Appeal 6002571

The appeal is dismissed.

The planning application form submitted to the Council states that the proposed development will be a self-build and custom build development, as set out in section 1(A1) of the Self-build and Custom Housebuilding Act 2015.

Further to my request to address the matter of how the development would be secured as a self-build and custom build development, the appellant provided a draft [name] (UU) pursuant to section 106 of the Town & Country Planning Act 1990 (as amended). This included a covenant that the dwelling shall be constructed as a self-build dwelling. A completed and executed UU has not been provided by the appellant. In this context I am unable to definitively establish that the dwelling will be delivered as a self-build or custom build development.

This has implications for the delivery of biodiversity net gain (BNG) because development proposed as self-build and custom build development is exempt from the BNG requirement. For this reason, the issue of BNG is treated as a main issue in the determination of this appeal.

During the appeal process the Council also put forward suggested conditions to be imposed should the appeal be allowed, and the appellant has been given the opportunity to consider and comment on them.

The Procedural Guide to Planning Appeals – England states that the appeal process should not be used to evolve proposals. I have had regard to the degree of engagement of all parties and the interests of fairness. Given that the further information does not fundamentally alter the appeal proposal, and that the parties have had opportunity to comment on it, I have taken these submissions into account in reaching my decision.

The main issues in this appeal are: • the effect of the proposal on the character and appearance of the area; • the effect of the proposal on the living conditions of the occupiers of [address], with regard to outlook, overshadowing and daylight; and the effect on the occupiers of the proposed development and [site address] in respect of private amenity space; and • whether the proposal would make suitable provision for [name] (BNG).

The area surrounding and including the appeal site is characterised by generally single‐storey residential development fronting the highway. Dwellings are typically set within spacious plots incorporating large rear gardens, and the area is suburban in character. The appeal site is located on the edge of the settlement, and the rear garden within which it is proposed to locate the dwelling abuts open countryside. Architectural styles and the use of materials are varied, and there is no single prevailing style, with examples including brick, render and pantile roofs. Rear gardens contain various outbuildings associated with the dwellings including garages and garden sheds.

The proposal is for a new dwelling within the rear garden of the existing property. It would be two storeys in height, with the second storey accommodated within the roof space when viewed from [address]. A large dormer would face north and would not be immediately visible from residential properties to the south. As a result, the building would appear as single storey when viewed from the south.

The use of materials would be contemporary in nature and broadly consistent with those used at the existing dwelling at No 35, which has undergone extensive remodelling and renovation. The proposal would also involve relocating the existing garage serving No 35 further west. This would enable access to the proposed dwelling from [address] adjacent to the boundary with No 37. This would create a gap adjacent to the shared boundary, resulting in increased visual separation between the dwellings. The proposal would not alter the existing rhythm of development on [address], which is characterised by large semi-detached bungalows that are a key attribute of the character and appearance of the area.

The proposal would introduce a form of backland development to the area. However, it is of a form and scale that would respect the local character in terms of density, scale and massing. Adequate separation distances would be retained between dwellings so that it would not appear as cramped, and the proposed dwelling would be successfully integrated into the built form of the area as the design takes account of the site constraints and the prevailing character of the locality.

For these reasons, I find that the proposed development would accord with the design aims of Policy H7 of the Sunderland City Council Core Strategy Development Plan (the [name]), in so far as it requires development to be of a form and scale that respects the character of the surrounding area.

The proposed dwelling would reduce the size of the rear garden of the existing property at No 35. However, a rear garden area would be retained which would be of sufficient size and scale to provide usable private amenity space for the dwelling. This would be in addition to a front garden area facing [address]. A small garden area would also be provided to the immediate west of the proposed dwelling, which would be of sufficient to serve the needs of future occupiers.

From the east at No 37, the proposed dwelling would appear largely as a single‐storey structure. There would be limited potential for direct overlooking of its rear garden from the south‐facing rooflights, and the dormer windows facing north would not be readily visible from that property. Owing to the orientation of the proposed dwelling, its siting to the north‐west of No 37, and the spacing between the dwellings, the potential for overshadowing would be limited to the very northern part of the rear garden of No 37 when the sun is in the eastern sky.

In summary, the proposed development would therefore accord with Policy BH1 of the [name] and the guidance set out at paragraph 5.23 of the Sunderland City Council Development Management Supplementary Planning Document (2021). Together, these require that development is of an appropriate scale, massing, layout, appearance and setting which respects and enhances the positive qualities of neighbouring properties and the wider locality, retains acceptable levels of privacy, and ensures a good standard of amenity for all existing and future occupiers of land and buildings.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) (the Act) introduces a statutory framework for biodiversity net gain (BNG). This applies to all planning applications for non‐major development submitted on or after 2 April 2024. Subject to specific exceptions, every grant of planning permission is deemed to be subject to the [name] (BGC), which requires that a minimum 10% increase in biodiversity value is achieved.

The appellant contends that the proposed development falls within the exception for self‐build and custom build development. However, as set out above, a completed and executed UU has not been provided. In the absence of an enforceable mechanism, I cannot be satisfied that the dwelling would be delivered as a self‐build or custom build development. It follows that the proposal must be assessed as being subject to the general BGC as set out in the Act.

The Planning Practice Guidance (PPG) advises that it would generally be inappropriate for decision‐makers, when determining an application for development subject to BNG, to refuse planning permission solely on the basis that the biodiversity gain objective would not be met. However, the PPG goes on to state that decision‐makers may need to consider more broadly whether the BGC is capable of being successfully discharged.

While the Council’s Ecology Team did not object to the proposal, nor make any specific recommendations in respect of biodiversity, I have no evidence before me to establish the existing biodiversity value of the site. Moreover, the appellant has not submitted the minimum BNG information needed to establish the pre‐development biodiversity value of onsite habitat as required by Article 7(1A) of the Town and Country Planning (Development Management Procedure) (England) Order 2015

The National Planning Policy Framework (the Framework) seeks net gains for biodiversity (paragraph 187(d)), and Core Strategy Policy NE2 requires development, where appropriate, to demonstrate how net gains for biodiversity will be achieved. The statutory requirement for biodiversity net gain is expressly set at 10%. Schedule 7A of the Town and Country Planning Act 1990, as inserted by the Environment Act 2021, provides that the biodiversity gain objective is met where the post‐development biodiversity value attributable to the development exceeds the pre‐development biodiversity value of the onsite habitat by at least this amount.

In the absence of information establishing the baseline biodiversity value of the site, I cannot be satisfied that the BGC could be discharged. This matter is not addressed in sufficient detail in the submitted evidence, and I am therefore unable to conclude that the proposal would result in a net gain for biodiversity, as required by Policy NE2, where appropriate and by the Framework in all cases. Moreover, as this is a statutory requirement, I attach very substantial weight to this consideration.

While the parties disagree as to the appropriate period of restricted occupation for self‐build and custom build development, the absence of a completed and executed UU means that this matter does not require determination.

While the occupiers of the proposed dwelling would have the potential to support services in the village and the surrounding area, such as local shops and bus services, this support would be very limited. Likewise, the contribution to the number and mix of housing in the area would be minimal. Although the dwelling could be adequately serviced, these considerations do not outweigh the conclusion I have reached above.

On the evidence before me, the proposed development does not meet the definition of self‐build or custom build housing, nor is there any enforceable mechanism to ensure that it would be occupied or delivered as such. The scheme therefore does not qualify for the self‐build exemption from the BNG regime. In these circumstances, and in the absence of the minimum required BNG information to establish the baseline biodiversity value of the site, I am unable to conclude that the BGC could be discharged at any stage.

Compliance with mandatory BNG is a statutory requirement, and the absence of the necessary information represents a fundamental failing of the proposal. I attach very substantial weight to this matter, which decisively outweighs my findings that the development would respect the character and appearance of the area and would not result in unacceptable harm to the living conditions of the occupiers of the proposed development and Nos 35 and 37.

For the reasons given above the appeal should be dismissed.