Appeal 6001809

The appeal is allowed and planning permission is granted for 2 No detached 2 bed dwellings at [site address] in accordance with the terms of the application, Ref P25/0126, subject to the 12 conditions in the attached Schedule.

The main issues are the effects of the proposal on: i) The character and appearance of the local area, in terms of the impact on trees; and ii) The living conditions of future occupiers of the proposed houses, with particular reference to natural light, outlook and size of gardens.

The appeal site is a disused car park fronting a short cul-de-sac within a mixed residential and commercial area, the urban character of which is softened by occasional street and garden trees. The site is hard surfaced, with a number of trees around the front and side boundaries subject to a Tree Preservation Order. The proposal would remove 4 of these trees and build 2 modestly sized, 2 storey detached houses with parking and gardens.

The best of the trees to be removed is a mature sycamore located on the side boundary next to a shop and flats. This tree is acknowledged to be causing some structural problems, and the Council raises no objection to its removal. The other 3 trees to be felled are smaller, poorer quality trees located next to the street frontage and on the other side of the site, next to a public footpath and a small area of open space.

Despite these removals, there would still be a line of substantial, mature sycamore trees along the site frontage - and a nearby maple within the open space. The proposal, which follows on from an earlier application for 2 larger houses, has been planned to minimise the impact on the retained trees, keeping away from their root protection areas as far as possible. With adequate tree protection measures the retained trees should be sufficient to continue this small site’s contribution to the general tree cover and green appearance of the cul-de-sac and adjacent open space once the development is completed.

The Council is rightly concerned, however, that it will likely be pressured in the longer term to allow pruning or even removal of the retained trees due to overshadowing, leaf litter, birds and honeydew (a typical problem with sycamores, caused by aphids). The overshadowing issue is limited by the orientation of the site, the relatively high crowns of the trees and their location to the west of the proposed houses. The rear windows and rear gardens of the houses would have reasonably open, sunny aspects appropriate for an urban area. I furthermore find little reason to think that leaf fall would be an overriding problem here as this is an issue anywhere there are trees in urban areas.

The appellant’s Arboriculturalist acknowledges, however, that honeydew could be a be problem and suggests building canopies over the parking area, if necessary. No such canopies are proposed here, and I cannot assume that this would be an acceptable solution. Bird mess could potentially be a similar problem.

I find that there would likely be future pressure to prune the retained trees due to honeydew and roosting birds. Some tree works, such as crown lifting or reduction, may always be necessary for urban trees like this from time to time, but in this situation the Council could find it difficult to resist more substantial works than it would otherwise find acceptable, potentially detracting from the trees’ future contribution to local character. This potential harm can be mitigated to some extent by a planning condition protecting the retained trees’ contribution towards biodiversity and [name], as suggested by the Council.

Also, the site is currently vacant and unkempt, generally detracting from the quality and appearance of the local area. Redevelopment as proposed would bring the site back into productive use and help to ensure future maintenance. This enhancement would help to off-set much of the potential harm to the retained trees.

I conclude on balance that the proposal would cause minor harm to the character or the appearance of the local area due to likely future impacts on the retained trees. It conflicts in this respect with Black Country Core Strategy (CS) policies ENV2 and ENV3, Dudley Borough Development Strategy (DS) policies L1, S6 and S22, the emerging Dudley Local Plan, the Council’s Residential Design Guide Supplementary Planning Document (SPD) and the National Planning Policy Framework (the Framework), which taken together aim to secure high quality design that complements local distinctiveness and encourage the appropriate management of existing trees.

As above, I consider that the retained trees should not cause any undue overshadowing to the new houses and gardens. Although the proposed back gardens would be shorter than is normally required by the SPD, they would also be much wider than normal, resulting in well laid out areas that would be in line with the Council’s space standards for 2 bedroom houses. I note that the gable wall of another building sits nearby at the back of the site, but this takes up only a percentage of the rear boundary and leaves the aspect open to the south and southwest. On balance I consider that the light to and outlook from the proposed houses would be satisfactory.

The appellant has brought another appeal decision to my attention, in relation to garden sizes1. The layout and amount of garden space were significantly different in that case. I have assessed this appeal on its own merits.

I conclude that the proposal would provide acceptable living conditions for future occupiers. Although partially in conflict with the SPD, it nevertheless reasonably accords with CS policy ENV3, DS policy L1, the emerging Local Plan and the Framework, which aim amongst other things to ensure that an appropriate level of amenity is provided for future occupiers.

The proposal would make efficient use of a previously developed (brownfield) site to boost local housing supply in a sustainable location, as encouraged by the Framework. No criticisms have been raised in regard to the design of the houses themselves, which should fit in well with local character.

I impose a condition specifying the relevant plans to provide certainty. 2 pre-commencement conditions dealing with tree protection measures are necessary to avoid harm to retained trees. 4 further conditions are needed in regard to soft landscape planting, replacing damaged trees and the long-term management of trees for [name]. These are required in the interest of local character and biodiversity. 2 additional conditions dealing with building and site enclosure materials are also needed to protect local character. A condition requiring new bird, bat and hedgehog facilities is also needed to promote biodiversity.

Finally, a condition restricting normal permitted development rights for additional rear first floor windows is needed to protect neighbours’ privacy, in line with the approved design’s inclusion of high level windows at the back. The Council suggests a further condition to require ecological review if development is delayed. I see no particular need for that condition for this small, hard surfaced site.

It should also be noted that, as set out at paragraph 13 of Schedule 7A to the Town and Country Planning Act 1990, the planning permission is deemed to have been granted subject to the “[name] condition” and that development may not begin unless a Biodiversity Gain Plan has been submitted to and approved by the planning authority.

The Council accepts that the tilted balance set out at Framework paragraph 11(d) and Footnote 8 applies due to its sub-par performance against the [name]. This means that the most important development plan policies for 1 APP/C4615/W/23/3328445 determining this appeal are considered to be out of date. In accordance with Framework paragraph 11(d)(ii), planning 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, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places.

Although the proposal would provide just 2 houses, this is not an insignificant contribution towards overall supply. These would be well designed and well located in a sustainable position near to services and facilities, making use of a vacant brownfield site. Despite finding some harm in respect of the first main issue, I conclude that this level of harm is not sufficient to significantly and demonstrably outweigh the benefits of the proposal. For the reasons set out above, and having regard to all other matters raised, I conclude that the appeal should succeed.

The development hereby permitted shall begin not later than 3 years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following approved plans: 24 76 08B, 24 76 09B, and TPP_01.

No development shall commence on site or in connection with the development hereby approved (including any tree felling, tree pruning, demolition works, soil moving, temporary access construction and or widening, or any operations involving the use of motorised vehicles or construction machinery) until a detailed [name] (AMS) has been submitted to and approved in writing by the Local Planning Authority. No development or other operations shall take place except in complete accordance with the approved AMS, which shall include full detail of the following: • A tree works specification; • Implementation, supervision and monitoring of the approved Tree Protection Plan; • Implementation, supervision and monitoring of the approved tree works specification; • Implementation, supervision and monitoring of any construction works within any area designated as being fenced off or otherwise protected in the approved Tree Protection Plan; and • Timing and phasing of any arboricultural works in relation to the approved development. Any excavations to be undertaken within the Root Protection Area (as defined by Clause 4.6 of [name]:5837 – 2012 ‘Trees in Relation to Design, Demolition and Construction– Recommendations’) of any existing trees on site shall be undertaken in accordance with National Joint Utilities Group (NJUG) Guidelines for the Planning, Installation and Maintenance of [name] in Proximity to Trees ([name] 4).

No development shall commence on site or in connection with the development hereby approved (including any tree felling, tree pruning, demolition works, soil moving, temporary access construction and or widening, or any operations involving the use of motorised vehicles or construction machinery) until technical details of any proposed pathway / hard surfacing / driveway / parking area within the [name] of existing trees (as defined by Clause 4.6 of [name]:5837 – 2012 ‘Trees in Relation to Design, Demolition and Construction– Recommendations’) of any existing tree situated on or off the site have been submitted to and approved in writing by the Local Planning Authority. The details of the vehicular access and parking areas shall include existing and proposed ground levels, materials to be used and the relative time of construction within the whole development and must be in accordance with appropriate guidelines, namely Clause 7.4 of [name]:5837 – 2012 and [name] & [name] ‘[address] to Trees’ (1996). Any driveway / parking areas within the [name] of existing trees must be constructed using “no-dig” techniques incorporating appropriate surfaces to avoid damage to trees and to prevent any potential direct or indirect damage caused by trees.

No development (excluding demolition, site clearance and initial ground works) shall begin until full details of the soft landscaping scheme for the site have been submitted to and approved in writing by the Local Planning Authority. The agreed landscaping scheme shall be implemented in accordance with the approved details before the end of the first planting season following first occupation of the development.

Any trees or shrubs planted in pursuance of this permission including any planting in replacement for a plant that is removed, uprooted, severely damaged, destroyed or dies within a period of 5 years from the date of planting shall be replaced by trees or shrubs of the same size and species and in the same place unless otherwise approved in writing by the Local Planning Authority.

The existing trees shown on the approved plans to be retained shall not be damaged or destroyed, uprooted, felled, lopped or topped during the construction period of the development without the prior written consent of the Local Planning Authority. Any trees removed without such consent or dying or being seriously damaged or diseased during that period shall be replaced with healthy trees of sizes and species submitted to and agreed in writing by the Local Planning Authority.

The trees to be preserved on site that provide value towards [name] (BNG), as indicated on the approved Tree Protection Plan TPP_01, shall be retained and maintained for a period of no less than 30 years to ensure compliance with BNG requirements.

No above ground development shall begin until a written schedule of the types, colours and textures of the materials to be used on the external surfaces of the buildings hereby approved shall be submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in complete accordance with the approved details.

No above ground development shall begin until details of the types, sizes and locations of the boundary treatments around the site and between the proposed plots has been submitted to and approved in writing by the Local Planning Authority. The boundary treatments shall be carried out in complete accordance with the approved details prior to the occupation of the dwellings hereby approved and shall thereafter be retained for the lifetime of the development.

The dwellings hereby permitted shall not be occupied until artificial nesting and roosting boxes and other biodiversity features have been installed in accordance with details first submitted to and approved in writing by the Local Planning Authority. The following shall be provided: • 2 bat boxes suitable for small crevice dwelling bat species; • 1 artificial nesting box suitable for house sparrow; • 1 artificial nesting box suitable for bird species such as swallows, house martins and swifts; • 1 hedgehog box; and • 2 hedgehog passes per garden constituting a gap or raised section measuring at least 13cm x13cm.

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (or any Order revoking or re-enacting that Order with or without modification) no development permitted by Schedule 2, Part 1, Class A of that Order comprising the insertion of any window or other opening at first-floor level in the rear elevations of the dwellings hereby approved shall be carried out without the express grant of planning permission.