Appeal 6001383

The appeal is dismissed.

I recognise that the planning appeal process should not be used to evolve a scheme. However, the [name], as well as more recent caselaw, does set out the principles for where revisions or amendments to a proposal may be accepted.

Additional documents have been provided as part of the appellant’s case. They do not alter the scheme, which remains the same as it was before the Council at the time they made their decision. Instead, the appellant’s case has been bolstered with additional submissions in defence against some of the Council’s reasons for refusal. These submissions do not fundamentally change the scheme or result in any substantial differences. Moreover, given the nature of the submissions, those who were entitled to make a representation were not deprived of the opportunity. I have therefore been mindful of these additional documents as part of my consideration of this appeal.

The main issues are: • The effect of the proposal on protected species and the Stour Valley Site of Local Importance for Nature Conservation (the SLINC); • Whether a suitable drainage strategy has been provided; • Whether the proposal would provide a suitable standard of living conditions for future occupiers; • The effect of the proposal on the character and appearance of the surrounding area; and, • The effect of the proposal on nearby trees.

The appeal site comprises a large area of hard surfacing raised up by a retaining wall from the [name]. On site are two main buildings, namely a small timber office and a larger brick workshop with a lean-to. Vegetation on site is very minimal but there is significant vegetation outside the site along both sides of the [name]. This vegetation includes mature trees along the riverbank opposite the appeal site. I understand that immediately to the north of the site is the SLINC.

While the appellant’s [name] and Preliminary Roost Assessment (the PEA) found that the appeal site is of minimal ecological significance, there is a low potential for bats to use the site for roosting. Consequently, the PEA recommends that an emergence survey is undertaken to confirm the presence of bats, or lack thereof. The survey would also be necessary to support mitigation for the trees to the north of the appeal site.

Circular 06/2005 states that it is essential that the presence or otherwise of a protected species, in this case bats, and the extent that they may be affected by the proposed development, is established before the grant of any planning permission. Should this not be done, there is a risk that not all relevant material considerations will have been addressed in making the decision.

No emergence survey was provided with the planning application or with this appeal. The Circular is clear that the undertaking of such a survey as part of a condition following the grant of planning permission should only be done in exceptional circumstances. It has not been demonstrated that there are any such circumstances relevant to this scheme and so a condition would not be appropriate in this instance. I cannot therefore ascertain whether there would be any impact to bats or their roosts, and if so to what extent.

The PEA identifies that an additional survey would also be necessary to ensure mitigation for the trees within the SLINC that overhang the [name]. I am, however, content that this mitigation and any other mitigation related to the SLINC and wider green network could be secured via conditions in the event that the appeal were allowed. I am also content that given the current quality of the site’s biodiversity value, the creation of soft landscaped gardens would make a sufficient contribution to biodiversity net gain.

Nevertheless, I have insufficient information to assess the extent to which bats or their roosts may be impacted. The appellant has, therefore, not demonstrated that the proposal would not harm a protected species. The proposal consequently conflicts with Policy ENV1 of the Black Country Core Strategy (the BCCS), Policy S21 of the Dudley Borough Development Strategy (the DBDS) and emerging Policy DLP32 of the Dudley Local Plan Spatial Strategy and Policies (the SSP). These policies, amongst other matters, require that protected species are not harmed by developments and that adequate information is provided with schemes to confirm this. I have also been mindful of the guidance within the Nature Conservation Supplementary Planning Document.

As noted above the appeal site is immediately adjacent to the [name] and is elevated above it by way of a retaining wall. Lacking any evidence to the contrary, and given the elevated position of the appeal site relative to the river, it is unlikely that it would be at risk from fluvial flooding. As part of the appeal a plan has been provided demonstrating how surface water runoff generated by the site might be dealt with as part of the scheme.

This proposes that surface water be discharged through new storm drains attached to soakaways within plots 1 and 3. However, no details have been provided as to the permeability of the appeal site and therefore, whether such a scheme would work. I am mindful that the appeal site currently does not provide any permeable surfaces to accommodate for surface water drainage. Moreover, no details have been provided as to the method in which drainage is currently being dealt with. It is very likely, given the nature of the site, that there is no current soakaway serving the site.

I am mindful of the fact that the current building and hard surfacing are larger than the proposed, and that the proposal would introduce a sizeable area of soft landscaping. However, it is not clear what is below the current hardstanding and whether this would be permeable. Moreover, given the close proximity of the site to the watercourse I am concerned that the underlying ground may already be saturated and, especially in times of flood, that it may be unable to accommodate additional water. The proposal could, therefore, result in surface water flooding on site or runoff to the surrounding area. consequently, I find it has not been suitably demonstrated that the proposal could secure a suitable drainage scheme.

While the details before me go some way to set out a potential drainage solution, they are not sufficient to demonstrate there would be no harm, or that any harm could be mitigated by a condition. The proposal therefore conflicts with BCCS Policy ENV5, DBDS Policy S21 and emerging [name] DLP45 and DLP46 which seek to minimise the risk of flooding occurring and the impact of any such flooding. The proposal also conflicts with National Planning Policy Framework (the Framework) Chapter 14 which, amongst other matters, requires proposals to demonstrate that they would not increase flood risk elsewhere.

Each of the three proposed units would be identical and provide three bedrooms. These have been identified on the submitted plans as bedrooms 1, 2 and 3. Both parties agree that the proposed bedrooms 2 and 3 would not meet the space standards set out within the [name] – [name] (the NDSS).

The National Planning Policy Framework (the Framework) states that policies may make use of these nationally described space standards where the need for such a standard can be justified. In this case the NDSS is referred to by the Dudley Council Residential Design Guide Supplementary Planning Document (the SPD) but no justification has been provided. While this does not follow the Framework, I nevertheless find that the NDSS forms a useful starting point for considering this matter.

As noted above, both bedrooms 2 and 3 do not meet the NDSS space requirements with both being narrower than required to serve a single bed. However, I am content that their under provision is modest in relation to the overall requirement. Moreover, the floor space serving bedroom 3 is larger than that required by the NDSS. Bedroom 1 is a double bedroom and I am content that, when taking account of the built-in storage as required by the NDSS, it would meet these standards.

In all, the under provision of space compared to that required by the NDSS is very modest. Therefore, while there would be some impact on the quality of living conditions provided for future occupiers, this would not be so significant as to result in an unacceptable standard of accommodation. Although the proposal would not comply with the standards set out within the NDSS, and would consequently also not comply with the SPD, these are only material considerations and, as noted above, no harm would arise as a result of this.

The proposal therefore provides a suitable standard of living conditions for future occupiers with regard to the provision of bedroom space. As such it complies with BCCS Policy HOU2 and DBDS Policy L1 which require that proposals are of a high quality design that provide appropriate levels of amenity for future occupiers.

The appeal site is located between an industrial estate, wooded parkland and a residential area. Although the site itself comprises an industrial building it nevertheless reads as being within the residential area given its close relationship with a short terrace of dwellings. The dwellings along [site address] and the Forge have been built in a number of different architectural styles and their appearance, form and scale are varied. In particular, the overall height of the dwellings as well as the pitch and form of their rooves differ between the groups. Notably, it appears that accommodation is provided within the rooves of the neighbouring terrace.

The proposal would introduce a short row of three-storey dwellings where the second floor would be within the roof. In this sense the proposal would reflect the adjacent development. Although the proposed dwellings would be taller than the existing terrace, which itself displays two different roof heights, the appeal site is on lower ground and so the proposal would appear of a comparable height. I am mindful that the roof slope would be longer on the proposed dwellings those in the surrounding area. However, as above, variation is common within the street scene and as such I find that this difference would not be so significant as to result in an incongruous or alien form of development detrimental to the appearance of the surrounding area.

I note the Council’s concerns that the proposal would not reflect traditional proportions and that it would result in a cramped and contrived development. The proposed dwellings would be narrow and, given their height, have a vertical emphasis. I find that this narrowness would reflect that of the adjacent terrace as well as the dwellings on the opposite side of the road. The verticality of the proposal is also found in these dwellings opposite. Again, while the resultant dwellings would present some differences to the wider street scene, these would not be incongruous or harmful.

The proposal would not unacceptably affect the character and appearance of the surrounding area and so complies with [name] ENV2, ENV3, HOU2 and CSP4, [name] S6, S8 and L1, and emerging [name] DLP4, DLP10, DLP11 and DLP39. These seek for proposals to be of a high quality design that responds to the identity and character of their surroundings, including with regard to form, siting, scale and mass. The proposal also complies with the design guidance set out within the SPD

The appellant has provided an Arboricultural Impact Assessment with associated plans identifying the location of trees on and around the appeal site. Only T6 is within the appeal site while the other trees identified are outside the site’s boundary. However, G1, T1 and T5 are close to the site’s boundaries and, to varying degrees, overhang them.

It is very unlikely, given their siting on the opposite bank of the [name], that T2, T3 and T4 would have roots that could be affected by the proposed development. I am also content that the crown spread of these trees would not be affected by the development in the short or long term.

The group of trees that make G1 and T1 are set on the river bank below the appeal site and are separated from it by a significant retaining wall. Given the change in elevations and their separation from the site by the wall, it is again unlikely that any root growth will have spread within areas of the site likely to be affected by the development. I am however mindful that these trees would be close to the proposed dwellings and would therefore need regular pruning works. This may have some impact on the long-term health of the trees. However, these trees are already very close to the existing buildings on site and so would already need to be controlled in this manner. Consequently, I find the proposal would result in no greater harm to the long-term viability of G1 and T1.

Given the distance between T5 and the proposed dwellings it is unlikely that there would be any significant risk for this tree. Given the quality of the tree, which I understand to be compromised by having been previously cut down, I also find that the loss of this tree would not be unacceptable. T6 is an Ash tree and its longevity will be prejudiced by the [name] epidemic. As such while the proposal may put pressure on this tree, I find its loss would not be unacceptable.

In all the proposal would not have any unacceptable impacts to trees on or around the appeal site. The proposal therefore complies with [name] S21 and S22, and emerging SSP Policy DP33 which seek to safeguard or enhance natural features and encourage the appropriate management of existing trees.

There is no dispute that the Council is unable to demonstrate a five year housing land supply. The Government’s objective is to significantly boost the supply of housing and the proposal would provide three new dwellings and contribute towards the Council’s housing land supply. It would also lead to a small and time limited economic benefit during the construction phase, as well as some limited social and economic benefits resulting from future occupiers. Given the small scale of the proposal these matters would at most attract moderate weight.

Conversely, the proposal would result in a potential harm to a protected species, bats, as no emergence survey has been provided. Consequently, it is not possible to ascertain what mitigation would be needed or whether such mitigation could be achieved. This cannot, therefore, be secured through a condition. Insufficient information has also been provided with regard to surface water drainage and as such there is a risk of surface water flooding. I similarly find that this could not be dealt with via a condition. These impacts are contrary to both local and national planning policy to which I give considerable weight.

Taking everything into account, I consider that the adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits. As a result, the application of Paragraph 11d of the Framework does not indicate that permission should be granted, and the proposal would not represent sustainable development. In the circumstances of this appeal, the material considerations above do not justify making a decision other than in accordance with the development plan.

Therefore, for the reasons outlined above, I conclude that the appeal should be dismissed.