Appeal 6002212

The appeal is dismissed.

The appeal is against the failure of the Council to give notice of a decision within the prescribed period. The Council’s appeal statement confirms that had they determined the application, they would have refused planning permission for six putative reasons. The appellant has had the opportunity to respond to this.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) introduced a statutory framework for biodiversity net gain (BNG). The proposal is advanced on the basis that, as self-build, it is exempt from the mandatory BNG requirement to deliver at least a 10% increase in biodiversity.

I have sought the views of the appellant and the Council as to whether the proposal complies with the definition of self-build, how this could be secured and any implications in relation to the statutory biodiversity net gain framework. I have had regard to the responses I received.

BNG is a matter subject to a statutory framework. Accordingly, the proposal’s degree of compliance with it is an important planning consideration and I have considered this as a main issue in my determination of the appeal.

In light of this and the submissions, the main issues are: • whether the appeal site is a suitable location for the appeal scheme having regard to the development plan and the appeal site’s proximity to services and facilities; • the effect of the proposed development on the character and appearance of the area and existing trees; • the effect of the proposed development on the living conditions of future occupiers having particular regard to outlook and light; • the effect of the proposed development on highway safety with particular regard to parking; and • whether the proposed development would deliver BNG.

The appeal site lies adjacent to but beyond, the settlement limit of Bordon. Accordingly, the appeal site is located in the open countryside where development plan policies strictly control development. The proposal would not comply with any of the exceptions set out in policies elsewhere in the development plan.

Whilst there are no footways or streetlighting on the appeal site frontage, I saw that there is access through the housing site on the land adjacent to the appeal site. This provided easy access on foot to the recreation ground and school. It also linked to footways serving Bordon, a Level 1 Market town, considered to be a main destination for social, leisure, entertainment, cultural, commercial and economic activity, serving a wide catchment area1.

Therefore the proposed development would introduce new housing into the countryside in a way which would conflict with Policies CP2, CP10, CP14 and CP19 of the East Hampshire District Local Plan: [name], adopted 2014 (CS) and saved Policy H14 of the East Hampshire District Local Plan [name], adopted 2006 (SLP) and this would undermine the planned approach to the distribution of development. However, the appeal site is located where there is reasonable access to services and facilities without reliance on the car. I return to this in my planning balance.

[address] is largely characterised by sporadic detached dwellings set back from, but facing towards the road within spacious plots. Mature trees and hedges line [address]. This gives the area a verdant character and emphasises its rural location.

The appeal site appeared to me to be a field which had been recently ploughed. Its boundary with [address] is largely open but there are a number of established trees along its frontage, and two other boundaries. I observed that they were well-established trees that currently, and would for many years, positively contribute to the verdant character and appearance of the area.

Erecting new dwellings on the site would result in the loss of countryside. The development and domestic paraphernalia that occupation would generate would have an urbanising effect. That said, the appeal site is located between a housing site which is currently under construction and an existing dwelling, known as Riverside. In this context, the impact of new dwellings would be very localised. As such, whilst I find that there would be harm to the character and appearance of the area, the harm in this instance would be minor. 1 As set out in Policy CP2 ([name]) of the CS

The proposed dwellings would be set back from the road, served by a single access point with a driveway and parking provided to each dwelling. This is not out of character with other development along [address], including that seen at Riverside. A condition to secure landscaping to the front of each dwelling would reduce the prominence of the hard surfacing.

The proposed dwellings would be sited end-on to the road. This would result in blank gable elevations to units 1 and 2 and a single window in an otherwise blank gable elevation to plot 3, facing [address]. This would be at odds with the general pattern of development along this part of [address]. As a result, the development would appear cramped and out of character with the general form and more spacious layout of development on [address].

The proposal is supported by a tree survey and a tree constraints plan (TCP)2. The survey identifies a category A Oak to the north of plot 3 with a spread of 10 metres. The survey also identifies a number of category [name] to the north and east of plot 3 and there is no evidence before me to indicate that these would not have the potential to reach a similar spread in the future.

The TCP identifies a developable area for the site, having regard to the location of existing trees and their root protection areas. The submitted block plan3 indicates that plot 3 would be located almost wholly outside of the developable area. This would place plot [address] proximity to the category A oak and this could be harmful to the health of the tree. In addition, the proximity of this and other existing trees to the dwelling means that, in the longer term there could be pressure to lop or even fell trees by future occupiers. The loss of trees would be harmful to the rural character of the area.

The proposal would fail to comply with Policies CP20 and CP29 of the CS which require high quality design which respect the area’s particular characteristics and protects natural features such as trees which contribute to the distinctive character of the area.

The orientation of the proposed dwellings means that the bedrooms of plots 1 and 2 would face each other with a separation distance of less than 9 metres. The separation distance between the lounge windows of plots 2 and 3, although slightly off set, would be less than 7.5 metres. At these distances, privacy would need to be secured by conditions requiring the provision of boundary treatment. Whilst this would be unlikely to have a harmful effect on the level of light serving those nearest windows, it would result in a poor outlook to each of the properties.

The presence of established trees close to the boundary of plot 3 means that they would overhang much of the garden. Although the TCP indicates that the existing trees would largely cast a shadow onto areas outside of the appeal site, the area under the canopies would undoubtedly be gloomy. This would result in a poor quality private garden to plot 3.

The proposal would therefore conflict with Policy CP29 of the CS which requires high quality development and private spaces, to create usable places where people want to live. 2 [name]: TCP-AR5770 [name] 3 [name]: PBP [name]

The plans indicate the provision of two parking spaces per property and on-site turning. With regards to plots 1 and 2, this level of parking would be below the requirement in the Vehicle Parking Standard Supplementary Planning Document 2018 (SPD) of three spaces per dwelling, plus one additional visitor parking space. This would result in ad hoc parking within the site.

Notwithstanding this, there would be sufficient space on the hardstanding area to the front of each of the properties to accommodate further vehicles. Whether those vehicles were parked in designated parking spaces or not would make little or no difference to the visual impact.

I accept that reversing out onto [address] which is subject to a 40mph speed limit would be undesirable in the interests of highway safety. However, for that same reason I do not find it likely that drivers would choose to do that. I find it more likely that drivers would carry out additional manoeuvres within the site to be able to leave the site in forward gear. Even with three additional vehicles parked on the site in line with the SPD requirement, there would appear to be sufficient space to enable this to occur.

I therefore find no conflict with Policy CP31 of the CS which requires developments to provide adequate vehicle parking.

In order to qualify as self-build, for the purposes of the relevant BNG legislation, the development would need to comply with the definition contained in Section 1(A1) of the Self-Build and Custom Housebuilding Act 2015. That is, ‘the building or completion by individuals, associations of individuals or persons working with or for individuals or associations of individuals of houses to be occupied as homes by those individuals, but it does not include the building of a house on a plot acquired from a person who builds the house wholly or mainly to plans and specifications decided or offered by that person.’ This makes it clear that new dwellings must be occupied by the person or persons responsible for carrying out or commissioning the building. This is further clarified in the Planning Practice Guidance4: “.. relevant authorities must be satisfied that the initial owner of the home will have primary input into its final design and layout. Off-plan housing, homes purchased at the plan stage prior to construction and without input into the design and layout from the buyer, are not considered to meet the definition of self-build and custom housing.”

The appellant has indicated that they intend to occupy one of the dwellings as a self-build but there is no indication as to who the occupiers of the other units would be, nor indeed whether their identity is yet known. There is also no indication that those occupiers would be persons who have had a primary input to the design and layout. There is therefore no clear evidence that the development would be capable of meeting the definition of self-build.

In any event, I have nothing before me to secure the occupation of the dwellings as self-build. A condition which seeks to control the construction and occupation by a particular person would not in my view meet the tests in Paragraph 57 of the National Planning Policy Framework (the Framework). In the absence of a legally 4 Paragraph: 016 [name]: 57-[phone] binding mechanism such as a planning obligation, I have nothing before me to secure the units as self-build. As there is no certainty that the proposed scheme would be carried out or occupied as a self-build development, it follows that the proposal does not qualify on these grounds for the relevant exemption from the BNG legislation.

Given that the appellant believed that a self-build exemption applied to the proposal, the planning application was not accompanied by any information to demonstrate that a 10% increase in biodiversity could be delivered. In these circumstances, the absence of the required BNG information means that the BNG statutory requirement has not been fulfilled. This is a matter of importance and failure to comply is a fundamental flaw of the proposal.

The Council’s five year housing land supply sits at 2.9 years. This is a significant undersupply at a time when the Government are seeking to boost the supply of homes. The appeal scheme would deliver three dwellings which would make a modest but nonetheless useful contribution towards housing supply at a time when the Council are failing to deliver sufficient housing, and I afford this moderate weight.

There would also be social and economic benefits arising from the construction and occupation of the dwellings. Environmental benefits would also arise from the sustainable construction methods proposed. [name] give these benefits modest weight.

My attention has been drawn to an appeal decision at Telegraph Lane5. The Inspector in that case concluded that the proposal would conflict with policies for the location of housing, as I have in this appeal. However, they also found that the proposal was acceptable in all other respects and would contribute towards an unmet affordable housing need. Therefore, the issues before the Inspector in that appeal are not the same as those before me. [name] have given it limited weight.

The appellant highlights that the proposal will be self-build. However, as set out above, I have nothing before me to secure them as such. Therefore, I attribute very limited weight to this.

There is no substantive evidence before me to support the appellant’s assertions that the site constitutes previously developed land or that there are extant permissions6 which should be considered as viable fallbacks. As a result, this attracts very limited weight.

[name] been minded to allow the appeal, I would have needed to consider the effect of the proposal on the qualifying features of the Wealden Heaths Phase II Special Protection Area. However, as the appeal is to be dismissed, I need not address this. 5 Appeal Ref: APP/M1710/W/24/3349565 Land at [address], [name], Alton for the construction of 10 detached dwellings with associated access and landscaping 6 Referred to on page 18 of the Planning, Design and [name]

[name] have identified no conflict with the development plan in terms of highway safety, I have concluded that the proposal would conflict with policies relating to location, the character and appearance of the area including trees and in respect of the living conditions of future occupiers. For these reasons, the harm identified in respect of the appeal proposal results in conflict with the development plan when read as a whole. A proposal should be determined in accordance with the development plan unless material considerations indicate otherwise.

There is a significant shortfall in respect of the Council’s housing land supply position. In these circumstances, Paragraph 11d) of the Framework is relevant and the presumption in favour of sustainable development is engaged.

The appeal proposal would deliver three dwellings and there would be social, economic and environmental benefits which would arise. Collectively, I have given these benefits moderate weight. Although located outside the settlement limit, the proposal is well-related to existing services and facilities in Bordon and this limits the weight I attach to the conflict with the development plan in this respect. The lack of harm in respect of highway safety is a neutral factor.

However, the proposal would result in harm to the character and appearance of the area, existing trees and have an unacceptable effect on the living conditions of future occupiers. I have also found that the statutory BNG requirement has not been met. Taken together, these impacts significantly and demonstrably outweigh the benefits 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, securing well-designed places and providing affordable homes, individually or in combination. Consequently, the proposal is not sustainable development with reference to Paragraph 11 d) of the Framework.

The proposed development would be contrary to the development plan as a whole and there are no material considerations, including the Framework that outweigh this conflict. Consequently, with reference to Section 38(6) of the Planning and Compulsory Purchase Act 2004, the appeal is dismissed and planning permission is refused.