Appeal 6002040

The appeal is allowed and planning permission is granted for residential development of ten sustainable dwellings with associated road and drainage infrastructure, hedgerow and tree planting at [site address] , [site address] , Whitchurch [postcode] in accordance with the terms of the application, Ref 240240, subject to the conditions in the attached schedule.

The appellant has provided additional and revised plans that were not with the Council when it determined the planning application. These show changes to the proposed drainage system to include a swale near the western boundary and consequential revisions to the proposed landscaping. Also, amended information on ground levels and landscape features has been submitted as well as drawings that show changes to the position of garages on plots 5 and 6. These revisions are supplemented by extra information on surface water drainage and flood issues.

The Council is concerned the revised plans show substantial changes to the scheme that was considered as part of the planning application. However, drainage and landscaping are subsidiary elements that support and supplement the construction of the proposed dwellings. To my mind, the amendments do not result in a fundamental change to the proposal, even when considered as a whole.

Moreover, the Council and interested parties have had an opportunity to submit comments on the revisions through the appeal process. Also, I note the Council suggests the imposition of planning conditions on drainage and landscaping in the event I find the appeal should be allowed. Therefore, no procedural unfairness would be caused to any party by taking the amended and additional drawings into account in my assessment. In arriving at this view, I have had regard to relevant caselaw1. 1 Bernard Wheatcroft Ltd v SSE & Another [JPL 1982 P37] and Holburn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin)

The amendments to the dwellings and garages on plots 5 and 6 lead to the proposed site plan numbered WP2-02 being slightly inconsistent with the other drawings. The layout of the development is clearly shown on the other plans before me and so I have disregarded the proposed site plan in my assessment

The main issues are (i) matters of flood risk and surface water drainage, and (ii) the effect of the development on the character and appearance of the area, including whether it would conserve or enhance the natural and scenic beauty of the Wye Valley National Landscape (the NL). Section 245 of the Levelling-up and Regeneration Act 2023 includes a requirement to seek to further the statutory purpose of conserving and enhancing the natural beauty of National Landscapes. The appeal site lies within the NL and so I have had regard to this duty (the section 245 duty) in my assessment of the appeal.

The appeal site is part of a field that lies on rising land on the edge of Whitchurch. [address] is a residential cul-de-sac that has recently been constructed on land that previously formed part of the same field. Agricultural land to the west rises above the level of the site and [address]. The land on the site itself drops down from the western boundary towards a path that is next to residences on Yew Tree Close, The Paddocks and Grange Park. All of these dwellings are below the level of the appeal site.

The submissions indicate that parts of Whitchurch have experienced flooding. However, the appeal site is identified on the Environment Agency’s Flood Map for Planning as being at a low flood risk. Also, none of the site is deemed to be at surface water flood risk or as having critical drainage problems. As such, the flood risk sequential and exception tests as set out at paragraphs 175, 177 and 178 of the National Planning Policy Framework (the Framework) are not applicable. Even so, paragraph 181 of the Framework requires all development to ensure flood risk is not increased elsewhere. Also, paragraph 182 requires the incorporation of sustainable drainage systems that control flow rates and reduce volumes of runoff.

The development would significantly increase the area of the site covered by buildings and hard surfacing. However, it would also incorporate a surface water drainage system whereas currently there is no underground pipework. Each of the proposed houses would be served by a geo-cellular crate soakaway system. Surface water from the road would be disposed to a line of 6 concrete ring soakaways toward the lowest part of the site. These features seek to mimic the current natural infiltration of rainwater into the ground. They illustrate how the proposal would incorporate a sustainable drainage system that meets the relevant definition within the Glossary of the Framework.

The appellant’s submissions include details of infiltration and soil tests involving 4 trial pits carried out in 2024. The Council has not sought to dispute the claim that the results of these tests indicate the permeability of the soil is sufficient to dispose of surface water via soakaways. I am also referred to 2019 investigations that the Council claims show a layer of clay towards the west side of the site. However, the appellant explains that the permeability of Herefordshire soils is generally derived from the composition of sand, silt and gravel within clay. The trial pit surveys identified no groundwater or any underground water feature that would affect the permeability of the soil.

The trial pits referred to do not cover the whole of the appeal site. However, the analysis information before me indicates the parts of the site investigated contain permeable soil at an appropriate depth to allow the proposed soakaway systems to work effectively. There is no substantive evidence to the contrary. The size of the proposed soakaways have been based on 1 in a 100 year flood event scenario factoring in a suitable increase to take account of climate change. Furthermore, it seems there would be potential to increase the size of soakaways compared to those shown on the submitted plans should it be established that the permeability of the soil on parts of the site differs to that identified through the trial pit surveys. Therefore, the evidence indicates a soakaway drainage system would be appropriate to serve the development so as to avoid surface water runoff causing an increased risk of flooding. Also, it would be reasonable to grant planning permission subject to a planning condition that requires the approval of a final engineered drainage system.

The appellant’s latest drainage scheme includes the provision of a swale on the highest part of the site. This would intercept rainwater runoff from the land slope to the west and it would store this water until it infiltrates into the ground. The swale would be underlain with geo-cellular crates to assist with storage and infiltration. It would seem likely that a properly designed and constructed swale would provide an effective measure to capture and to control surface water runoff from the adjacent land. A planning condition could be imposed to ensure its final design has regard to soil permeability as well as connectivity to the ditch to the west of [address] properties.

The submissions indicate that back garden areas to nearby residences on the lower land beneath the level of the site are at risk of surface water flooding. Also, flooding to properties occurred whilst the [address] development was under construction. Various factors are advanced by the main parties and local residents as contributing to this flood event. These include the local topography, the storage of excavated soil associated with construction works as well as soil compaction and groundworks on the appeal site. On my visit, I noted a ditch above the [address] properties and on the western boundary of the field and another ditch positioned more centrally across the appeal site. I am advised that these were excavated as an attempt to avoid a repeat of the flood event.

The Council raises concerns over the effects of the recently constructed 2 ditches on the flows of surface water and unintended flooding of existing properties. However, the earthworks to create the ditches as they currently exist do not form part of the proposed development. As such, the Council’s views on these matters do not affect my assessment of this main issue.

I can appreciate local residents concerns over the flood risk implications of the proposal in light of the recent flood event as well as flooding that have affected other parts of Whitchurch. However, the proposal would incorporate a drainage system that would manage surface water in a natural way. Also, by holding and controlling water through appropriately designed drains and soakaways, the development would avoid an increased surface water runoff so it would not increase the risk of flooding elsewhere. Indeed, the evidence from the appellant indicates the inclusion of the swale would provide further protection from surface water flooding to the proposed houses as well as the existing dwellings to the east of the site. Proper management and maintenance of the systems can be secured through a planning condition. Also, a planning condition could be imposed to provide measures so surface water runoff is controlled during construction works.

For the above reasons, I conclude the proposal would have acceptable effects in terms of flood risk and surface water drainage. In these respects, it would accord with policy SD3 of the Herefordshire Local Plan Core Strategy 2015 (the LPCS) and policy WG17 of the Whitchurch and Ganarew Group Parish Neighbourhood Development Plan 2019 (the NDP). Amongst other things, these require development to include sustainable drainage systems that ensure no increase in the risk of surface water flooding. The Council’s refusal reason also refers to LPCS policy SD4. This is irrelevant to this main issue as it relates to wastewater treatment and river water quality rather than flooding and surface water drainage. Effect on character and appearance of the area and the NL.

The development would be a residential cul-de-sac similar to [address] and with houses around a central road leading up the slope of the land. The Council’s concerns with the proposal relate to the lack of information on groundworks and the finished floor levels of the plots. Based on the information provided with the planning application, it has been assumed by the Council that the development would include a tall retaining wall to the side of plots 5 and 6 to account for abrupt changes in level. However, site level information provided with the appeal indicate a fairly low retaining wall to the sides of these plots with the higher land to the west re-profiled.

Moreover, the site-section information shows how stepped levels would be created so that each of the proposed houses towards the highest part of the site would be set into the slope. The houses on plots 5 and 6 would be 2 storeys high but their roofs would have a shallower pitch compared to the other dwellings. As a consequence, the highest parts of the plot 5 and 6 houses would be at a similar level to the other properties, despite being positioned on the highest part of the site. This demonstrates how the design of the development has been influenced positively by the land slope.

Other parties have raised different concerns over the visual impact of the development. As a grassed open area, the appeal site appears as part of the countryside. However, it contains no notable natural features apart from small trees and a gappy hedge line on the western boundary. Moreover, it is seen from nearby and in views from further afield within the immediate context of [address] and the adjacent residential areas. In the absence of any features that are recognised as special qualities of the NL, the site makes no meaningful contribution to the scenic and landscape beauty of the area.

The proposed dwellings and associated infrastructure would be obvious from a public footpath that runs just outside the western boundary, from the path along the other side of the site and from local private properties. The houses would also be seen in more distant views from private land and public footpaths on the higher ground to the south and east of Whitchurch. The proposal would clearly lead to the site having a more residential and developed appearance compared to the existing situation, including additional lighting at night time. However, the scheme would be of a scale and density that is compatible with the adjoining residential areas and it would be seen as a logical and minor extension of the settlement onto undeveloped land. From the hills to the east and south, the houses would be seen against the rising land to the west and north rather than protruding above the skyline. In these regards, the development would appear similar to [address].

Furthermore, the highest part of the appeal site would include no new buildings and instead it would be planted and left open for the proposed swale. There would also be scope to include hedge and tree planting within the garden areas. When mature, this new landscaping would soften the visual effects of the built parts of the development and would significantly increase the natural features on the site compared to the current situation. Mature trees as part of the development would be noticeable from nearby as well as from the higher land in the countryside surrounding the village. They would contribute positively to the wider landscape and ensure the new houses are seen amongst, behind or against a backdrop of vegetation. Therefore, I find the development when considered as a whole would conserve and enhance the landscape beauty of the NL.

Paragraph 190 of the Framework says major development in the NL should be refused other than in exceptional circumstances. In light of footnote 67 of the Framework, the number of proposed houses is only one of several factors to consider in ascertaining whether the scheme is major development in the NL. The proposal would represent a fairly modest residential cul-de-sac development, adjacent to existing properties and it would be largely seen within the context of the Whitchurch settlement. I find the proposal would not represent major development in the NL when having regard to the nature and scale of the development, its immediate setting and its overall visual effect. Consequently, paragraph 190 of the Framework is not applicable in this case.

For these reasons, I conclude the development would have an acceptable effect on the character and appearance of the area and it would conserve or enhance the natural and scenic beauty of the NL. In these regards, it would accord with LPCS policies LD1, SS6, RA2 and SD1 and NDP policies WG7 and WG14. Also, the imposition of a planning condition that secures the provision of trees and hedge planting as part of the development shows how the statutory purpose of conserving and enhancing the natural beauty of the NL would be advanced. Therefore, allowing the appeal would accord with the section 245 duty.

Interested parties have raised other comments and concerns with the proposal. There is little evidence to show that allowing this appeal is bound to lead to development proposals for the rest of the field being permitted. Any such development scheme would need to be assessed on its own merits having regard to policies and circumstances at that time. Allowing this appeal would not set an irresistible precedent that would have to be followed in the assessment of any other proposal.

The site is allocated for residential development in the NDP and the Council is unable to demonstrate a 5 year supply of housing land as required under the terms of the Framework. An Annual Position Statement as on 1 April 2025 indicates only 3.11 years’ worth of deliverable housing land can be demonstrated. This is a significant shortfall and the proposal would make a modest but still important contribution towards the housing stock. There is a clear need for the development.

LPCS policy H1 requires schemes of more than 10 dwellings to contribute towards meeting affordable housing needs. The proposal would provide exactly 10 units and so there is no policy requirement for any affordable housing provision. I understand the appellant constructed the [address] development and there are claims they deliberately sub-divided a larger scheme in order to avoid affordable housing requirements. However, the [address] scheme was proposed and approved before the appeal site being allocated for housing within the NDP. Like the Council, I am satisfied that there has been no deliberate action from the appellant to bypass affordable housing provision.

Comments from [name] indicate there is sufficient capacity within the sewerage network to receive foul water from the development and avoid pollution to any watercourse. They also show that any detriment to local water supplies would be addressed by the developer of the site through the provisions of the Water Industry Act 1991 or by connecting to a water main further away from the site. Based on these comments, I am satisfied therefore the development would avoid unacceptable effects in terms of water supply.

The development would lead to a fairly minor increase in traffic movements and acceptable visibility exists at the junction of the road to the appeal site out onto [address]. This street is narrow and without pavements in parts. However, I see no reason why existing traffic flows on the road would be excessive and its narrowness encourages careful driving. Also, there are stretches where pedestrians can take refuge from motorised vehicle movements, either on formal pavements or simply towards the edge of the carriageway. There is also an alternative and slightly longer pedestrian route via the lower pathway and pavement on Grange Park to facilities within the village. With these factors in mind, I am satisfied trips associated with the development would avoid an unacceptable risk to highway and pedestrian safety.

Facilities within Whitchurch include a primary school and a shop. The appeal development would be conveniently located to these services so residents would support the vitality and viability of the village. Also, there is a bus stop within a reasonable walking distance of the site that provides public transport links to a broader range of facilities at [site address] . Therefore, the development would promote the use of sustainable travel modes to a suitable level, particularly given the rural location of the site.

The appellant’s assessment concludes the plot is of low ecological value and unlikely to support protected or notable species. Also, the proposed planting and features such as bat and bird boxes would provide an enhancement to the biodiversity value of the site.

The rear gardens of some of the proposed dwellings would adjoin the back gardens of properties on [address]. The development would be clearly seen from these existing properties but there would be a sufficient separation to avoid a significant invasion of privacy or loss of light. The appeal drawings indicate tree planting along the common boundary that would also obscure and filter views between the existing and proposed houses and gardens. I appreciate the concerns raised that some of the species of trees shown on the plans would be of a height and size to cause significant overshadowing. However, concerns in these respects could be addressed through a planning condition that requires the submission and approval of a revised planting scheme that ensures trees provide an appropriate degree of screening and access to light to [address] residences. Planning conditions could also ensure measures are provided and implemented to minimise the effects of construction activities. I see no reason why construction of the road or any other element of the development would cause damage to existing properties. Therefore, the development would avoid an unacceptable effect on living conditions at any dwelling.

Concern is raised over the loss of a green space on the quality of life for local residents. However, there is no indication that there is a right for the public to go onto the appeal site, albeit there is no barrier to access from the lower footpath. Also, the development would not affect the whole of the field and the public right of way in the adjoining field provides a nearby route across countryside. Given this context, the scheme would not unduly harm local residents’ quality of life or public health in general terms.

Yew Tree Farmhouse is a grade II listed building near to the appeal site. However, due to intervening properties and the separation distance, the development would have no effect on the setting nor the significance of this designated heritage asset.

None of the above factors justify refusing planning permission. As such, they do not affect my overall conclusion.

I have considered the planning conditions suggested by the Council in light of the advice on conditions as set out in the Framework. Where appropriate, I have made amendments to their wording in the interests of precision and to avoid unnecessary pre-commencement conditions.

Condition 2 requires the development to be carried out in accordance with the approved plans, subject to the terms of other conditions. It is required in the interests of clarity. For reasons mentioned above, I have worded the condition to allow for different drainage and landscaping details to be submitted, approved and implemented compared to those shown on the plans. The list of drawings includes those submitted as part of the appeal process and that I have accepted.

Condition 3 is required to ensure the construction phase of the development is acceptable in terms of highway safety, flood risk, protection of trees and management of waste. This condition negates the need for the separate conditions on tree protection and a site waste prevention plan as suggested by the council. Condition 4 is imposed to minimise the effects of construction noise at nearby dwellings.

Condition 5 is included to ensure surface water from the development is dealt with sustainably, effectively and without increasing flood risk elsewhere. There is no need for the additional suggested condition that prevents surface water drainage connecting to a public sewerage network as the imposed condition is sufficient to ensure the provision of a sustainable drainage system. The approved plans show foul water from the development being discharged to a mains sewer connection and so there is no need for the suggested condition on this matter.

Condition 6 is required to ensure appropriate new planting is incorporated within the development that protects the living conditions at nearby residences whilst adding to the natural beauty of the landscape. It is worded so as to avoid the need for a separate condition on the maintenance of planting. There is no need for this condition to refer to hardstanding and boundary treatments as the submitted plans include such details. Also, the plans indicate the external materials to be used on the proposed houses and so there is no need for a condition that requires these details to be submitted and approved.

Conditions 7 and 8 are required to ensure the development is served by a satisfactory access and car parking facilities and in the interests of highway safety. These 2 conditions combine the requirements of 4 of the Council’s suggested conditions. There is no need for these conditions to require details of drainage as this is covered under condition 5. Also, the approved plans include sufficient information on the surfacing and levels of private drives and parking areas and so there is no requirement for a condition that requires further approval of these details.

Condition 9 is included to promote cycling as a sustainable mode of travel to and from the development. Again, the submitted plans provide sufficient information on the cycle storage facilities and so there is no need to submit further details.

Condition 10 is required to ensure light spillage from the development does not unduly affect bats and other nocturnal wildlife. Also, condition 11 is needed to ensure the development has an acceptable effect on wildlife and biodiversity. There is no need for this condition to refer to protected species licences as the appellant’s assessment found no evidence of such species. Condition 12 is needed to ensure the development complies with policy SD3 of the LPCS in terms of water consumption efficiency.

For the above reasons I find the development would accord with the policies of the development plan. Therefore, I conclude the appeal should be allowed.

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

Except where required under the terms of other conditions, the development hereby permitted shall be carried out in accordance with drawing nos WP2-01, WP2-03, WP2-04-A, WP2-05-A, WP2-06, WP2-07-F, WP2-08 (in terms of the details on materials and hard landscaping) WP2-10-A, WP2-11-A and 18603/500 08.

No development hereby permitted shall commence until details of the following have been submitted to and approved in writing by the local planning authority: - a method for ensuring mud is not deposited onto the public highway; and - construction traffic access location; and - parking for site operatives; and - construction traffic management plan; and - measures to be provided to manage surface water runoff on and from the site during the construction of the development; and - measures to protect trees during the construction of the development; and - measures to prevent and manage site waste during the construction of the development. The construction of the development shall be carried out in accordance with the approved measures and details.

Construction works and associated vehicular deliveries and collections shall take place only between 7.00am and 6.00pm on Mondays to Fridays, between 8.00am and 1.00pm on Saturdays and shall not take place at any time on Sundays or Public Holidays.

Notwithstanding condition 2, no works to construct drainage infrastructure shall commence until a drainage scheme and strategy to address surface water flood drainage has been submitted to and approved in writing by the local planning authority. The details shall include an implementation plan and details on how any drainage features are to be managed and maintained. The approved drainage scheme shall be provided in accordance with the approved implementation plan and shall thereafter be retained and managed and maintained in accordance with approved details.

Notwithstanding condition 2, no development apart from the construction of the access shall commence until a landscape scheme has been submitted to and approved in writing by the local planning authority. The scheme shall include:- - details of trees and hedgerows to be retained; - details of trees and hedgerows to be removed; - details of all proposed planting with a written specification setting out species, size, quantity, density with cultivation details; - details of an implementation programme; - details of landscape management and maintenance for a period of 5 years from implementation. The approved landscape scheme shall be provided in accordance with the approved implementation programme and it shall be managed and maintained in accordance with the approved details. Any trees or plant that die, are removed or become severely damaged or diseased within 5 years of planting shall be replaced in the next planting season with others of similar size and species.

Construction works on the road hereby permitted shall not commence until details of the surface finish to the road and how it is to be maintained have been submitted to and approved in writing by the local planning authority. Prior to the first occupation of any of the dwellings, the road should be constructed in accordance with the approved details and thereafter it shall be maintained in accordance with the approved details.

Prior to the first occupation of any of the individual dwellings hereby approved, car parking shall be laid out within the curtilage of that property in accordance with the approved plans listed under condition 2 and thereafter the parking areas shall be retained and not used for any other purposes other than the parking of vehicles.

Prior to the first occupation of any of the individual dwellings hereby permitted, cycle parking facilities as shown on the approved plans listed under condition 2 shall be provided and thereafter the cycle storage facilities shall be retained and maintained.

None of the houses hereby permitted shall be first occupied until a lighting strategy and scheme for the development has been submitted to and approved in writing by the local planning authority. Only external lighting that has been approved in writing by the local planning authority shall be provided as part of the development.

The development hereby permitted shall be carried out in accordance with the mitigation measures as set out in the Recommendations section of the Pure Ecology Ecological Assessment Report dated January 2024. Also, the ecological enhancement features as set out on the approved drawing numbered WP2-07-F shall be provided before any of the dwellings are first occupied and they shall be retained and maintained for the lifetime of the development.

Prior to the first occupation of any of the individual houses hereby permitted, a scheme demonstrating measures for the efficient use of water shall be submitted to and approved in writing by the local planning authority. The development shall be carried out in accordance with the approved scheme and any measures required to be provided shall be installed prior to the first occupation of the individual dwellings. Any water efficiency measures that have been approved and installed shall be retained and maintained for the lifetime of the development.