequate mitigation for the EPS.

Permission was previously refused1 for a new dwelling in a similar position as part of a wider scheme of development. The current appeal scheme comprises an amended design to the proposed new-build dwelling to address the Council’s concerns in respect of harm to the character and appearance of the FCA and the 1 [name] 22/10437 refused 14 February 2023 setting of the adjacent community centre building, and harm to the living conditions of the future occupiers of No.28.

The appeal site lies between [address] and [address] in a built-up area within the Town Centre of the settlement of Fordingbridge. It is also within the FCA. It forms part of a wider parcel of land within the appellant’s ownership which was previously wholly used for Class E Commercial Use.

After a recent planning permission,2 part of the site has been altered to mixed-use comprising a Class E(c) [name] and a Class C3 dwelling, involving the conversion of No.28 into a ground floor dwelling with an office at first floor. Vehicular access is from [address] and the courtyard in front of the building provides parking for the approved scheme and for several neighbouring dwellings.

The appeal site comprises a rectangular-shaped parcel of land which was excluded from the aforesaid planning permission. It has a gated vehicular access from [address] and is given over to hardstanding with a small shed sited near the frontage. The information before me is that it was previously used in connection with the former use of the overall site as a [name] business, but it is currently not in active commercial use. The site also includes a narrow strip of land which runs alongside the garden of the new dwelling at No.28 and through the aforesaid parking courtyard, thereby providing a narrow site frontage onto [address].

The Council’s Conservation Area Statement (the CAS) recognises a linear road pattern within the FCA, including in the town centre, which comprises short streets linked by a series of open spaces. The principal building material in the conservation area is brick, and most buildings post-date the town fire of 1702. Aside from notable listed buildings such as the Church, the Town Hall, the Infirmary, the [address] and May’s the butcher, the CAS states that unlisted residential buildings make a significant positive contribution to the FCA.

These predominantly comprise small two-storey brick houses fronting the street with small gabled dormers, original doors and small-paned timber windows, and tile or slate roofs. They include the Victorian terraces of [address], which positively contribute to the street scene through their simple repeating architectural details.

The site lies at the western end of the Town Centre, outside of the primary and secondary shopping frontages, where [address] is predominantly residential in character. This includes along its north side where two-storey, pitched roof terraced period style houses are positioned parallel with and close to the road frontage. The vehicular access to No.28 interrupts this run of housing and has terraced housing either side. To the east of the site, the rear gardens of the houses at Nos. 22 and 24 extend back as far as the [address] frontage, and historic records3 indicate that the appeal site once comprised part of the rear garden land of No.[address]. Moreover, the information before me is 2 [name] 23/10758 granted 12 October 2023 3 [name] of 1839 and [name] of 1872 and [address] aligns with an old field boundary line which was a footpath at the time of the mid-20th century.

As such, the existing layout of development accords with the Council’s adopted conservation area appraisal (CAA)4 which describes the conservation area as being generally characterised by domestic scale development along the road frontages with open areas to the rear.

West of the appeal site, the [address] housing has significantly smaller rear garden space and is surrounded by community and commercial uses. In addition to the mixed commercial and residential uses of the site of No.28, the area of land at the corner location at the entrance into [address] is dominated by a former school site which is now the [name] complex of buildings.

Two of the former school buildings are designated as ‘Key/[name] in the CAA, and the school is mentioned in the CAA as comprising one of the impressive public and institutional buildings that were built in the 19th century, some of which include visually prominent street-facing gables. The Community Centre building facing [address] displays this feature.

The school is also recognised in the CAA as one of the key unlisted buildings that are particularly important for their contribution to the street scene of the FCA due to being in a key position within the spaces around the road junctions.

The single storey [name] buildings are highly visible from the street due to either their open frontages or position adjacent to the back of the footpath. As such, they provide a focal point in the streetscape at the corner of [address] and [address]. They have a distinctive brick walled and pitched slate roof appearance, incorporating feature front gables and numerous windows which have a strong vertical emphasis and multiple square-shaped panes. Other attractive architectural detailing includes stone window headers and cills, decorative brick banding and quoins, overhanging barge boards and potted brick chimneys.

The Community Centre buildings comprise a notably more loose-knit, ad-hoc arrangement of built development in contrast to the tight-knit and regular pattern of terraced housing along [address] and that of the more modern terraced housing opposite the site in Moxhams. Moreover, their community use is visually apparent from the public realm, having regard to the use of frontage land for parking and a children’s playground,

I find that the [name] which adjoins the appeal site and occupies a visually prominent position within [address], forms an integral part of this group of pre-20th century community buildings.

There is a difference of opinion between the main parties as to whether the [name] comprises a ‘non-designated heritage asset’ (NDHA). It is not designated as a ‘key/important building’ in the CAA, although the CAA states that the identified key/important unlisted buildings should not be the only unlisted buildings in the FCA where there would be a presumption against demolition. 4 Fordingbridge Conservation Area Appraisal (June 2001)

The Council’s view is that as the term ‘NDHA’ was not in use at the time of adoption of the CAA it should not be assumed that the buildings identified as being key/important unlisted buildings in the CAA comprise a definitive map of current NDHA buildings. The Planning Practice Guidance (PPG)5 states that in some cases NDHAs can be identified as part of the decision-making process on planning applications, and the Council6 considers that it did this as part of its determination of the previously refused application Ref 22/10437 which included a new-build dwelling on the appeal site.

Notwithstanding the above, I am not persuaded, based on the information before me, that the Council has provided sufficient sound evidence in respect of how it formally made the decision to identify the [name] building as a NDHA, having regard to the advice within the PPG on this matter and Historic England Advice in respect of local heritage listing7.

There is no substantive evidence before me that the Council has made information regarding the designation publicly available, such as including it on a local list of non-designated heritage assets and including the information in the local historic environment record (HER). Nor is there evidence that the Council has designated the building as a NDHA through the local and neighbourhood plan-making processes or conservation area appraisals and reviews.

Accordingly, notwithstanding the Council’s second reason for refusal, based on the information before me, I am not persuaded that the [name] comprises a NDHA such that it would trigger the application of Paragraph 216 of the Framework in the determination of the appeal scheme.

Notwithstanding the above, the [name] has a notable visual presence within the street scene of this part of [address] due to its combined scale, height and massing and position close to the back of the footpath.

It has a historical and functional connection with the group of community buildings, comprising part of the expansion of the original former school complex, albeit as a subsidiary element of the overall complex. This association is maintained by its current use as a pre-school and community nursery.

The utilitarian design of the building also shares similar design attributes with the other community centre buildings, including red facing brick walls, pitched slate roof, incorporating a feature side gable and an asymmetrical pitched roof element seen elsewhere within the [name] complex.

It also has similarly proportioned and designed fenestration openings and glazing bar arrangements and includes other similar architectural features such as decorative headers, cills, quoins and bargeboards. Such features occur within the front and both side elevations of the building. As such, they are readily apparent in public views from the street, allowing the architecture of the building to be appreciated from the public realm.

The Annexe building is more exposed in public views from the west and north of the building, and it is from the former that its link with the adjacent buildings can be 5 Paragraph: 040 [name]: 18a-040-20190723 6 NFDC Conservation Online Consultee Response on Planning Application Ref 25/10144 dated 1 May 2025 7 Local Heritage Listing: Identifying and Conserving Local Heritage. Historic England Advice Note 7 (second [name] 2021) most fully appreciated due to the open nature of the site frontage as it turns the corner.

However, the architectural features which link it visually to the other community centre buildings also extend into the east side wall of the building adjacent to the appeal site. Despite being partially screened by the existing wall, fence and gate along the [address] frontage of the appeal site and the adjacent gardens to the east, a sufficiently large amount of the building can be seen from the public realm when approaching the appeal site from the east, such that the role of the building as an integral part of the community centre can be appreciated from the public realm.

As such, I find that the [name] makes a positive contribution to the historical significance of this part of the FCA and the character and appearance of the street scene.

The CAA is clear that new development should have regard to the character, scale and proportions of the pre-20th century buildings in Fordingbridge, and that the character of the late 19th century and Edwardian residential areas within the conservation area should be respected in any development proposals. Moreover, the CAA states that new development which introduces significant elements of building of a scale or intensity out of keeping with that of the original, extant pattern of building in that part of the conservation area, should be avoided.

The land upon which the new house is proposed, together with the rearmost part of the gardens of Nos. 22 and [address] maintains the historic layout of development in this part of the FCA of frontage housing along [address] with undeveloped space behind, and it provides space to the east of the community buildings which allows them to retain an element of visual and functional primacy in relation to the nearby housing.

The existing office/residential building at No.28 is of no special historic architectural merit. However, when viewed from [address], it is seen as being at a much lower height than, and of a significantly smaller scale than, the adjacent Annexe building. Its pitched roof side gable end, red brick wall and slate pitched roof complement the design of the [name] building, and the building is perceived as being a subsidiary element of the group of non-residential buildings which does not conflict with, or diminish the positive contribution the community buildings make to the character and appearance and significance of this part of the FCA.

The appeal scheme would introduce a new building in a more visually prominent position close to [address] where, due to its position near the adjacent community building, it would be read alongside it when viewed from the street.

Notwithstanding the proposed two-storey height of the dwelling and the incorporation of front and rear-facing gable features, the new dwelling design would not be representative of that of the terraced housing which prevails elsewhere within the conservation area and is one of the defining positive characteristics of the FCA.

The proposal would introduce a form of development which is out of keeping with the historic pattern of built development within this part of [address] which comprises single storey community buildings and the rear gardens of residential properties in [address].

The new dwelling would have a similar eaves height to that of the adjacent community building. However, its ridge height would be slightly higher, and it would present a wider and more bulky main roof form facing [address] than that of the community centre, whose roof height and mass is notably reduced to its west side. Moreover, the new dwelling would appear obviously two-storey in height when viewed from [address] with its front facing upper floor window positioned higher than the front windows and the eaves height of the community building.

These factors would combine to give the new building an unduly visually dominant presence within the townscape in relation to the adjacent community building. This together with the resulting obscuring of its east side in views from the public realm would harmfully erode the existing visual presence of the group of community buildings and their perceived architectural significance when viewed from the public realm. This would be to the detriment of the character and appearance of this part of the FCA.

An absence of road-facing residential properties and the presence of rear gardens immediately to the east of the appeal site further serve to draw attention to the incongruously large scale of the proposed house, where a more modest form of built development which is subservient to the community buildings and [address] housing would conflict less with the historic urban grain and layout of built development in this part of the FCA.

The new building would include elements of architectural detailing found on the community buildings and elsewhere in the FCA, including brick and slate materials, timber square-pained windows, window headers and cills, overhanging bargeboards and pitched roof elements. However, when considered as a whole, it would not have a clearly identifiable visual compatibility with either the nearby community buildings or the established pattern of residential development in [address].

The front elevation of the new house would appear particularly discordant when compared to that of the adjacent Annexe, having regard to its overall roof form and the arrangement and design of the various hips and pitches. Moreover, the window sizes, proportions, height to width ratios and positioning within the building would appear strongly at odds with the large vertical openings of the adjacent community building.

Albeit to a lesser extent, incongruous design elements would also be visible in views of the new building from [address] through the site access point and from the shared courtyard parking area in front of No.28. In these views, the proposed flat-roofed rear elevation dormer window would appear as an alien feature within the prevailing roofscape. It would be contrary to the guidance in the CAA in respect of dormer designs being required to be in proportion to and generally smaller than the window openings below and set back from the vertical planes of the walls.

I do not object to the principal of new residential development within the FCA and the appellant has drawn my attention to several residential infill developments that have taken place. Based on the information before me, I am not persuaded that any of these are directly comparable to the appeal proposal in terms of the siting and design of the approved buildings and their juxtaposition with adjacent properties.

The appellant has cited a new dwelling approved to the rear of Nos. 4-12 Shaftesbury Street8. This comprises a single storey building adjacent to the rear wall of the long stay public car park on the south side of [address]. The design of that building, its site circumstances and its surroundings are notably different to those of the appeal site. Moreover, that building appears more akin to an ancillary domestic building in size and front elevation design, having regard to its minimal amount of fenestration, and its height and scale, noting that it is largely screened in public views from the car park by the car park boundary wall.

It also appears subsidiary in scale and height in comparison to the adjacent two-storey public house building within whose setting it is seen. As such, this building does not justify approval of the appeal scheme, which, in any case I must determine based upon the circumstance of the appeal site and the merits of the scheme before me.

The statutory duty under S72(1) of the Town and Country Planning (Listed Building and Conservation Areas) Act 1990 in respect of the desirability of preserving or enhancing the character or appearance of the FCA is a matter of considerable importance and weight. Paragraph 213 of the Framework states that any harm to, or loss of, significance of a designated heritage asset should require clear and convincing justification.

Having regard to Paragraph 215 of the Framework, the harm to the conservation area would be no greater than at the lower end of ‘less than substantial’. However, less than substantial harm does not equate to less than substantial planning objection, and the Framework sets out the need to address ‘less than substantial harm’ against the public benefits of the proposal.

I have considered the provision of an additional dwelling in terms of its contribution to the supply of housing in the area, especially where it is accepted that the Council currently has an acute undersupply of housing due to only being able to demonstrate a housing land supply of 1.53 years against a 5-year housing requirement that includes a 20% buffer.

The proposal would also contribute to supporting local services and facilities and it would provide investment during the construction stage. All these factors weigh in favour of the proposed development.

However, given the modest scale of the development, the associated benefits would also be modest and would carry only limited weight relative to the harm that I have identified to the character and appearance of the FCA. They would not outweigh the less than substantial harm to the significance of the FCA as a designated heritage asset, notwithstanding that the level of harm is at the lower end of less than substantial. Given the national importance to protecting heritage assets relative to the modest benefits that would accrue from the appeal development, all the considerations that weigh in favour of the proposal do not clearly outweigh the identified harm to the heritage asset to justify the development. Moreover, whilst there is a current under supply of housing land, 8 [name] 17/10222 granted 1 February 2018 such housing land supply issues are likely to be temporary, whilst harm to the FCA would be permanent.

For the reasons given above, I therefore conclude that the proposal would harm the character and appearance of the FCA and it would cause less than substantial harm to its significance as a designated heritage asset. In the absence of any significant public benefits to outweigh this harm, the proposal would be contrary to Policy DM1 of the New Forest District (outside of the National Park) Local Plan Part 2: Sites and Development Management (April 2014) (the LPP2). This policy, amongst other things, seeks to ensure that development proposals conserve and seek to enhance the historic environment with particular to, inter alia, local character, setting, and the historic significance and context of heritage assets.

The proposed development would also conflict with the Framework as it would fail to sustain the significance of the designated heritage asset where the public benefits would not outweigh the harm.

The rear wall of the new dwelling would be sited directly north of and within close proximity of the outdoor living space associated with the recently formed dwelling at No.28. As such the upper floor bedroom and bathroom windows at the back of the new house would look towards the garden of No.28. In the case of the bedroom window which would clear-glazed and opening and would be sited closer to the neighbouring garden than the bathroom window, the result would be a harmful loss of privacy to users of the neighbouring garden.

I accept that some overlooking of neighbouring gardens comprises an established situation in built-up areas comprising two-storey properties. However, this commonly relates to situations where properties are built side by side and rear first floor windows look down onto neighbouring rear gardens as part of the established layout of the original development. This differs from the appeal scheme circumstances where the proposed dwelling will impinge upon an existing established degree of privacy enjoyed by the occupiers of No.28.

The appellant has referred me to the aforementioned development rear of Nos. 4- 12 Shaftesbury Street9 where upper floor windows of neighbouring dwellings look towards the new dwelling and its outside living area. Based on the evidence before me, I cannot conclude that the circumstances in respect of the cited approval are directly comparable to those of the appeal scheme, including having regard to the distances between neighbouring first floor windows and the approved scheme, and the uses of the rooms involved.

Moreover, rather than comprising a reciprocal impact upon the new dwelling, the appeal scheme would introduce overlooking into an existing situation. The impact would be compounded by the position of the new dwelling on elevated land in relation to that of the garden of No.28. There would be material harm to the living conditions of the occupiers of No.28 given that the rear first floor bedroom window would directly look over the sole and modestly sized area of outdoor living space for the occupiers of that property which is reasonably likely to be well-used given its enclosed nature and position directly leading off the living/kitchen/dining room of 9 [name] 17/10222 granted 1 February 2018 that property.

I have considered whether this matter is capable of being dealt with by a condition controlling the glazing to be installed within the window in question. However, as it would comprise the sole window to the main bedroom of the new dwelling, I consider that limiting the clear-glazed and opening elements of the window to the extent that overlooking would not occur, would unduly impact upon the use and enjoyment of this room by future occupiers of the appeal scheme to the detriment of their living conditions. Accordingly, I find that such a condition would be unreasonable in the circumstances of this appeal scheme.

For the above reasons, I therefore conclude that the proposal would materially harm the living conditions of the occupiers of No.[address], having particular regard to privacy. As such, the appeal scheme would be contrary to Policy ENV3 of the New Forest District Local Plan 2016-2036 Part 1: Planning Strategy (July 2020) (the LPP1) in so much as this policy, amongst other things, seeks to ensure that all development contributes positively to quality of life, including avoiding unacceptable effects on residential amenity by reason of, inter alia, overlooking.

This accords with Paragraph 135 of the Framework in so much as it seeks to ensure that developments will function well with a high standard of amenity for existing and future users.

To address the Council’s second reason for refusal, mitigation is required against potential harm to the New Forest EPS associated with new residential development, arising from increased recreational use of these areas and as a result of traffic-related nitrogen air pollution. In addition, the officer report confirms that there would also be a likely significant effect on the [name] due to additional phosphate discharge, unless phosphate neutrality or adequate mitigation is achieved.

The submitted UU intends to mitigate the recreation and air quality impacts, and the Council has confirmed that the UU satisfactorily addresses its third reason for refusal. Moreover, the Council is satisfied that the phosphates issue can be dealt with by means of a Grampian style condition.

Notwithstanding the above, in the context of this appeal, the responsibility for assessing the effects of the proposal on the EPS falls to me as the competent authority. [name] minded to allow the appeal, I would need to carry out an Appropriate Assessment (AA) before considering the proposed mitigation set out in the UU and the Council’s suggested planning condition, since the proposal would be likely to have a significant effect on the EPS.

However, as the first and second main issues provide clear reasons for dismissing the appeal, I have not had cause to pursue undertaking an AA. As such, I do not need to consider this matter further, since any findings on this issue would not change the appeal outcome

The Council has confirmed that it cannot demonstrate a 5-year supply of deliverable housing sites as required by the Framework. As such, Paragraph 11 of the Framework applies, which states that relevant policies for the supply of housing should not be considered to be up to date where a 5-year housing land supply cannot be demonstrated.

Paragraph 11 d) of the Framework states that where the policies that are most important are out of date, permission should be granted, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes individually or in combination, or, where the application of policies in the Framework that protect areas or assets of particular importance, referred to in Paragraph 11d)i provides a strong reason for refusing the development proposed.

In this instance, the appeal site is subject to policies in the Framework that seek to protect designated heritage assets, and, in concluding on the first main issue, I have already found that the Framework policy relating to heritage assets in Paragraph 215 indicates that development should be restricted. As such, notwithstanding the current absence of a Framework compliant supply of housing land, the presumption in favour of sustainable development in Paragraph 11 of the Framework is not engaged.

Paragraph 8 of the Framework defines the three dimensions of sustainable development as performing economic, social and environmental objectives. When judged against some of the core planning principles of the Framework, the appeal proposal would perform well in that it would be in a sustainable location for new residential development having regard to accessibility to local facilities and services and public transport routes.

Paragraph 61 of the Framework refers to boosting significantly the supply of homes. The proposal would make a very modest contribution towards addressing the housing supply deficit and it could be built out relatively quickly, having regard to Paragraph 73 of the Framework. There would also be economic benefits as a result of the construction of the new dwelling, and economic and social benefits as a result of its future occupation.

The above benefits weigh in favour of the development, and I afford them moderate weight, having regard to the modest size of the proposal.

However, a high standard of design is also a key aspect of sustainable development. The harm I have identified to the character and appearance of the conservation area and neighbouring living conditions would be significant. As a result, the social objectives of sustainable development of fostering well-designed and beautiful places and providing a good standard of residential amenity, and the environmental objective of protecting and enhancing our built and historic environment would not be achieved.

Accordingly, having given careful consideration of the balance of factors, I consider that, when assessed against the policies in the Framework taken as a whole, the adverse impacts would significantly and demonstrably outweigh the benefits, and the proposal would not be a sustainable form of development. The conflict with the development plan is not outweighed by other considerations including the Framework.

Whilst the Framework encourages the effective use of land in meeting the need for homes and requires the Council to approach decisions in a positive and creative way, these matters are not unqualified and would not address or outweigh the harm that I have identified in respect of the main issues.

The Council has not identified any harm in respect of other issues, including the principle of a dwelling on the appeal site, the loss of the existing commercial use, living conditions of future occupiers of the proposal, highway safety and parking, ecology, flood risk, archaeology and habitat mitigation. However, as these are requirements of planning policy and legislation, in terms of the planning balance, the absence of identified harm in respect of these matters is a neutral factor that weighs neither for nor against the development.

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