Appeal 6002320

The appeal is dismissed.

The main issues are: • Whether the proposal would be inappropriate development in the Green Belt having regard to the National Planning Policy Framework (Framework) and any relevant development plan policies, • The effect of the proposal on the openness and purposes of the Green Belt, • The effect of the proposal on flood risk and whether there are reasonably available sites appropriate for the proposed development in areas at lower risk of flooding, • The effect of the proposal on the character and appearance of the area, • The effect of the proposal on biodiversity, • Whether the proposal would make appropriate provision for energy efficiency and emissions, • If the development is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.

Policy QP5 of the BLP1 states that planning permission will not be granted for inappropriate development, as defined by the Framework, unless very special circumstances are demonstrated. The Framework states that the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces would not be inappropriate development.

The phrase ‘the one it replaces’ was also used in previous versions of the Framework, including at the time of the [address] judgement2. The wording deploys the present tense. This allows direct comparison between the existing compromise of openness by what is present on the site against that which is proposed which is consistent with the aim to keep land permanently open. This is different to considerations of whether other exceptions are a closed list.

The previous property was demolished several decades ago and the bridge and road constructed in its place. This is not an instance where a building has recently been removed or lost due to unforeseen circumstances such as fire. Even if the proposed dwelling were the same size, design and in the grounds of the former one, the baseline is that there is no building on the site. Therefore, while the word ‘existing’ is not used in this exception, the proposal cannot be considered as a replacement dwelling under it.

The site was formerly used as part of a wider gravel extraction site and there are commercial and industrial uses nearby. However, this former use appears to have ceased some time ago. The site at present is largely grassed, partly managed and with areas of trees and other vegetation. While a track and some fencing posts remain, these are small elements. There are no obvious signs of the previous uses or any buildings remaining. Consequently, even if it was not previously land that has been developed for minerals extraction, the site has since blended into the landscape. Therefore, the proposal would not be limited infilling or the partial or complete redevelopment of previously developed land.

The site is in [name] 3b and is functional flood plain. For reasons explained in more detail in the relevant main issues, the application of policies relating to areas at risk of flooding and irreplaceable habitats provides a strong reason for refusing the development. As such, the site cannot be Grey Belt land.

The proposal would be inappropriate development in the Green Belt. As set out in the Framework, substantial weight is given to any harm to the Green Belt. That there has been development in the Green Belt since its designation or even recently, does not change this or the existing local and national planning policy.

The appeal site has no buildings on it at present. It is primarily undeveloped land cover by vegetation, including trees. The proposal would introduce a dwelling, a walkway, sunken garden and associated domestic paraphernalia along with additional comings and goings. These domestic features would, in comparison to 1 Royal Borough of Windsor and Maidenhead Borough Local Plan 2 [address] Ltd v SSCLG [2015] EWHC 3524 (Admin). its existing condition, lead to a small loss of spatial openness which would be harmful.

There are other properties and commercial/industrial uses nearby and not every part of the Green Belt makes an equal contribution to its purposes. Nonetheless, there would be some public views of the site, mainly coming from the path along the opposite side of the river. The proposal would urbanise and domesticate the appeal site. However, given the limited extent of the views, the harm to visual openness would be small.

Nevertheless, the proposal would have a greater impact on the openness of the Green Belt. Although the harm would be small, this would be contrary to the Framework where it states openness is an essential characteristic of the Green Belt. It would undermine the fundamental aim of Green Belt policy to prevent urban sprawl by keeping land permanently open and of safeguarding the countryside from encroachment.

The appeal scheme would introduce a new dwelling, which is more vulnerable development into an area shown to be in a 3b flood zone, defined as functional floodplain. PPG3 states that such development should not be permitted.

A flood risk assessment (FRA) was provided. However, although levels of [name] maps are referred to, these are not included in the FRA. Moreover, while there is discussion on flooding at the site and the nearby area, there is also limited technical information regarding changes to levels on the site, including the sunken garden with no site-specific topographical survey. It has also not been shown that an allowance for climate change flood heights has been sufficiently considered and no modelling has been carried out. Information on compensatory storage at the sunken garden is also limited.

The building would be on stilts. However, there is uncertainty if the heights are sufficient. In addition, PPG states that stilts and voids should not normally be relied upon for compensating for any loss of floodplain storage.

As such, it has not been shown that finished floor levels would be adequately raised, that sufficient flood plain compensation would be provided or demonstrated that the proposal will not increase flood risk elsewhere.

No flood evacuation plan has been provided and given the uncertainty over the flooding effects at the site, it would not be appropriate to impose a condition relating to this. On the evidence before me, there would be a risk to occupiers and users of the site from the effects of flooding.

It has not been demonstrated that the layout, design, and mitigation measures proposed would ensure that occupiers and users would remain safe from current and flood risk for the lifetime of the development without increasing flood risk elsewhere.

The sequential test as set out in local policy, the Framework and PPG applies, stating that inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk. 3

Other than reliance on the proposal being a replacement dwelling, no details of a sequential test have been provided. As there is no property on site and there has not been one for some considerable time, it is not considered to be a replacement.

Therefore, the proposal would increase the risk from flooding and fails to demonstrate that there are no reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding.

It would fail to accord with the flood risk prevention aims of policy NR1 of the BLP and SUSTDEV 02 set out in the NP4. It would also be contrary to the Framework where it states development should not be permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding, that inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk and that flood risk is not increased elsewhere. I give this harm significant weight.

At my visit, while only a snapshot in time, there was some, but not extensive evidence of fly tipping and littering in the woodland and area near the appeal site. This was not significant and did not alter that while there are commercial/industrial and residential uses nearby, including along the riverside, the appeal site itself appears as an undeveloped and mostly green area. Other than the driveway and some fence posts little remains on the site to indicate any former domestic use. The introduction of a dwelling, extended driveway, vehicles and other domestic paraphernalia would erode the open and undeveloped character and appearance of the site.

Despite the trees around the edges of the site, it is largely open to the central area with low level growth. It currently acts as a break between the roadside and riverside development nearby and the bridge. This break would be substantially diminished by the built form and associated development proposed.

Trees at the wider site would limit views from the same side of the river. Nonetheless, given the lack of information regarding these features, their proximity to proposed works and how they could be affected, I cannot be certain that those within and close to the proposed extended section of driveway, property and sunken garden could be retained and protected. The loss of these features would erode the greenery of the site and make the proposal more visible in views from the footpath the other side of the river.

Consequently, the proposal would significantly harm the character and appearance of the area. It would be contrary to the design, landscape and character protection aims of Policies QP3 and QP4 of the BLP and OE1 of the NP.

The site is subject to a Tree Preservation Order for a woodland covering all trees of whatever species and includes ancient woodland which is classified as irreplaceable habitat in the Framework. There is little detailed information before me to indicate the designation is incorrect. The plans also show a raised wooden walkway to the riverside which would not maintain a buffer to the watercourse. 4

The Tree Consultants Report (Report) indicates many of the trees at the site are less than 70 years of age and that the physical condition of some is poor. Nonetheless, the tree information does not show the location of the features at the site, the root protection areas or proximity to the proposed dwelling, sunken garden and any other works, only a photographic record. The Report also indicates that a full tree survey would form part of the detailed application.

Therefore, while I saw some trees at the site appeared to have fallen, it has not been demonstrated that the remaining features could be protected to ensure the scheme would not lead to loss or deterioration of irreplaceable habitats or that there are wholly exceptional reasons and that a suitable compensation strategy exists. The level of uncertainty means it would not be appropriate to impose conditions for further tree information.

The EcIA5 was a desk top study, did not include any walk over field survey and pre-dated the Ancient Woodland designation at the site. It highlighted protected and notable species nearby and that a field survey would be needed to determine if they are present. It stated that the most appropriate point to undertake this further investigation would be prior to and in support of full planning permission. While ecological protection and enhancement measures are suggested, such as stone fille gabions to prevent erosion along the riverbank, these are not shown on the plans.

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 planning permission is granted. It is uncertain whether species are present, if so which ones, what mitigation would be required and how and where such mitigation could take place. It has not been shown that the proposal represents the exceptional circumstances where conditions could be used to require further surveys.

It is suggested that the proposal would be a self-build dwelling. However, no specific condition has been suggested to secure this, and it has not been shown that one would meet the tests for conditions. There is no other suitable mechanism before me, and therefore I cannot ensure that the proposed property could be secured as self-build.

As it has not been shown any exemption applies, the development would be subject to [name] as set out in the Environment Act 2021. The minimum information in relation to biodiversity net gain has not been provided. In the absence of such evidence, it has not been shown that the biodiversity gain objective would be met as there is insufficient information on the pre-development biodiversity value of the onsite habitat.

Consequently, from the evidence before me the proposal would harm biodiversity and not lead to sufficient net gain for biodiversity. This would be contrary to the biodiversity protection and enhancement aims of Policy NR2, NR3, QP3 and QP4 of the BLP, Policies OE1 and OE2 of the NP and the Environment Act 2021. Given the level of uncertainty this attracts significant weight. 5 Preliminary Ecological Impact Assessment Desktop Study

Policy SP2 of the BLP sets out that developments should incorporate measures to adapt to and mitigate climate change and makes reference to the Supplementary Planning Documents for guidance.

The supporting information with the proposal sets out certain measures. However, no Sustainability and [name] has been provided. As such, it is not clear if sufficient on-site measures can be secured or whether there would need to be a carbon offset payment to meet net zero carbon.

A positively worded condition cannot be imposed which requires the payment of money. It has not been shown that the scheme represents exceptional circumstances and that there is clear evidence that the delivery of the development would otherwise be at serious risk. Consequently, a negatively worded condition requiring an obligation or agreement leading to such a payment is not appropriate. No other mechanism is before me.

Therefore, the proposal would not make appropriate provision for energy efficiency and emissions. It would be contrary to the aims of Policy SP2 of the BLP. Due to the scale of the scheme and that some measures are proposed, the harm would be small.

The Council accepts that they do not have an up to date 5-year housing land supply. The Framework seeks to significantly boost the supply of housing and small and medium sized sites can make an important contribution to meeting the housing requirement of an area and are often built out relatively quickly. However, even considering the level of shortfall, the proposal relates to a single property so such benefits would be small. This is also the case for the economic and social benefits from the build and occupation of the property as well as security and energy efficiency. Management of existing and proposed landscaping features would give small benefits due to the size of the scheme and the lack of information relating to these.

The proposal would use the previous design which appears to have had some historical significance relating to those who used and visited it. Its design is also distinctive. Nevertheless, the proposal would be a replica and the benefits of the new property from the historical and cultural point of view would be small. It is not for this appeal to consider the merits of whether the previous dwelling should have been listed.

The Council’s handling of the application does not affect my assessment of the planning considerations of the scheme. A lack of harm from other matters would be neutral factors. That there is some support from local residents and previous occupiers of the site is not in itself a reason to allow the scheme.

The proposal would be inappropriate development in the Green Belt and the Framework establishes that substantial weight should be given to any harm to the Green Belt. It would also lead to a small loss of openness to the Green Belt.

In addition, there would be small harm from the lack of energy efficiency measures. Significant harm with regard to flooding and biodiversity would occur along with to the character and appearance of the area. The other considerations in this case do not clearly outweigh the harm that I have identified.

Consequently, the very special circumstances necessary to justify the development do not exist. The scheme is contrary to the Green Belt policies of the Framework and Policy QP5 of the BLP. Given the extent and nature of the harm outlined, it provides a strong reason for refusing the development in relation to the protected areas of Green Belt, irreplaceable habitats and areas at risk of flooding. The presumption in favour of sustainable development as set out in paragraph 11d)ii of the Framework therefore does not apply.

The proposal conflicts with the development plan and the material considerations 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 is dismissed.