Appeal 6001577

The appeal is allowed and planning permission is granted for three x two bedroom dwellings, associated car parking and landscaping at [site address] , Berkhamsted, Hertfordshire [postcode] in accordance with the terms of the application, Ref 25/00340/FUL, and the plans submitted with it, subject to the conditions in the schedule at the end of this decision.

An application for costs was made by [name] of RMP Property Developments Ltd against Dacorum Borough Council. This application is the subject of a separate

The description of development in my decision above, reflects that contained within the application form, omitting superfluous wording that do not relate to acts of development.

The appeal site falls within the zone of influence of the Chilterns Beechwoods Special Area of Conservation (SAC). It is a European Designated Site afforded protection under the Conservation of Habitats and Species Regulations 2017 as amended (the Habitats Regulations). Whilst the Council are satisfied that the completed Planning Obligation submitted with the appeal effectively removes their second reason for refusal, as competent authority I must consider whether the development is likely to have a significant effect on the integrity of the site. It is therefore necessary to consider this as a main issue and undertake an Appropriate Assessment (AA).

The SAC comprises an extensive area of native beech woodland, acid commons with relict heath, chalk grassland and scrub, supporting a number of rare plants. The conservation objectives for this SAC are to ensure that the integrity of the SAC is maintained or restored as appropriate and to ensure the site contributes to achieving the Favourable Conservation Status of its qualifying features, including through its extent, distribution, structure and functions. The protected, qualifying features are its beech forests, semi-natural dry grasslands and its population of stag beetles.

It has been established that additional residential development within the zone of influence would likely result in harm to the protected area through additional recreational disturbance. The proposal would create a net gain of three dwellings, and in combination with other developments permitted in the area, there would be a likely significant effect on the SAC.

Policy CS26 of the [name] 2006-2031 (adopted 2013) (CS) requires designated sites to be protected and seeks opportunities to link them with the wider Green Infrastructure Network. Amongst other things, it expects development and management action to contribute towards the conservation and restoration of habitat and species, strengthening biodiversity corridors and the creation of better public access and links through green space.

The Chilterns Beechwoods SAC Mitigation Strategy for [name] and Woods Site of Special Scientific Interest (the Strategy) sets out a strategic approach to mitigation. This involves tariff style financial contributions that will be pooled towards both the [name] and [name] (SAMMS) which seeks to manage and better educate those visitors, and provision of Suitable Alternative Natural Greenspace (SANG), designed to absorb recreational pressure elsewhere, that might otherwise occur.

Natural England has been consulted as part of this AA and is content that the financial contributions secured by the Planning Obligation would mitigate the adverse effects associated with the proposed development and thereby relieve pressure on the SAC. As competent authority, I am satisfied that the measures would secure and ensure the delivery of mitigation sufficient to address the harm likely to be caused by the development. I therefore find that the proposal would not have an adverse effect on the integrity of the SAC. It follows that the proposal would not conflict with CS Policy CS26. Character and appearance, living conditions and parking

To achieve quality neighbourhood design, CS Policy CS11 sets out that development should, amongst other things, respect the typical density intended in an area and enhance spaces between buildings and general character.

[name] 3 of the Local Plan 1991-2011 (2004) (sLP) sets out that there should be sufficient space around residential buildings to avoid a cramped layout and maintain residential character, to ensure privacy and to enable movement around the building for maintenance and other purposes. It also states that spacing between dwellings should be provided at a distance which is consistent with the surrounding areas, as recommended within the development principles in Supplementary Planning Guidance: Development in [name], a document that has not been provided in evidence.

The appeal site lies directly to the rear of [site address] , within the designated town centre of Berkhamsted. Site access is between buildings at 352 and [site address] , where land levels slope gently down towards an area of hardstanding and low-lying workshops to be demolished. This part of the [address] typically comprises commercial units at ground floor immediately abutting the street, with other, residential uses above.

The proposal would place a staggered terrace across the full width of the plot, making efficient use of brownfield land. It would be set lower than the [address] owing to topography. Given the surrounding context where there are many rows of terrace properties, this would reflect the density and grain of the character and appearance of the area, which features relatively high densities given the urban context. Indeed, given it would be set back into the site reminiscent of a mews style approach, visibility of it would be limited from [address].

Furthermore, seen as a backdrop to the commercial garage buildings that front Park Street, I do not find that the combination of the metal roof form and depth, would result in an unacceptable, or cramped form of development. Rather, I find that the building would respect the landform, be subservient to its neighbours and take its design cues from the mixed surrounding context.

The plot coverage means that there would be no external rear access to the gardens serving the proposed dwellings. Consequently, residents would have to take garden paraphernalia and bicycles through the houses, the latter of which would be necessary to utilise their dedicated cycle storage facilities. This is not an ideal arrangement and presents practical challenges. Waste disposal would not be affected, as this would be taken directly outside via the front door to the bin storage area. Notwithstanding this, the design does not enable movement around the building for maintenance and practical purposes and thus conflicts with sLP Appendix 3.

All three dwellings would be provided with a private rear garden, although the Council raise concerns regarding inadequate depth. Whilst these are not annotated on plan, the appellant accepts that one of the gardens falls just under 11.5 metres (m) in depth.

Nevertheless, the broadly rectangular shape of the gardens makes them functional and they are commensurate with their size and the number of residents each dwelling is expected to accommodate.

Notwithstanding that Appendix 3 of the sLP expects private amenity space to have an average depth of 11.5m, it does not rule out a reduced garden depth in some circumstances. For instance, it states that it may be acceptable for small starter homes, homes for the elderly and development backing onto or in close proximity, to open land, public open space or other amenity land. It goes on to say that for infill developments, garden depths which are below 11.5m in depth but of equal depth to adjoining properties, will be acceptable.

In this case, the modest two bedroom dwellings could reasonably be considered small starter homes, and moreover they abut similar sized gardens to the north, thus reflecting the character and grain of the surrounding area. Therefore, I find that the proposed gardens broadly align with the expectations set out in policy. Notwithstanding the very minor shortfall in garden depth on one plot, I am satisfied that the garden would still provide for a good quality form of development.

According to the Council’s Parking Standards Supplementary Planning Document (2020) (SPD), the site lies within an area with a lower accessibility (Zone 3). For 2- bedroom dwellings within [name] 3 on unallocated sites, 1.5 car parking spaces per dwelling are expected, equating to a total of 4.5 spaces. Only 3 spaces are proposed.

Whilst the SPD provides a useful starting point, this is guidance not policy. It has not been alleged that the level of shortfall would harm highway safety.

Importantly, the site lies in a sustainable location, close to the centre of the town with the nearest bus stop a short distance away and the train station also within a reasonable walking distance. Consequently, the provision of a reduced level of parking is acceptable and I find, accords with the principles of prioritising other, more sustainable modes of transport over the private car, as advocated by CS Policy CS8.

As set out above, except for the lack of external rear access, which results in policy conflict with sLP Appendix 3, a matter I return to later in the planning balance, I have found that the effect on the character and appearance of the area, with particular regard to density and layout, on living conditions of future occupiers with regard to the garden areas and on highway safety with regard to parking, to be acceptable.

It follows that I find no conflict with [name] CS8, CS11 or CS12, the objectives of which I have outlined above, and which, amongst other things, require developments to provide sufficient parking, integrate with the streetscape character, and respect adjoining properties in terms of layout, security, site coverage, scale, height, bulk, materials, landscaping and amenity space.

The Grade II listed Sparrows Herne Trust turnpike marker lies close to the site. I am mindful of Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 which requires the decision maker, in considering whether to grant planning permission for development which affects a listed building or its setting, to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. Whilst the appeal site is within its setting, noting the separation distance from the appeal site, the intervening buildings and the topography, I find that the setting of the listing would be preserved by this appeal, a matter not in dispute.

The site is located outside of the Berkhamsted Conservation Area (CA), but it would be visible from Park Street to the north-east which is at the edge of the CA. As such, the appeal site forms part of its setting. Although there is no statutory protection afforded to such development, I have nevertheless had regard to its effect on the setting of the CA. Limited information on the CA is before me in evidence. However, its significance appears to derive from its evolution over time from its medieval past, which is clustered around the Parish Church, the old marketplace and has been influenced by its landscape, river, canal, castle and railway line.

The topography, built form and the proximity of the CA to the north-east, means that opportunities to view the proposal alongside the CA would be fleeting. Whilst the proposal would be visible from the edge of the CA, it would be seen as a backdrop to utilitarian commercial workshops which themselves are outside the CA. These factors limit the harm to the way in which the CA would be experienced to the very lower end of less than substantial harm. Paragraph 215 of the National Planning Policy Framework (the Framework) requires that this harm should be weighed against the public benefits of the proposal. In this case, the public benefits of providing 3 additional small homes within the town of Berkhamsted would clearly outweigh the very limited harm to the setting and thus the character and appearance of the CA.

The Council confirm they are unable to demonstrate a five-year supply of deliverable housing sites (5YHLS) in accordance with the Framework. The Council do not set out the level of shortfall, albeit the appellant indicates this supply equates to just one year. Nevertheless, an inability to demonstrate a 5YHLS warrants the application of paragraph 11(d) of the Framework which relates to the presumption in favour of sustainable development.

In this case, the effect on the integrity of the habitat site does not provide a strong reason for refusal and neither does the effect of the proposal on a designated heritage asset. As such, in accordance with paragraph 11(d)(ii), this means granting permission unless 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, 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.

The provision of three homes would make a modest, yet important contribution to boosting housing supply in a sustainable location on previously developed land. There would also be economic and social benefits from the proposal such as the temporary construction jobs it would create. These factors weigh heavily in favour of the scheme.

On the other hand, I have found conflict with Appendix 3 of the sLP. As this part of the Plan relates to detailed design expectations, I do not find it to be inconsistent with the Framework which also expects well designed places. Therefore, despite its age I afford it great weight.

As already set out, the lack of external rear access is a compromise and would likely be inconvenient for occupiers and may discourage residents from keeping their cycles within their rear garden. However, this is not an unusual scenario, cycles could be secured at the site frontage and I find the level of harm to be limited therefore. This is particularly the case, in a scheme that otherwise demonstrates a high standard of design that accords with the design expectations set out within the development plan when considered wholistically.

[name] am required to give great weight to harm to a designated heritage asset, I have identified this to be at the lower end of less than substantial harm to the setting of the CA which does not enjoy statutory protection. Collectively, the totality of the harms are limited and in my judgement they do not significantly and demonstrably outweigh the benefits identified, when assessed against the policies in the Framework taken as a whole.

The Council have suggested a number of conditions. I have considered these in relation to the necessary tests, made changes to some, including adding in triggers, and utilised model conditions for conciseness, as set out below.

In addition to the standard time condition (No.1), I have imposed a condition requiring that the development is carried out in accordance with the approved plans (No. 2) for the avoidance of doubt and in the interests of certainty.

To protect highway safety and to safeguard living conditions from unnecessary harm, a construction management plan (No. 3) is imposed.

Given its siting within an area identified as being of [name], an investigation of archaeological remains and potential mitigation is necessary, and condition (No. 4) is therefore imposed.

To protect the environment and human health, a condition (No. 5) is necessary to appropriately deal with potential for land contamination.

Whilst external facing materials are indicated on plan, there is a lack of clarity regarding the colour of finishes, and manufacturer details. As such a condition (No.

to require these to be agreed is necessary, in the interests of the character and appearance of the area.

In the interests of highway safety and to ensure the provision of adequate access, parking and turning facilities, I have imposed a condition (No. 7) requiring its provision (and retention thereafter) prior to first occupation.

A condition (No. 8) to require the implementation and establishment of the landscaping scheme is necessary and reasonable to ensure the proposal has a satisfactory appearance and in the interests of biodiversity. As boundary treatments are not clear and details of external lighting are not detailed, a condition (No. 9) to require details to be agreed is necessary for the same reasons.

Finally, a condition is imposed (No. 10) requiring a suitable fire-fighting strategy. Given the consultation comments of the Fire and [name], I find this is reasonable in the interests of public safety and I impose it.

For the reasons set out above, the appeal should be allowed.

The development hereby permitted shall begin before the expiration of three years from the date of this permission.

The development hereby permitted shall be carried out in accordance with the following approved plans and documents: 0446-001 Revision A04 (Location and Block Plan) 0446-002 Revision A04 (Existing Site Plan) 0446-102 Revision A06 (Proposed Site Planting and Landscape Plan) 0446-103 Revision A06 (Proposed Ground Floor Plan) 0446-104 Revision A06 (Proposed First Floor Plan) 0446-106 Revision A06 (Proposed Roof Plan) 0446-107 Revision A06 ([name]) 0446-108 Revision A06 ([name]) 0446-109 Revision A06 ([name]) 0446-110 Revision A06 ([name]) Design, Access and Heritage Statement by [name] dated February 2025 Planning Statement by Castle Planning dated February 2025 [name] by Charles & Associates dated February 2025.

No development shall commence until a Construction Management Plan (CMP) has been submitted to and approved in writing by the Local Planning Authority. Thereafter the construction of the development shall only be carried out in accordance with the approved CMP. The CMP shall include details of: a. Construction vehicle numbers, type, routing; b. Access arrangements to the site; c. Traffic management requirements; d. Construction and storage compounds (including areas designated for car parking, loading / unloading and turning areas); e. Siting and details of wheel washing facilities; f. Cleaning of site entrance, site tracks and the adjacent public highway; g. Timing of construction activities (including delivery times and removal of waste); and h. Provision of sufficient on-site parking prior to commencement of construction activities.

No development (including demolition) shall take place until: a) An archaeological [name] of Investigation (WSI) been submitted to and approved in writing by the Local Planning Authority; and b) Any necessary safeguarding measures to ensure the preservation in situ of important archaeological remains and/or further archaeological investigation and recording identified in the WSI have been undertaken in accordance with a specification and timetable that shall first have been submitted to and approved in writing by the Local Planning Authority. The development should be carried out in full accordance with the approved details within the WSI.

No development shall take place until an assessment of the risks posed by any contamination, carried out in accordance with [name] 10175: Investigation of potentially contaminated sites - Code of Practice and the Environment Agency‚ [name] (LCRM) (or equivalent [name] and [name] if replaced), has been submitted to and approved in writing by the Local Planning Authority. If any contamination is found, no development shall take place until: a) report specifying the measures to be taken, including the timescale, to remediate the site to render it suitable for the development hereby permitted has been submitted to and approved in writing by the Local Planning Authority; b) the site has been remediated in accordance with the approved measures and timescale; and c) a verification report has been submitted to and approved in writing by the Local Planning Authority. If, during the course of development, any contamination is found which has not been previously identified, work shall be suspended until: d) additional measures for the remediation of the site have been carried out in accordance with details that shall first have been submitted to and approved in writing by the Local Planning Authority; and e) a verification report for all the remediation works has been submitted to and approved in writing by the Local Planning Authority.

No development above ground level shall take place until samples of the materials to be used in the construction of the external surfaces of the development hereby approved have been submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in accordance with the approved details.

The development hereby approved, shall not be first occupied, until the means of access, parking and circulation areas have been provided fully in accordance with drawing no. 0446-102 Revision A06. The access, parking and circulation areas shall thereafter be retained for the uses shown the approved drawing for the lifetime of the development.

The landscaping scheme shown on drawing no. 0446-102 Revision A06 must be carried out in the first planting and seeding seasons following the occupation of the dwellings or the completing the development, whichever is the sooner. Any tree or shrub which forms part of the approved landscaping scheme which within a period of 5 years from planting fails to become established, becomes seriously damaged or diseased, dies or for any reason is removed shall be replaced in the next planting season by a tree or shrub of a similar species, size and maturity.

The dwellings hereby approved shall not be first occupied until details of the means of enclosure of the site and a scheme for exterior lighting have been submitted to and approved in writing by the Local Planning Authority. The approved details shall be implemented on site prior to first occupation.

The dwellings hereby approved shall not be occupied until measures for fighting fire have been submitted to and approved in writing by the Local Planning Authority. These measures shall include the provision of appropriate fire hydrants as may be appropriate and sprinklers systems or other measures. The approved measures shall be implemented in accordance with the approved details prior to occupation. End of Schedule