Appeal 6002860

The appeal is dismissed.

The application was made in outline form with all matters save for access reserved for future consideration. In terms of access, this would be the primary access from [address]. As such, any plans depicting the proposed layout, internal accesses and landscaping, scale and appearance of the scheme, such as that detailed in the ‘[name] have been taken as largely illustrative in nature.

The Council’s decision notice sets out nine reasons for refusal (RfRs). Through the submission of the appeal documentation, including a unilateral undertaking (UU) made under s106 of the Town and Country Planning Act 1990 (as amended), the Council accepted that all but two of the RfRs had been adequately addressed. [name] assess the suitability of the UU for myself later in this decision, these outstanding RfRs are those that form the main issues in this appeal.

The main issues are: • whether the scale and location of the development would accord with the Council’s spatial strategy, with particular regard to the distribution and location of housing, balanced communities and the need to travel, having regard to local policies, both adopted and emerging, and national policy; and • the effects of the proposal on the character and appearance of the area.

The appeal scheme is proposed to the west of [address], to the south-west of the village of Feniton. Feniton, or at least ‘new’ Feniton, is a village which has a small convenience shop, takeaway, hairdressers, community hall, public house, sports ground and a primary school. Feniton is also situated on a mainline railway line with daily services that access Honiton, Exeter and [name].

The proposal is for a scheme of up to 85 dwellings. The Illustrative Masterplan suggests that this would comprise a mix of house types in a large cul-de-sac layout with pathways around the perimeter and generous areas of open space to the west, south and south-eastern parts of the site. A ‘community eco-hub’ is indicatively shown on the [name] within the central part of the site.

Three previous proposals have been considered on the appeal site; one for c.59 dwellings and two for c.120 dwellings, all with associated employment floorspace. Two of these schemes1 were considered as part of the same inquiry along with two other appeal schemes on other sites in Feniton.

In addition to the relatively recent completion of 25 dwellings, there are a number of other planned developments in and around Feniton. These include: • The ‘[address]’ scheme of up to 86 dwellings, allowed in outline on appeal in July 20252; • The ‘[name] scheme of 35 dwellings, also highlighted as a preferred allocation in the emerging draft Local Plan 2020 – 2042 (the eLP) as site reference ‘Feni_05’ but also subject of a resolution by the Council’s Development Management Committee to approve as of February 2025; and • The ‘Beechwood’ scheme of up to 60 dwellings, a preferred allocation under the eLP as site reference ‘Feni_08’ but also subject of a resolution to approve by the Development Management Committee as of February 20263.

Given that there are recent resolutions to approve both the [name] and Beechwood schemes at the time of writing, and that there is an absence of evidence to suggest that any issues will prevent the completion of their respective awaited S106 agreements, I consider their status as broadly equivalent to planning permissions for the purposes of calculating the quantum of consented housing in the area. The commitments for Feniton therefore total c.181 dwellings, which with those built in the recent past take the total to c.206.

In addition to the above, there is a draft employment land allocation to the south of [name], Ref ‘Otry_20’ which would see a further expansion of the village, albeit for employment rather than residential development. However, this is still only a draft allocation and no related planning application has yet been submitted.

Under the East Devon Local Plan 2013 - 2031 (adopted 2016) (the Local Plan), Strategy 1 sets out that provision will be made for a minimum of 17,100 homes and that development in smaller, towns, villages and rural areas will be geared to meeting local needs. Strategy 2 then sets out the scale and distribution of residential development. Strategy 4 seeks to promote a balanced approach to the growth of communities in terms of matching jobs, homes, education and social and community facilities. 1 Planning references 12/2648/MOUT and 12/2649/MOUT 2 Under appeal reference APP/U1105/W/24/3357849 dated 11 July 2025 3 Under planning reference 25/1060/MOUT

Strategy 7 of the Local Plan sets out that development in the countryside will only be permitted where it is in accordance with a specific local or neighbourhood plan policy that explicitly permits such development and where it would not harm the distinctive landscape, amenity and environmental qualities of the relevant area.

The East Devon Villages Plan (adopted 2018) (EDVP) establishes built-up area boundaries (BUABs) for settlements, including Feniton, under policy VP01. The appeal site is outside of [name] and is therefore in the countryside in policy terms.

The Feniton Neighbourhood Plan (FNP) (made 2018) also includes a policy relating to the provision of housing, policy H3: Housing developments. This policy states that within [name], developments will usually be supported where they include a range of house types. The FNP policies do not specifically allow for any housing development outside of the BUAB.

As such, the principle of development conflicts with the spatial strategy of the current adopted development plan as expressed through strategies 1, 2, 4 and 7 of the Local Plan, policy VP01 of the EDVP and policy H3 of the FNP.

The eLP has reached Regulation 19 stage, with the recent round of consultation having concluded in January 2026. The remainder of the timetable is expected to see the submission of the eLP for examination in Spring 2026, the examination to take place over the remainder of 2026 and with adoption scheduled at some point in the year 2027 without slippage in the timetable.

Draft strategic policy SP01 of the eLP directs significant growth to the [name] and [name]. Feniton is identified in policy SP01 as a service village at the lowest end of the settlement hierarchy before the countryside. Within service villages, policy SP01 seeks to permit ‘limited development’ relative to their range of facilities and scale.

Draft policy SP03 sets out the total minimum housing requirement for the period and apportions 127 dwellings to Feniton. Whimple is the only other service village which has a higher anticipated growth allocation with all others being materially below 127 dwellings. By comparison, the tier 3 local centres of [name] and Colyton are each intended to grow by around 130 – 170 dwellings, with Lympstone and Woodbury each intended to receive around 320 - 365 dwellings.

[name] the growth allocation of 127 dwellings is also expressed in draft policy SD18 and is made up of the preferred site allocations for sites ‘Feni_08’ and ‘Feni_05’, cumulatively totalling around 102 houses and the scheme of 25 dwellings completed since 2020. The selection of the preferred sites for allocation has been extensively considered and as noted above, resolutions to grant planning permission are already in place for schemes on both of these sites.

ELP draft policy SP06 outlines that outside of the defined settlement boundaries, development will not be permitted unless it is in accordance with a specific Local or Neighbourhood Plan policy that explicitly permits such development.

In terms of the need to travel and future residents’ access to facilities, the appellant’s position is that Feniton is a highly sustainable location because it has a railway station and that 85 houses would sustain local services rather than unbalance them. It is clear that in relation to a similar quantum of development, a recent appeal decision highlights that despite the existence of some local facilities, residents would need to travel to larger centres for supermarkets, pharmacies and leisure services. The dominance of the car as the form of transport for commuting and daily needs was counted as a harm against that particular scheme.

The eLP seeks to designate Feniton as a tier 4 ‘service village’ settlement to receive ‘limited growth’. As such, the intent is not to permit an excessive or strategic scale of growth, particularly within an accelerated timeframe. The anticipated growth envisaged for the settlement has already been exceeded by the permission granted on the [address] scheme by around 86 dwellings. This is a significant scale of development relative to the anticipated level of growth of 127 dwellings and a similar number is proposed again by the appeal scheme. As only 25 dwellings have been delivered thus far of the total planned/committed, there is limited cogent evidence to demonstrate how the village’s infrastructure capacity and social and physical fabric will keep pace with the total scale of change.

The availability of train and bus services differ to those on offer when compared to urban locations. The Framework highlights this distinction between urban and rural areas. However, the amount of unavoidable outward journeys for commuting and other reasons will have been considered in the context of these available public transport services in the intent of the eLP to allow a proportionate amount of growth and the regularity with which residents would be required to choose between the available travel modes. The greater the number of reasons or combination of reasons that household members have to leave a settlement for economic, educational reasons or other purposes (i.e. leisure or shopping), the more likely it is that the private vehicle will present itself as a more convenient option, particularly in rural areas. I find the frequency of public transport services to be relatively constrained in this context. The distance to other larger settlements for access to these facilities by car is also a relevant consideration. Taking these factors together, notwithstanding the ability to promote non-car modes by way of a Travel Plan, I find that the additional future residents that would be generated by the appeal scheme would be predominantly reliant on cars. This would result in a clear and demonstrable harm relative to the sizeable quantum of development proposed in this case.

Though financial contributions secured through a S106 agreement may be able to expand capacity to accommodate additional demands where necessary, it is clear that up to a further 85 dwellings beyond the cumulative growth envisaged or permitted would substantially exceed the limited growth anticipated for the village under the eLP to that more comparable with a local centre. In my view, the appeal scheme would result in a disproportionate and accelerated expansion of the village which would undermine its sense of scale and community resilience, whilst clearly also necessitating many residents to make many vehicular trips beyond the village for everyday facilities and services.

With regard to the eLP, it is not the Council’s case that the appeal scheme would prejudice the plan-making process taken as a whole in the context of paragraph 50 of the Framework. I do not disagree with this view and the development is not premature in the context of the eLP taken as a whole. However, for the foregoing reasons, the proposal for up to 85 dwellings clearly conflicts with the eLP as expressed through draft policies SP01, SP03, SP06 and SD18. For similar reasons, the proposal would conflict with the objectives of the Framework in relation to contributing to the achievement of sustainable development, including the provision of homes, commercial development and supporting infrastructure in a sustainable manner and actively managing patterns of growth through limiting the need to travel and offering a genuine choice of transport modes.

The Council’s refusal reason refers to eLP policy SE06 in relation to town centre hierarchies but I do not consider this policy strictly relevant to the appeal scheme.

Feniton sits in a natural bowl between higher ground to the west and east, and shallower rising slopes extending north and south from the village. The higher ground to the west is the rounded hill known locally as Long Park Hill which has a copse at its summit and forms part of the setting of the village. The appeal site represents a site of some approximate 5.4ha which lies on the lower slopes of Long Park Hill.

The appeal slopes from west to east from a high point of around 82m above ordnance datum (AOD). It is currently a large agricultural field forming part of the rolling green hinterland surrounding the village. A small pumping station building sits adjacent to the eastern boundary close to an existing point of access.

There are a couple of dwellings and equestrian development to the south of the appeal site which through siting, distance and the openness of some of the grazing paddocks, read slightly separately of the consolidated built form of the village. Adjoining the northern boundary are a couple of dwellings which form a part of the built form of the village clustered around the pub and train station. To the far west of the appeal site is an impressive, detached farmhouse ([address]) and its related buildings.

The surrounding area reflects key characteristics of the relevant [name] 3E – [name] as identified in the [name] and Blackdown Hills Landscape Character Assessment (2019), including mixed farmland with medium to large regular field patterns, small woodland blocks, orchard planting, dispersed settlement with isolated farms and a strong relationship with surrounding higher ground. Long Park Hill is also noted as a locally distinctive feature within the same.

Despite the existence of the dwellings and development on the periphery of the site, its character is not particularly influenced by them. The site is clearly rural and relatively open rather than enclosed and, at 5.4ha, is of a sizeable scale. The exposure is increased for the westerly parts of the site which rise up towards Long Park Hill as noted in the Council’s Site Assessment and Summary4.

In my view, despite the absence of a ‘[name] designation under the terms of Framework paragraph 187, the character and value fabric of the site has been understated in the appellant’s evidence. This is in part because the site’s topography and part of the rising land to the locally distinctive [address] make a greater contribution than has been acknowledged. The development of the substantial scale proposed would mark a significantly urbanising expanse on this rising, open ground and even if it would leave the trees and hedgerows intact, it would still substantially harm the landscape character of the area. 4 Council’s Statement appendix 8, page 39

Having visited the viewpoints (VPs) in the appellant’s evidence, it is clear that there would be more restricted visibility from the west due to local topography and intervening landscape features (VPs 5, 6 and 7). As such, I do not disagree with the medium or moderate degree of harmful visual effect from these viewpoints at year 15. The effects on pedestrian and cyclist receptors accessing the area for recreational purposes at the junction of Green Lane and [address] (approximately VP2) would be major adverse in a similar manner to VPs 3 and 4 which are situated along [address]. I do not dispute the findings in relation to the more distant VPs 8 and 9.

The effect on receptors on the public right of way (PRoW) Footpath 1 to the extending south from Green Lane do not appear to have been assessed. In my view, these too would be major adverse at year 1, without much filtering of views by topography or intervening features. It is suggested that the wider countryside is experienced from existing PRoWs and that the appeal site does not form a key scenic focus. However, from this particular PRoW, the site is a fairly sizeable component of the visible landscape owing to its size and the way that its slope faces towards receptors. It is a clear component of a locally important rural backdrop that would be greatly harmed by the development.

[name] do not consider that the development would fully coalesce with [address], it would inevitably reduce the sense of it having an isolated and commanding position in relation to the settlement. Some separation would remain and [address] would still be elevated above the roof heights of any dwellings built around the 80m AOD contour or lower, but its foreground would be an urban form of development rather than a sweep of agricultural land.

The proposal seeks to include additional structural planting and buffers to strengthen and complement the retained and enhanced boundary trees and hedgerows. However, there is relatively limited existing tree cover and any such planting would take a reasonable time to mature. Even assuming a 15 year passage of time and a reasonably successful establishment of the aforementioned landscaping measures, the harmful adverse effects would still be major for viewpoints along [address] and along Footpath 1.

I accept that there is an inevitability of harm when a residential development occurs on a greenfield site. The effects from developing this particular site would be relatively geographically localised but owing to the topography and open qualities of the site and the scale and nature of the development, those effects would not be particularly limited. Having considered the site and the sites of the other development commitments in the area (i.e. [name], Beechwood and [address]), the appeal site provides the greatest contribution to the landscape and visual quality of the area and the number of receptors that would experience the change would not be insignificant in number. This view is corroborated in part for at least the Beechwood and [name] sites by the Council’s findings that the appeal site represents a more sensitive option than others in Feniton which has ultimately informed their selection as preferred options.

Notwithstanding that the proposal may incorporate fewer dwellings than have been previously considered and in a more landscape-orientated arrangement, the development would still seriously harm the character and appearance of the area. It would therefore conflict with Strategies 7 and 46 and Policy D1 of the Local Plan and policies H3 and E1 of the FNP. These policies seek to protect important landscape characteristics, prominent topographical features, rural character and requires development to avoid adverse impacts on those defining qualities.

For similar reasons, the proposal also conflicts with draft policy DS01 of the eLP which seeks to ensure development respects the key characteristics and special qualities of the area in which the development is proposed.

The submitted unilateral undertaking (UU) dated 18 December 2025, made pursuant to s106 of the Town and Country Planning Act 1990, provides for: • 50% affordable housing with a split of 70% social/affordable rent and 30% shared ownership tenures; • Provision of on-site public open space with related management measures; • A habitats mitigation contribution to offset the impacts of the development on the East Devon Heaths Special Protection Area and the East Devon Pebblebed Heaths Special Area of Conservation. • Secondary education transport contribution to get pupils to outlying secondary schools; • Biodiversity net gain (BNG) provisions and relating monitoring measures; • Travel plan obligations; and • Details concerning the provision of the community eco-hut, such as its definition as a single storey building/structure (with a gross internal area of up to 45sqm) offering flexible community space to promote climate awareness and social inclusion to be provided prior to occupation of seventy five percent of the development and management provisions relating to the same.

Regulation 122 of the Community Infrastructure Levy Regulations (2010) (CIL Regulations), as amended, and the Framework (paragraph 58) set out that planning obligations must only be sought where they meet the relevant tests, including where they are necessary to make the development acceptable in planning terms, directly related to the development and fairly and reasonably related in scale and kind to the same. The necessity for the various components of the S106 and the methods of calculation for the various financial contributions and the related links to policies of the development plan is outlined in the evidence.

I am satisfied that all of the components of the UU would be necessary, directly related, and fairly and reasonably related in scale and kind to the development or are either intended to be taken into consideration as a proportionate benefit of the scheme. As such, the measures in the UU can be taken into consideration as part of the overall planning balance. East Devon Heaths Special Protection Area (SPA) and [name]

The SPA is designated under the Conservation of Habitats and Species Regulations 2017 (as amended) (Habitats Regulations) for its populations of breeding [name] (Sylvia undata); and breeding Nightjar (Caprimulgus europaeus). The SAC is designated for its northern Atlantic wet heath habitats with Erica tetralix; and European dry heath habitats. The SAC supports the Southern damselfly although they are not a primary reason for selection.

The conservation objectives of the SPA include the need to ensure that the integrity of the site is maintained or restored as appropriate, and ensure that the site contributes to achieving the aims of the [name], by maintaining or restoring the extent and distribution of qualifying natural habitats and structure and function of the habitats of the qualifying feature. The conservation objectives of the SAC include the need to ensure that the site contributes to achieving the favourable conservation status of its qualifying features and the populations of qualifying species by maintaining or restoring the extent, distribution and structure and function of qualifying natural habitats and habitats of qualifying species.

The scheme is not directly necessary for the management of the SPA or SAC, however, there is the potential for the proposal to cause likely significant effects through additional recreational disturbance when taken in combination with other similar schemes. This is the only impact pathway relative to the scale, nature and location of the development. As such, an appropriate assessment under the Habitats Regulations is necessary.

The appellant has agreed to opt into a strategic solution offered by the Council to mitigate the impacts of their development on the SPA and SAC in the form of The South-East Devon European Sites [name] (2014) (the Strategy). This would take the form of financial contributions to help pay for the mitigation measures set out in the Strategy. The Strategy details mitigation measures (on-site e.g. rangers and signage) along with costings for these measures. The cost of the strategic mitigation contribution has been calculated at £196.81 per dwelling.

As the contributions towards the Strategy have been secured via the UU, the integrity of the SPA and SAC will be maintained. As the competent authority for the purposes of the Habitats Regulations, I conclude that there will not be adverse effects on the integrity of the SAC or SPA alone or in-combination with other proposals or projects.

The appeal site lies within the ‘New Feniton Critical Drainage Area’ (CDA) but has been found not to be at risk of flooding itself. The submitted details also indicate that the design approach to drainage will comply with the CDA ‘[name] and will offer betterment to the downstream catchment by offsetting the future impacts of climate change, reducing the peak rates of surface water runoff and reducing flood risk overall. I return to this in the planning below.

Insofar as the proposal comprises a sizeable greenfield development outside of the BUAB for Feniton which has limited facilities and is located where reliance on the private vehicle for most residents is a likely outcome, it conflicts with the current development plan. This is a significant harm which weighs against the scheme. There would also be harm to the character and appearance of the area relative to the scale of the scheme which, despite the absence of a valued landscape or other higher status designation, is a serious harm.

It is not in dispute between the parties that the Council’s current housing land supply position is around the 3.5 year mark compared to the Framework’s minimum requirement of a 5 year supply with relevant buffer. On the evidence before me, the related shortfall in supply is around 1,746 dwellings5. As a consequence, the provisions of paragraph 11 d) of the Framework are engaged for decision making purposes and I reduce the weight to the policies of the development plan, including the FNP, that limit development to BUABs, specifically limit development within service villages such as Feniton and require a balanced approach to the growth of communities.

There are no flood risk, SAC or SPA issues that represent strong reasons for refusal under footnote 7 and paragraph 11 d) of the Framework.

At the time of the decision on the [address] scheme for up to 86 dwellings, the Regulation 19 consultation on the eLP had not been commenced, far less concluded, and the submission of the eLP for examination was not so imminent. The constraints that apply to the wider [name] district have also been brought to my attention by the appellant. These wider issues will be considered more thoroughly at the examination for the eLP and in the preparation of a plan to follow shortly thereafter. I do not dispute that the appeal scheme could help avoid a proportionate amount of development on those more highly constrained areas. However, this is very far from a conclusion that there are limited other options for growth or that if all of the other available options, including the appeal scheme, are needed, that they are all needed all at once, without delay and without regard to the proportionality of scale relative to host settlements, their available employment opportunities and range of facilities. The process of plan making has a clear role to play in creating genuinely sustainable communities and it is for this reason that I attribute limited-modest weight to the conflict with the policies of the eLP as well.

The uncertainty on delivery that prevailed at the time of the [address] decision has reduced in the intervening period and the [address] scheme itself has provided a buffer of almost double the planned ‘limited’ growth to provide choice and competition. It was also reasoned in the [address] decision that the shortfall in the housing land supply was expected to worsen in the absence of a new Local Plan. However, the reality is the opposite. Despite the eLP not yet having progressed to adoption, the shortfall in supply has since decreased from a range of between 2,313 and 2,922 dwellings6 then to around 1,746 dwellings now. This shows that the shortfall has materially reduced even if it is likely that it will persist at some level until at least adoption of the eLP.

Turning to the benefits, the main benefit of the scheme is the delivery of housing in the order of 85 dwellings in the context of a current housing shortfall of at least 1,746 dwellings which is still a serious shortfall. Another key benefit is the 50% provision of affordable housing of mixed tenures which would go towards meeting an identified local need for such. Each of these benefits attracts substantial weight in favour of the scheme.

There would be economic benefits associated with the scheme. The submitted [name] indicates that the scheme would directly support 45 jobs throughout the construction period and significant related investment and wider job creation. Thereafter, residents would also indirectly support additional 5 [name] to 31 March 2025 6 Paragraph 86 of appeal decision jobs in the wider local economy on expenditure such as through furnishing homes, general retail and leisure expenditure. Despite these types of benefits not being entirely unique to the appeal scheme, these construction and operational phase benefits attract great weight.

The provision of around 3ha of public open space is a positive aspect of the scheme and together with the provision of a community Eco-Hut are aspects that each attract modest weight.

There would be biodiversity enhancements, through both the provision of levels exceeding statutory BNG and through deliberate habitat creation, including through landscaping measures. These are aspects which attract modest weight as benefits of the scheme.

The reduction in surface water flood risk downstream of the site is also an aspect which weighs in favour of the scheme.

Where the agreed conditions or provisions of the UU could offset any harms from the development, these weigh neither for, nor against the proposal.

Under Framework paragraph 11 d) ii), consideration must be given to whether any adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the Framework policies taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination. Having given due regard to these matters, I consider that when taken together, the adverse impacts of granting permission would significantly and demonstrably outweigh the totality of the benefits outlined above.

As a consequence, the presumption in favour of sustainable development does not indicate that a decision should be made other than in strict accordance with the development plan when taken as a whole. Returning to the ordinary balance, the considerations advanced in favour of the scheme, including the range of identified benefits, do not outweigh the conflict with the development plan when taken as a whole such as to indicate that a decision should be made other than in accordance therewith.

[name] note the issues concerning the absence of agreement on the Local Housing Allowance definition in the submitted UU, this is not a decisive reason as the appeal is failing for other reasons in any event.

For the foregoing reasons, the appeal should be dismissed.