Appeal 6002636

The appeal is dismissed.

An application for costs was made by [name] against the Council of the London Borough of Barnet. This application is the subject of a separate decision.

The main issues are: i) The effect of the proposed development on [name]; ii) Whether the proposed development would satisfy the requirements of the statutory framework for biodiversity net gain; iii) Whether the proposed development would provide a satisfactory standard of accommodation with regard to access to outdoor amenity space; iv) The effect of the proposed development on the living conditions of the occupants of the neighbouring property at No [address] with particular reference to outlook; and v) The effect of the proposed development on the character and appearance of the site and the surrounding area.

The proposed development involves alterations to the roof of the property through the replacement of a dormer window and the extension of the roof over an existing flat roof on the outrigger.

The Council’s ecologist has stated that the roof of the dwelling may provide roosting opportunities for bats which are a [name] (EPS). Whilst this might not be the case for the flat roof element of the roof, the tiled pitched roof and its eaves may provide roosting opportunities and would have to be disturbed in order to join the roof extension over the outrigger to the existing pitched roof and through the provision of rooflights and the replacement of the existing dormer.

No preliminary roost appraisal (PRA) has been provided to confirm whether the roof contains potential roost features.

The Conservation of Habitats and Species Regulations 2017 (as amended) requires a competent authority to have regard to the requirements of the associated Directive in the exercise of its functions. This includes where a proposal might lead to the deterioration or destruction of the breeding sites and resting places of EPS, such as bats. Circular 06/2005 – Biodiversity and Geological Conservation states that it is essential that the presence or otherwise of protected species is established before planning permission is granted. Without a PRA it is not possible to conclude whether the development proposed would affect EPS.

The appellant stated that there were no other examples in Barnet where the Council had requested a survey for a loft that has already been converted and in residential occupation. Irrespective of this, in this instance there is potential for bats to roost in the roof and for any roosts to be disturbed. No compelling evidence has been put forward that the occupation of the roof space would reduce the potential for bat roosts.

In conclusion it has not been demonstrated that the proposed development would not adversely affect EPS. Accordingly, the proposed development is contrary to Policies CDH01, CDH07 and ECC07 of the Barnet Local Plan 2021-2036 ([name] 2025) (BLP) which amongst other matters seek to retain and enhance biodiversity and avoid and mitigate significant harm to biodiversity, and is inconsistent with the duty to conserve and enhance biodiversity as set out by Section 40 of the Natural Environment and Rural Communities Act 2006.

Biodiversity net gain (BNG) is a statutory requirement introduced by the Environment Act 2021. Where applicable, it is secured through a statutory planning condition intended to ensure a minimum 10% increase in biodiversity value. Compliance with this statutory regime is a material consideration for the decision maker, as failure to do so could undermine both its effective implementation and the wider biodiversity objectives it seeks to achieve.

Article 7 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires an application for planning permission to be accompanied by a statement confirming whether the proposed development would be subject to the statutory BNG condition and if not the reasons for that belief. [name] is applicable, further information relating to BNG is required. This enables the statutory BNG condition to be applied and subsequently discharged.

Development which does not impact on any onsite priority habitat and impacts on less than 25sqm of other onsite habitat and less than 5m of linear habitat, benefits from the ‘de minimis’ exemption under the [name] (Exemptions) Regulations 2024.

The appellant estimates that the external area of the proposed single storey extension would be 33.5sqm. They assert that the existing area of hard standing to the rear of the property where the extension would be positioned is greater than 8.5sqm and therefore would benefit from the exemption. Developed land with a sealed surface such as hardstanding has a biodiversity value of zero. However, there are no scaled plans provided which clearly show the measurements of the sealed surface of hardstanding. On my site visit it was not possible to ascertain the overall extent of the sealed surface due to the amount of vegetation penetrating and covering the hardstanding. Furthermore, there are proposed works in the front garden which may affect unsealed surfaces. The appellant has clarified that hedgerows in the front garden would be retained except for the section needed to accommodate cycle storage. As such I am satisfied that the loss of linear habitat would be less than 5m. However, the lack of detailed plans for hardstanding and existing on-site habitat in the front and rear gardens means it is not possible to confirm that the proposed development would benefit from the de-minimis exemption from BNG.

In absence of a confirmed exemption, the minimum information required for BNG as detailed above would be required. This information has not been submitted and therefore the proposal would fail to satisfy the requirements of the statutory framework for BNG. The proposal would therefore be contrary to Policies CDH01, CDH07 and ECC07 of the BLP which amongst other matters seek to retain and enhance biodiversity.

Policy CDH07 requires development proposals to meet minimum outdoor amenity space requirements. For a 1-2 person dwelling this equates to a minimum of 5m 2.

The second floor flat, referred to as Flat 3, would not have any outdoor amenity space provision. The appellant states that this is because it would not be possible to provide such a space at the rear without resulting in overlooking issues for the ground floor flat. Accordingly, the proposal would be contrary to Policy CDH07.

The appellant states that the proposed development would be located very close to Finchley Central Town Centre and [address] Park. However, I am told that the park is approximately 700 metres walking distance from the proposed development. Whilst other policies indicate what might be a convenient walking distance to a town centre, these do not indicate what an acceptable walking distance might be for open space provision in compensation for lack of private amenity space. A private amenity space associated with residential accommodation is likely to be something enjoyed more regularly than a visit to a town centre. Accordingly, a [address] to open space would not be a convenient substitute for this.

According to the evidence, Flat 3 would have an internal floorspace of 54.8sqm which I am told is more than the minimum requirement which the Council state to be 39sqm and the appellant states to be 37sqm. Irrespective of this the additional internal floorspace does not compensate for the lack of outdoor amenity space given the different benefits outdoor space provides to occupiers compared to internal space.

In conclusion the lack of private outdoor amenity space for Flat 3 would not provide a satisfactory standard of accommodation and would be harmful to the living conditions of future occupiers. Accordingly, the proposed development would be contrary to Policies CDH01 and CDH07 of the BLP which amongst other matters require the provision of outdoor amenity space.

The proposed single storey extension would extend beyond the rear elevation of the neighbouring property at No [address] to the boundary. Whilst the proposed single storey extension would appear higher than the existing fence line and boundary vegetation, it would not be to such a degree to create an oppressive sense of enclosure. Furthermore, the depth of the rear garden of No 15 and the lack of built development to the rear of the garden would mean the property would still benefit from an acceptable level of outlook.

Consequently, I do not find conflict with Policies CDH01 and CDH05 of the BLP which amongst other matters seek to ensure acceptable levels of outlook for adjoining occupants.

Dollis Park is predominantly characterised by large semi-detached properties which have a regular rhythm along the street in terms of spacing, height and massing. To the front of the properties there is a variety of roof designs. However, to the rear there is a more consistent form comprising of box dormers of similar sizes. Whilst there are some properties with different rear roof designs including mansard and flat roofs these appear at the ends of the row of properties. Most properties have flat or shallow pitched roof outriggers. Overall, there is a reasonably strong coherence to the design and character of the street.

The extension of the roof over the flat roof of the outrigger would upset the symmetry of the property with its attached neighbour and appear cluttered next to the proposed replacement box dormer. It would appear out of keeping with the regular pattern of roof designs in the vicinity. Whilst the character of areas can change over time, the character of the roofscape in the vicinity of the development retains its cohesiveness. The proposed development would undermine the cohesiveness of the character of the surrounding roofscape and therefore cause harm to the character of the area.

Whilst the single storey extension exceeds the 3.5 metres considered acceptable in the Residential Design Guidance Supplementary Planning Document ([name] 2016), I consider it would appear subordinate to the existing building given the scale and height of the existing building. Although the single storey extension may not be matched in depth in the locality, there are other examples of single storey extensions on nearby properties and therefore the extension would not be out of character with the building or its surroundings.

Given the substantial scale of the existing building, the extensions and alterations collectively would remain subordinate to the existing building.

The extensions proposed are entirely to the rear of the property and would not be visible from Dollis Park. It is unlikely that the single storey extension would be visible from any public vantage points. However, it may be possible to get glimpsed views of the extensions to the roof from the nearby railway bridge depending on the seasonal extent of the vegetation to the rear of the properties. Accordingly, the impact on the appearance of the area from public vantage points would be limited.

Nevertheless, as discussed above, the roof extensions would be harmful to the character of the site and the cohesive character of its surroundings. Therefore, the proposal is contrary to Policies CDH01 and CDH05 of the BLP. These policies, amongst other matters, require development to follow good design principles, respond to the distinctive local character, including roof form, and complement the character of the existing building.

A lawful development certificate and an extant planning permission exist for the proposed external alterations and extensions subject to this appeal. These works are associated with the existing use of the building as a single dwelling. In the absence of any compelling evidence to the contrary, there is a greater than theoretical possibility that this development might take place should the appeal be dismissed. Therefore, it represents a fallback position with regard to the effects of the development associated with the external extensions and alterations.

Whilst the extensions and alterations proposed in the appeal scheme are associated with a change of use to three self-contained flats, this does not mean the fallback position can be disregarded. However, it is necessary to consider whether the extensions and alterations associated with the change of use proposal subject to this appeal are more or less harmful than the effect of the extensions and alterations if they were developed to serve the existing use. I have identified harm to the character and appearance of the site and the surrounding area. This harm relates to the external appearance and character of the building and as the proposed designs are the same, the level of harm would not be any different if they were to serve the existing single dwelling or the proposed three self-contained flats.

Whilst the fallback position will result in the same level of harm to the character and appearance of the area, it does not resolve the harm from the appeal scheme I have identified with regard to biodiversity net gain and the standard of accommodation discussed above. Furthermore, the presence of the fallback position does not absolve the decision maker of the duty set out in the Conservation of Habitats and Species Regulations 2017 (as amended) with regard to EPS as referred to above.

Accordingly, the fallback position means limited weight is attached to the conflict with the development plan with regards to the harm to character and appearance. However, the fallback position does not alter the conclusions reached with regard to the other matters referred to above.

The proposed development would make efficient use of land on a small-site and provide two additional self-contained homes to meet needs in an accessible location, which is relatively close to the train station and shops and services in the town centre. However, these benefits are moderate due to the scale of the development proposed. Whilst there is policy support in the London Plan for the development of small sites for housing and an associated target, no compelling evidence has been submitted to suggest the target is not being met. Accordingly, the benefits noted above do not outweigh the conflicts with the policies of the development plan identified above.

The appellant referenced a number of other policies from the London Plan. However, I was not provided with copies of these policies and they were not referred to in the Council’s reasons for refusal. Furthermore, the appellant did not articulate whether these policies would support the proposal.

The appellant states that the proposal would not result in conditions prejudicial to highway safety. However, an absence of harm in this respect is a neutral factor.

The proposal is contrary to the development plan taken as a whole for the reasons provided above. Material considerations do not indicate that a decision should be taken other than in accordance with the development plan. Therefore, the appeal should be dismissed.