Appeal 6001946

The appeal is dismissed.

The proposal before me is for a self-build dwelling and therefore the main issues are:  Whether the location of the appeal site is suitable for a new dwelling;  Whether a suitable mechanism to secure the proposal as a self-building dwelling has been provided; and,  Whether the proposal is exempt from biodiversity net gain (BNG) requirements.

The appeal site comprises a small paddock located outside of the development boundaries serving the community cluster of Kinnerley, Maesbrook, Dovaston and [name] (the [name]). These settlements form an arc around the appeal site. Policy CS1 of the Shropshire Local Development Framework: [name] (the ACS) gives support for development within the rural areas of Shropshire. Although this is primarily to community hubs and community clusters, support is also given to development outside of settlements where it meets local needs for affordable housing.

The proposal is, as I have found below, for a new open market dwelling and so would not meet the affordable housing exception, even if a local need were to be suitably demonstrated. However, [name] CS4 and CS5 do also provide some support for development outside of these development boundaries where the proposal would be on an appropriate site, maintain or enhance the vitality and character of the countryside, and would improve the sustainability of rural communities by bringing local economic and community benefits.

The appeal site adjoins open fields and beyond these there is some limited and sporadic development, including residential, agricultural and equestrian. While the appellant has referred to the urbanising effect of private gardens and equestrian uses, I did not find this to be the case during my site observations. Instead, the area surrounding the appeal site is characterised by its rural location and siting amongst open fields.

[name] note that on maps the name Dovaston appears on and around the area of the appeal site, this does not mean that the settlement of Dovaston covers the appeal site. That the name appears to wander between maps goes some way to demonstrate that it should not be considered definitive of the settlement’s location.

While the disparate parts of the [name] are considered as a whole, this does not mean that the areas between the settlements should be considered within the development boundaries. Instead, I am mindful that there are multiple clear and separate boundaries serving each of the settlements in the cluster. Moreover, a development boundary is not definitive as to whether a site is within a settlement.

Nevertheless, as identified above, the appeal site not only sits outside of the development boundaries, but also within a clearly rural setting removed from the cluster. Therefore, given the above, the appeal site is within the open countryside both physically and visually detached from the cluster.

ACS Policy CS5 supports development within rural areas outside of community clusters where it would improve the sustainability of rural communities by way of economic and community benefits. Although the policy make reference to specific types of development, this is not a closed list and so does not exclude others from also being acceptable.

From the information before me and my observations on site, I understand that the [name] provides only very limited services and facilities. Namely, Kinnerley provides a small shop, public house, church, hall and school. The appellant has raised that it would be possible for future occupiers to walk to Kinnerley in order to make use of these services and facilities.

However, the roads surrounding the appeal site are narrow and winding, and they are largely not served by streetlights or foot paths. Given this, and the site’s distance from Kinnerley, and although I am mindful of the identified road speeds, I find it would be an unsafe and unattractive prospect for future occupiers to walk via this route. This would be irrespective of the weather or time of day and especially so for more vulnerable occupiers.

However, there is some prospect of future occupiers using the public right of way that begins opposite the appeal site. Nevertheless, given the nature of the route, which crosses fields, this would likely only be used during the hours of daylight and during good weather. Moreover, given the typically muddy and uneven character of such paths it is also unlikely to be viable for future occupiers to walk to school or employment.

Moreover, given the size of the shop, it would not be sufficient for future occupiers to undertake their weekly shop. Likewise, there is very limited employment opportunities and while there is education provision, this is only a primary school. Given the above, future occupiers would therefore likely need to travel further afield to meet much of their daily needs and it has not been demonstrated that this would support a rural community.

The appellant has referred to a bus stop to the north of the appeal site and has provided a bus timetable for the No 576. The timetable shows a regular service to and from Shrewsbury but does not identify a stop within Dovaston. Nevertheless, even if Dovaston is a request stop this location would require occupiers to walk along the same roads which I have noted above as being unsafe for future occupiers.

In light of the above, future occupiers would primarily be reliant upon private motor vehicles to meet their daily needs. While such harm may be accepted in some rural development, the Council’s plan sets out the exceptions which permit these. Including, where a development is part of a community cluster.

Whilst the proposal may nevertheless result in a temporary economic benefit from the construction of a new dwelling, this would be short lived and, lacking any evidence to the contrary, would not improve the sustainability of the rural community. Moreover, I find the proposal would result in only very modest community benefits given the limited facilities within the [name]. Given the limited provisions within the [name] and the reliance on private motor vehicles, I find that the very modest benefits would not meaningfully support the sustainability of the rural community.

Given the appeal site’s location and that it would not meet any exception within the development plan, I conclude that it is not within a suitable location for a new dwelling. Future occupiers would also primarily be reliant upon private motor vehicles to reach services and facilities. The proposal is therefore contrary to the local strategy set out in ACS policies CS1, CS4 and CS5 and Policies MD1, MD3, MD7a and S14.2(vii) of the Shropshire Council Site Allocations and Management of Development Plan (the SAMD). These policies, collectively and amongst other matters, direct development within the plan area to sustainable locations primarily within settlement boundaries, including of community clusters, unless it meets specific exceptions and local needs.

The proposed development has been described as a self-build or custom home (an SBCH). Broadly, an SBCH is one where the initial owner will have primary input into its final design and layout. From the submissions before me I understand that the appellant is the intended occupier of the proposed dwelling.

The Council have put forward a condition which they consider would be sufficient to secure the dwelling as an SBCH. As a whole the condition sets out the requirement that the proposal would comply with the definition of a SBCH set out within the Self-build and Custom Housebuilding Act 2015. In particular, the condition requires the submission of a mechanism to ensure the dwelling is occupied by those who commissioned its design and construction. It also requires that the first occupation must be for a period of at least three years.

It is not clear what sort of mechanism is intended or indeed would be possible. Given the limited detail before me I cannot be certain that a mechanism could be secured that would ensure the dwelling is occupied by those who commissioned its design and construction. Equally it is not clear what enforcement action could be taken should the first occupier decide to move within the initial three-year period. The appellant has suggested that enforcement could include the requirement that the dwelling be demolished, but I consider this would be an overreach of my remit by effectively controlling where an individual may live.

The appellant has also provided a reworded condition that requires a unilateral undertaking to confirm the occupier of the dwelling commissioned its final design, layout and construction, be provided at the reserved matters stage. They have also added a separate condition restricting the first occupation of the dwelling to the person, or people, who had that primary input. Unlike the Council’s condition, this has no timeframe.

This, outline, stage of the planning appeal would provide planning permission if allowed. While it may be possible to require a universal undertaking through a condition, it would still leave the initial permission without an appropriate mechanism secured. This would, therefore, leave the permission at risk of being supplemented by an unsuitable unilateral undertaking or indeed not being supplemented by an undertaking at all. Moreover, the appellant’s second condition could allow for the first occupier to move into and out of the property over only a short period of time, effectively bypassing the purposes of the condition.

In light of the above I am not content that an appropriate mechanism to secure the proposal as an SBCH has been provided. I therefore cannot be certain that the proposed dwelling would be occupied as an SBCH and as such have treated it as an open market dwelling.

On 12 February 2024, the provisions of the Environment Act 2021 relating to biodiversity net gain (BNG) came into force for major developments, and on 2 April 2024 this was extended to include smaller sites.

Under Article 7(1A) of the Town and Country Planning (Development Management Procedure) Order 2015 (’the DMPO’), all applications for planning permission submitted after those dates are required to be accompanied by certain information relating to BNG, except where one of the exemptions specified in the legislation applies. The information required includes a declaration as to whether the applicant believes the BNG provisions to apply to the application, and if not, the reasons why. Where none of the exemptions apply, the application must also be accompanied by a completed biodiversity metric calculation, showing the biodiversity value of the on-site habitat, and various other related details which are listed in full in sub-paragraph (c) of the above Article.

In this case the planning application was considered by both parties to comprise an SBCH which is one type of development exempt from the requirement from BNG. [name] have found above, I must consider the proposal as an open market dwelling and therefore this exemption does not apply. I have not been provided with a biodiversity metric calculation and so I cannot be certain that an appropriate gain would be achieved.

As it is at the outline stage that planning permission would be granted, it is at this stage that BNG would also need to be secured. Without a relevant exception and lacking sufficient information, the biodiversity gain objective would not be met by this appeal proposal. The proposal therefore conflicts with Section 15 of the National Planning Policy Framework (the Framework), specifically with Paragraph 187(d) which requires proposals to provide gains for biodiversity.

There is no dispute that the Council is unable to demonstrate a five-year housing land supply. The Government’s objective is to significantly boost the supply of housing, and the proposal would provide one new dwelling and contribute towards the Council’s housing land supply. It would also lead to a small and time limited economic benefit during the construction phase. There is also a potential for some very limited social and economic benefits in the wider area resulting from future occupiers. Given the small scale of the proposal these matters would at most attract moderate weight.

[name] have found the proposal to be an open market dwelling rather than an SBCH, it is not necessary for me to consider the Council’s supply of SBCH permissions further. Therefore, this matter neither weighs in favour or against the proposal.

Conversely, the proposal would not comply with the Council’s hierarchy of development and would be reliant upon private motor vehicles. It would therefore result in the erosion of the Council’s spatial strategy. It would also not provide any BNG, and no exemption has been provided. These impacts are contrary to local and national planning policy to which I afford considerable weight.

Taking everything into account, I consider that the adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits. As a result, the application of Paragraph 11d of the Framework does not indicate that permission should be granted, and the proposal would not represent sustainable development. In the circumstances of this appeal, the material considerations above do not justify making a decision other than in accordance with the development plan.

Therefore, for the reasons outlined above, I conclude that the appeal be dismissed.