Appeal 6002649

The appeal is dismissed.

The appellant’s final comments included a short extract from an appeal decision1 relating to the Council’s housing land supply position, which had not previously been mentioned. The extract provided is brief and, although the subject matter is relevant to the appeal, it was not determinative in the outcome, for reasons explained below. Although this evidence was submitted at a late stage in the appeal process, I am satisfied that has not resulted in any unfairness to the Council or any other relevant party.

The main issues are the effect of the proposal on the character and appearance of the area, and its effect on living conditions for occupiers of [site address] , with particular regard to the extent and quality of the retained rear garden space.

The appeal concerns land to the side of [site address] , which is currently rough grass with some hardstanding, but no existing outbuildings. There are fences on three sides, but no boundary treatment to separate the site from the back garden of no. 22. While the appeal site appears originally to have been part of the same residential plot, it is currently less well maintained and apparently vacant.

Policy DM9 of the Epping Forest District Local Plan (EFDLP) 2023 requires amongst other things that development proposals must relate positively to their locality, having regard to a range of criteria which include building heights, form, scale and massing around the site, the rhythm of local plot and building widths and 1 Appeal Ref: APP/J1535/W/25/3374610 existing building lines. While the site is not in a Conservation Area, those design considerations are applicable. They are also consistent with the Framework’s focus on good design, which is a key aspect of sustainable development, which creates better places in which to live and work and helps make development acceptable to communities.

The site is within an estate of two storey housing, mostly semi-detached or in short terraces. There is some variety in roof profile and external materials, but the proportions of the dwellings are very consistent. They generally face the street, along a well-defined building line, with limited lateral separation between adjacent pairs or terraces. Larger gaps at the street corners introduce a sense of space and many of the outer corners incorporate small, grassed areas, which are a distinctive feature. The Council describes the locality as a planned estate, with a recognisable development pattern. That can be readily understood, and the estate retains a distinctive and coherent character, despite alterations over the years.

[site address] is a corner property, on a larger than typical plot, which opens out from a narrow street frontage into a larger area to the side and rear. The proposed dwelling would occupy a significant proportion of the plot to the side. It would intrude into the larger gap between no. 22 and its neighbour, which currently looks open and unobstructed. The single storey form and rearward siting of the dwelling would limit the degree of visual intrusion, but the development would nevertheless erode the distinctive sense of space at this corner. As such, the design, scale and siting of the proposed dwelling does not clearly draw on the distinctive characteristics of the surrounding estate. Even allowing for its modest size, it would be cramped on its limited plot, and it would look incongruous in relation to the distinctive pattern of consistently proportioned two storey dwellings.

The dwellings at [address] also depart from the established development pattern, being set back and of a different style. The proposed dwelling would face that cul-de-sac and the Council did not allege that the street scene in [address] itself would be harmed. However, that does not negate the harmful degree of inconsistency with the characteristics of the street scene within Crossfields and the wider estate.

I conclude that the proposed development would have a harmful effect on the character and appearance of the area. It would conflict with relevant requirements in Policy DM9, as above, and would be at odds with relevant requirements of the Framework with regard to securing well-designed places, notably paragraph 135 which requires that developments are sympathetic to local character, including the surrounding built environment. While the same paragraph says that appropriate innovation and change should not be discouraged, in the particular circumstances of this case the contrasting design would not be a positive approach.

The proposed dwelling would be parallel to the back garden of [site address] , extending along most of the boundary. It would be south to southeast of the adjacent garden, within the path of direct sunlight during the morning and middle of the day, particularly at times of year when the sun is low in the sky. Although a single storey dwelling is proposed, it would have a sizable, pitched roof, with the ridgeline rising above the eaves line of no. 22. Even allowing for the fact that the roof would slope away from the boundary, it is likely that a building of the proposed scale, in that position, would cast more than a limited amount of shadow into the adjacent garden.

There would be no windows facing the adjacent garden, so it would remain reasonably private. However, there would be a significantly increased sense of enclosure. The garden is already hemmed in at the rear by the adjacent dwelling in [address]. The introduction of another neighbouring dwelling right along the southern boundary would further restrict the open aspect around it.

It has not been disputed that the retained rear garden at no. 22 would fall short of the minimum private garden area advocated in the [name] (EDG). Policy DM10 of the EFDLP says that new housing should have regard to open space standards, as ‘adopted or endorsed by the Council’ and Policy DM9 refers to general conformity with relevant [name]. The EDG was referenced in the [name] and the reason for refusal, giving a clear indication that it is endorsed by the Council, despite not having been formally adopted by them. The appeal decision2 quoted by the appellant relates to its status in a different local authority and the extract provided does not reveal whether there was similar wording in any relevant development plan policies. Against that background, the EDG standard is relevant guidance in this case.

There may be circumstances in which smaller gardens are deemed to provide suitable outdoor amenity space, taking into account the particular layout of an individual development and/or the desirability of making efficient use of urban land. Indeed, there are some apparently smaller gardens nearby, including at [address]. However, in this particular case, in addition to the shortfall against the EDG standard, the retained garden at no. 22 would also be overshadowed by the new dwelling, and more enclosed, both of which would undermine its quality as an outdoor space. When all those factors are considered in combination, it would be a poor quality private outdoor space, not well suited to the range of uses likely to be undertaken by occupiers of the family-sized three bedroom dwelling it supports.

I conclude that the proposal would be harmful to living conditions for occupiers of [site address] , with particular regard to the extent and quality of the retained rear garden space. That would conflict with relevant requirements in Policies DM9 and DM10 of the EFDLP, which include that proposals should provide good sunlight, daylight and open aspects to adjacent buildings and land (including any private amenity space) and have regard to open space standards, as adopted or endorsed by the Council. It would also conflict with the requirement in paragraph 135 of the Framework that development should create places with a high standard of amenity for existing and future users. [name]

The Council has granted a Lawful Development Certificate for erection of a proposed outbuilding on a similar footprint3. However, that does not imply any endorsement on their part of the design of the proposed outbuilding, but only that it would comply with the limitations relevant to outbuildings erected as permitted development4. 2 Appeal Ref: APP/C1570/A/13/2208075 3 Application Ref: EPF/2353/24 4 As defined in the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended)

If the outbuilding was implemented, it would be clearly understood as having an ancillary relationship with the host dwelling. In contrast, the proposed dwelling would be a more significant departure from the established pattern of development, being a separate dwelling on a subdivided plot. It would require additional height to provide required floor to ceiling heights and a suitably pitched roof, making it taller and more visually intrusive. Since the extract provided from the approved plans confirms that a larger garden area would be retained for the host dwelling, the outbuilding would not erode the available outdoor amenity space to a similar extent. It might overshadow and enclose parts of the garden directly to the north, but other unaffected areas would remain available.

There is no substantive evidence suggesting that the outbuilding could not, or would not, be implemented if the proposed dwelling is not permitted. However, that would not affect the character and appearance of the area or living conditions for occupiers of no. 22 to a similarly harmful degree. Therefore, the fallback position does not outweigh the conclusions I have reached above.

The Council’s Housing Delivery Test 2023 (HDT) result of 66% indicated a significant shortfall in housing delivery. The Council has challenged that published result, claiming that delivery exceeded 75% of its housing requirement over the relevant period based on its own housing delivery evidence. However, the evidence submitted with this appeal does not confirm whether that revised figure has been accepted or endorsed by MHCLG5 in preference to the published HDT result. Planning Practice Guidance indicates that the consequences of any under-delivery should be applied until the subsequent HDT measurement is published.

The appellant has also questioned the Council’s housing land supply position, based on an extract from an earlier appeal decision. However, only a very limited extract of that decision is provided, the evidence underpinning the Inspector’s comments appears to date back to November 2024, and no substantive or more recent evidence has been presented regarding the deliverable housing supply at the time of this decision.

The proposal would provide one modest dwelling, making a very small contribution towards the supply and delivery of housing. It is likely that it could be delivered quickly, being on a small site. However, the Framework’s support for self-build housing on small sites is not relevant, since market housing is proposed.

There are no buildings on the site, and residential garden land within built-up areas is excluded from the definition of previously developed land (PDL) in the Framework. While the site is currently vacant, it appears to have been garden land in the recent past, casting doubt on the appellant’s view that the proposal would make use of PDL. Nevertheless, it would make more efficient use of an existing residential plot in an urban area, where there is easy access to a range of services and facilities nearby, including public transport services.

It has not been alleged by the Council that the proposed dwelling would provide inadequate living conditions for its occupiers, or that the development would 5 Ministry of Housing, Communities & Local Government adversely affect living conditions within neighbouring properties other than no. 22. They did not identify any harm in relation to flood risk, subject to suitable drainage, and it has not been suggested that biodiversity net gain in accordance with statutory requirements could not be secured. However, those are neutral factors, weighing neither for nor against the proposal.

Even if paragraph 11d of the Framework is applicable, having regard to the Council’s housing delivery and/or supply position, any benefits of the proposal should be weighed against the harm to the character and appearance of the area and living conditions for occupiers of [site address] . Taking into account the conflict on both counts with key policies in the Framework for securing well-designed places, I have given that harm significant weight.

Notwithstanding the sustainable location and more effective use of land, the benefits arising from this single, small dwelling would be inherently limited. Therefore, even if there is a relevant shortfall in supply or delivery of housing, the benefits of the proposal carry only modest weight. The adverse impacts of the proposed development would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole and it would not benefit from the presumption in favour of sustainable development, as expressed in paragraph 11d of the Framework.

The fourth reason for refusal related to the absence of mitigation for likely significant effects of the development on the Epping Forest Special Area of Conservation (SAC), in terms of recreational pressure and air pollution. The appellant suggests that any impact on the SAC could be considered negligible, referring to likely trip generation levels, but has also expressed willingness to make required financial contributions to mitigate any impact. However, although a draft [name] is mentioned, no completed planning obligation has been provided to secure those measures. [name] been minded to allow the appeal, that would have been a factor informing the appropriate assessment required under the Conservation of Habitats and Species Regulations 2017. However, since I am dismissing the appeal for other reasons, there is no need for me to consider the matter any further.

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, the appeal should be dismissed.