Appeal 6001322

The appeal is dismissed.

The proposal is for a self-build dwelling and therefore could benefit from the self-build and custom build exemption from biodiversity net gain provided for in the [name] (Exemptions) Regulations 2024. The Council proposed a condition to secure compliance with the exemption. I sought views from both parties on the practicalities of enforcing the condition, whether the condition satisfies the other relevant legal and policy tests and the implications should I find the condition not to be enforceable or otherwise not meet the relevant tests. Whilst this matter was not a reason for refusal on the Council’s decision notice, as the appellants and the Council have been afforded the opportunity to comment on the matter, I am content that no party has been prejudiced by including it as a main issue in my decision.

The main issues are: i) Whether the proposal would satisfy the requirements of the statutory framework for biodiversity net gain; and ii) The effect of the proposal on the character and appearance of the area.

Biodiversity net gain (BNG) is a statutory requirement introduced by the Environment Act 2021. Where applicable, it is secured through a statutory planning condition intended to ensure a minimum 10% increase in biodiversity value. Compliance with this statutory regime is a material consideration for the decision maker, as failure to do so could undermine both its effective implementation and the wider biodiversity objectives it seeks to achieve.

Article 7 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires an application for planning permission to be accompanied by a statement confirming whether the development would be subject to the statutory BNG condition and if not the reasons for that belief. [name] is applicable, further information relating to BNG is required. This enables the statutory BNG condition to be applied and subsequently discharged.

Self-build development is one of the exemptions from the statutory BNG condition. This exemption was ticked on the planning application form, the site is under 0.5 hectares and the development description refers to the development as a self-build dwelling. However, the description of development alone is not sufficient to secure the development as a self-build development.

The Council proposed a planning condition which seeks to control the first occupation of the dwelling to a person(s) on the Council’s register maintained under the Self-Build and Custom Housebuilding Act 2015 (as amended), who had primary input into the design and layout of the dwelling and who would occupy it as their primary residence. I am not convinced the condition proposed would be enforceable. Were the dwelling to be first occupied by a person who did not meet the specified criteria, any breach would be incapable of remedy, as the fact of first occupation could not be undone, even if that person subsequently vacated the property.

The Council refers to an appeal decision1 where a similarly worded condition was imposed. I am not aware of all the facts and evidence behind that decision, and it does not overcome the concerns detailed above.

In absence of an alternative mechanism to secure the development as a self-build dwelling there is insufficient certainty that the proposal would be a self-build or custom build house. Accordingly, the proposal does not benefit from any BNG exemption. The minimum information required for a planning application, as set out in Article 7 has not been provided.

Therefore, in light of the above, the proposal would fail to satisfy the requirements of the statutory framework for BNG. The proposal would therefore also be in conflict with paragraph 187 of the National Planning Policy Framework which seeks to secure net gains for biodiversity.

The proposed development would be located to the rear of No [site address] . [address], in the vicinity of the site is characterised by a strong linear form of development comprising mainly terraces on the side of the road in which No 33 is situated and semi-detached properties on the other side. The terraces have a strong degree of coherence with similar set-backs, architectural detailing and large back gardens.

The proposed development would not be highly visible from [address] by virtue of the distance from the street and the existing boundary treatment between No 33 and No 31. Additionally, no access is proposed from [address]. 1 APP/W0530/W/25/3364329 – [address], Comberton. Therefore, the proposed development would not interrupt the linear pattern of development which contributes to the character of that street and wider the area.

The development would front on to and be accessed from [address], a linear street, which runs parallel to [address]. The proposed development therefore relates more strongly to the context provided by [address] than [address]. [address], in the vicinity of the development, lacks a defining coherent character and comprises a mix of garages and outbuildings associated with properties on [address], a modern nursery building and a vacant site with planning permission for new housing.

Given that development already fronts on to [address] and a residential development is permitted nearby, I do not consider that the introduction of a dwelling fronting on to [address] would be out of character with this context. The dwelling would occupy a similar footprint to other garages and outbuildings present on [address]. Whilst these buildings are ancillary features to the properties fronting [address], a number of them occupy the full width of the plot and from a visual perspective the scale and massing of the proposed dwelling would not be out of keeping with mix of buildings along [address]. Whilst the proposal would reduce the garden size of No 33, the dwelling would still benefit from a large garden. Therefore, the proposal would not result in a cramped form of development.

Whilst the proposed development would alter the pattern of development, this does not in itself mean it is harmful. The proposed development would relate well to the existing and potential future surroundings should the nearby permitted residential development be built. It would provide additional natural surveillance along [address] and provide a positive contribution to the appearance of the street through the introduction of a more active frontage.

I conclude that the proposal would not have a harmful effect on the character and appearance of the area. It would therefore accord with Policy 52 of the Cambridge Local Plan (CLP) which requires that development is appropriate to the surrounding pattern of development and character of the area. It would also accord with Policies 52, 55, 56, 57 and 59 of the CLP which require, amongst other things, that development responds positively to local context and character, be of high quality, enhance the townscape, reflect or successfully contrast with existing building forms and materials and include appropriate landscaping and boundary treatment.

The proposal would also accord with paragraphs 135 and 139 of the National Planning Policy Framework which deal with matters of securing good design.

The appeal proposal would result in the provision of an energy efficient dwelling within an accessible location which is a benefit of the proposal. It would also make a contribution to meeting housing needs in the area. However, these benefits would be limited as the proposal is for a single dwelling. It is not sufficient to outweigh the lack of compliance with the statutory BNG regime.

The proposed access, which forms part of [address], is adjacent to the [address] Conservation Area. However, given that the proposed dwelling is some distance away from the conservation area, it would not harm the significance of the conservation area. No concerns have been raised by the Council with regard to the impact on the significance of the conservation area.

The Council claim to have a five year supply of housing as required by the Framework. This is not disputed by the appellants. [name] have found no conflict with the development plan, the proposal would fail to accord with the Framework as set out above. No appropriate mechanism has been put forward to secure the development as a self-build dwelling and the minimum information for BNG has not been provided. Therefore, the development would not be in accordance with the statutory regime for BNG and the BNG objective of the Framework would not be met. This is a significant material consideration which, in this case, indicates the appeal should be determined otherwise than in accordance with the

For these reasons the appeal should be dismissed.