Appeal 6001401

The appeal is dismissed.

The main issues are: • the effect of the proposed development on the Tamar European Marine Site (EMS); • whether the site is in a suitable location having regard to policies that seek to control development in the countryside; and • whether the proposal would achieve low carbon design.

The appeal property comprises an outbuilding that is being used for residential accommodation and includes an integral garage. It is compact and while 2 bedrooms are shown on the plans, the Council says that one of these could be considered to be an office, making the proposed use a 1 bed dwelling. In these circumstances, the scheme would meet nationally described space standards for a 1 bed unit over 2 storeys.

The main parties agree that the appeal site lies within the zone of influence of the EMS, which comprises the [name] and Tamar Estuaries Special Protection Area and Special Area of Conservation. The proposal must therefore be assessed against the requirements of the Conservation of Habitats and Species Regulations 2010.

In order to grant permission, I must be satisfied that it can be established, beyond reasonable scientific doubt, and having regard to the manner in which the development would be carried out and any conditions or restrictions to which it would be subject, that the proposal would not adversely affect the integrity of the European sites.

Relevant guidance is contained within the [name] and [name], supported by Natural England. This is set out in the Council’s Plymouth & South West Devon Joint Local Plan (JLP) Supplementary Planning Document and explains that within a 12km zone, increased pressure from new residential development is likely to have a significant effect when considered either alone or in combination, upon the interest features of the European sites. Those features include sandbanks, mudflats, inlets, bays, reefs, Atlantic salt meadows, and Shore dock, and Allis shad. There are also internationally important populations of Avocet and [name] in the SPA.

Mitigation measures indicate that a financial contribution is required for each new unit of accommodation, with a sum to be agreed via a [name] (UU) or as part of a s106 agreement.

The appellant agrees that mitigation would be required and has submitted a UU late in the process. There are however inaccuracies in respect of the date of registration, description of development, and fees payable for a 1 bed unit of accommodation. Accordingly, the UU is flawed and could not take effect. It can be given no weight.

Amongst other things, paragraph 193 of the National Planning Policy Framework (the Framework) says that if significant harm to biodiversity cannot be mitigated or compensated for, planning permission should be refused. Accordingly, without mitigation already in place in the form of a UU, I cannot be certain the proposal would not have an adverse effect on the integrity of the European sites.

I therefore conclude on this main issue that the proposal would harmfully affect the EMS. As such, there would be conflict with JLP policies DEV26 and DEL1 which, together in this respect, promote the use of planning agreements for mitigation and say that development will not be permitted unless it will not adversely affect the integrity of a European site, either alone or in combination with other development.

The appeal site is positioned just beyond the outer periphery of Tavistock, which is defined as a main town at the top of the settlement hierarchy, and where sustainable growth is prioritised under JLP policies TTV1 and TTV2.

Outside settlements, development will only be permitted where it can be shown to support the principles of sustainable development and sustainable communities. These are contained within SPT1 and SPT2 of the JLP, which, amongst other things, aim to ensure communities have reasonable access to a vibrant mixed-use centre, and support the effective use of land through optimising the reuse of previously developed sites. In addition, JLP Policy TTV26 seeks to protect the special characteristics and role of the countryside by only permitting isolated development in exceptional circumstances in its first part.

Notwithstanding the Council’s position and having paid regard to the various judgements in respect of the meaning of the word “isolated,” it is acknowledged that the appeal site does not form part of the main built-up area. However, even in the absence of street lighting immediately outside the appeal site and a lack of footway for much of the route into town, it remains both physically and visually close, rather than isolated from it. As such, exceptional circumstances required by TTV26 need not be demonstrated.

Part 2 of the policy says that proposals should meet certain criteria, where appropriate. Most of these would not apply to this proposal. Even if criterion vi were to, given the nature of the proposal, the immediate setting of the appeal site would remain similar and therefore a degradation of the landscape would be avoided. In fact, the proposal would make use of an existing building, which would be an effective and beneficial use of land. Given these findings, it is necessary to look at whether or not the proposal would support sustainable communities.

In that context, from the appeal site entrance, it took me less than [address] to the continuous built-up area, where street lighting starts. Vehicle speeds were low and the route into town was well used by pedestrians and dog walkers at the time of my visit. Although steep in places, the experience did not feel unsafe or arduous. About half way along my walk into town, I saw the connecting cycle route, and beyond this there was a cut through towards the main shopping area. I did not notice any nearby bus stops, though plenty could be found in the town.

While trips would inevitably be made by private vehicles, particularly during dark or inclement weather conditions, the option to walk or cycle to the main town would still be a realistic and convenient option for future occupiers. This genuine and healthy alternative transport mode would help reduce carbon emissions, which aligns with JLP policies SPT1, DEV29, and DEV32, as well as Chapter 14 of the Framework. In that context, paragraphs 162 and 164 are concerned with plan, rather than decision making. Overall, despite being located outside the main built-up area, future occupiers would have more than reasonable access to a vibrant mixed-use centre.

For the reasons given, I therefore conclude on this main issue that the proposal would be in a suitable location, having regard to policies that seek to control development in the countryside. As such, there would be no conflict with JLP policies SPT1, SPT2, TTV1, TTV2, TTV26, DEV29, or DEV32.

JLP Policy DEV32 says, amongst other things, that the need to deliver a low carbon future should be considered in the design and implementation of all developments. Opportunities should be identified to minimise the use of natural resources by making use of existing buildings. My attention has been drawn to the Council’s Climate Emergency Planning Statement (CEPS) which expands on the advice in the JLP in meeting the challenge of climate change. Its main objective set out in CES01 includes the prioritisation of retrofitting existing buildings and reuse of materials. While not having the force of policy, the CEPS is nevertheless a material consideration. Noting an appeal decision at Town Farm1, the aforementioned policy and guidance align with Framework paragraph 167, which says that significant weight should be given to energy efficiency and low carbon heating improvements to existing buildings.

In that context, the appellant submits that best use of an existing building is made by the proposed change of use. I agree that this weighs heavily in favour of the 1 APP/Q1153/W/23/3334616 proposal. Furthermore, the appellant has demonstrated that there would be an ability to install solar panels and a heat pump. While upfront details or commitments are lacking, there is little reason why these measures could not be secured by way of an appropriately worded condition, which the appellant is agreeable to.

Therefore, having paid regard to the Framework’s support for the transition to net zero, the reuse of an existing building strongly aligns with the Council’s own priorities. Moreover, consideration for the need to deliver a low carbon future has been demonstrated.

I therefore conclude on this main issue that the development would achieve a low carbon design. As such, it would accord with JLP Policy DEV32.

Considering the main issues in the round, I have concluded that the proposal would be in a suitable location where it could be progressed with a low carbon design. While my findings on these main issues weigh heavily in favour of the scheme, this is not outweighed by the identified harm in respect of designated sites. Furthermore, the policies identified in this respect are broadly consistent with those set out in the Framework and can therefore be given substantial weight. The proposal conflicts with the development plan as a whole.

It is undisputed that the Council is unable to demonstrate a 5-year supply of deliverable housing sites, where there is a current supply of about 2.53 years.

Paragraph 11 d) of the Framework indicates that, where the requisite housing land supply cannot be demonstrated, permission should be granted unless: i. the application of policies in the Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed; or ii. 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.

Footnote 7 states that policies in the Framework relating to habitats sites qualify as protection policies under the first limb of paragraph 11 d). As set out above, there is a strong reason for refusing the proposed development. Consequently, the tilted balance in the second limb does not apply and the proposal does not benefit from the presumption in favour of sustainable development within the Framework.

For the reasons given above the appeal has to be dismissed.