Appeal 6002166

The appeal is dismissed.

The description of development in the banner heading above reflects the description provided on the application form. The Council’s decision additionally refers to the demolition of the existing dwelling, which is shown on the proposed plans. I have taken this into account in determining the appeal.

The reasons for refusal set out in the Council’s decision do not refer to Policy DM16 of the Epson and Ewell Borough Council Development Management [name] (2015) (DMPD). However, it is evident from the officer report that this was an omission. The appellant would not be prejudiced by my taking this policy into account, given that they have also referred to it in their submissions.

The main issues are: • the effect of the proposed development on the character and appearance of the area; • the effect of the proposed development on protected species; • whether or not the mandatory biodiversity net gain (BNG) requirements are met; • the effect of the proposed development on the living conditions of neighbouring occupiers, with particular reference to privacy; and • whether or not the proposed development would provide adequate living conditions for future occupiers, with particular reference to the provision of living space.

[address] is a main route connecting Chessington and Ewell. Between the junctions with [address] and [address] it is characterised by a broad central verge with a mature hedgerow and trees separating opposing traffic flows. Along one side of the street, houses of varying ages and architectural styles form a largely continuous frontage set behind front gardens and driveways, with a footway and intermittent grass verges running between the plots and the carriageway. Many plots contain soft landscaping, which complements the verdant central verge, and they tend to have long rear gardens. Despite the variation in built form, the broadly consistent plot sizes and established greenery create a coherent development rhythm that contributes positively to the area’s character and appearance.

The appeal site at [site address] (No 388) contains a gable-fronted bungalow within a roughly rectangular plot. It sits between a pair of semi-detached two-storey houses (Nos 390 – 392) and a detached two-storey house (No 386). The front boundary adjoins a grass verge and is defined by shrubs in front of a close-boarded fence, and timber gates. A hard surfaced driveway and parking area sit to the front and extend along the side to a large gravelled area at the rear, containing an outbuilding and four static caravans1 (‘development to the rear’). The current arrangement does not reflect the prevailing pattern of rear gardens along [address]. Nonetheless, the positioning and spacing of No [address] scene and the modest size of the bungalow maintains a unified frontage that contributes positively to the area’s frontage character.

The proposed development would subdivide the plot and replace the existing bungalow with four dwellings with living accommodation over two floors. Plots 1 and 2 would be taller than the bungalow to be demolished and would sit forward of No 386, increasing the prominence of the built form on this plot in the street scene. Plots 3 and 4 would be arranged in a tandem formation to the rear and unlike the majority of dwellings along [address], would not front the street.

Although the proposed dwellings would not be unusually narrow or tall given the variety of house types in the street, the overall layout would fail to reflect the established pattern of frontage development and the prevailing rhythm of long interrupted rear gardens. The closer siting of the buildings to the plot boundaries would further erode the sense of spaciousness that currently exists between the appeal site and adjacent plots. [name] 3 and 4 would be lower in height than the frontage dwellings and less visible from the street, the central access would allow glimpses into the depth of the site, revealing the extent of built form including parking and hard surfacing. Taken together, and despite the proposed use of materials found locally, the proposed development would appear cramped and would fail to respect the form and character of the locality.

The appellant has drawn my attention to backland development at 426 Chessington Road2, asserting that it is comparable to the appeal scheme, including because that site had been fenced off. However, I do not have full details of the circumstances that led to that development being accepted and I cannot be sure that it represents 1 the Council refused planning permission in April 2025 for ‘conversion of rear outbuilding to provide 2 x 1 bedroom residential units (C4 Use). Siting of 4 x 2 bedroom residential mobile homes (C3 Use) on a gravel surface in the rear garden (Retrospective)’ (Council ref: 25/00076/FUL). 2 Council ref: 19/01516/FUL a direct parallel to the appeal proposal. In any event, although No 388 is partly fenced from the rear portion of its plot at present, the Council indicate ‘the development to the rear’ may not be lawful. Even if it was, such comparisons do not lead me to a different view in relation to the harm identified.

I conclude that the proposed development would result in a harmful effect on the character and appearance of the area. In this regard, it would conflict with Policy CS5 of the Epson and Ewell Borough Council Core Strategy 2007 (CS) and Policies DM9, DM10, DM12 and DM16 of the DMPD which require high quality and inclusive design; consideration of the setting of the site and its connection to its surroundings; contribution to the most essential elements identified as contributing to the character and local distinctiveness of a street or area; demonstration of how the density of development would contribute towards maintaining and enhancing the visual character and appearance of the wider townscape; and a presumption against the loss of rear domestic gardens due to the need to maintain local character.

For the same reasons, the appeal proposal conflicts with the National Planning Policy Framework (the Framework), which seeks to achieve well-designed places.

The appellants Preliminary Roost Assessment identifies the bungalow, proposed for demolition, as having low potential for bats and recommends one further activity survey to ascertain the presence or absence of bats on the site.

In the absence of this survey, it is not possible to determine the effect of the proposed development on the status of the site for bats, including whether additional mitigation measures or a [name] license would be required. These matters cannot be left to a planning condition, as the ecological implications of the scheme, including its effect on protected species, must be understood before determination. While the appellant explains that the additional survey has not been undertaken due to seasonal constraints and also suggests addressing this through a worst-case scenario, I must adopt a precautionary approach. Without the necessary survey information, I am not satisfied that an appropriate level of mitigation and compensation could be secured if required, or what such measures might entail.

I conclude that it has not been satisfactorily demonstrated that the proposed development would not result in a harmful effect on ecology, with particular reference to protected species. In this regard, the proposed development would be contrary to Policy CS3 of the CS and Policy DM4 of the DMPD which require development affecting any site or building that supports species protected by law, including their habitats to only be permitted if appropriate mitigation and compensatory measures are secured.

The proposed development would also conflict with the Framework which seeks to protect and enhance biodiversity.

There is no dispute between the main parties that the mandatory 10% BNG condition would apply to the proposed development3. The Planning Practice 3 Schedule 7A of the Act (inserted by the Environment Act 2021). Guidance states that where unauthorised degradation of onsite habitat has occurred between 30 January 2020 and the date of the planning application, the pre-development biodiversity value of the onsite habitat should be calculated based on the condition of the habitat on the date immediately prior to such degradation.

The Council therefore does not accept that the correct relevant date has been used to calculate the site’s pre-development biodiversity value. This is because the ‘development to the rear’ included the removal of soft landscaped garden. In the absence of substantive evidence to the contrary, it remains possible that degradation of the appeal site has occurred since 30 January 2020.

I recognise that the appellant’s BNG Assessment has been prepared by a specialist. However, as the document was issued in August 2025, I am not satisfied that the commentary demonstrates awareness of or provides certainty regarding any potential habitat degradation that may have occurred before that point. Consequently, there is insufficient information, as required by Article 7 of The Town and Country Planning (Development Management Procedure) (England) Order 2015, to demonstrate that the BNG requirements would be met and at least 10% gain can be achieved and secured.

I conclude that it has not been demonstrated that the mandatory BNG requirements would be met. In this regard, the proposed development would conflict with the policies of the Framework which require planning decisions to secure net gains for biodiversity.

As existing, the rear garden of No 390 is overlooked by the upper floor windows of the adjoining neighbouring dwelling at No 392. The detached positioning of No 386 means that overlooking into its rear garden is currently limited, albeit overlooking towards more peripheral parts of its rear garden is likely.

The boundaries around No 388 are relatively high, given trellis planting above the close-boarded fencing that encloses the plot. Although the proposed front dormer windows serving bedrooms in Plots 2 and 3 could allow some views above these boundary treatments towards the rear gardens of Nos 386 and 390, such views would be oblique and limited to parts of those gardens only. They would not be of a nature or extent that would materially increase existing levels of overlooking.

I conclude that the proposed development would not result in a harmful effect on the living conditions of neighbouring occupiers, with particular reference to privacy. In this regard, there would be no conflict with Policies DM10 and DM16 of the DMPD which require development proposals to have regard to the amenities of neighbours and require the privacy of homes and gardens to be maintained. For the same reasons, the proposed development would not conflict with the Framework insofar as it requires a high standard of amenity for existing users.

The Council’s reasons for refusal relating to living conditions also refer to Policy CS6 of the CS. However, this appears to be an error as this policy relates to pollution, climate change, sustainable construction and design.

There is no dispute between the main parties that the proposed dwellings would meet the minimum gross internal floor areas set out in the nationally described space standards (NDSS). Nevertheless, the Council are concerned that because a second bedroom and bathroom is proposed at ground floor level, the resulting open-plan living/kitchen/diner in Plots 3 and 4 would be substandard in size.

The NDSS does not prescribe a specific minimum size for a living room or internal livings spaces, instead regulating overall gross internal area and minimum bedroom and storage dimensions. The proposed plans show an open plan arrangement of sufficient width and depth to allow for functional day-to-day activities, including space for furniture, circulation and dining. Based on the dimensions shown, and taking account of compliance with overall NDSS requirements, I am satisfied that the internal layout would not result in cramped living conditions, even if four persons were to reside in each dwelling.

I conclude that the proposed development would provide adequate living conditions for future occupiers, with particular reference to the provision of living space. In this regard, there would be no conflict with Policies DM10 and DM12 of the DMPD which require development proposals to have regard to the amenities of occupants, to incorporate appropriate layout and to be of a sufficient size to meet the needs of the likely number of occupiers. For the same reasons, the proposed development would not conflict with the Framework insofar as it requires a high standard of amenity for future users.

The Council accepts that it cannot currently demonstrate a five-year housing land supply, with the latest figure submitted with the appeal referring to 1.53 years of supply, which represents a significant shortfall. As such, Paragraph 11 d) of the Framework is a relevant consideration.

In the particular circumstances of the case, the proposed development would have a harmful effect on the character and appearance of the area and it has not been demonstrated that there would not be a harmful effect on protected species or biodiversity. Although no harm has been found in relation to living conditions, this does not overcome the other identified harms.

The harm identified, and the associated policy conflict would be significant and weigh to a substantial extent against the scheme and cannot be overcome by planning conditions. The harm identified would also be contrary to the aims and policies of the Framework. I therefore attach substantial weight to the conflict with the relevant development plan policies.

The proposed development would make a small albeit valuable contribution to local housing needs, including the provision of family sized homes which could potentially be built out more quickly than a larger scheme. It would also generate limited socio-economic benefits through construction and increased support for local services and facilities in an accessible location, with cycle storage provided. The proposed houses would be built to low carbon and high energy efficiency standards, with an oak tree planted and soft landscaping reinstated across the plot. However, as only four dwellings would be provided, the benefits of the scheme must be attributed limited weight in favour of approval.

Overall, the adverse impacts of the proposed development would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole. As a result, the proposal would not amount to sustainable development within the meaning of the Framework, and this weighs heavily against the proposal. Therefore, the presumption in favour of sustainable development does not apply.

The proposal would conflict with the development plan as a whole and the material considerations, including the provisions of the Framework, do not indicate that the appeal should be decided other than in accordance with it. Therefore, for the reasons given, I conclude that the appeal should be dismissed.