Appeal 6001527

The appeal is dismissed.

The application was submitted in outline with all matters reserved for future consideration. I will proceed on the basis that details shown on the submitted drawing in respect of matters reserved for future approval are for illustrative purposes only.

The third reason for refusal relates to drainage. Since the application was determined and the Flood Risk Assessment (FRA) was prepared, the Environment Agency (EA) has updated its flood mapping dataset. I therefore gave the main parties and the EA the opportunity to comment on this matter and have incorporated and considered the matters raised within my decision.

The main issues are: • The effect of the proposed development on the living conditions of the occupiers of nearby dwellings and whether the proposed development would provide acceptable living conditions for future occupiers, with particular reference to privacy; • Whether adequate details relating to drainage have been provided; and • The effect of the proposed development on the character and appearance of the surrounding area, including the setting of the Todmorden Conservation Area (CA).

The site is currently used for parking and contains a detached garage. The rear elevations of 92 and [address] face towards the appeal site and those properties sit at a lower ground level. 1 [site address] also has windows orientated towards the site. In addition, the gardens of 1 and [address] are adjacent to the site, and those dwellings also have windows facing towards the site. Their garden areas are modest in size and the vegetation within the gardens provide some screening of the site. Due to the topography of the area, the [address] dwellings sit at a substantially higher level. The above-mentioned windows serve both principal and secondary rooms.

The Council highlights that development on this plot would be expected to achieve the minimum separation distances of at least 12 metres to a blank elevation, and between 15 and 21 metres where main or secondary windows would face other windows. These standards are intended to ensure acceptable levels of privacy, outlook and amenity between existing and proposed dwellings.

Owing to its limited size, relationship with multiple neighbouring properties (including the number of windows and private amenity spaces in close proximity to the site), and changes in ground levels, the site is significantly constrained. The indicated retention of the garage would further restrict the layout options available. In light of these constraints and although the proposal is in outline, I am not satisfied that a dwelling could be accommodated while achieving the necessary separation distances and avoiding unacceptable overlooking of nearby windows and private amenity spaces. Thus, on the basis of the information before me, I cannot conclude that a dwelling could be delivered without resulting in harm to neighbours’ living conditions.

A substantial retaining wall runs along the northern boundary of the site which would restrict the ability to provide ground-floor windows on that elevation. When considered alongside the proximity and orientation of neighbouring properties windows, and the overall constrained nature of the site, I am not persuaded that an acceptable layout could be achieved which would secure the necessary separation distances for future occupiers. Even at outline stage, the evidence before me does not demonstrate that a dwelling could be designed to avoid significant overlooking from neighbouring properties or to provide adequate levels of privacy and outlook for future residents.

For these reasons, I am not satisfied that a dwelling could be accommodated on the site without resulting in harm to the living conditions of the occupiers of nearby dwellings or securing acceptable living conditions for future occupiers, with particular reference to privacy. Consequently, it would conflict with Policies HS1 and BT2 of the Calderdale Local Plan 2018/19-2032/33 (2023) (LP). These seek, amongst other things, to ensure development proposals do not result in a significant adverse impact on the privacy of adjacent residents, and would provide adequate privacy for prospective residents.

The site is located in a Critical Drainage Area and [name] 2 on the Environment Agency Maps. In such locations, new development is required to demonstrate that it can meet minimum flood‐risk and drainage requirements.

The submitted FRA identifies a finished floor level (FFL) that would not meet the level required by the Council’s Lead Local Flood Authority. Furthermore, [name] has advised that it may not be acceptable to raise or lower ground levels over the sewer and they would not accept any inspection chambers on the sewer being built over. On the limited information before me, the appellant has not shown that an appropriate FFL could be delivered in a manner that accords with the constraints identified by consultees. Accordingly, it has not been demonstrated that suitable flood mitigation measures could be achieved.

My attention has been drawn to an appeal decision1 that also related to an outline application. The Inspector imposed a standard condition requiring details of foul and surface water drainage, and the appellant suggests the same could be applied here. However, the main issues in that appeal did not relate to drainage, and I do not have adequate information before me to demonstrate that the cases are directly comparable. Nonetheless, each case must be determined on its own merits and based on the evidence before the decision‐maker.

For these reasons, insufficient details relating to drainage have been provided. The submitted information does not provide sufficient assurance that the development could be made safe for its lifetime or that it would avoid increasing flood risk. Therefore, in the absence of sufficient evidence to the contrary, the development would be at risk of flooding. Consequently, it would conflict with Policy CC2 of the LP which seeks to ensure that applicants demonstrate that the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall. Furthermore, in [name], a site-specific Flood Risk Assessment should also demonstrate that new development is not at risk from flooding from existing drainage systems or potential overflow routes.

The proposal would also be contrary to Chapter 14 of the National Planning Policy Framework (the Framework) which states that the development should be made safe for its lifetime without increasing flood risk elsewhere. Additionally, it would conflict with the Council’s Flood Risk and Drainage Supplementary Planning Document (2024) which seeks to ensure that the location and delivery of a development are sustainable. It would also conflict with [name] and Design Guide Supplementary Planning Document (2024) (SPD) which states proposals must be designed to reduce potential flood risk - both current risk and that arising from future climate change – through the careful positioning of buildings and landscape spaces and the provision of flood mitigation measures.

The site is adjacent to the CA. The part of the CA nearest to the site is characterised by traditional, linear terraced development (largely residential dwellings), the main road ([address]) and Centre Vale Park. Buildings are primarily two-storey in height and constructed in stone with stone or slate roofs and are built either adjacent to the footway or with a small garden to the front.

The site’s current use and extensive hardstanding do not make a positive contribution to the setting or significance of the CA. The site’s form and appearance do not reflect the historic character of the area, nor does it contribute to the attributes that underpin the CA’s significance. 1 APP/A4710/W/21/3270078

The immediate surrounding area (which includes development outside of the CA) displays a degree of variation. While properties along [address] generally retain a traditional and cohesive appearance, the dwellings on [address] consist largely of bungalows of later construction that differ notably in scale, form and architectural detail. As such, the immediate context is not uniform, and the character transitions between traditional terraces and more modern forms.

Although the site is constrained, and there are limitations relating for example to living conditions and highway requirements, these matters do not necessarily preclude an acceptable form of development in design terms. At this outline stage, with no details of layout, scale, appearance or landscaping before me, I cannot reasonably conclude that the proposal would fail to respect or enhance local character or the significance of the CA. While a future design may well differ from existing built form, the surrounding variation means this would not, in itself, equate to harm. An appropriately considered scheme, potentially incorporating an innovative design response, could be capable of conserving or enhancing the CA’s setting.

For the reasons given above, and taking into account the outline nature of the proposal, I am satisfied that development on the site could be designed in a manner that would not harm the character and appearance of the surrounding area or the setting of the CA. Consequently, in this regard, it would accord with Policies HS1, BT1 and HE1 of the LP and the Todmorden Neighbourhood Plan 2023-2032 (2025). These seek, amongst other things, to ensure development proposals conserve, and where appropriate, enhance, the historic environment. Furthermore, the design style proposed in new developments should respect or enhance the character and appearance of existing buildings and surroundings.

The proposal would also comply with Chapters 12 and 16 of the Framework, specifically paragraphs 131 and 219 which seek to achieve good design as well as conserving and enhancing the historic environment. It would also accord with the SPD which states proposals must respond to the unique character of the district and reinforce local distinctiveness.

[name] listed buildings ([address] and [address]) are located nearby. I have therefore had special regard to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. [address] of two-storey, stone built cottages with stone slate roofs. [address] is a two-storey, stone built public house with a stone slate roof.

Owing to the intervening built form, the separation distances involved, and the contained nature of the appeal site, the proposal would not intrude into important views of the listed buildings or materially affect the way in which their significance is experienced. At this outline stage, and on the information before me, I am satisfied that development on the site could be achieved without harm to the setting or significance of these heritage assets. The proposal would therefore preserve their special interest, in accordance with the statutory duty.

The appellant states that the reasons for refusal relate to matters capable of control through reserved matters or planning conditions. They consider that the Council’s reasoning is therefore vague, premature, and inconsistent with national guidance and established appeal precedent within the same authority area. However, for the reasons set out above, the grounds for refusal cannot be addressed through reserved matters or planning conditions, and the appeal decision does not set a precedent. The other matters raised do not outweigh my findings above.

The Council sets out that they are presently unable to demonstrate a five-year supply of deliverable housing sites, and therefore paragraph 11(d)(ii) of the Framework is engaged. Weight may still be afforded to policies depending on their consistency with the Framework. Paragraph 232 of the Framework states that existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of the Framework. Based on the evidence submitted, the overall aims of the most relevant policies are broadly consistent with the aims of the Framework. There is nothing within the Framework to suggest that the policy requirements should be lessened on account of the shortfall in housing supply.

In considering paragraph 11(d)(ii) of the Framework, I must determine whether any adverse impacts of granting permission 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.

For the reasons set out above, and in the absence of sufficient evidence to the contrary, the proposal would result in unacceptable harm to the living conditions of neighbouring occupiers, would not provide acceptable living conditions for future residents, and would be unacceptable in respect of drainage matters. [name] have found that development could be designed in a manner that would not harm the character and appearance of the surrounding area or the setting of the CA, that is a neutral matter in the planning balance.

Based on the evidence submitted, the associated benefits of the proposal would not outweigh the conflict found. Consequently, the adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole. As a result, the presumption in favour of sustainable development does not apply.

The proposal would be contrary to Policies CC2, HS1, and BT2 of the LP. I afford this conflict, with the relevant policies of the development plan, significant weight.

For the reasons given above, to conclude, the proposal conflicts with the development plan as a whole and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Consequently, the appeal does not succeed.