Appeal 6001565

The appeal is dismissed.

An application for costs was made by [name] against Tonbridge and Malling Borough Council. This application is the subject of a separate decision.

The description of development in the banner heading is different to that on the application form. I have been provided with confirmation from the Council that the change in description was agreed by the main parties at the validation stage of the application process.

A number of previous planning permissions concerning the residential redevelopment of the site have been brought to my attention, the most recent of which1 permitted the “erection of 2 pairs of semi-detached 4 bed dwellings and one pair of detached 4 bed dwellings to the rear with two car ports. An amalgamation of three existing planning consents”. I have had regard to the history of the site insofar as it is relevant to the determination of this appeal.

The main issues are the effect of the proposed development on the • Character and appearance of the area. • Living conditions of the occupants of the neighbouring properties on [address], with particular regard to natural light and outlook. • Protected Oak Tree on land to the south of the appeal site. 1 22/02872/FL

The appeal site lies within a predominantly residential area and forms part of a wider urban block characterised by single‐storey bungalow development.

It is accessed from [address], a principal route leading into Tonbridge. A pedestrian crossing lies to the front of the site, and parking restrictions extend across the site’s frontage.

Although dwellings in the immediate vicinity are positioned relatively close to their side boundaries, the gaps that remain between them provide visual relief and contribute to a sense of spaciousness. These spaces also allow for glimpses of established landscaping to the rear of those properties, which in turn offers a soft and verdant backdrop to the built form.

The proposal comprises seven dwellings arranged as two pairs of semi‐detached houses fronting the site, with a further three detached dwellings positioned to the rear. Access to the rear units would be provided via a driveway running between the two pairs of semi‐detached properties.

The rear dwellings would be visible through this access route. As a result, the visual break created by the gap between the frontage buildings would be substantially diminished, with the development as a whole reading as a largely continuous and consolidated built form. This would erode the spacious quality of the area and would result in a development that has a cramped appearance. In reaching this conclusion, I have noted the comments from the appellant with regard to density. However, an assessment of density is not solely a numerical exercise but also considers the visual impacts of the proposal.

The Council’s first reason for refusal refers to the limited space within the site for the turning and manoeuvring of delivery vehicles and cars along with concerns regarding space for the provision of refuse and recycling storage, and the likelihood that such would be left at the front of the site. However, I am satisfied that, were I minded to allow the appeal, these matters could be adequately addressed through the imposition of appropriately worded planning conditions, ensuring that the site could operate without giving rise to the issues identified by the Council.

I have had regard to the extant permission for the site (22/02872/FL). However, the scheme before me proposes an increased number of dwellings, resulting in a more intensive pattern of development. Consequently, while the extant position is acknowledged, I find that the appeal proposal would result in a materially greater level of harm than the development currently permitted.

Accordingly, I conclude that the appeal proposal harms the character and appearance of the area. The scheme would therefore conflict with Policy CP24 of the Tonbridge and [name] 2007 (the [name]) and Policy SQ1 of the Managing Development and Environment Development Plan Document (The DPD), which, insofar as they are relevant, require development to be well designed, to respect the site and its surroundings, to achieve high‐quality outcomes in matters such as layout and siting, and to protect, conserve and, where possible, enhance local character, distinctiveness, and the established urban form.

The properties to the north of the appeal site, accessed from [address], have relatively shallow rear gardens that directly overlook the appeal site.

The northern most dwelling proposed at the rear of the appeal site, Plot 337C, would be close to the northern boundary of the site, and therefore close to the rear gardens of the low-rise properties to the north of the site, numbers 2a, 2b, and [address].

Given the depth and height of the proposed dwelling (Plot 337C), in combination with its proximity to the northern boundary, and having regard to the limited depth of the rear gardens serving the adjoining properties at Nos. 2a and [address], as well as the orientation of the site, I find that the proposal would result in harmful impacts in terms of daylight and sunlight. In the absence of substantive technical evidence to demonstrate otherwise, I conclude that the development would give rise to an unacceptable loss of light to both the rear garden areas and rear-facing windows of these neighbouring dwellings. As such, the proposal would materially harm the living conditions of the occupiers of Nos. 2a and [address], particularly by reason of overshadowing.

Furthermore, the limited depth of the neighbouring rear gardens, when considered alongside the height and siting of the proposed dwelling on Plot 337C, would result in a development that appears unduly dominant and overbearing when viewed from the rear gardens and rear-facing windows of Nos. 2a and [address]. This is an area where it would be reasonable to expect occupiers to spend time outdoors. I therefore conclude that the proposal would have a harmful effect on the outlook enjoyed by the occupiers of these properties.

I have had regard to the extant permission for the site. However, the scheme before me proposes a greater number of dwellings, with built form positioned closer to the northern boundary. In my view, this increased intensity and altered siting would give rise to a materially greater degree of overshadowing and overbearing impact than would occur under the extant scheme. Accordingly, whilst the extant permission is acknowledged, I conclude that the appeal proposal would result in a materially greater level of harm than the development presently permitted.

Accordingly, I conclude that the appeal proposal would harm the living conditions of the occupants of the properties of 2a and [address], with particular regard to natural light and outlook. The scheme would therefore conflict with Policy CP24 of the [name] and Policy SQ1 of the DPD, which, insofar as they are relevant, require development to be well designed and to respect the site and its surroundings.

The Arboricultural Method Statement identifies that the proposed dwelling on Plot 335C would encroach into the root protection area of a pedunculate oak tree (tree T1), which is subject of a Tree Preservation Order (TPO). The tree is categorised as having a [name] category of A1, that being a tree with high quality and value. I agree with that conclusion, the tree makes a significant positive contribution to the area and in particular to the backdrop of the neighbouring properties.

I acknowledge the correspondence between the appellant and the Council at the application stage concerning the construction methodology for the dwelling on plot 335C and the potential implications for tree T1. The evidence before me indicates that the Council’s Tree Officer did not object to the proposal, subject to the imposition of a condition securing an appropriate method of construction. Therefore, in the absence of substantive evidence to the contrary, I am satisfied that harm to tree T1 during the construction phase could be adequately prevented subject to the imposition of a planning condition controlling the method of construction and a requirement to protect retained trees during the construction in line with the [name].

However, the orientation of plot 335C, combined with the proximity of tree T1 and the extent of its canopy, would result in notable overshadowing. This would affect the window serving the room labelled as bedroom 3 on the submitted floor plans, as well as the windows serving bedroom 2 and the lounge. In addition, the front garden of the dwelling on plot 335C would also experience significant overshadowing. Notwithstanding the protection afforded to tree T1 by way of the TPO regime, I conclude that the relationship between tree T1 and the proposed dwelling on plot [address] to an increase in pressure on the Council to permit the regular reduction or, at worst, removal of the tree. Such, works would have a significantly detrimental effect on the appearance of the tree and the overall character and appearance of the area.

I have had regard to the extant permission for the site, which provides a reasonable baseline for my assessment. However, the scheme proposes that the built form be positioned closer to the protected tree. In my view, the proximity of the proposed dwelling on Plot 335C is materially different to the extant scheme such that there would be greater pressures for its future removal or significant reduction. Accordingly, whilst the extant permission is acknowledged, I conclude that the appeal proposal would result in a materially greater level of harm than the development presently permitted.

Accordingly, I conclude that the appeal proposal would result in significant pressures on tree T1 for significant pruning and or felling, which would have a detrimental effect on the appearance of the tree and on the wider character and appearance of the area. As such, the scheme would be contrary to policy NE4 of the DPD, which seeks to maintain and enhance tree cover.

Concerns have been raised regarding the planning history of the site and the appellant’s alleged failure to implement previous planning permissions. My remit is to determine the appeal before me on its planning merits. It is not uncommon for applicants to seek amendments to an approved scheme, and there may be a variety of legitimate reasons why a development has not progressed as originally anticipated. Accordingly, the historic background of the site, beyond the matters I have already addressed, carries only limited weight in my assessment.

I have noted the comments with regard to the impact of the scheme on flooding and highway safety. However, as I am dismissing the appeal for other reasons, I have not needed to consider these matters any further.

It is common ground between the main parties that the Council is unable to demonstrate a five-year supply of deliverable housing land (5YHS). The appellant contends that the supply stands at 3.94 years, while the Council does not provide a quantified figure.

I recognise that the proposal would deliver 7 dwellings in a generally sustainable location. This would make a meaningful contribution to the Council’s housing supply and attracts substantial weight. The development would also generate moderate economic benefits, both during the construction phase and through subsequent household expenditure, a benefit of moderate weight.

However, the proposal would result in harm to the character and appearance of the area, would adversely affect the living conditions of neighbouring occupiers on [address], and would cause harm to a protected tree (T1).

Taken together, these adverse impacts would significantly and demonstrably outweigh the benefits of the scheme.

Consequently, the presumption in favour of sustainable development does not apply in this case.

The proposal would conflict with the development plan when read as a whole, and no material considerations, including the Framework, indicate that a decision should be taken other than in accordance with it.

For the reasons given, the appeal is dismissed.