Appeal 6001406

The appeal is allowed and planning permission is granted for the erection of 9-dwellings, including 4-affordable dwellings and associated parking (approval sought for access, appearance, layout and scale (matters reserved: landscaping)) at Land adjoining [name], Eastfield, Devon, [postcode] in accordance with the terms of the application, Ref 25/0057/OUT, subject to the conditions in the attached schedule.

An application for costs was made by [name] against East Devon District Council. This application is the subject of a separate decision.

The appeal was made against a failure to give notice of a decision on the planning application within the prescribed period. However, the Council has detailed its concerns within its submissions, and advised that, had it been in a position to determine the application, it would have been refused.

I have removed words not in relation to development from the description of development contained within the banner heading.

The appeal scheme relates to an outline proposal, with access, appearance, layout and scale to be considered at this stage, and with landscaping reserved for future consideration. I have considered the appeal accordingly.

The appellant submitted a completed [name] (UU) during the appeal. Following queries I raised, the original UU was amended, and an updated version has since been provided. I address the adequacy of the updated version later in this decision.

The main issues are: • whether the proposal would accord with the development plan’s spatial strategy for the distribution of housing; • the effect of the proposed development on the character and appearance of the area, with particular regard to the effect on trees; • whether the proposal would safeguard and enhance biodiversity; and • whether the proposal makes appropriate provision for affordable housing.

The appeal site comprises part of the former grounds of [name] and lies immediately adjacent to the recent residential development at [name] on the western side of [site address] . The site is accessed from Eastfield, a residential cul-de-sac, and is visually and physically related to the existing built form. The surrounding area is characterised by low-density housing set within a strong woodland framework, which is a defining feature of the settlement. The site is within reasonable walking distance of key village services, including the shop, village hall and primary school, via predominantly level and lit pedestrian routes.

However, the site lies outside the Built-up Area Boundary (BUAB) for [site address] and is therefore in the countryside for the purposes of the development plan. The Council’s appeal statement emphasises that the settlement boundary is a long-established policy tool intended to prevent incremental outward expansion and to protect the countryside from encroachment. The Council also notes that the site was not taken forward as an allocation in the Regulation 19 draft Local Plan, and that its location outside the BUAB renders it contrary to the spatial distribution of development envisaged by the adopted plan.

Strategies 1, 2, 6 and 7 of the East Devon Local Plan 2013 – 2031 (LP) collectively direct new housing to the [name], the district’s main towns, and within settlement boundaries. Development outside the BUAB is strictly controlled and is permitted only in limited circumstances that do not apply here. The proposal therefore conflicts with the spatial strategy.

The site contains numerous protected trees under a Tree Preservation Order (TPO). Concerns were raised about the proximity of dwellings to root protection areas and the potential for long-term pressure to prune or fell retained trees due to shading, leaf fall and perceived safety risks. Reference was also made to historic tree clearance prior to the making of the TPO. These matters are noted. However, the decision must be based on the site’s present condition and the technical evidence before me.

Following amendments to the layout, the Council’s Tree Officer confirmed that the relationship between the proposed dwellings and the retained trees would be satisfactory. This assessment is based on updated surveys, revised constraints plans and site visits. Although interested parties have suggested that concerns were expressed during the Planning Committee site visit, I give greater weight to the formal arboricultural evidence, which demonstrates that the retained trees can be safeguarded during construction and that the future relationship between dwellings and trees would be acceptable.

The removal of three trees, including one storm-damaged specimen, is modest. The indicative landscaping proposals include substantial new planting, including 24 replacement trees and nearly 300 metres of indigenous hedgerow. These measures would reinforce the woodland character of this part of [site address] . The suggestion that new planting would fail due to shading is not supported by arboricultural evidence.

Interested parties emphasise the importance of the wooded buffer along the B3180 and the risk of creating an impression of ribbon development. The rural, wooded approach to [site address] is a valued component of local character. The appeal site sits behind an established belt of trees forming part of this buffer. The proposed dwellings would be set back from the road and screened by retained woodland. The removal of three trees within the site would not materially alter this frontage.

For these reasons, the proposed development would not materially harm the character and appearance of the area, with particular regard to the effect on trees. Consequently, I find no conflict with Policies D1 or D3 of the LP or with Policy NP26 of the [name] and [site address] Neighbourhood Plan 2017 – 2031, insofar as they seek to ensure that development protects local character, respects landscape qualities and safeguards important trees.

The site lies within a sustenance zone for lesser horseshoe bats and supports a diverse assemblage of bat species. Representations emphasise the ecological importance of this assemblage. I acknowledge this sensitivity. The Council’s ecologist initially sought clarification on lighting and habitat impacts but, following the submission of a revised layout and a technical lighting review, confirmed that the proposed dark corridors could be achieved and that the development would provide suitable habitat for protected species.

The Lighting Review Statement demonstrates that light levels below 0.5 lux can be achieved along the designated dark corridors. The revised layout provides continuous unlit corridors along the boundaries. Concerns that no southern corridor exists are not supported by the updated plans or the ecologist’s

The concerns raised by interested parties about domestic lighting, garden encroachment and pressure on retained trees are recognised risks in residential settings. These matters can be managed effectively, but only where a clear long-term framework is in place. In this case, the approach would be acceptable through the submission of a [name] and Monitoring Plan, secured by condition, providing a mechanism to ensure that the ecological corridors and associated habitats are maintained and monitored over the lifetime of the development.

Parts of the site are mapped as [name], and objectors note that around 19.5% of the site would become private gardens. This is reflected in the [name] (BNG) metric, which shows a modest loss of habitat units. The off-site BNG provision is designed to compensate for this loss and is accepted by the Council as compliant with the mandatory framework.

The proposal relies on an off-site habitat bank near Honiton. Concerns were raised by interested parties about its distance, registration status and compliance with trading rules. The Council confirms that the off-site units meet the mandatory BNG framework and that the habitat bank is progressing toward registration. The BNG regime allows off-site delivery where on-site opportunities are limited, and I am satisfied that the approach is acceptable.

For these reasons, subject to conditions securing the lighting strategy, ecological management plan and long-term habitat monitoring, I am satisfied that the proposal would not materially harm biodiversity. Consequently, the proposal complies with Strategy 47 and Policy EN5 of the LP, which both require development to protect important habitats and species, avoid or minimise harm to biodiversity, maintain ecological networks and deliver meaningful on-site enhancements.

Following queries I raised about the originally submitted UU, the appellant has submitted an updated UU securing four affordable dwellings on-site and a financial contribution equivalent to 0.6 units.

The updated UU secures the on-site provision of affordable housing in accordance with Strategy 34 of the LP. It defines the tenure, occupancy, eligibility criteria and delivery mechanisms with sufficient clarity. The UU also secures the financial contribution towards off-site affordable housing, calculated in accordance with the Council’s adopted methodology.

I am satisfied that the obligations are necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind. The UU is therefore compliant with Regulation 122 of the Community Infrastructure Levy Regulations 2010 and I have taken it into account.

As established, the proposal conflicts with the spatial strategy set out in Strategies 1, 2, 6 and 7 of the LP. These policies seek to direct development to the [name], the district’s main towns, and within settlement boundaries. The appeal site lies outside the BUAB for [site address] and is therefore in the countryside for policy purposes. The proposal therefore conflicts with the development plan when taken as a whole.

In this appeal, the most important policies for determining the application are those relating to the location of development. As the Council can demonstrate only 2.97 years of deliverable housing land supply, these policies are deemed to be out-of-date for the purposes of Paragraph 11(d) of the National Planning Policy Framework (the Framework). Paragraph 11(d) also indicates that, in these circumstances, planning permission should be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole, with particular regard to certain specified policies.

Some representations argue that the weight to be given to housing delivery should be reduced because [site address] has a number of unimplemented permissions and many homes currently on the market. These points are noted. However, the Framework requires housing need to be assessed at the district level. The district-wide shortfall is substantial, and the delivery of both market and affordable housing carries significant weight irrespective of local market fluctuations.

The proposal is not in accordance with the Framework’s expectation that development should be led by the development plan. However, the site adjoins the existing built form at [name] and forms part of a wider pattern of residential development on the western edge of the settlement. It is not physically or visually detached from the settlement. The Council’s own officer reports describe the site as being within reasonable walking distance of key village services, with largely level and lit pedestrian routes. The site was also identified as a “second choice” option during the Regulation 18 stage of the emerging Local Plan, indicating that the Council previously regarded it as having potential for development. In this context, the proposal would not represent an isolated or sporadic intrusion into open countryside but would instead read as a logical rounding-off of the settlement. The conflict with the Framework is therefore limited.

Additionally, the benefits of the proposal are significant. The development would provide nine dwellings in a district with a significant housing shortfall. The provision of four affordable homes is a particularly important benefit, given the acute affordability pressures in [name] and the limited opportunities for delivering affordable housing in smaller rural settlements such as [site address] . The development would also deliver biodiversity enhancements, ecological mitigation, and economic benefits both during construction and in the long term through expenditure by the future residents. Furthermore, the site is in a sustainable location, well related to the existing settlement and accessible to key village services.

As such, when assessed against the Framework as a whole, the adverse impacts of granting permission would not significantly and demonstrably outweigh the benefits. This means that the presumption in favour of sustainable development applies.

The Framework is government policy and therefore carries substantial weight. As the spatial strategy and most important development plan policies for determining the appeal are deemed to be out of date, I give greater weight to the policies of the Framework. This indicates that a decision should be taken otherwise than in accordance with the development plan.

The appeal site lies within the Zone of Influence for the East Devon Pebblebed Heaths Special Area of Conservation (SAC) and Special Protection Area (SPA). Residential development within this zone is likely to increase recreational pressure on the designated sites. In accordance with Regulation 63 of the Conservation of Habitats and Species Regulations 2017, I have undertaken an Appropriate

The qualifying features of the [name] include European dry heath and wet heath habitats, while the [name] is designated for its populations of nightjar and Dartford warbler, both of which are vulnerable to disturbance arising from increased recreational activity. Without mitigation, the proposal would be likely to have a significant effect on the integrity of the designated sites, both alone and in combination with other plans and projects.

The Council operates an established mitigation strategy for the [name], which requires a financial contribution towards wardening, visitor management and habitat protection. The submitted Section 111 agreement secures the required financial contribution in accordance with this strategy. The officer report confirms that this contribution is necessary to avoid adverse effects arising from increased recreational pressure.

Natural England has previously confirmed that the Council’s mitigation strategy, when secured through an appropriate legal mechanism, is sufficient to avoid adverse effects on the integrity of the designated sites. Having considered the best scientific evidence available, and with the recreational mitigation secured through the Section 111 agreement, I am satisfied that the proposal would not adversely affect the integrity of the [name] or SPA, either alone or in combination with other plans or projects.

I have considered the planning conditions suggested by the Council in light of the guidance within the Framework relating to planning conditions. [name] have amended the Council’s wording, this has been done solely in the interests of precision and enforceability, without altering the substance of the requirements.

Conditions 1, 2 and 3 are required because the application is in outline with landscaping reserved, and they ensure proper control of the reserved matter and compliance with statutory time limits. Condition 4 provides certainty and ensures the development proceeds as assessed.

Conditions 5 and 6 safeguard the living conditions of nearby residents and ensure construction traffic and site operations are managed safely. Given the number of protected trees on the site, Condition 7 is essential to prevent avoidable harm to them during construction. Condition 9 is required due to the site’s location within an aerodrome safeguarding area.

Condition 10 ensures the development sits comfortably within the landscape and avoids undue visual impact. Condition 13 ensures the development reflects local character and integrates appropriately with its surroundings.

Conditions 8 and 14 protect protected species and secure biodiversity enhancements, while Conditions 12 and 15 protect nocturnal wildlife and ensure biodiversity net gain is delivered and maintained over the required 30-year period.

Condition 11 secures the use of sustainable drainage systems and prevents increased flood risk and Condition 16 is imposed in the interests of highway safety. Condition 17 promotes sustainable travel and ensures adequate refuse provision for future occupiers.

The proposed development would conflict with the development plan but material considerations indicate that a decision should be made other than in accordance with it. Accordingly, the appeal should be allowed and planning permission granted.

Details of the landscaping, "the reserved matter", shall be submitted to, and approved in writing by, the Local Planning Authority before any development takes place and the development shall be carried out as approved.

Application for approval of the reserved matter shall be made to the Local Planning Authority not later than three years from the date of this permission.

The development hereby permitted shall take place not later than two years from the date of approval of the reserved matter.

The development hereby permitted shall be carried out in accordance with drawing nos EWH: 358/300 [name], EWH: 358/302 [name], EWH: 358/303 [name], EWH: 358/304 [name], EWH: 358/305 [name], EWH: 358/306, EWH: 358/307, EWH: 358/308, EWH: 358/309, EWH: 358/310, EWH: 358/311, EWH: 358/313, EWH: 358/314, EWH: 358/315, EWH: 358/316, EWH: 358/317, EWH: 358/318 and EWH: 358/320.

Prior to commencement of the development hereby permitted, a Construction Management Plan (CMP) shall be submitted to, and approved in writing by, the Local Planning Authority. The approved CMP shall thereafter be implemented for the duration of construction.

Construction shall take place only between 08:00–18:00 Monday to Friday and 08:00–13:00 on Saturdays, with no working on Sundays or [name]. No burning shall take place on site.

Prior to commencement of the development hereby permitted, a Tree Protection Plan and [name] shall be submitted to, and approved in writing by, the Local Planning Authority. The approved plan and statement shall thereafter be implemented for the duration of construction.

Prior to commencement of the development hereby permitted, a Construction and Ecological Management Plan (CEMP) shall be submitted to, and approved in writing by, the Local Planning Authority. The approved CEMP shall thereafter be implemented for the duration of construction.

Prior to commencement of the development hereby permitted, an Instrument Flight Procedure (IFP) assessment shall be submitted to, and approved in writing by, the Local Planning Authority. The development shall then be carried out in accordance with the recommendations of the IFP assessment.

Prior to commencement of the development hereby permitted, details of finished floor and ground levels shall be submitted to, and approved in writing by, the Local Planning Authority. The development shall then be carried out in accordance with the approved details.

Prior to commencement of the development hereby permitted, details of the means of surface water drainage shall be submitted to, and approved in writing by, the Local Planning Authority. The approved scheme shall be implemented before first occupation of any dwelling and shall be retained as such thereafter.

Prior to commencement of the development hereby permitted, a 30-year [name] and Monitoring Plan shall be submitted to, and approved in writing by, the Local Planning Authority. The approved plan shall be implemented before first occupation of any dwelling and shall be maintained as such thereafter.

Prior to development above foundation level, details and samples of external materials shall be submitted to, and approved in writing by, the Local Planning Authority. The development shall then be carried out in accordance with the approved details and samples and shall be retained as such thereafter.

The development hereby permitted shall be carried out in accordance with the Ecological Impact Assessment, [name] and [name]. The specified ecological features shall be installed prior to first occupation of any dwelling and shall be retained as such thereafter.

Prior to the installation of any external lighting, a detailed lighting scheme, based on the [name], shall be submitted to, and approved in writing by, the Local Planning Authority. External lighting shall then only be installed in accordance with an approved lighting scheme and shall be maintained as such thereafter.

No dwelling shall be occupied until its associated access, parking and turning areas have been provided in accordance with the approved plans. Those areas shall be maintained thereafter for the purposes of access, parking and turning for vehicles.

Cycle and bin storage for each dwelling shall be provided in accordance with the approved plans prior to its first occupation and shall be retained as such thereafter. End of Schedule