Appeal 6001962

The appeal is dismissed.

The planning application is made in outline with all matters reserved for future approval. I have therefore treated the submitted indicative site layout plan as illustrative in respect of the layout.

The main issues are: • the effect of the proposed development on the character and appearance of the surrounding area; and • whether the proposed development would secure [name] (BNG).

The appeal site comprises two parcels of undeveloped land situated on either side of [address] at its junction with [site address] . Both parcels comprise mown grassland and are largely enclosed by established hedgerows along their [site address] frontages. While the surrounding area is predominantly residential, it displays a varied townscape in terms of dwelling type, scale and design. Development along [address] is characterised by a housing estate comprising a mix of detached two-storey dwellings, bungalows and semi-detached properties.

Whilst the parcels of grassland have a pleasant appearance, the established hedgerows along the [site address] frontage limit wider views and prevent the appeal site from being perceived as open in the broader street scene. This sense of enclosure is further reinforced by the boundary treatments of adjacent dwellings along [address], including hedges and fences. In addition, much of the front boundaries of both parcels along [address] have recently been enclosed by low timber post-and-rail fencing, the planning status of which is unclear, apparently erected to deter unauthorised public access to the private land.

The proposal relates to the erection of 2 dwellings on the north-western parcel of land only. The south-eastern parcel would remain open and be landscaped, with the appellant intending to allow public access across the land. The submitted layout plan is illustrative only, however, taking account of the established building line, surrounding form of development and existing boundary treatments, the proposal would be read within the prevailing residential context and would not result in harm to the character or appearance of the area.

The parties dispute whether the appeal site constitutes public open space. The evidence suggests the land was originally intended to be landscaped as part of the housing estate development; however, there is no substantive evidence that it was ever formally designated or secured as public open space. Its lawful use remains unclear, but the site is in private ownership and, with fencing in place to restrict access, it does not presently appear to function as public open space.

Consequently, I conclude that the proposal would not harm the character and appearance of the surrounding area. It would therefore accord with Policy DE1 of the South Kesteven District Council Local Plan 2011-2036 (January 2020) (Local Plan) insofar as this seeks to secure development which makes a positive contribution to the local distinctiveness and character of the area. Furthermore, since the appeal site is inaccessible to the public and no longer functions as public open space, the proposal would accord with Policy OS1 of the Local Plan which seeks to protect existing open space.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) introduced a statutory framework for BNG, applying to non-major planning applications submitted from 2 April 2024. Subject to limited exceptions, planning permissions are deemed to have been granted subject to the [name] (BGC) requiring a minimum 10% increase in biodiversity value. The proposal is advanced on the basis that, as self-build dwellings, it is exempt from the BGC.

To benefit from this exemption, the development must meet the definition of self-build and custom housebuilding in Section 1(A1) of the Self-Build and Custom Housebuilding Act 2015. This requires a specific individual to build (or design and instruct persons to build) and then live in the house for which planning permission is granted. However, planning permission runs with the land rather than the applicant.

The parties suggest that a planning condition would be sufficient to secure the future occupation of the dwellings. However, it is not possible to oblige someone to live in a house once they have built it and the legislation does not purport to do so. I am therefore not convinced that such a condition would be sufficiently robust, particularly given that 2 dwellings are proposed. Such a condition would not be reasonable or enforceable as it would require the person who built the houses to occupy them. Thus, the suggested approach would therefore fail the tests for planning conditions set out at paragraph 57 of the National Planning Policy Framework (the Framework).

Compliance with the definition of self-build or custom housebuilding could only be achieved through the use of a planning obligation. There is no such obligation before me. Accordingly, there is no mechanism to prevent the scheme from coming forward as market dwellings.

My attention has been drawn to advice within the “Right to [name] and Self-Build Planning Guidance PG3.8: Securing custom and self-build using obligations and conditions” and appeal decision APP/F2415/W/22/3303898 which, the parties assert, supports the view that a condition to secure self-build occupation could be imposed. The Council also contend that during appeal APP/E2530/W/25/3368333 the Inspector raised no concerns with a similar suggested condition. However, such guidance and decisions do not establish a precedent, and in this case, they do not overcome my concerns or lead me to a different conclusion.

The Planning Practice Guidance confirms that BNG will often be a material consideration, and it should be considered, where relevant, whether the BGC is capable of being discharged successfully. To this end, there are minimum national information requirements in relation to BNG which applicants must provide. As the applicant sought exemption, this information including a completed metric calculation tool showing robust calculations of the pre-development biodiversity value of onsite habitat, has not been provided. Therefore, I am not satisfied that were the proposal to be brought forward as market housing, it would be capable of complying with the BGC.

For the reasons set out above, the proposal fails to demonstrate compliance with the mandatory BNG requirements and cannot be regarded as exempt. There is no satisfactory mechanism before me to secure the required biodiversity gain. This weighs heavily against the proposal and results in conflict with the Framework, which advocates that developments provide for biodiversity net gains, seeking their integration as a part of their design.

The Council confirm that it cannot demonstrate a 5-year supply of deliverable housing sites, although the extent of the shortfall has not been provided. In any event, the presumption in favour of sustainable development as contained within paragraph 11 d) of the Framework is engaged. This requires that planning permission should be granted 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.

The proposal would make a positive contribution to the supply of housing in the district, of 2 dwellings, I give this modest positive weight in the planning balance. It would also have economic benefits during the period of construction, and its occupiers would make positive social and economic contributions to the area. I attribute additional limited positive weight to these benefits of the proposal.

Whilst the description of development includes the provision of public open space on the south-western parcel of land, which would be a benefit, no mechanism is before me to secure its delivery. Furthermore, the Council indicates that it would be unlikely to agree to any such planning obligation. Consequently, I am not satisfied that this element of the scheme would be secured.

Additionally, I cannot be certain that the development would be delivered as self-build housing and in the absence of supporting information, it is not known whether the requirements with respect to BNG could be achieved. Together with the uncertainty regarding the long-term use of the south-eastern parcel, these adverse impacts would significantly and demonstrably outweigh the benefits of the scheme. As such, the proposal would not benefit from the presumption in favour of sustainable development set out within Framework paragraph 11.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 says development should be in accordance with the development plan ‘unless material considerations indicate otherwise’, and this is reaffirmed in the Framework.

Although there would be no harm in respect of character and appearance, this would not outweigh the biodiversity harm identified above or the concerns over the long-term use of part of the appeal site. The proposal would therefore conflict with the development plan taken as a whole. Furthermore, there are no other considerations, including the provisions of the Framework, which outweigh this finding. Therefore, for the reasons given above, the appeal should not succeed.