Appeal 6001648

The appeal is dismissed.

There is another appeal1 on the adjacent overall development site, relating to a full planning application for the erection of 4 double garages associated with the previously approved residential development. That appeal is the subject of a separate decision letter.

There is a further appeal2 on the adjacent vineyard site, relating to a full planning application for the erection of an agricultural building to support the vineyard. That appeal is the subject of a separate decision letter.

The application form describes the development as the ‘construction of 1no additional 3-bed dwelling and 3 no double garages, located on the Southern end of the existing development site at Dennings’. This description was subsequently amended by the Council, with the agreement of the applicant, as the application did not include 3no garages. For the purposes of the banner heading, I have used the Council’s amended description of development, as it was agreed with the applicant.

The application form also contains further errors. It defines the proposal as being a 3-bed dwelling, but the submitted drawings are for a 4-bed dwelling. It also describes the proposal as being a self-build and custom build development for the purposes of biodiversity net gain (BNG). However, it was subsequently confirmed by the applicant that it is in fact a 4-bed dwelling intended as market housing, subject to the normal BNG requirements. I have therefore determined the appeal on the basis that the proposal is for a 4-bed market housing dwelling. 1 Appeal Ref: 6001586 2 Appeal Ref: 6001592

The main issues are: i) the effect of the proposal the living conditions of occupants of adjacent properties, with particular regard to privacy, as a result of the proposed first-floor balconies, and ii) whether the proposal provides adequate car parking provision for future occupiers, and iii) whether the proposal can demonstrate compliance with the statutory biodiversity net gain requirements.

The proposal would introduce a further 4-bed dwelling at the southern end of a residential development site which received approval at appeal3 in August 2023.

The overall site is located within a residential area on the eastern side of [site address] , a narrow no-through highway which serves a limited number of more isolated properties, once it passes the development site. The appeal site would occupy what was proposed to be a substantial garden area of the property on Plot 6 of the previously approved development.

To the west side of [site address] , opposite the development site, are several existing residential properties. These are all detached properties, which are separated from each other by garden and parking areas, and which sit close to the highway. Immediately opposite the appeal site is a property known as [address] (BH), which occupies a corner plot at a point where [site address] forms a Y-junction, the eastern fork passing the development site, whilst the western fork runs downhill to provide access to other properties lower in the valley. BH presents a three-storey gable to the road and therefore to the appeal site. The gable houses five windows, one at ground floor, three at first floor and one at second floor level.

The appeal site is situated at an elevated level to the highway, the land running steeply uphill as it travels east. An established vineyard lies further uphill, beyond the eastern site boundary. The proposed dwelling would be set well back from [site address] . Its principal elevation would be around 14 metres from the highway and around 18 metres from the gable of BH. The ground floor level of the proposed dwelling would sit above the first-floor level of BH, its first-floor level being above that of BH’s second floor level.

The proposal includes two balconies at first floor level on the west facing elevation which access directly from its principal living accommodation. Whilst the balcony from the kitchen area would be relatively small, able to accommodate only a small number of people, a larger balcony serves the dining and lounge area and would be of a size which could accommodate a significant number of people in use.

Whilst the appellant avers that the windows on the east facing gable of BH serve non-habitable rooms, there is no evidence before me, such as floor plans of BH, which would corroborate this. At my visit, it was clear that one of the gable windows 3 APP/K1128/W/23/3315666 at BH’s first-floor level was fitted with obscure glazing, and the drainage pipework emerging from the wall below would be indicative of this being a bathroom and therefore a non-habitable room. However, it would also be a room where occupants may be in a state of undress and more sensitive to the feeling of being overlooked, irrespective of the obscure glazing. The other windows in this gable, at all three levels were glazed with clear glass, and as such would allow overlooking by occupants of the proposal’s balconies, which would be at an elevated level, relative to BH, affording more penetrative views to within BH.

Whilst it has been suggested that the west facing balcony glazing could be obscure glazed, I find this would not be sufficient to maintain privacy, due to the balustrades height. The height of the balustrade would need to be increased to a level above head height, resulting in a loss of outlook for residents of the appeal property, which would be equally detrimental to their amenity.

The Plymouth and South West Devon Joint Local Plan - Supplementary Planning Document (the JLP-SPD), provides guidance on policies within the Plymouth and South West Devon Joint Local Plan (2019) (the JLP). The JLP-SPD advises a recommended separation distance between habitable rooms in properties which face each other of 21 metres, increasing this recommended distance to 28 metres where one property is either a storey higher, or situated at a higher ground level to the other. It further advises that balconies can have other increased effects on the privacy of gardens and habitable rooms of neighbouring properties through overlooking, or the effects of noise, particularly in areas of higher density. Whilst the JLP-SPD has the status of guidance, and should not be interpreted as rigidly as policy, it is a material consideration to which I attach significant weight.

Having examined the evidence, I find that the position of the proposed dwelling itself would provide an acceptable separation distance from BH and other surrounding properties, having regard to the existing pattern, grain and density of development within the area. However, the presence of the balconies on the west facing elevation, which would encourage people out onto them, in closer proximity to BH, would result in an unacceptable level of overlooking, which would result in harm to the privacy of its occupiers.

For the above reasons, I find that the proposals would conflict with Policy DEV1 of the JLP, which, among other things, requires development to ensure that it provides satisfactory privacy for both new and existing residents, workers and visitors.

With regards to the parking provision for the proposed dwelling, there are several discrepancies between the drawings submitted with the application. This is compounded by two drawings which bear the same drawing number and title but indicate differing information on the drawing. For clarity, drawing no A100 Rev 2 which has no development within the garden area of the Plot 6 dwelling, I shall refer to as the previously approved site plan (drawing no A100 Rev 2 Pre-App), whilst drawing no A100 Rev 2 which has the proposed Plot 7 dwelling within it, I shall refer to as the proposed site plan (drawing no A100 Rev 2 Prop).

There is an existing private lane which has been formed from [site address] to provide access to the adjacent vineyard which is in the appellant’s control. This lane slopes steeply uphill from its junction with the public highway as it travels east. The appeal site proposes to take its vehicular access from this lane, approximately [address]’s junction with [site address] . This access point would broadly be level with the ground floor level of the proposed dwelling.

Drawing no A107 Rev 3, titled Unit 07, includes the floor plans and elevations of the proposed dwelling. This indicates a basement level plan which houses a double garage, which I measure, utilising the drawing’s scalebar, at around 4.9 metres wide by 5.3 metres long internally, together with an adjacent cinema room and utility room. The drawing identifies the ground floor as the principal entrance level to the dwelling. The garage would be set back along the gable of the cinema room, providing a door or window opening to the latter, though the drawing does not indicate which is proposed. The elevations identify the basement level in red hatched lines, though provide no elevational detail of this level.

The proposed site plan identifies a double garage in a position which lies fully in line with the gable of the building, with no set-back. It is, therefore, in a different location to, and is materially larger than, the garage on drawing no A107 Rev 3. I measure this latter garage, utilising the drawing’s scalebar, at around 5.5 metres wide by 5.5 metres long internally. To the front of the garage is a proposed area of driveway which is identified for parking. The size of this area, by comparison to the parking spaces on the adjacent previously approved development, would accommodate two parking spaces, side by side, and which would provide several metres clearance in front to the access lane.

Having regard to section DEV29.2 – [name], paragraphs 8.5 to 8.7 and Table 29 of the JLP-SPD, notwithstanding the obvious discrepancies between the drawings, the proposed site plan provides sufficient evidence to satisfy me that the proposal would meet the requirements defined in the above sections of the JLP-SPD, and would be capable of providing the minimum of 3, off-street, car parking spaces required for a 4-bed dwelling.

For the above reasons, I find the proposals would accord with Policy DEV29(3) of the Plymouth & South West Devon Joint Local Plan (2019), and with Policy KWAC T3 of the Kingsbridge, [name], and Churchstow Neighbourhood Plan 2021- 2034, which require, among other things, development to provide sufficient off-street car parking to avoid adverse impacts of inadequate parking such as excessive on-street parking or illegal parking, to protect the amenity of surrounding residential areas and ensure safety of the highway network.

The Council’s third reason for refusal relates to the mandatory BNG regime which requires development to provide a minimum of 10% BNG, unless it meets an exception set out in the statutory framework introduced by Schedule 7A of the Town and Country Planning Act 1990 (as amended) (the Act).

The main parties agree that the development would be required to provide statutory BNG. Therefore, if the appeal were to succeed, it would be subject to the statutory pre-commencement biodiversity gain condition (‘the condition’) as set out in the Act. In this scenario, guidance contained in the National Planning Policy Guidance (the PPG) states that it would generally be inappropriate, when determining a planning application (and therefore an appeal) for a development subject to BNG, to be refused on the grounds that the biodiversity gain objective will not be met. The PPG advises that more broadly, consideration may be required as to whether ‘the condition’ is capable of being successfully discharged.

The Council cite insufficient information on the pre-development biodiversity value of the site to be able to determine whether the biodiversity net gain condition can be met. The appellant has submitted with the appeal several pre-development biodiversity surveys for the overall development site, which included the area now proposed for the appeal dwelling. However, as that application was submitted prior to the introduction of the mandatory BNG regime, these do not follow the standard [name]. Nevertheless, I find that by reference to these and the approved landscape plan for the area of the Plot 6 dwelling garden, now proposed to be occupied by the Plot 7 dwelling, it would be possible for an appropriately qualified Biodiversity specialist to determine a pre-development BNG metric, so as to be able to satisfactorily allow assessment of and prove compliance with the mandatory 10% Biodiversity net gain condition.

‘The condition’ sets out that development cannot commence until the Biodiversity Gain Plan (BGP) has been approved. It would be for the Council to consider the BGP and whether, or not, the measures set out at that time are acceptable and secured. The appellant is the owner of the adjacent vineyard, a site of a little over 2 hectares, and which is the subject of another appeal4 which I am examining, which would provide the opportunity for off-site BNG provision, within the immediate vicinity. Further, should this not be considered acceptable, off-site provision could be achieved through an appropriate conservation covenant, which is separate to the planning process, or through the purchase of biodiversity credits as a last resort. As such, I am as satisfied as I can be, that ‘the condition’ is capable of being discharged, broadly following the hierarchy.

Therefore, I find the development is capable of meeting the mandatory requirements for BNG, as required by Schedule 7A of the Town and Country Planning Act (1990) (as amended) as inserted by Schedule 14 of the Environment Act 2021.

The appellant submitted a copy of a signed and dated [name] (UU) pursuant to section 106 of the Town and Country Planning Act (1990). [name] provides for financial contributions towards play areas and sports facilities within the Kingsbridge area. The UU relates to the previously approved development for 6 dwellings on the wider development site and does not include any monies for the proposed additional plot.

[name] have found the proposal to conflict with the development plan, and that there are no material considerations which justify determining other than in accordance with the development plan, I have not gone back to the parties to seek any amendment of the UU, to include the proposed additional dwelling in any updated contribution figures, as this would not have changed the outcome of my determination. 4 Appeal Ref: 6001592

The Council has a current published housing land supply of 2.53 years which is significantly below the 5-years supply required by the National Planning Policy Framework (the Framework). Accordingly, paragraph 11(d) of the Framework indicates that permission should be granted unless the application of policies in the Framework, that protect areas or assets of particular importance, provides a strong reason for refusing the development proposed.

There is no evidence to suggest that the policies in the Framework that protect areas or assets of particular importance as referenced in paragraph 11(d)(i) and Footnote 7 are relevant in this case. Therefore, the presumption in favour of sustainable development set out in paragraph 11(d)(ii) would apply. This states that permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework taken as a whole.

The Local Plan is more than five years old, though has been subject to a five-year review in March 2024. However, the policies within the Local Plan, with which the development conflicts, generally accord with those of the Framework. Therefore, the policy conflicts I have found attract substantial weight against the scheme in this case. Among other things, paragraph 135 of the Framework confirms that decisions should ensure that developments provide a high standard of amenity for existing and future users.

The proposal would make a small but positive contribution to the Council's serious housing land supply shortfall, providing a family home for which there is allegedly as shortage. There would be some limited economic benefit during the construction phase of development, and longer-term benefits in support of local services and businesses from its future occupants. The proposal would be within the Kingsbridge settlement boundary and in a sustainable location relative to local services and facilities and would represent an energy efficient dwelling.

Collectively, these benefits attract moderate weight in favour of the proposal in the planning balance. However, I have found that there would be permanent harm caused to the living conditions of occupiers of neighbouring properties through overlooking. This attracts substantial weight against the proposal in the planning balance.

Consequently, I find that the adverse impacts of approving the development, would significantly and demonstrably outweigh the benefits of doing so, when assessed against the policies in the Framework taken as a whole. It would therefore not benefit from the presumption in favour of sustainable development.

For the reasons set out above, I conclude that the appeal development would be contrary to the development plan, read as a whole, and that there are no material considerations, including policies in the Framework, that would justify determining other than in accordance with it. Therefore, the appeal should be dismissed.