Appeal 6002466

The appeal is allowed and planning permission is granted for the erection of two dwellings, garaging, alterations to existing vehicular access and parking, and all associated works at [site address] in accordance with the terms of the application, [name]/24/0350 and the plans submitted with it, subject to the conditions in the attached schedule.

Section 66(1) of the Listed Buildings and Conservation Areas Act 1990 (the LBCA Act) requires me to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

The appeal site lies outside, but in proximity to, the boundary of the [name] listed Registered Park and Garden1 (the RPG). There is no similar statutory duty with regards [name] and Gardens and their settings. However, with reference to paragraph 213b) of the National Planning Policy Framework (the Framework) they are designated heritage assets, with [name] being of the highest significance along with [name] and II* listed buildings. Pursuant to Framework paragraph 212 ‘great weight’ should be given to the heritage asset’s conservation, and the more important the asset, the greater the weight should be.

In addition, the appeal site is located outside, but close to, the boundary of the Warwick Conservation Area (the WCA), which largely coincides with much of the RPG boundary. There is no statutory protection for the setting of a conservation area. However, as a conservation area is a designated heritage asset there is still a need to consider whether the significance of the heritage asset would be affected by development proposed outside it. Hence, the relevant policies in the Framework concerning designated assets and their settings are still applicable. 1 National Heritage List for England: list entry number 1000386

The appellant has submitted a planning obligation in the form of a [name] (the UU) to secure the provision of [name] (BNG) and to pay the Council for 30 years of monitoring.

The main issue in this appeal is the effect of the proposal on the special interest and significance of the heritage assets.

The proposed development comprises the erection of a pair of semi-detached, two-storey dwellings, with a free standing garage block to serve both dwellings, similar to the configuration of garages that serve the existing dwellings in the row. The site is part residential land to the side of No.4 [name] (No.4) with a number of sheds and a paddock currently laid to rough pasture. No.4 is the last in a row of former agricultural workers’ cottages fronting the [site address] but set back from it. The new dwellings would be accessed via the existing access point and driveway that currently serves No.4.

There is no dispute that the site lies within the Urban Area boundary of Warwick as defined in the Local Plan2. A Local Plan Housing Allocation (H46B) known as ‘The Asps’ lies to the rear and north. I saw that it was well under construction and a new traffic junction with street lights had been installed on the [site address] to serve the new housing development.

[name], dating from the mid-11th century when [name] built a motte and bailey between the town and the north side of the [name], lies at the northern head of the RPG. The Castle is [name] listed and also a Scheduled Monument.

According to the official listing, the RPG covers about 280 hectares and comprises about [address] and pleasure grounds and about 257 hectares of parkland. It largely extends south and south-east of the Castle and lies south of the [name]. To the north and north-west, the RPG is bounded by the built up area of the historic Warwick town centre and its residential suburbs. The eastern boundary is formed by the A425 [site address] from which the RPG is separated by timber fence and a predominantly deciduous plantation ([name]) along its more southerly part. To the south-east the RPG is bounded by the B4462 [address] and a late 18th century mature plantation screen. To the far south, the RPG is bounded by a late 20th century cutting that accommodates the main road routes of the A452 and the M40 motorway. The River Avon flows through the RPG in a largely north to south alignment. The Tach Brook enters the RPG from the east along the [site address] . The Brook has been dammed and forms [name], a lake within the RPG.

[name] and [name] the Castle remained a royal property and [name] visited in 1572 on her progress to Kenilworth. [name] separated the earldom from the Castle in 1604 and granted the Castle to [name]. After the [name] between 1669 and 1678, the fourth [name] undertook a major programme of restoration and improvement. It was the eighth [name] (created 2 Warwick District Local Plan 2011-2029 adopted September 2017 Earl of Warwick) who first enclosed Castle Park, originally known as Temple Park, from the surrounding agricultural land in 1743. In 1749 he called in Lancelot ‘[name] to complete the removal of the formal gardens. Brown made further changes to the pleasure grounds in 1753. Castle Park was later extended in 1760 by the enclosure of land in Barford Parish, and in 1786 by diverting the [site address] . In 1868-69 [name] was commissioned to design new formal gardens, although the Castle was then damaged by fire in 1871. [name] is one of a group of sites in Warwickshire at which ‘[name] advised, including Charlecote Park, [name] and [name].

In 1978 the buildings, contents and pleasure grounds were sold to [name] and Castle Park was sold to a separate commercial purchaser. Today the site remains in divided commercial ownership and is in mixed agricultural use with level pasture land planted with some scattered specimen trees.

Insofar as the appeal is concerned, the significance of the RPG is largely historic, derived from the surviving layout of its designed landscaped parkland and gardens associated with [name] and its successive owners, with associative interest in terms of kings and queens, and notable architects and garden designers who have been involved in its design and layout, reflecting the changes in fortune and garden design over time.

As set out in the Framework and also pertinent to the appeal, significance derives not only from a heritage asset’s physical presence, but also from its setting, which are the surroundings in which the asset is experienced. The extent of an asset’s setting is not fixed and may change over time as the asset and its surroundings evolve.

Due to the boundary screening, the RPG is best experienced from its immediate setting within its well bounded grounds. The appeal site lies outside the RPG but close to its south-east boundary with the [site address] and the [address]. Here there is dense plantation along both roads at this point, which is historic in origin as part of a deliberate effort to screen the roads from view when within the RPG. They form a strong visual and physical boundary to the RPG and still screen it and the Castle from view from this part of [site address] , [address] and the appeal site. The submitted historic map extracts in the appellant’s Heritage Impact Assessment (the HIA) shows cottages, roughly where the existing [name] are now, were probably built in the mid-1800s. They were not designed as part of the visual experience of the RPG and indeed nearby development had been historically shielded from it with the various boundary plantations. It is also likely that the appeal site and row of cottages cannot be seen from within the RPG due to the relatively flat topography and the boundary planting. Nonetheless, the appeal site’s semi-pastoral and former agricultural use is a reminder of the wider agricultural and countryside setting as part of the wider [name] in which [name] and the parkland sit.

However, the setting to the RPG has evolved over time. It is now effectively surrounded and bounded on all sides, including by a modern motorway. More recently The Asps is being built. Allowed on appeal3, the development will provide up to 900 dwellings, a primary school, local centre, a Park & Ride facility for up to 500 spaces, and open space. Although set back from [site address] by a 3 Appeal ref: APP/T3725/A/14/2221613 dismissed, but appeal was recovered and allowed by the Secretary of State - 14 January 2016 landscape ‘buffer’ (currently open field but which I understand will become more of a tree belt), the housing is clearly visible from the appeal site, and the [site address] /[address] junction as it sits on the skyline on the higher land behind the appeal site. The submitted map extract from the Local Plan Policies Map shows the extent of the housing allocations (H46A and H46B) that will eventually wrap around the row of [name] and the appeal site, as well as northwards along [site address] , around [address] and the [name] listed building ‘The Aspens’, and almost into the city centre. Consequently, the presence of a new road to serve the estate and the spatial extent of new housing make the east side of [site address] , and this main approach route in/out of Warwick, now far less rural and much more suburban, and this shift of emphasis will likely increase as the developments proceed, with the agricultural context to the RPG being further diluted. As a result, the rural countryside setting to [site address] , this particular route into and out of Warwick town centre and the setting of the RPG has already been substantially eroded and compromised, and the agricultural connection with the former surrounding agricultural land and properties has been diminished. Consequently, the appeal site makes a limited contribution to the setting of the RPG and thus to its significance.

The CA boundary largely follows that of the RPG. The CA is varied in that it includes the historic town centre of Warwick, founded in about 914 by a daughter of Alfred the Great, with an architectural richness in the variety of its building and historic street pattern, and the grander and more expansive Castle and the far reaching grounds and designed parkland. The Council’s “A Guide to Conservation Areas” describes Warwick and the CA as “still retaining enough of its compactness to be enclosed, certainly on three sides by open countryside”. The historic town centre cannot be seen or even sensed from the appeal site. However, as with the RPG, the surrounding countryside is part of the setting to the CA and helps inform the link between ‘town and country’. However, that setting has been significantly compromised by The Asps housing estate under construction on the skyline and the other intended housing allocations. In this context, the appeal site makes a limited and less meaningful contribution to the setting of the CA and thus to its significance.

The Grade II listed building, known as The Aspens4, and dating from the 17th/18th century, was the former farmhouse for [address] which lies to the north of the appeal site along the [site address] and opposite the RPG. From the evidence presented to me, including the listing description, I consider the significance of The Aspens is largely derived from its architectural and historic interest, illustrating a 17th/18th century vernacular country dwelling close to the historic town on Warwick and on part of what was the [name], out with the Castle and parkland.

The primary space from which The Aspens is experienced is from its immediate setting from within the well-defined and bounded private grounds, screened from the [site address] and appeal site by mature vegetation, such that only the first floor and roof are visible as one passes along [site address] . Its wider setting would have included the farm land associated with it. The row of [name], part of the appeal site, were former agricultural cottages associated with the former [address]. A track alongside the listed building separates the property from the adjacent dwelling [address], and the fields to the rear are separated from the appeal site by the intervening grounds of The Asps Cottages and the 4 National Heritage List for England: list entry number 1116139 appellant’s other parcel of land. Whilst there is some historic connection between the appeal site and the listed building, this has been significantly eroded by subsequent land division. [name] understand it, [address] is no longer a working farm, with its buildings since converted to other uses. Much of the farm land once associated with the farm and listed building has now been approved for residential development, as indicated by the Local Plan housing allocations. With the separation distance, intervening land, different land ownerships, the lack of intervisibility between the appeal site and the listed building, I find the appeal site makes a neutral contribution to the setting of the listed building.

The proposal would read almost as a continuation of built form of the row of existing cottages, replacing the existing sheds with new domestic curtilage and two dwellings. The dwellings and garages would largely follow the alignment of the other cottages and be similarly set back from [site address] . The dwellings and new garage building would reflect the vernacular scale, form and materials of the adjacent cottages, with steep pitched roofs, gables, dormers, and asymmetrical elevations. The Council has raised no concerns in this regard.

There would be some loss of the open field that would in turn reduce what remains of the already compromised rural setting of the RPG and CA. However, with the similarity of design and proximity to the existing dwellings, the loss would not be significant to the countryside setting along this part of [site address] , particularly as the nature of [site address] has become far more suburban. The previous Inspector’s comments about [site address] in relation to The Asps housing development were made in the context of the proposal for a very large housing development that would occupy significant swathes of land. Since then the housing is under construction and [site address] and hence the setting to the heritage assets has significantly changed. The proposal before me is for a wholly different scale and form of development. Hence the previous Inspector’s comments relating to development of The Asps over 10 years ago are less relevant now. In any event, I must determine the appeal before me on its own merits.

The adjacent open field between the appeal site and [address] would remain open and is not part of the appeal. This land has a greater role to play in terms of retaining the rural character here, as it sits more directly opposite the junction with [address], which forms the boundary with the RPG and further from the row of cottages. Due to the gentle curve of the road, on exiting the town, the adjacent site offers a greater visible and physical gap between the development on [site address] and the new housing behind it.

[address] Trust and Historic England have chosen not to comment on the proposal and its effect on the setting of the highest grade of RPG. However, they emphasise this does not mean approval or disapproval nor should it be interpreted as comments on the merits of the application.

[name] am satisfied that an appreciation of the RPG, and in turn the CA, would not be significantly diminished by the proposed dwellings and the loss of some of the rural character along this part of [site address] , when seen in the context of the changes that are occurring to the surrounding area with the large housing development behind. Consequently, I find the harm that would be caused to the significance of these particular heritage assets would be minor. Accordingly, there would be some conflict with Local Plan Policy HE1, which seeks to resist development that would cause substantial harm to or total loss of significance of a designed heritage assets.

However, for the listed building, The Aspens, taking into account the location of the appeal site, the separation distance and intervening land and buildings, and that the listed building is shown to be eventually surrounded by housing as part of the Local Plan housing allocations, I find the proposal would preserve the setting of this [name] listed building, and its significance would not be harmed. Hence in this regard there would be no conflict with Local Plan Policy HE1.

Taking account of Framework paragraphs 213 and 214, Planning Practice Guidance (the PPG) and the nature and extent of the heritage assets and the proposal, I find the harm to the significance of the RPG and CA would be minor and at the lower end of ‘less than substantial’. Nonetheless this harm still carries considerable importance and weight. Under such circumstances, the Framework requires the harm to be weighed against the public benefits of the proposal and that great weight should be given to the asset’s conservation.

There would be public benefits arising from the provision of two dwellings, especially against the backdrop of the Council’s large housing land supply shortage, with only a supply of 1.98 years. There would also be some short-term benefits to the local economy during construction from jobs and the supply chain, and some additional spend in the local area from future residents. There would also be some wider public benefits from the provision of BNG.

I find the totality of these public benefits, particularly due to the significant housing land supply shortage, would be sufficient in this instance to outweigh the low level of heritage harm that would be caused to the RPG and CA, even giving it considerable importance and weight.

I note that the application was submitted to the Council before the mandatory requirement5 to provide at least 10% increase in biodiversity came into force on 2 April 2024. However, even if it had been in place at the time, the Council’s ecologist confirms that 10% on-site BNG enhancements can be achieved. The standard BNG condition can therefore be satisfactorily discharged.

The submitted UU shows land outside the application site the appellant is willing to use for BNG gain. However, in light of the above, the UU is not necessary to make the development acceptable in planning terms. Therefore, there is no need for me to consider or comment on it further.

I have found the proposal would cause minor harm to the RPG and CA and this would conflict with Policy HE1 of the development plan, and hence with the development plan as a whole. 5 Schedule 7A ([name] in England) of the Town and Country Planning Act 1990

However, the Council cannot demonstrate a 5-year housing land supply (5YHLS). During the appeal, the Council has since confirmed that the 5YHLS figure has fallen from 4.01 years to 1.98 years since the application was determined. This indicates to me that the Council’s spatial strategy, as part of a plan-led system, is not delivering enough homes.

For applications involving the provision of housing and where there is a lack of a 5YHLS, footnote 8 of the Framework directs that the policies which are most important are out-of-date. This engages Framework paragraph 11d)ii), often referred to as the ‘tilted balance’ and means that planning permission should be granted, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole.

The proposed two dwellings would be a significant benefit against the Council’s serious and significant housing shortfall. The proposal would also see two dwellings erected within the Urban Area, which is identified in principle as a suitable location for new housing. This would accord with the Framework’s aims of boosting the supply of homes and promoting sustainable patterns of development. The Framework also recognises that small and medium sized sites can make an important contribution to meeting housing requirements as they can often be built out relatively quickly, something that would be important in this instance with the 5YHLS position as it is. I therefore give the provision of housing considerable weight. Given the proposal is for 2 dwellings, the short-term socio-economic benefits and the 10% BNG would attract moderate weight.

Whilst the harm to the designated heritage assets would be minor, the Framework directs that this should be given great weight.

For the heritage reasons set out above, there is no ‘strong reason’ to refuse the proposal under footnote 7 of the Framework. Thus the minor harm to the heritage assets, which would be an adverse impact of granting planning permission, would be significantly and demonstrably outweighed by the benefits, when assessed against the policies in the Framework taken as a whole. Consequently, the presumption in favour of sustainable development applies and this indicates that planning permission should be granted.

I have considered the Council’s suggested conditions against the advice and tests in the Framework and the PPG. The appellant confirms their agreement to the conditions, including the suggested pre-commencement conditions and has also made some suggestions. Where necessary and in the interests of clarity and precision I have amended or combined conditions. Following the advice in the [name] have also listed the conditions in the order that they need to be satisfied.

Whilst not listed by the Council, I have included the standard conditions limiting the lifespan of the planning permission and specifying the relevant drawings to provide certainty in the interests of proper planning.

To safeguard the character and appearance of the area and ensure a satisfactory appearance of the development, conditions requiring details of external materials are necessary. I agree that details can be submitted before development proceeds above slab level.

To ensure that the dwellings are adequately accessed, it will be necessary to ensure that the driveway to the garages and both dwellings is set out before the dwellings are occupied. However, for highway safety reasons and in light of the fact the 3 properties will share the existing access onto the [site address] , it would be necessary to ensure the on-site parking and turning is retained for such uses and so I have broadened the scope of the condition. This should not come as a surprise to the appellant as it would only ensure the implementation of their own submitted scheme.

The appellant has suggested that the ‘[name] condition would be appropriate as a pre-commencement requirement. I agree, as the correct setting out and levels should be established early on in the development.

There is a suite of conditions which would be necessary to address the Council’s carbon-zero, energy efficiency and water efficiency objectives, which can be undertaken prior to the dwellings being first occupied. However, I shall combine the [name] conditions, which require submission of a Statement and then verification that the approved measures have been undertaken.

There is no need for me to impose a condition requiring the submission and approval of details for electric vehicle recharging points, as these have to be provided as part of Building Regulations. It is a long-held principle that the function of other regulatory bodies or controls is not duplicated and the Framework states that planning decisions should assume these other controls and regimes will operate effectively.

In light of my findings above in respect of BNG, there is no need for the submission of a [name] and Monitoring Plan. However, the condition requiring a Landscape and Ecological Management Plan would still be necessary to promote biodiversity and ensure the satisfactory appearance of the site.

Despite some conflict with the development plan as a whole, this conflict is outweighed by the material considerations I have identified, including the Framework. Therefore, for the reasons set out above the appeal should be allowed.

The development hereby permitted shall begin not later than 3 years from the date of this decision.

The development hereby permitted shall be carried out in accordance with drawing nos. - 7722-04b (Proposed Overall Site layout & [name]), - 7722-05b ([address] – [name] and Perspectives), - 7722-06b ([name] and Garage), and - 7722-07c ([name] & Block Plan).

No development shall commence until details of the finished floor levels of all buildings, together with details of existing and proposed site levels on the application site and the relationship with adjacent land and buildings, have been submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in strict accordance with these approved details.

The development hereby permitted shall not commence until a detailed Landscape and Ecological Management Plan has been submitted to and approved in writing by the District Planning Authority. The plan should include details of planting and maintenance of all new planting. Details of species used and sourcing of plants should be included. The plan should also include details of habitat enhancement/creation measures and management, such as native species planting, wildflower grassland creation, woodland and hedgerow creation/enhancement, and provision of habitat for protected and notable species (including location, number and type of bat and bird boxes, location of log piles). Such approved measures shall thereafter be implemented in full.

No development shall be carried out above slab level unless and until samples of the external facing materials to be used have been submitted to and approved in writing by the Local Planning Authority. The development shall only be carried out in accordance with the approved details.

No dwelling hereby permitted shall be occupied unless and until a [name] to demonstrate that the as-built performance of the constructed dwelling complies with the [name] has been first submitted to and approved in writing by the Local Planning Authority. The Verification Report shall include: - SAP calculations of the constructed dwelling(s). - Results of the measured air permeability tested in accordance with the procedures set out in TM23 (and reported as part of compliance with Section 7, [name] of Buildings Regulations). - Accredited construction detail performance as confirmed by infra-red thermographic survey and selective borescope surveys or other method as agreed in writing by the LPA. - Logbook provided to demonstrate that ventilation and heating systems are installed and operating correctly, and a user guide on how these are to be used in operation of the building.

Prior to the first occupation of the dwellings hereby permitted, a scheme showing how a water efficiency standard of 110 litres per person per day based on an assumed occupancy rate of 2.4 people per household (or higher where appropriate) will be achieved has been submitted to and approved in writing by the Local Planning Authority. No dwelling shall be occupied until the works within the approved scheme have been completed for that particular dwelling in strict accordance with the approved details and thereafter the works shall be retained at all times and shall be maintained strictly in accordance with manufacturer's specifications.

Prior to the first occupation of the dwellings, the driveway for the dwellings and garages, as shown on the approved Overall Site Layout (drawing 7722-04b) shall be constructed of porous materials. The vehicle parking, including for the existing dwelling 4 [name], shall be provided in accordance with the aforementioned plan before any of the new dwellings are occupied. Thereafter those spaces shall be retained for the parking of vehicles only. End of conditions