Appeal 6002188

The appeal is dismissed.

The proposal has been submitted in outline, with all matters reserved for future determination except for access. I have therefore considered the appeal on this basis, treating any submitted details relating to the reserved matters as illustrative only.

In relation to the Council’s second reason for refusal, the appellant has provided a draft Great Crested Newt District Licensing [name] together with other supporting information1. The Council has confirmed that the additional information addresses the second reason for refusal in so far as it relates to great crested newts. I have no information before me that would lead me to a different

The additional material does not amount to a substantial difference or a fundamental change to the scheme that was determined by the Council at the application stage, and given that main and interested parties have had an opportunity to submit comments on the additional material during the course of the appeal, there would be no injustice to any party were I to consider them. I have therefore determined the appeal on the basis of additional information.

The appellant has submitted an executed legal undertaking pursuant to section 106 of the Town and Country Planning Act 1990 (as amended). The obligation would secure the custom and self-build nature of the development proposed. The Council has raised no objections to the legal undertaking.

I am satisfied that the legal undertaking is necessary to make the development acceptable in planning terms, is directly related to the development, and is fairly 1 NatureSpace Impact Plan, and [name] and reasonably related in scale and kind to the development. As such, I have taken it into account in reaching my decision.

The main issues are the effect of the proposed development on: • The character and appearance of the area, and • Protected species, badgers.

The appeal site comprises a narrow parcel of undeveloped land located outside, but adjacent to, the western edge of the settlement boundary of Rye. It consists of open grassland with established hedging and fencing along its boundaries.

The site lies on the edge of a much larger open field, beyond which the land is designated as the High Weald National Landscape (HWNL) (formerly the High Weald Area of Outstanding Natural Beauty AONB). The site itself does not fall within any statutory landscape designation.

A previous planning appeal2 concerning the appeal site found that it “acts as something of a transition between the edge of Rye and the AONB and so makes a positive contribution to the setting of both of them.” On the evidence before me, I see no reason to reach a different conclusion. The site provides a buffer of undeveloped land between the settlement of Rye and the HWNL and forms part of a wider transitional space between these two distinct character areas.

It is common ground between the main parties that longer-range views of the site are largely limited, and this was clear during my site visit. However, I observed that the site is visible in a number of shorter-range views, particularly when entering or leaving Rye along [address] and when travelling south along [address], within which the development would be readily visible. While layout, scale, landscaping and appearance are reserved matters, the illustrative material before me indicates that the development would be prominent in these views.

I have noted the appellant’s reference to the fact that the proposal would extend no further along [address] than the development at [address]. However, the majority of the [address] buildings are set back from the highway and occupy a far less prominent position than the appeal proposal. At present, [address] and [address] form a clearly defined and coherent edge to the settlement. The proposal would project beyond this established boundary and would appear as an encroachment into the countryside, eroding the open character of the land and diminishing the transitional role the site currently plays within the wider landscape.

Although the site lies outside the HWNL and is therefore not afforded the same level of protection as land within the designation, policies in the Rother Local Plan Core Strategy 2014 (the [name]), the Development and Site Allocations Local Plan 2019 (the Local Plan), and the Rye Neighbourhood Plan 2019 (the NP) collectively place strong emphasis on conserving landscape character, protecting 2 APP/U1430/W/23/3335728 settlement edges, and safeguarding the setting of the HWNL. They require development to respect and not detract from the character and appearance of the countryside and to ensure that proposals outside settlement boundaries avoid harm to openness and rural qualities.

These policies are consistent with paragraph 187 National Planning Policy Framework (the Framework), which requires development to contribute to and enhance the natural and local environment by protecting and enhancing valued landscapes, recognising the intrinsic character and beauty of the countryside, and ensuring that development within the setting of nationally important landscapes is sensitively located and designed to avoid or minimise adverse impacts. This approach is reinforced by the natural environment section of the Planning Practice Guidance (PPG), which highlights that land forming the setting of such areas often makes an important contribution to their natural beauty and cautions that poorly located or designed development can result in significant harm.

I have noted the extracts of the Landscape and [name] prepared for the previous appeal on this site; I have also considered the findings of a separate planning appeal relating to a decision of Cheltenham Borough Council 3, within which the Inspector confirms that land within the setting of a National Landscape is not afforded the same protection as land within a National Landscape, I concur with that finding.

The application form and Planning Statement refer to an area of the appeal site as having been used for storage in association with the housing development to the north. However, no substantive evidence has been provided to demonstrate that planning permission was granted for such a use, the duration of that use, or whether any conditions were imposed requiring restoration of the land. In any event, the site has since blended back into the landscape and now presents as an undeveloped parcel of land. This is therefore a consideration of limited weight.

Overall, I conclude that the site performs an important transitional role between two distinct character areas, the HWNL and the settlement of Rye. The proposed extension of built form beyond the clearly established settlement boundary would not relate well to the landscape or the established pattern of development and would represent an encroachment into the countryside that erodes the open, undeveloped qualities of the land. This would harm the setting of the HWNL and Rye and harm the character and appearance of the area generally.

The proposal would therefore conflict with Policies OSS3, OSS4, RA2, RA3 and EN1 of the [name], Policies DEN1 and DEN2 of the Local Plan; and Policy E1 of the Rye Neighbourhood Plan which seek to avoid such harm.

The Ecological Appraisal (EA) submitted with the application identifies the presence of an on-site badger sett. The EA recommends that the layout of the development should be amended to incorporate a 30 metre no construction zone around the sett. I have no technical evidence before me to demonstrate that the suggested amendment has been carried out or whether such an amendment to the layout could be achieved. As such, In the absence of appropriate avoidance and mitigation measures, the EA concludes that the development could damage or 3 APP/B1605/W/23/3317851 destroy the sett, through collapse of tunnels or chambers arising from increased ground pressure and could also result in the disturbance of badgers while they are occupying it. The EA concludes that if this were the case a licence would be required.

The appellant submits that the mitigation measures could be secured by condition. However, paragraph 99 of Circular 06/2005 Biodiversity and Geological conservation – Statutory obligations and their impact within the planning system advises that “It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. The need to ensure ecological surveys are carried out should therefore only be left to coverage under planning conditions in exceptional circumstances, with the result that the surveys are carried out after planning permission has been granted.”

In any event, in accordance with the mitigation hierarchy, harm should first be avoided before any compensatory measures are considered.

Accordingly, following a precautionary approach, with the absence of substantive evidence to the contrary, I must conclude that the proposal would harm badgers which are protected species. It would therefore conflict with Policy EN5 of the [name], Policy DEN4 of the Local Plan, which seek to conserve or enhance the natural environment.

Representations have been received raising concern about the impact of the development on highway safety. However, given that I am dismissing the appeal for other matters I need not address this any further.

It is common ground between the main parties that the Council is unable to demonstrate a five-year supply of deliverable housing land (5YHS). The appellant contends that the supply stands at 2.63 years. I recognise that the proposal would deliver 2 dwellings, this would make a small but meaningful contribution to the Council’s housing supply and attracts significant weight. I also note that the dwellings would be self-build, a benefit of significant weight. The development would also generate moderate economic benefits, both during the construction phase and through subsequent household expenditure, a benefit of moderate weight.

However, I have found harm to the character and appearance of the area including the setting of the HWNL and the settlement of Rye, and also harm in terms of the impact of the development on Badgers, these are disbenefits of substantial weight. I conclude that these adverse impacts would significantly and demonstrably outweigh the benefits of the scheme when assessed against the policies in the Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land and securing well-designed places.

Consequently, the presumption in favour of sustainable development does not apply in this case.

Thus, the proposal conflicts with the development plan when read as a whole, and no material considerations, including the Framework, indicate that a decision should be taken other than in accordance with it.