Appeal 6002850

The appeal is dismissed.

The main issues are: • the effect of the proposed development on the character and appearance of the area, • whether adequate living conditions would be provided for future occupiers with regard to sunlight, daylight, outlook and nuisance, and • the effect of the proposal on the integrity of European sites, with particular regard to nutrient neutrality.

The appeal site is a modest sized and irregular shaped parcel of land which is mostly grassed and enclosed by fencing. There are large trees that are located within the site as well as a dense hedgerow. The wider area is predominantly residential with houses being sited in a linear arrangement with a similar appearance which results in uniformity within the street scene. Dwellings are also mostly set back from the road with small driveways or front gardens. As a result, the area has a uniform and open character and appearance.

The proposed dwelling would be two storeys; however, it is designed to appear smaller through a reduced eaves height. Despite this, due to the modest size of the appeal site, the proposed dwelling would be sited close to the boundaries of the site and would therefore appear cramped within the plot. This would be exacerbated by the tandem parking that would be provided next to the dwelling as well as the small wrap around garden.

I acknowledge that the overall size of the appeal site may be larger than other plots nearby and the ratio of house footprint would be smaller than others nearby. However, this does not mitigate the cramped appearance of the proposed dwelling through the irregular shaped plot and the dwellings position on the edge, with little visible and appreciable space around it.

There are three large and mature trees that are located within the appeal site, with two of the trees being protected by a Tree Preservation Order (TPO). The appellant submitted an [name] to support the application which identifies that the proposed dwelling would affect a small area of the root protection zone of one of the trees. It also states that the foundations would be piled and no dig and that the new entrance and parking area is designed to have a [name] confinement system laid beneath a permeable gravel surface. Further temporary ground protection and tree protective fencing are also proposed.

The Council raise concern that insufficient information has been provided to demonstrate that the proposed development could take place without harm to the trees. I note the Councils concerns, however, there is very little evidence to suggest that the appellant’s arboricultural report is not comprehensive enough and I find the content and measures outlined above demonstrate that the proposed development could take place without harming the trees within the site. This could be secured subject to suitably worded planning conditions.

Notwithstanding my findings on the retention of the trees within the appeal site, I conclude that the proposed development would harm the character and appearance of the area. It would be contrary to Policies E1 and COM2 of the Test Valley Borough Revised Local Plan DPD Adopted Local Plan 2011-2029 January 2016 (LP). Amongst other things, these seek to ensure that developments should integrate, respect and complement the character of the area in which the development is located in terms of layout, appearance, scale, materials and building styles.

I find no conflict with Policy E2 of the LP which seeks to ensure that development is designed and located to ensure that the health and future retention of important landscape features is not likely to be prejudiced.

The proposed dwelling would have an irregular shaped wrap around garden with the largest area of garden being next to the car parking spaces and access. This area is close to the three mature trees, and their large canopies would cover much of this area. As a result of the overall size of the trees and their canopies, combined with the small area of garden it would be mostly overshadowed and unattractive for future occupiers.

I am also mindful that leaves and debris will fall from the trees and into the garden area as well as on top of the cars. While general maintenance and clearance is expected when trees are within the garden, the amount of leaf fall and debris is likely to become a nuisance for future occupiers due to the modest garden size, overall tree coverage and location of parking. The Council have control over two of the trees through the TPO, however, where damage is being caused to future occupiers’ vehicles and risks to future occupiers using the garden area, it may be difficult for the Council to resist applications for works to the trees.

I acknowledge that it is proposed to crown lift the trees to help improve views from the dwelling and that in many cases trees can be a positive aspect of a garden. In this regard, I consider that the outlook from the dwelling and garden would be acceptable and while some views would be blocked, those views of the trees and surrounding area would be positive.

Notwithstanding my findings on outlook, I conclude that the proposed development would not provide adequate living conditions for future occupiers with regard to sunlight, daylight and nuisance. It would be contrary to Policies LHW4 and E2 of the LP which seeks to ensure that development provides for the amenity of its occupants and does not reduce the levels of daylight and sunlight reaching new properties.

The site lies within the zone of influence of the water environment of the Solent being situated within the catchment of the [name]. The Conservation of Habitat and Species Regulations 2017 require that, where a project is likely to have a significant effect on a European site, either alone or in combination with other projects, the competent authority must make an appropriate assessment of the project’s implications in view of the relevant site’s conservation objectives. The effects arising from the proposal need to be considered in combination with other development in the area and adopting a precautionary approach.

The European sites relevant to the appeal proposal are [name], Solent and [name] & Ramsar site, [name] & Ramsar site and the Solent and [name]. The qualifying features of the European sites include internationally rare bird species for which they are classified. The overriding conservation objective is to ensure that any new residential development will not have any significant adverse impact on the European sites. The European sites are in unfavourable condition due to nutrients (in this case nitrogen), where new development may have an adverse effect by contributing additional nutrients through wastewater.

The appeal scheme comprises one new dwelling which would increase the number of residents and in turn, could lead to an increase in nutrient loading from nitrates. Given the unfavourable status of the European sites, and the likely increases in nutrient loading, the appeal scheme is likely to have a significant effect on the aforementioned species and habitats both alone, and in combination with other development.

Natural England’s (NE) nutrient neutrality methodology covers all types of overnight accommodation and enables a nutrient budget to be calculated for all development that would result in a net increase in population served by a wastewater system. The application was accompanied by a [name] and calculations which the Council dispute, however, the total annual nitrogen load to mitigate has been calculated by both parties to be the same.

Excessive levels of nutrients can cause the rapid growth of certain plants and algae through the process of eutrophication. This can displace species that are either important in their own right or which act as sources of food and shelter for other species. This disrupts key ecological processes which generally leads to a loss of biodiversity. Dense algal mats can impair waterbird foraging and high concentrations of nutrients in water can impact sensitive fish, epifauna and infauna communities, adversely affecting the availability and suitability of bird breeding, rearing, feeding and roosting habitats. Given the conservation objectives, without adequate mitigation, a net increase in nutrient loads arising from the development would adversely affect the integrity of the European sites.

The appellant has suggested that they received agreement from [address] to purchase the required number of credits, however, no completed legal agreement has been provided with the appeal. The appellant has suggested that this could be secured by a condition. However, I must be satisfied at the point of decision that the proposal would not have an adverse effect on the integrity of the European sites. On this basis, I do not consider that a condition would meet the tests outlined in Planning Practice Guidance with regard to precision.

As the competent authority in this case, I must be able to rule out all reasonable scientific doubt that the proposal would have an adverse effect on the integrity of the European sites. Given that there is no legal agreement to secure any mitigation and the inadequacy of a condition, and the high level of statutory protection afforded to the European sites, I am not satisfied that adverse effects on the integrity of the European sites would be avoided.

Consequently, I cannot conclude that the appeal scheme would not have an adverse effect on the integrity of European sites, with particular regard to nutrient neutrality. The proposal would therefore conflict with Policies E5 and E8 of the LP, which amongst other things, seek to ensure that there will be no adverse impact on the integrity of designated European sites.

The appellant suggests that the proposed dwelling would be self-build, however, there is no legal agreement before me which would secure the dwelling as a self-build and as such, this attracts no weight in favour of the proposed scheme.

The Council have found that the proposed development would not harm the living conditions of neighbouring occupiers, while I have no reason to conclude otherwise, this is a neutral matter.

The Council is unable to demonstrate a 5-year supply of deliverable housing sites in accordance with Paragraph 72 of the Framework. The Council is only able to demonstrate a 2.76 year supply which represents a substantial undersupply.

Paragraph 11d) of the Framework states that where the policies which are most important for determining the proposal are out-of-date (including situations where the Local Planning Authority cannot demonstrate a necessary housing land supply) permission should be granted unless (i) the application of policies in the Framework provide a strong reason for refusing the development proposed or (ii) the adverse impacts of doing so would significantly and demonstrably outweigh the benefits.

I have not been able to conclude that the appeal scheme would not have an adverse effect on the integrity of European sites, with particular regard to nutrient neutrality which would provide a strong reason for refusing the proposed development and as such, Paragraph 11d (i) of the Framework therefore would apply. This means that paragraph 11d (ii) of the Framework is not engaged and the proposed development would not benefit from the presumption in favour of sustainable development.

I therefore find that none of the other considerations, including the provisions of the Framework, indicate that this appeal decision should be taken otherwise than in accordance with the development plan.

For the reasons given above the appeal should be dismissed.