Appeal 6002147

The appeal is dismissed.

Details that aren’t development have been removed from the description in the banner head above.

As the site is located immediately adjacent to a listed building I have had regard to section 66(1) of the Planning (Listed Buildings and Conservation Areas Act 1990 (as amended) (the Act).

Although not included as a reason for refusal on the decision notice, as the appellant is seeking an exemption from providing the mandatory biodiversity net gain on the site, it is necessary for me to take this into consideration during the determination of this appeal. Comments were sought from the main parties on this issue therefore neither party would be prejudiced by this approach.

The site is located within the catchment of three [name] afforded protection under the Habitats Regulations1, namely; Solent Maritime Special Area of Conservation; Solent and Dorset Coast Special Protection Area (SPA); and the Solent and [name] (hereafter referred collectively as the Solent). Therefore, it is incumbent upon me, as the competent authority, to consider whether the proposal would be likely to have a significant effect on the integrity of the Solent.

Consequently, the main issues are: • the effect of the proposal on the character and appearance of the area, including whether the setting of the [name] listed building known as Brickfield Cottages2 would be preserved; • the effect of the proposal on biodiversity; 1 Conservation of Habitats and Species Regulations 2009 (as amended) (Habitats Regulations) 2 [name]: 1391218; date first listed: 2 February 2005 • whether the proposal would make adequate provision for affordable housing; and • whether the proposal would be likely to have a significant effect on the integrity of the Solent relating to recreational disturbance and nitrates.

The appeal site is located adjacent to 3 [name] (No.3) which, together with 1 and 2 [name] (No.1 and No.2), comprises a [name] listed building. As indicated on the official listing, these properties were built in 1853 and designed by the [name] for workers of the adjoining Queen’s brickyard. The evidence before me indicates that these cottages are examples of [name] model farm and worker’s cottages, designed to support improved living conditions for labourers associated with the [name].

Constructed from red brick with slate roofs, the modestly sized single storey cottages with accommodation in the roof space have a gothic architectural appearance with features such as stone dressings, ornamental bargeboards, white diamond lattice glazing bars and paired chimney stacks positioned diagonally relative to the ridgeline. The intricacies of the listed building’s vernacular belies the status of the historic occupants of each of the labourers’ cottages. While not identical, the projecting gables and gabled dormers of No.1 and No.3 provide a symmetry to either side of the recessed central property. Despite comprising separate properties with an obvious domestic function, the cottages are experienced as a single entity.

No other properties are located nearby with other built form limited to the outbuildings and garden structures associated with each cottage. Although now separated from No.3, the evidence before me indicates that the appeal site previously formed part of its garden area, with a similarly sized piece of land associated with No.1.

Hedgerows, including sporadically located substantial trees, line either side of [site address] with further mature trees providing a verdant backdrop to the cottages. While bounded by greenery, gaps in the planting allow glimpses and clear views from the road across the undeveloped land on either side of the listed building. The contrasting red, stone, white and dark grey colours of the cottages, particularly the side elevations of No.1 and No.3, are experienced in these views when approaching from either direction.

Therefore, the special interest of the listed building, insofar as is relevant to the appeal scheme, relates to its historical association with the monarchy and the local industry, together with the quality, features and materials used within its vernacular. Its largely undeveloped and verdant setting contributes to this special interest by respecting the rural context together with the contrasting sense of enclosure versus glimpsed views of the listed building.

The proposal comprises the construction of a dwelling and detached garage, replacing the existing double width garage structure on the site. It would be sited close to the rear boundary, thereby maximising the distances between the listed building and the road. However, the overall width of the proposed dwelling, plus the garage, would be greater than the combined width of the three cottages.

Moreover, the proposed dwelling has been designed to have the typology which reflects that of a converted barn, with materials including painted black horizontally arranged cladding, low stone plinths and a feature glazed entrance gable projection. Despite its countryside location, the appeal site has no clear physical or visual connection of a farmstead which would justify the presence of such a built form in this location. It would, therefore, jar starkly with the vernacular of the listed building and its historic function as accommodation for labourers from the nearby brickworks. The absence of an established building line, consistent boundary treatments and the diverse characters found across the Island as a whole do little to alter this view.

Although views of the proposed dwelling along the road when travelling from its junction with the A3054 would be predominantly screened by the cottages and the existing landscape features, this would not be the case from the highway near the entrance gate to No.1. From this location the proposed dwelling would be experienced in the backdrop to the cottages’ year round and especially between autumn and spring when the leaves have fallen from the trees. The softening effect of the existing landscape features along the rear boundary of the site would also be seasonal. In this respect the proposed dwelling would have an obvious presence within the setting of the listed building and, from the aforementioned viewpoint, would visually compete with it.

The siting of the proposed dwelling back and away from the road would, however, maintain a degree of separation from the listed building such that it would not encroach upon its setting when approached from the south west. Nevertheless, together with its scale, bulk and typology, the proposal would introduce a contrived and incongruous feature into the setting of the listed building which would result in harm to its significance.

Although a football stadium is currently under construction in an adjoining field, it is sited a sufficient distance from the listed building, with dense existing and proposed planting between, such that it would not encroach on its setting. It does not, therefore, justify the introduction of a built form which harms the setting of a designated heritage asset, even if the stadium has an urbanising effect on the character of the wider surroundings.

I conclude that the proposal would harm the character and appearance of the area and would fail to preserve the setting of the [name] listed [name], contrary to policies DM2, DM11 and DM12 of the Island Plan Core Strategy (the [name]). These policies, amongst other things, seek to conserve and enhance the special character of the Island’s historic and built environment.

The proposal also runs contrary to s66(1) of the Act. The level of harm in this case would be less than substantial. This outcome is not disputed by the appellant. Taking into account the bulk and scale of the proposed dwelling, I conclude that the magnitude of this harm would be towards the lower end of the less than substantial scale. Nonetheless, any harm to, or loss of, the significance of a designated heritage asset, including from development within its setting, requires clear and convincing justification and, in accordance with the Framework3, should 3 National Planning Policy Framework (Framework) be balanced against the public benefits which would be derived from it. This is addressed further in the Heritage Balance below.

The application form indicates that the proposed dwelling would be a self-build or custom-built property and is therefore exempt from providing the mandatory 10% biodiversity net gain (BNG) set out in The Biodiversity Regulations4. The main parties have agreed that this would be secured through the imposition of two conditions, were I to allow the appeal, which would: i) limit the occupancy of the dwelling to those person or persons who had a primary input into its design and intend to live in it for at least three years; and ii) require the submission of the Council’s Proforma5, confirming the occupancy details at i), at least three months prior to first occupation.

While the Council are satisfied that these conditions represent a reasonable approach to securing a self-build property that meets the definition set out in the Self-build and Custom Housebuilding Act 2015, their enforceability is uncertain. For instance, if someone other than the person building the dwelling (therefore a third party), occupies it during the first three years following completion they would be in breach of condition i). Given a condition runs with the land, not a person, any enforcement against this third party is unlikely to be reasonable. Additionally, any action the third party takes to address the breach would not achieve the condition’s planning and policy objective; namely that the dwelling is occupied by the person/s involved in its design. Furthermore, as a completed proforma does not constitute a legal obligation, any enforcement action taken against a third party in this regard would not be reasonable.

In the absence of a suitable mechanism to secure the dwelling as a self-build home, I conclude that the proposal does not meet the aforementioned BNG exemption. It would, therefore, be subject to a 10% BNG pursuant to the Biodiversity Regulations and the Environment Act 2021. As the minimum information relating to BNG, as set out in the DMPO6 is not before me, I am unable to establish whether the proposal could achieve at least a 10% increase in biodiversity value relative to the pre-development value of onsite habitat.

Thus, I conclude that the proposal would result in harm to biodiversity, in conflict with the Environment Act 2021, the DMPO and the Biodiversity Regulations.

Policy DM4 of the [name] requires financial contributions to be made towards affordable housing for developments of 1-9 units in areas outside designated settlement boundaries. The Affordable Housing SPD7 sets out how the contribution is calculated, based on the value of the property at first sale/occupation. The Council will use the [name] towards the cost of the provision or improvement of affordable housing, applied on a 4 The Biodiversity Gain (Town and Country Planning)(Modifications and Amendments)(England) Regulations 2024 (Biodiversity Regulations) 5 Proforma for schemes that are self or custom build 6 Town and Country Planning (Development Management Procedure) (England) Order (DMPO) 7 Affordable Housing Contributions Supplementary Planning Document (March 2017) ([name]) hierarchical approach across the Island based on the proximity to a site. This obligation is also necessary to make the proposal acceptable in planning terms.

The aforementioned UU submitted before the application was determined includes an obligation which requires the appellant to pay the [name], based on the sale price or a RICS8 [name], to the Council prior to the occupation of the new dwelling. These factors lead me to conclude that the obligation is related directly to the proposal, and fairly related in scale and kind to it. It, therefore, accords with the CIL Regulations and the Framework in this regard.

Consequently, I conclude that the proposal would make adequate provision for affordable housing, in accordance with Policy DM4 of the [name] and [name].

The natural conservation interest of the Solent results from the various birds supported by the habitat, particularly during the winter months. The protection of the Solent seeks to ensure that migratory birds can feed undisturbed whilst they build up energy reserves to survive the winter before journeying back to their breeding grounds. A key issue which prevents the Solent from meeting this objective relates to additional recreational pressures placed on the area.

As the proposal would lead to an increase in the number of homes in the area, and therefore the number of people living nearby, it would lead to an increase in number of people accessing the Solent for recreational purposes. This increases the risk of disturbance to the birds which, in turn, can lead to a rise in bird mortality or a reduction in the amount of energy an individual bird has available at the end of the winter, should it move away from the feeding ground due to human presence. It is therefore likely that the proposal, taken both in isolation and cumulatively with other projects, would have a significant adverse effect on the integrity of the SPA. Consequently, it is necessary to conduct an Appropriate Assessment concerning the effect of the proposal on the integrity of the Solent.

The approach to avoiding or mitigating significant effects to the Solent from increase recreational pressure comprises securing contributions towards the [name] (revised September 2024) (the Strategy). The Strategy was established by the Solent Recreation Mitigation Partnership (the Partnership), which includes the Council, Natural England, wildlife conservation bodies and other local authorities of the Solent region.

The Partnership will use the contribution to help fund the implementation of the [name], through five core delivery strands; Governance; Monitoring; Collaboration; Engagement; and Site-based Investment. Within each strand, as detailed within the SPD, a series of activities and priorities have been identified. From the evidence before me, I conclude that the obligation sought is necessary to make the development acceptable.

The aforementioned UU submitted before the application was determined includes an obligation which requires the appellant to pay the [name] to the Council. The contribution is based on the number of bedrooms 8 Royal Institute of [name] (RICS) proposed within a new dwelling and is therefore directly related to it, and fairly related in scale and kind. As such it would accord with the CIL Regulations and the planning obligations tests set out in the Framework. Through the provision of the UU, it has also been demonstrated that, in regard to recreation, the proposal would not be likely to have a significant effect on the integrity of the Solent.

With regard to nitrates, the Solent is currently in an unfavourable condition due to excessive levels of nitrogen and phosphate discharging into these waters, including from residential uses. However, the evidence before me indicates that the proposal would be within the catchment of the [address] which outfalls into the [name], not the Solent. Therefore, subject to the imposition of a pre-commencement condition, were I to allow the appeal, securing the discharge of foul water into the [name], the proposal would not lead to an increase in nitrates discharging into the Solent.

I conclude, that, subject to mitigation, the proposal would not be likely to have a significant effect on the integrity of the Solent and accords with policies SP5 and DM12 of the [name], the SPD and the Habitat Regulations insofar as they seek to protect designated areas.

My attention has been drawn to the previously approved permission9 for a single dwelling on the site. Although this may no longer be extant, it nonetheless represents a fallback as it has more than a merely theoretical prospect of occurring. Despite also comprising two bedrooms, the approved permission comprises a single level of accommodation and would occupy a significantly smaller footprint than the proposal. It would also possess a more modest domestic design with a brick and tile construction.

As a result, it would not be an overbearing feature in the same views as the listed building nor have a character which jars with the domestic appearance of the cottages. Therefore, the proposal represents a significantly more harmful scheme than the approved permission, with the latter providing little justification to allow this appeal. Consequently, it attracts minimal weight in my decision.

Public benefits would be derived from the provision of an additional dwelling, resulting in an increase in the local housing stock of dwellings, particularly those with two bedrooms. It would also be valuable in supporting the Framework’s objective of boosting the supply of housing. The contribution from the scheme towards the provision of, or improvements to, affordable housing nearby also provides a public benefit which is supported by the Framework objective of delivering a sufficient supply of homes that meet local needs. The construction and occupation of the dwelling would assist in supporting the Island’s construction industry and local economy while its modern construction and incorporation of solar panels would provide environmental benefits.

The totality of these social, economic and environmental public benefits would, however, be minor given the scale of the proposal, albeit they could be quickly achieved. Therefore, they would not be of a scale sufficient to outweigh the 9 Council ref: 21/02386/FUL; dated 8 August 2022 considerable importance and weight to be given to the low level of less than substantial harm I have identified to the setting of the listed building and the resultant great weight to be given to its preservation.

My conclusion relating to the effect of the proposal on the integrity of the Solent is a neutral matter. As is the lack of harm resulting from the proposal in terms of highway impacts and the living conditions of existing and future occupiers.

However, in the absence of an appropriate mechanism to meet an exemption to the mandatory BNG requirements through securing a self-build dwelling, the proposal would harm biodiversity. It would be contrary to the Biodiversity Regulations and the Framework’s aim to secure measurable BNG when determining applications. Such harm is modest given the scale of the scheme. Nevertheless, the proposal is contrary to the development plan as a whole.

The Council is unable to demonstrate a five-year supply of deliverable housing sites in accordance with the Framework. I am aware from another appeal in the area that the latest published position10 is 3.5 years. However, this figure was determined when a previous iteration11 of the Framework was in place, based on the requirement to demonstrate either a four or five-year supply, depending upon the status of a Council’s development plan. Nonetheless, the evidence before me indicates that the Council’s Housing Delivery Test score for the three year period to 2022 sits at 66%, below the 75% threshold the Framework considers as substantially less than the housing requirement.

As such, the presumption in favour of sustainable development set out at paragraph 11d of the Framework is relevant. [name] have found that the proposal would not result in a significant effect on the integrity of the Solent, paragraph 11di is not engaged regarding this area of particular importance. However, I have found that the proposal would result in less than substantial harm to the setting of the [name], albeit of a magnitude towards the lower end of the less than substantial scale, which attracts great weight in my decision. Therefore, I conclude that the application of Framework policies that protect assets of particular importance, such as listed buildings, at paragraph 11dii is triggered and the harm to the significance of a designated heritage asset from development within its setting provides a strong reason for refusing the proposal.

The proposal conflicts with the development plan and there are no material considerations, including the presumption in favour of sustainable development, which indicate that a decision should be made other than in accordance with it. For the reasons given, the appeal is dismissed.