Appeal 6002690

The appeal is dismissed.

A plan indicating an amendment to the position of proposed boundary between [site address] (No 90) and the proposed dwelling has been submitted with the appeal. The appellant has also sought to clarify the positioning of the proposed parking spaces. Established case law states that, in considering whether, or not, to accept amendments to a proposal during the appeal process, it must be considered whether the proposed change involves a "substantial difference" or a "fundamental change" to the application and whether the proposed amendments would cause unlawful procedural unfairness to anyone involved in the appeal.

The amended information is intended to address part of the Council’s reasons for refusal and does not make a substantial difference or result in a fundamental change to the proposed development, when compared to that upon which the Council made its decision. These revisions would represent a minor change and would occur wholly within the red line boundary, as indicated on the appellant’s location plan. Furthermore, the Council have been provided with opportunity to comment and I am therefore satisfied that no party would be prejudiced by taking this proposed amendment into account.

The main issues are: • the effect of the proposed development on the character and appearance of the area; • whether or not the proposed development would provide suitable living conditions for future occupiers, with particular regard to the provision of living and outdoor amenity space; • the effect if the proposed development on the living conditions of the occupiers of No 90, with particular regard to outlook and light; • whether or not the mandatory biodiversity net gain (BNG) requirements would be met; • whether or not the site would be at risk of flooding, having regard to the flood risk mitigation proposed; and • the effect of the proposed development on the provision of parking, with particular regard to highway safety.

[address] is a gently curving residential cul-de-sac which connects with [address] at a roundabout. The section of [address] extending from [address] is linear in form. Although it has a footway along one side, the street is characterised by mature trees and hedgerows on both sides, including planting along the adjacent railway embankment. This vegetation provides a strong green edge and creates a visually soft and verdant entrance into the residential estate. In this part of the estate, both streets are primarily fronted by two-storey detached and semi-detached dwellings. These are set back behind broadly consistent front gardens and driveways and typically benefit from generous rear garden areas. While some properties have undergone physical alterations, including extensions, the streets nonetheless retain a cohesive character and appearance informed by the mature landscaping, the rhythm of development and regular spacing between buildings.

No 90 occupies a prominent position, on a roughly triangular shaped plot which follows the curve of the road. It is an end dwelling on the side of the street closest to the railway, and its side elevation forms part of the vista when approaching the estate along [address]. I saw on my site visit that extensions and alterations to No 90, subject to separate planning applications1, are currently in progress. I also observed that the side garden area is partially enclosed by fencing and contains a small detached garage, a shed and driveway. Notwithstanding these features, the side garden area retains a relatively open quality which contributes to a sense of spatial transition on entrance to the estate.

The proposed dwelling would be located on part of the side garden of No 90. Owing to the shape of the plot, its frontage would be set back from the frontage of No 90. The depth of the resulting plot would also be significantly less than those associated with neighbouring dwellings along this part of [address]. It is acknowledged that the appellant has sought to make efficient use of the plot and that there is no dispute between the main parties regarding the density of development. However, this would lead to very limited spacing to both the front and rear of the proposed dwelling, which would be readily apparent in views of its side elevation. The building would also appear noticeably wider than adjacent dwelling when viewed from the front. 1 Council refs: 2024/0295, 2024/2302 and 2026/0161.

Although the proposed building would not be higher than No 90 and would incorporate comparable design features and materials, the reduced plot depth and constrained spacing would, in this prominent location, result in an unacceptably dominant presence in the street scene. Consequently, the proposed development would fail to respect the established spacing and rhythm of development and would appear incongruous in the context of this visually sensitive end plot.

It is acknowledged that the proposed amendment to the position of proposed boundary between No [site address] (No 90) and the proposed dwelling would enable compliance with the plot ratio of 0.3 required by the [name] (2024) (EDC). However, in this particular instance, this would not result in a well-proportioned layout or overcome my concerns set out above.

[name] note that there are several large houses built close to the boundary in the area, which I saw during my site visit, none represent a direct parallel to the appeal proposal in terms of plot location, size or layout.

I conclude that the proposed development would have a harmful effect on the character and appearance of the area. In this regard, it would be contrary to P olicy CS17 of the [name] (2011) (CS) and Policy DM2 of the Elmbridge Local Plan Development Management Plan (2015) (DMP) insofar as they require new development to deliver high quality and inclusive sustainable design which maximises the efficient use of urban land whilst responding to the positive features of individual locations and requires the scheme as a whole to be well designed to respect the character of the area.

For the same reasons, the development is also contrary to the National Planning Policy Framework (the Framework) which requires planning decisions to ensure that development establishes or maintains a strong sense of place, using the arrangement of streets, spaces and building types to create attractive, welcoming and distinctive places to live.

The submitted plans indicate that the proposed dwelling would provide five bedrooms, with living accommodation arranged over three floors. There is no dispute between the main parties that the proposed dwelling would meet the minimum gross internal floor area requirements set out in the nationally described space standard2. In response to the Council’s concerns regarding the size of the proposed double bedrooms, the appellant has clarified that three of the rooms would function as single rather than double bedrooms. On that basis, the relevant minimum floor area standards would be met.

The EDC advises that a five-bedroom house should be provided with minimum of [address] metres of private outdoor amenity space. The appellant asserts that the proposed scheme would exceed this requirement, however it is unclear from the evidence provided, which parts of the site this figure includes. In any event, even if this requirement is met, the figure in the EDC is guidance only, and the quality, usability and privacy of the amenity space must also be assessed.

In this case, the majority of the external amenity space would be positioned to side and front of the proposed dwelling, where it would be subject of reduced levels of privacy due to its close proximity to the roadside. Given the constrained nature of 2 Department for Communities and Local Government Technical Housing Standards – [name] (2015) the site, I not am satisfied that this could be satisfactorily addressed through the imposition of a condition requiring enhanced boundary treatments, as the limited space available would restrict the effectiveness of such mitigation. The remaining strips of amenity space to the rear and around the edge of the dwelling would be narrow and enclosed in form, significantly limiting their functionality as usable outdoor space for sitting or recreation.

I conclude that the proposed development would not provide suitable living conditions for future occupiers, with particular regard to the provision of outdoor amenity space. In this regard, it would conflict with Policy DM10 of the DMP which requires proposals for new housing to offer an appropriate standard of living, internally and externally. For the same reasons, there would be conflict with the Framework which required a high standard of amenity for future users.

As set out above, planning permissions for alterations and extensions to No 90 have been granted separately and are currently in the process of being implemented. I am also aware of an appeal3 relating to the variation of a previous planning permission for extensions and alterations to No 90.

In relation to internal spaces, the Council’s concerns relate to the large kitchen window proposed in the side elevation of No 90. At the time of my site visit, this window had not been installed. During the course of the appeal, a variation to the relevant planning permission was granted to remove this window and, instead, to insert a new ground floor window in the rear elevation, orientated away from the proposed dwelling. Securing the implementation of this revised window position is a matter that could be adequately controlled by planning condition, and in doing so, this would ensure that the proposed development would not result in an unsatisfactorily level of outlook for occupiers of this room. For the same reasons, there would unlikely be any material adverse loss of light impact to this room resulting from the appeal proposal.

However, in relation to external areas, the majority of the existing garden area serving No 90 is located to its side. Although a relatively narrow area of garden is situated to the rear, the outlook from this part of the site is already constrained by its position between the existing dwelling and railway embankment, which rises in gradient close to the rear boundary. Even so, from its garden, the occupiers of No 90 currently benefit from a relatively spacious and open outlook outwards across the side garden area and towards the embankment.

The proposed development would result in a significant reduction in this side garden area. The submitted plans indicate that the side elevation of the proposed dwelling would be substantial in both height and depth and would be positioned close to the shared boundary. The limited separation distance between the two buildings would leave a relatively narrow and enclosed area of garden, for a large proportion of its length. While the overall size of the remaining garden may meet EDC standards in quantitative terms, its quality would be significantly compromised. In particular, the proposed development would materially reduce the sense of openness and outlook currently experienced by the occupiers of No 90 from within its garden, and the remaining space is likely to experience increased overshadowing for much of the day. 3 Appeal ref: 6004485.

[name] note that the occupiers of No 90 are the appellant, this does not alter my assessment of the proposed development on living conditions, which must be considered on an objective and enduring basis.

I conclude that the proposed development would result in an adverse effect on the living conditions of the occupiers of No 90, with particular regard to outlook and light. In this regard, it would conflict with Policy DM2 of DMP insofar as it requires development proposals to protect the amenity of adjoining occupiers and designed to offer an appropriate outlook and provide adequate daylight and sunlight. For the same reasons, there would be conflict with the Framework which required a high standard of amenity for existing users.

Although the proposal has been advanced as a self-build/custom build dwelling, there is no mechanism in place to secure this, and mandatory BNG4 could apply. In such an instance, the BNG would be secured by the deemed statutory pre-commencement biodiversity gain condition. However, this would rely on a baseline biodiversity value being established prior to the grant of planning permission.

However, while I have taken into account the appellants [name], the minimum BNG information has not been provided, and I am not satisfied based on the evidence before me, that the proposed development would alternatively meet any de minimus exception. This is because the evidence before me indicates that the appeal site has been subject of clearance, including the felling of trees. The Planning Practice Guidance advises that where unauthorised degradation of onsite habitat has occurred between 30 January 2020 and the date of the planning application, the pre-development biodiversity value of the onsite habitat should be calculated based on the condition of the habitat on the date immediately prior to such degradation.

Consequently, in the absence of a mechanism to secure the development as a self-built/custom build dwelling, there is insufficient information, as required by Article 7 of The Town and Country Planning (Development Management Procedure) (England) Order 2015, to demonstrate that the BNG requirements could be met and at least 10% gain could be achieved and secured, if required.

I conclude that it has not been demonstrated that BNG requirements would be met. On this basis, it would conflict with the policies of the Framework which require planning decisions to secure net gains for biodiversity.

Paragraph 170 of the Framework states 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). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere. The appellant’s Flood Risk Assessment (FRA) confirms that the appeal site is located in [name] 2 and 3 and therefore in areas of medium and high risk of flooding from rivers. 4 Schedule 7A of the Act (inserted by the Environment Act 2021).

In applying paragraph 175 of the Framework, a proportionate approach should be taken. Where an FRA 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, without increasing flood risk elsewhere, then the sequential test need not be applied.

The FRA proposes mitigation in the form of raised finished floor levels, under-floor voids and a flood warning and evacuation plan (FWEP). While the Council’s Flood Risk Supplementary Planning Document (2016) (SPD) identifies flood voids as a potential solution to providing indirect compensation for loss of floorplan storage in [name] 3, it also advises that sole reliance on under-floor voids to address the loss of floodplain storage capacity is generally not acceptable on undeveloped sites. Moreover, limited detail has been provided regarding the size, layout and functionality of the proposed voids to demonstrate that they would operate effectively or be capable of being accommodated on site. In addition, a FWEP to demonstrate safe access and egress has not been submitted. Consequently, I am not satisfied that the development would be safe for its lifetime, taking account of the vulnerability of its users, without increasing flood risk elsewhere.

The FRA seeks to address the sequential approach by reference to the Council’s Land Availability Assessment (2023), in order to determine whether alternative sites capable of accommodating a single dwelling are available in areas at lower flood risk. However, this assessment is limited in scope, restrictive in terms of the catchment area considered and relies on data from 2023 that may no longer be fully up to date. In these circumstances, there is no requirement to proceed to the exception test.

The appellant contends that a similar FRA was supplied in support of the extension to No 90. However, the nature of that application differs materially from the appeal scheme which seeks a new dwelling. As such, different policy considerations apply.

I conclude that it has not been demonstrated that the site would not be at risk of flooding, having regard to the flood risk mitigation proposed. In this regard, it would conflict with Policy CS26 of the CS which requires development to be located, designed and laid out to ensure that it is safe and the risk from flooding is minimised whilst not increasing the risk of flooding elsewhere.

There is no dispute between the main parties that each dwelling should provide two off-street parking spaces, in accordance with the maximum requirements of the Elmbridge Parking Supplementary Planning Document (2020). The Council’s concerns relate to a proposed small gravel car parking area to the front of the proposed dwelling and whether vehicles could be accommodated on site without encroaching onto the public highway.

However, the submitted plans indicate that, even without provision of parking to the front of the proposed dwelling, that two spaces per dwelling could be provided within the site, including two spaces close to the position of the existing detached garage which is proposed to be demolished.

Although precise measurements of these spaces have not been provided and the proposed tandem arrangement within a relatively constrained area would make manoeuvrability more challenging, I observed on my site visit that this is not dissimilar to the current arrangement, and that it is likely that the required number of spaces could be accommodated on site, clear of the public highway. Detailed arrangements relating to the precise layout, dimensions and surface materials of the parking spaces could be secured by planning condition.

I conclude that the proposed development would be capable of providing satisfactory parking and would not result in an adverse effect on highway safety . In this regard, it would comply with Policy CS25 of the CS and Policy DM7 of the DMP insofar as they require maximum parking standards to be applied and for parking provision to be appropriate to the development proposed.

While the proposed development would not meet the Council’s indicated need for smaller homes in the area, the proposed development would nonetheless provide social benefits by making a minor yet positive contribution to housing supply and the provision of a larger family home in the area. The development could utilise modern construction and energy saving techniques including the provision of electric vehicle charging points. Space for bins and cycle parking would also be provided and mitigation for noise from the railway is also proposed. Economic benefits of the proposal include employment during construction and additional support for services and facilities close-by in the local area. However, given the scale of the development, the bene fits associated with the delivery of one dwelling, would be limited.

The Council has acknowledged that it is not currently able to demonstrate a five-year housing land supply, with the latest figure provided indicating a 0.9-year supply which represents a significant shortfall against the Framework requirements. As such, Paragraph 11 d) of the Framework is a relevant consideration. This 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 of the Framework taken as a whole.

In terms of having particular regard to the issues that should be taken into account, the scheme would not provide affordable housing in terms of the Framework definition. Nevertheless, it would direct development to a sustainable location and make efficient use of land. However, in the particular circumstances of this case, I have concluded that the proposed development would be harmful to the character and appearance of the area and to the living conditions of future and neighbouring occupiers. It has also not been demonstrated that the proposed development would be acceptable in flood risk terms or would meet BNG requirements. I find that the harm identified, and the associated policy conflict would be significant and should weigh to a substantial extent against the scheme. This harm could not be overcome by planning conditions.

The adverse effects would be contrary to the aims and policies of the Framework. I therefore give the conflict with the relevant development plan policies substantial weight.

It is recognised that a site such as this can make a small albeit valuable contribution to the housing requirement of the area and could potentially be built out more quickly than a larger scheme. The proposal would also provide limited associated socio-economic benefits that would arise from construction and support for local services and facilities in nearby areas. Even though the housing shortfall is substantial, as only one additional unit of accommodation would be provided, the benefits of the scheme should be attributed limited weight in favour of approval.

Taking into account the above conclusions, I find that the adverse impacts of the proposed development would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole. As a result, the proposal would not be sustainable development within the meaning of the Framework, and the presumption in favour of sustainable development does not apply.

The proposal would conflict with the development plan as a whole and the material considerations, including the provisions of the Framework, do not indicate that the appeal should be decided other than in accordance with it. Therefore, for the reasons given, I conclude that the appeal should be dismissed.