Appeal 6002441

The appeal is dismissed.

An application for costs was made by [name] against Wiltshire Council. This application is the subject of a separate Decision

A Flood Risk Assessment1 (FRA) was submitted as part of the appeal. The Council and interested parties have had the opportunity to comment on this information through the appeal process, and so would not be prejudiced by my acceptance of it. For the avoidance of doubt, I have therefore had regard to the FRA in the determination of the appeal.

The main issues are: • the effect of the proposed development on the River Avon Special Area of Conservation; • whether the proposal represents an acceptable form of development having regard to flood risk; • whether the development would be in a suitable location, with particular regard to the development strategy; and • the effect of the development on the character and appearance of the area, including the [name] and West Wiltshire Downs National Landscape.

The appeal site is within the catchment of the River Avon Special Area of Conservation (SAC). The SAC is a European site designated under the Conservation of Habitats and Species Regulations 2017 (the regulations) which impose a duty on the competent authority to consider whether the development would have a significant effect, either alone or in combination with other development, on the conservation objectives of the site, within the framework of an Appropriate Assessment.

The Annex I qualifying features for this site which fall to be considered are ‘watercourses of plain to montane levels with the Ranunculion fluitantis and Callitricho-Batrachion vegetation’. [name] species present include internationally important populations of Desmoulin’s whorl snail, sea lamprey, brook lamprey, Atlantic salmon and bullhead. The Council’s updated [name] Assessment2 (SAA), agreed with Natural England, sets out that elevated levels of phosphorus are preventing the conservation objectives for the SAC from being achieved and causing the river to be in unfavourable condition. Developments within the river catchment, including residential development at the site, in combination with other development, have the potential to contribute to elevated phosphorus through foul water discharge from sewage treatment works and package treatment plants.

The SAA explains that potential adverse effects of new residential development are capable of being mitigated through a strategic approach funded by developer contributions via planning obligations. The phosphorus neutrality strategy includes a Council-led mitigation scheme, whereby mitigation credits are available to purchase at a fixed cost per kilogram of phosphorus, either from the Council or an approved third party. The Council has confirmed that the nutrient calculation submitted as part of the planning application is acceptable and would enable the appellant to formally apply for credits as part of the Council-led scheme if permission was granted.

I note the appellant’s willingness to accept a condition to secure appropriate mitigation; however, Planning Practice Guidance (PPG) is clear that conditions should not be used to require the payment of money. Further, it sets out that a negatively worded condition limiting the development that can take place until a planning obligation or other agreement has been entered into, which would be necessary to secure the purchase of credits, would only be appropriate in exceptional circumstances, where there is clear evidence that the delivery of the development would otherwise be at serious risk (this may apply in the case of particularly complex development schemes). Further, it sets out that, ensuring that any planning obligation or other agreement is entered into prior to granting planning permission is the best way to deliver sufficient certainty for all parties about what is being agreed.

Consequently, in the absence of a suitable mechanism to secure the necessary mitigation, following appropriate assessment under the regulations, I am unable to conclude, beyond all reasonable scientific doubt, that the appeal scheme, in combination with other development, would not have an adverse effect on the integrity of the SAC. Thus, the proposal would conflict with the aims of Core Policy 50 of the [name] adopted January 2015 (WCS) which require 2 proposals to protect and manage favourably features of nature conservation in order to maintain their ecological value.

The appeal site is located in [name] 1 and is not at risk of surface water flooding. A site-specific Flood Risk Assessment (FRA) was submitted as part of the appeal to address the Council’s concern regarding the risk of groundwater flooding set out in the second refusal reason.

Notwithstanding the broad scale of groundwater emergence mapping, the FRA acknowledges that the south (lower parts) of the site may be at some risk of emergence and/or effects of groundwater upon sub-surface assets. In response, the FRA confirms that the areas shown at risk of groundwater emergence on site will not necessarily result in groundwater flooding, as any water expressed at the surface will act like any other water source at the surface and continue downstream at shallow depth. It goes on to say that, although the development would mainly be in an area of cut into the existing slope, due to the finished ground levels, any surface water at the site, including from groundwater emergence, would route around the buildings and flow onto the highway unimpeded, as it does currently. Considering this information, and subject to the proposed flood resilience measures, the Council initially indicated it no longer objected to the proposal on these grounds.

My attention has been drawn to a recent flooding event in [name] which postdated the Council’s response to the FRA. However, given the cause of the flooding is unknow, this has little influence on my consideration of the matter of whether the proposed development is at risk of flooding or whether it would exacerbate flooding elsewhere.

Nonetheless, I note concern raised by an interested party regarding the effects of groundwater emergence elsewhere as a consequence of the proposed development, including hillside excavation and hard surfacing, which it is suggested may interrupt the water table or redirect emergence elsewhere. This does not appear to be addressed directly in the appellant’s FRA. In the absence of information relating to off-site impacts, I cannot be certain that flood risk would not be increased elsewhere.

The National Planning Policy Framework (the Framework) is clear that inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Paragraph 175 of the Framework sets out that the sequential test (ST) should be used in areas known to be at risk now or in the future from any form of flooding, except in situations where a site-specific flood risk assessment demonstrates that no built development within the site boundary, including access or escape routes, land raising or other potentially vulnerable elements, would be located on an area that would be at risk of flooding from any source, now and in the future (having regard to potential changes in flood risk).

My attention is drawn by the appellant to advice in the PPG3 which it is suggested means the ST does not need to be applied, given that future occupiers would be safe from current and future surface water flood risk for the lifetime of the 3 Paragraph: 027 [name]: 7-[phone] development. The PPG sets out that, in applying paragraph 175 a proportionate approach should be taken. Where a site-specific flood risk assessment demonstrates clearly that the proposed layout, design, and mitigation measures would ensure that occupiers and users would remain safe from current and future surface water flood risk for the lifetime of the development (therefore addressing the risks identified e.g. by Environment Agency flood risk mapping), without increasing flood risk elsewhere, then the sequential test need not be applied. However, this exemption refers specifically to surface water flood risk and is therefore not applicable to groundwater flooding.

The Wiltshire Council Level 1 Strategic Flood Risk Assessment (SFRA)4 [name] shows the risk of groundwater emergence at the surface, rather than the actual flood risk from groundwater flooding. The SFRA also indicates that, while this dataset is suitable for general broad-scale assessment of the groundwater emergence in an area, it is not designed for assessment at the scale of a single property. It therefore advises that, in high-risk areas a site-specific FRA for groundwater flooding is recommended to fully inform the likelihood of flooding. Furthermore, given that localised ground conditions and features for all locations are not fully represented in the mapping, it should be considered in light of any other relevant local information.

To establish the risk of groundwater flooding at the site, a range of datasets have been considered by the appellant, including the [name] area at [name] of the SFRA, which comprises [name], Environment Agency Flood Alert area and 0.1% Risk of Flooding from [name] mapping combined. However, the appellant contends that, given the lack of legibility of the Wiltshire specific [name] at [name] of the SFRA, it cannot be used to determine whether the site is at risk of groundwater flooding. Consequently, the conclusions drawn from the assessment of this information are not determinative as to whether the site is at risk of groundwater flooding.

Thus, in the absence of any reliable groundwater flood risk mapping, or detailed on-site survey work, including local groundwater monitoring, there is no clear evidence to demonstrate that the site is not at risk of groundwater flooding. Consequently, even though it may be possible to make the development safe, by directing any groundwater flow around the property, without a site-specific groundwater flood risk assessment, I cannot be certain that the site is not at risk of groundwater flooding, and that the ST should not be applied in this case.

Moreover, even if it were the case that the effects of the development in terms of groundwater flood risk either on the site or elsewhere could be suitably mitigated, without details of a mitigation strategy, there is no substantive evidence that the form or extent of any necessary mitigation would be practical or viable or that it would not compromise the local built environment. Thus, in this case, it would not be appropriate to secure these details through a planning condition.

Reference has been made to planning permission granted by the Council5, at a site where there was a risk of groundwater flooding, where a condition was imposed to require the submission of a site-specific groundwater flood risk assessment. However, I do not have full details in relation to the scheme, which appears to 4 Wiltshire Council Level 1 Strategic Flood Risk Assessment dated November 2024 5 [name]: 2025/07726 comprise development of a different description. In any case, I have determined the appeal on its own merits, based on the evidence before me.

In light of the foregoing considerations, in the absence of any clear evidence as to the potential effects which may arise as a consequence of the redirection of groundwater, and as the ST has not been met, the proposal would fail to represent an acceptable form of development having regard to flood risk and would therefore fail to accord with the relevant aims of the Framework. The Council’s second refusal reason cites Core Policy 67 of the WCS; however, it is not clear from its submissions as to how policy conflict would arse in that regard.

The appeal site is located beyond the defined limits of development for Ludwell and is therefore in the countryside in planning policy terms. Core Policy 1 of the WCS includes a settlement hierarchy for the location of new development in the area. Ludwell is identified as a Large Village, with a limited range of employment, services and facilities, where development will be limited to that needed to help meet the housing needs of settlements and to improve employment opportunities, services and facilities.

Core Policy 2 of the WCS seeks to deliver development in a sustainable pattern that prioritises the release of employment land and the re-use of previously developed land. In accordance with Core Policy 2, development will not be permitted outside the limits of development, as defined on the policies map, other than in circumstances as permitted by other policies within the WCS. Core Policy 27 of the WCS sets out that development in the Tisbury Community Area, in which Ludwell falls, should be in accordance with the [name] set out in Core Policy 1, and that Growth in the area may consist of a range of sites in accordance with [name] 1 and 2.

The proposal for market housing outside the settlement boundary would be contrary to [name] 1, 2 and 27 of the WCS and would therefore not be in a suitable location having regard to the development strategy.

The appeal site comprises an area of vacant, overgrown scrubland fronting the A30. The land rises up from the highway to the rear boundary of the site, and forms part of the wider hillside on this side of the road. The appeal site provides a pleasant semi-rural setting to the built-up area of this part of the settlement and forms part of the area of land which separates the two distinctly separate parts of Ludwell.

The appeal proposal would see the construction of a pair of semi detached 2 storey dwellings on the site. Access to serve the development is proposed from the existing driveway to the car park to the rear of the public house, with parking to the rear of the dwellings. The proposal would extend the built form into an area of land which is currently free from development, which would inevitably change the existing undeveloped character of the site.

I appreciate that the surrounding built form in the immediate locality is, in the main, located on the opposite side of the road. Nonetheless, the land immediately adjoining the site is not free from development, given the presence of the public house and adjoining short row of terraced properties. As such, the siting and layout of the proposed development, which would represent a continuation of the frontage style development along this side of the road, and that opposite, would not be significantly at odds with the prevailing character of the area. While the proposed development would increase the extent of development along the north side of the A30, it would not unduly diminish the linear settlement pattern overall.

Furthermore, like the public house, the dwellings would be set into the slope of the hillside, where they would be seen against the backdrop of the existing rising land which would continue beyond the site. Consequently, the visual effects of the proposed development, including associated retaining structures, would be confined to localised views of the site along the A30, where the development, even when seen in the foreground of the existing public house, would be seen to integrate with the existing built form.

By virtue of the modest scale of the development, it would result in only a small degree of encroachment into the countryside beyond the edge of this part of the settlement, which would not have a significant effect on the overall character and appearance of the area. Furthermore, given the visual containment of the site in the wider landscape, it would not have a tangible effect on the area of open space which separates the two built up areas of the settlement so as to erode the existing sense of separation.

The site is located within the [name] and West Wiltshire Downs National Landscape (NL). The Framework sets out that great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and National Landscapes which have the highest status of protection in relation to these issues, and that the scale and extent of development within all these designated areas should be limited. The topography of the site, in particular the elevated position of the adjoining agricultural land to the rear of the site means the development would not occupy an unduly prominent position in the wider landscape. Moreover, for the reasons set out above, the dwellings would be closely assimilated with the existing residential development on both sides of the highway in this part of the settlement. As such, the proposal would not diminish the visual qualities and essential characteristics of the NL in terms of its landscape and scenic beauty.

The Council and interested parties refer to the risk of precedent, if the proposal were to be allowed, which it is suggested, would gradually erode the distinct gap between the two areas of Ludwell. However, I see no reason why, if this proposal were to be allowed, that it would undermine the Councils ability to exercise its judgement in relation to similar development proposals on this or other sites, given each case is determined on its own merits.

In light of the above considerations, I conclude that the proposal would not harm the character and appearance of the area and would conserve the landscape and scenic beauty of the NL. In that regard, it would not conflict with the aims of Core Policy 57 of the WCS, which require a high standard of design, and among other things, expect development to draw on the local context and compliment the locality, and to relate positively to its landscape setting and the existing pattern of development and respond to local topography.

The proposal would give rise to benefits in terms of the provision of housing which would support the Government’s objective of significantly boosting the supply of homes set out in the Framework. It would also accord with policies in the Framework that seek the efficient use of land and recognise the important contribution small and medium sized sites can make to meeting the housing requirement of an area. It would also generate support for local services which would enhance or maintain the vitality of nearby rural communities. I observed at my site visit that, despite its location beyond the settlement boundary, the appeal site is within a convenient walking distance of a range of local facilities and services, future occupiers of the development would therefore benefit from accessibility to services and amenities by means other than the private car. Although the benefits would be limited given the relatively modest scale of the development, the proposal for 2 dwellings would nonetheless make a positive contribution to the provision of housing, in the context of a supply shortfall, which weighs heavily in favour of the scheme.

The proposed development would also offer benefits in terms of the biodiversity value of the site through the introduction of ecological enhancement measures and the removal of invasive non-native ornamental shrub species as well as off-site biodiversity net gain.

The proposal may be compliant with various other provisions of the development plan, including sustainable construction, however, the absence of harm or conflict with other relevant development plan policies, including the lack of objection from the Parish Council is of neutral weight.

[address] Arms, a [name] listed building, is close to the site. I am required to have special regard to the desirability of preserving the setting of the listed building. In considering the effects of the proposal on the setting of the heritage asset, the Council has raised no objection in principle to the construction of a pair of semi-detached dwellings. Given my observations on site and taking account of the siting, scale and design of the proposed dwellings, I am satisfied that the setting and significance of the listed building would not be adversely affected and therefore have no reason to reach a different conclusion.

I acknowledge the appellant’s frustration regarding the way in which the application was determined by the Council, including the change of planning officers and the issues that allegedly arose late in the process. However, my decision is based on the evidence before me and an objective assessment of the planning merits of the proposed development.

I have found that the proposed development would not harm the character and appearance of the area, or the landscape and scenic beauty of the NL. However, given my findings in relation to the effects of the development upon the SAC, together with the conflict with the development strategy, the proposal would conflict with the development plan when read as a whole. It would also conflict with the aims of the Framework with respect to flood risk.

The Council indicate that it is unable to demonstrate an adequate supply of housing, with a current supply of 2.42 years6, which it recognises is a substantial shortfall. As such, paragraph 11 d) of the Framework falls to be considered. However, for the reasons set out above, the application of policies in the Framework that protect areas or assets of particular importance (which includes those relating to habitats sites and areas at risk of flooding) provides a strong reason for refusing the development proposed and the proposal would not benefit from the presumption in favour of sustainable development. The balance outlined in 11d) ii. does not, therefore, fall to be considered. There are no other material considerations that indicate that permission should be granted.

For the reasons given above, the appeal should be dismissed.