Appeal 6001982

The appeal is dismissed.

The main issues are: i) whether the location is suitable for residential development having regard to the development plan; ii) the effect of the proposal on the character and appearance of the area; iii) whether the proposal would provide an acceptable housing mix; iv) whether the proposal would deliver the required [name]; and v) whether the development would be likely to have a significant effect on the integrity of the Solent Special Area of Conservation, Special Protection Area and Ramsar Site (‘the Solent’).

The appeal site lies within the countryside for the purposes of the development plan. Policies DS1 and MTRA4 of the Winchester District Local Plan Part 1 (LPP1), together with Policy DM1 of the Winchester District Local Plan Part 2 (LPP2), seek to direct development to the most sustainable locations and restrict development in the countryside to that which is appropriate to a rural location. This includes development which requires a countryside location, supports rural enterprise, or involves the reuse of existing buildings. Development proposals are also expected to protect the character and appearance of the countryside.

The proposal is for new-build residential development which does not fall within any of the categories of development supported in the countryside.

Consequently, the proposal would represent inappropriate development in the countryside and, for that reason, the location is not suitable for residential development having regard to the development plan. It would therefore conflict with Policies MTRA4 and DS1 of the LPP1 and Policy DM1 of the LPP2.

The appeal site lies on the northern side of [site address] and comprises a mix of areas of built development, hardstanding and parts that remain in a more open and undeveloped state. It extends to a substantial area and sits within the wider countryside, where the surrounding character is defined by sporadic development, including detached dwellings set within generous plots. This results in a loose, semi-rural pattern of development with a generally spacious and verdant quality, in which openness between and around buildings, including dwellings, is an important characteristic.

While the site is relatively well contained by established boundary vegetation, this does not alter its underlying character as part of the countryside. The appellants place weight on the limited public visibility of the site; however, the effect of development on character is not solely dependent on the degree to which it can be publicly viewed. The physical encroachment of built form and the domestication of land can erode rural character irrespective of visibility, through the loss of openness and the introduction of residential activity into previously undeveloped areas. Notwithstanding the presence of some existing buildings and areas of hardstanding, parts of the site retain openness that contributes positively to its semi-rural character.

Although there are areas of hardstanding associated with the site’s existing use, these are limited. The proposal would extend built form and domestic curtilage beyond them into currently undeveloped parts of the site.

This expansion would cover a greater proportion of the site, introducing a more pronounced domestic presence, including formalised gardens and associated activity. I am not persuaded that such areas would remain “open” in character.

I have had regard to the fallback position represented by the extant permission (23/01220/FUL), together with the earlier approvals on part of the site. Based on the planning history and the evidence before me, I am satisfied that there is a realistic prospect that this fallback could be implemented such that it attracts significant weight. While detailed information regarding its precise layout and appearance is limited, the overall extent of development, site coverage, and likely extent of residential curtilage can be reasonably understood. My assessment therefore focuses on these measurable factors.

The appellants argue that the lower density and detached form would better reflect rural character. However, the key consideration is the extent of encroachment and change to spatial characteristics. The evidence indicates that the proposal would materially increase both residential curtilage and built footprint compared to the fallback, extending across a larger site area.

This increased spatial spread would result in the encroachment of residential development into areas that are currently undeveloped and which contribute positively to the site’s rural character. This is principally due to the increased extent of land taken into domestic use beyond that associated with the fallback position. The resulting expansion of domestic curtilage and associated activity would give rise to a more pronounced domestication of the site, giving it a more suburbanising overall character, notwithstanding the detached form of the dwellings.

The cumulative effect of the increased site coverage, spread of built form, and extent of domestic curtilage would erode the spatial qualities that give the site its semi-rural identity. This would result in a perceptible shift from a predominantly open and verdant character towards a more suburbanising form of development. Consequently, the proposal would cause clear harm to both the character and appearance of the area, even when taking account of the fallback position.

Accordingly, while the fallback position carries significant weight, the limited detail before me prevents a robust finding that the appeal proposal would have similar or lesser effects. On the evidence available, it would result in greater harm to the character and appearance of the countryside, contrary to Policies DM15, DM16 and DM23 of the LPP2, which collectively seek to protect the intrinsic rural character of the countryside by ensuring development respects its context and avoids encroachment and domestication of undeveloped land.

Policy CP2 of LPP1 seeks a range of dwelling types, sizes and tenures, with emphasis on smaller homes. It expects a majority of 2- and 3-bedroom dwellings unless justified otherwise, while allowing flexibility based on site characteristics.

Taken at face value, the proposal does not align with the numerical expectation within LPP1 Policy CP2. The proposed scheme would instead provide four larger family homes, representing a clear departure from the general housing mix sought by the policy.

However, LPP1 Policy CP2 must be read as a whole and applied having regard to its flexibility. It does not impose a rigid requirement in all cases; rather, it explicitly allows for variation where justified by the site’s size, location and characteristics. It also recognises that the delivery of a broad mix is more readily achieved on larger sites.

In this instance, the proposal comprises only four dwellings and its ability to deliver a meaningful mix within the site itself is inherently limited. A development of this scale would not, in practical terms, create a balanced housing composition, and I therefore attach reduced weight to strict numerical compliance with the policy.

Turning to site context, the surrounding area is characterised by large, detached dwellings set within generous plots. This establishes a pattern defined by lower density and larger homes. The appeal proposal reflects that prevailing pattern of development, whereas a greater proportion of smaller units could lead to a more compact form of development that may sit less comfortably within its surroundings.

I have also had regard to the fallback position, which includes a greater proportion of smaller dwellings. This indicates that a scheme more closely aligned with the mix sought by LPP1 Policy CP2 could be achieved on the site. The appeal proposal would therefore move further away from that position by delivering only larger dwellings.

Drawing these matters together, the proposal conflicts with the general expectation of LPP1 Policy CP2 by not providing smaller dwellings and by diverging from a fallback option that would better reflect the policy’s aims. Even so, that conflict is moderated by the policy’s inherent flexibility, the limited scale of the scheme, and the contextual justification for larger homes in this location. Overall, the resulting harm is moderate and not, on its own, sufficient to warrant refusal.

The statutory framework requires development to deliver a minimum of 10% measurable biodiversity net gain. In this case, the proposal has been supported by an Extended Phase I Ecological Assessment and accompanying biodiversity metric prepared by suitably qualified ecologists.

The submitted metric demonstrates that the development would achieve a net gain of about 27.84% in habitat units and 43.36% in hedgerow units, comfortably exceeding the statutory 10% requirement. This uplift would be delivered through on-site measures including the provision of new trees, scrub planting, hedgerows, and a pond, all of which would contribute positively to ecological value.

For the above reasons, the proposal would comply with the statutory requirement to deliver at least 10% biodiversity net gain, and would significantly exceed this target. Subject to conditions securing the implementation, management and monitoring of the ecological enhancements, the proposal would deliver a clear and measurable benefit for biodiversity.

Therefore, I find no conflict with Policy CP16 of LPP1 which, amongst other things, requires that development proposals must maintain, protect and enhance biodiversity across the district.

The proposal lies within the Solent catchment, where it is established that additional nutrient inputs, particularly nitrogen, can adversely affect the Solent. The assessment of this matter must be undertaken in accordance with the Conservation of Habitats and Species Regulations 2017 (as amended) (the Habitats Regulations).

As the decision-maker, I am the competent authority for the purposes of Regulation 63 of the Habitats Regulations. I am therefore required to undertake an Appropriate Assessment (AA) of the implications of the proposal for the designated sites and may only grant permission where I can conclude, beyond reasonable scientific doubt, that the proposal would not adversely affect the integrity of those sites, having regard to their conservation objectives.

It is not disputed that the development, which includes overnight accommodation, would generate additional wastewater and therefore increase nitrogen loading, resulting in eutrophication at designated sites.

The submitted nutrient budget identifies an additional load of approximately 8.18 kg/TN/year. On this basis, and taking a precautionary approach, I am satisfied that, in the absence of mitigation, the proposal would be likely to have a significant effect on the designated sites.

However, the proposal relies on a package treatment plant for foul drainage, and very limited information has been provided regarding its specification and performance. These factors are integral to understanding nutrient loading. As such, there is uncertainty as to whether the submitted nutrient budget provides a sufficiently reliable assessment of the proposal’s likely effects.

The Council’s position is that the effects could be mitigated through a nutrient neutrality strategy secured by a Grampian-style condition requiring the submission and approval of a mitigation package prior to occupation.

However, the requirements of the Habitats Regulations are clear. It is not sufficient to defer the identification and securing of mitigation to a later stage. The competent authority must be certain, at the time of decision-making, that the proposed mitigation is effective, deliverable and secured.

In this case, no detailed or site-specific mitigation strategy has been provided. There is no evidence of secured mitigation, whether through credits, enrolment in a recognised scheme, or control of land capable of delivering offsetting, and there is no certain mechanism by which neutrality would be achieved. This uncertainty, and the absence of secured mitigation, means that permission cannot lawfully be granted under the Habitats Regulations.

Although the suggested condition would require the submission and approval of mitigation details at a later stage, it would not overcome the current uncertainty. Rather, it would defer matters that must be resolved through the AA and would fail to provide the necessary certainty at the decision-making stage.

Undertaking my AA on the basis of the information before me, I am therefore unable to conclude, beyond reasonable scientific doubt, that the proposal would not adversely affect the integrity of the Solent. The absence of secured mitigation, together with uncertainty regarding the foul drainage arrangements, forms a legal bar to the granting of permission.

Accordingly, the proposal conflicts with the Habitats Regulations and with Policy CP16 of the LPP1, which seeks to protect and enhance biodiversity, including internationally designated sites.

Based on a recent appeal decision ([address]), the main parties agree that the Council can demonstrate a 5.28-year housing land supply.

The submissions suggest that two of the proposed dwellings would be for self-build housing. Irrespective of this, no mechanism has been provided to secure such provision. A legal agreement is the recognised and robust method for securing self-build housing, ensuring that the development meets the statutory definition and delivers the policy benefits relied upon. Accordingly, in the absence of any such agreement, any intention for some of the proposed dwellings to be self-build attracts little weight.

Nevertheless, the proposal would result in the delivery of four dwellings, giving rise to some economic and social benefits. These include short-term construction activity and associated expenditure, together with modest additions to housing supply. The proposal would also contribute towards the delivery of a small site, which aligns with the National Planning Policy Framework’s support for small and medium-sized sites as a means of boosting housing supply. However, given the site’s countryside location and the limited availability of nearby services and facilities, the extent of longer-term social and economic benefits would be constrained. The scheme would also deliver biodiversity net gain in excess of statutory requirements.

Nevertheless, I attach only limited weight to these benefits. This is because there is an extant fallback position which would deliver a similar quantum of residential development in this location, such that many of the economic and social benefits would arise in any event, substantially reducing the additional benefits attributable to the appeal proposal. Whilst there would be some uplift in environmental benefits and qualitative improvements, these amount to more modest advantages.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires planning decisions to be made in accordance with the development plan unless material considerations indicate otherwise.

The proposal conflicts with the spatial strategy by introducing unjustified new residential development in the countryside. It would also result in moderate harm to the character and appearance of the area through increased encroachment and domestication, and would not meaningfully contribute to the delivery of smaller dwellings. These harms attract moderate weight.

In favour of the proposal, it would deliver biodiversity net gain and modest economic and social benefits associated with four additional dwellings. However, the weight of these benefits is limited, particularly as a fallback scheme would deliver similar form of benefits.

In addition, I have been unable to conclude that the proposal would avoid adverse effects on the integrity of the Solent designated sites. This is a determinative consideration which weighs heavily against the proposal.

Drawing these matters together, the adverse impacts of the proposal significantly and decisively outweigh its limited benefits. The proposal therefore conflicts with the development plan as a whole, and there are no material considerations of sufficient weight to justify a different conclusion.

For these reasons, I conclude that the appeal should be dismissed.