Appeal 6002924

The appeal is allowed and planning permission is granted for demolition of bungalow and erection of single storey dwelling, installation of air source heat pump at Bungalow, [site address] , [site address] , [name], Hertfordshire [postcode] in accordance with the terms of the application, Ref 3/25/1006/FUL, subject to the conditions in the attached schedule.

The appellant has made an application for an award of costs against East Hertfordshire District Council. This is subject to a separate decision.

The proposal is advanced as a self-build. During the processing of the appeal a [name] (UU) has been submitted to secure the proposal as such. The Council has been given the opportunity to comment on the UU. I shall return to this later in my decision.

These are: i) whether the appeal development would be inappropriate development for the purposes of the National Planning Policy Framework (the Framework) and Development Plan Policy; and ii) if found to be inappropriate development, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.

The Government attaches great importance to Green Belts. The essential characteristics of Green Belts are their openness and their permanence. Policy GBR1 of the East Herts District Plan 2018 (DP) identifies that planning applications within the Green Belt will be considered in line with the Framework. The Framework states at paragraph 145 that the construction of new buildings within the Green Belt would be inappropriate subject to a number of exceptions.

The appellant advances that the proposed replacement dwelling would align with a number of Framework exceptions, including as a replacement dwelling that would not be materially larger than the dwelling to be replaced, that when taking into account a realistic fallback position, as re-development of previously developed land (PDL), that would not cause substantial harm to the openness of the Green Belt, and thirdly, as residential development on grey belt land in a sustainable location, and in an area with housing shortfall, including self-build housing.

The appellant advances that the proposal would meet exception 154 g) of the Framework that supports limited infilling or the partial or complete redevelopment of PDL (including a material change of use to residential or mixed use including residential), whether redundant or in continuing use (excluding temporary buildings), which would not cause substantial harm to the openness of the Green Belt. Having regard to the Framework’s definition of PDL it is not disputed between the parties that the proposal comprises PDL. However, in order to qualify under this exception an assessment needs to be made in respect of openness.

The Framework defines one of the essential characteristics of the Green Belt to be its openness. There is no formal definition of openness but, in the context of the Green Belt, it is generally held to refer to an absence of development. Openness has both a spatial (physical) dimension, and a visual aspect. The current Framework refers to ‘substantial harm’ when considering exception 154 g).

The appeal site comprises a relatively modest sized bungalow on a semi-circular plot. As a result of front and rear projections the existing property includes varying roof profiles. It is surrounded by mature landscaping which affords the property a relatively high degree of visual containment, particularly in views from the north, east and south. The appeal site lies outside of a settlement, but is proximate to the [site address] business centre, which comprises a mix of commercial properties of varying age, scale and design.

Given the relatively contained nature of the site and the presence of the existing property, the appeal site’s contribution to the openness of the Green Belt is not strong.

The proposed dwelling would be of a simple, utilitarian design that differs to the one is replaces. Whilst the proposed dwelling would be wider than the existing property it would not be disproportionate to the width, and overall size, of the plot. Furthermore, it would have a lower ridge height than the existing and the use of timber cladding would be similar to nearby buildings. These factors would help assimilate the proposal into its surroundings.

Having regard to the variety of the scale and design of buildings within the immediate locality the proposed design would not in itself be harmful. The increased size of the property would be most apparent from the roadway to the front of the property. However, the available views of the development would be limited, and very localised, due to the proposed dwelling’s limited height and the heavily landscaped boundaries. Owing to the presence of the existing dwelling and mature vegetation any sense of Green Belt openness towards the site is already limited and I find that the proposed dwelling would not result in substantial harm to the openness of the Green Belt.

At my site visit I observed a storage container and a shed on the site. The appellant asserts that the proposal would result in the removal of these items. However, their planning status is not clear, and I therefore attach very limited weight to their removal in my consideration of the appeal.

Taking the above factors together, the proposal by reason of it its increased size, would result in some harm to the spatial and visual openness of this part of the Green Belt. However, considering the context of the appeal site and the amount and type of development proposed, any adverse effects on openness would be limited and localised. Accordingly, any harm would not be substantial when assessed against the existing situation. Consequently, the development falls within exception 154 g) of the Framework and would not constitute inappropriate development in the Green Belt. It therefore follows that it accords with Policy GBR1 of the DP that amongst, other things, applies the policies in the Framework to local decision making, including protecting the Green Belt.

Whilst the Council has assessed the proposal against paragraphs 154 d) and 155 of the Framework, the Framework only requires one exception to be met. [name] have found the proposal to accord with paragraph 154 g) of the Framework there is no need for me to consider it against any other exemptions. [name] have found the proposal would not be inappropriate development there is no need for me to consider if any very special circumstances exist.

My attention has been drawn to the planning history of the site, including the issue of a Lawful Development Certificate (LDC)1. I have not been provided with full details of the extant schemes; however, the Council do not dispute the spatial calculations cited by the appellant, or their outline, as indicated on the General Arrangement Block Plan.

The decision of the court in Mansell v Tonbridge and [name] & others [2017] [name] 1314, sets out that for a development to be a fallback position there must be a real prospect of the development being implemented. In this context a “real prospect” means one that is more than merely theoretical. Mansell states that there is no legal requirement in every case for a fallback to depend on a planning permission having been granted or a developer stating precisely how any permitted development rights available under the would be made use of. The evidence needed in each will be a matter of planning judgement for the decision maker.

The fallback schemes provide for a single storey side extension to either side of the existing property and a rear projection. Having regard to the design, siting and 1 office references: 3/24/0470/CLPO dated 22 May 2024 and single storey side extensions 3/24/0471/PNHH dated 23 April 2025 locational context of the appeal site, the difference between the LDC scheme and the proposal before me is limited in terms of their impact on openness. Indeed, the appeal proposal would have a cohesive elevation and roof profile that would appear less visually cluttered than if the existing dwelling were extended in the manner shown. Consequently, the appeal proposal would not result in material harm to the openness of the Green Belt when compared to the fallback position.

In respect of the appellant’s advances regarding additional extensions that could be undertaken at the property, I have limited information before me. Accordingly, such theoretical fallback scenarios are not determinative to the appeal scheme before me. Nevertheless, the appellant has a desire to improve the living accommodation, and I have no substantive evidence before me to suggest that there is no realistic prospect of the extant fallback schemes not being implemented. I therefore consider this fallback position to be a material consideration of significant weight in this case.

The statutory framework for ([name] (BNG) sets out a number of exemptions including self-build dwellings as defined in Section 1(A1) of the Self-build and Custom Housebuilding Act 2015 (the Act 2015). This makes it clear that the new dwelling must be occupied by the person or persons responsible for carrying out or commissioning the building. A condition to secure the proposal as self-build has been suggested. However, I do not agree that a condition to secure the dwelling as such would satisfy the test of enforceability.

During the processing of the appeal a UU has been submitted to secure it as self-build. However, the Council considers it is deficient.

The main parties are in dispute over the clause that seeks evidence to ensure the property is self-build. I, however, am satisfied that the provisions within the UU would be sufficient to satisfy definition of ‘self-builder’ as set out in Act 2015.

Also, in dispute is where the Council are seeking for the appellant to commit to a payment in respect of the Council’s costs if they take enforcement action, resulting from a breach of the obligation. All planning permissions probably have some potential for a dispute over compliance, for instance departure from the plans, breach of conditions. However, it is not normally thought necessary to anticipate this and guard against it in the way that the Council are seeking in this case. Unfortunately, all enforcement cases take up staff time and incur costs. In respect of this matter of dispute my attention has been drawn to the judgement2 where [name] found that administering, monitoring and enforcing planning obligations was part of the Council’s functions as a local planning authority. The subsequent amendment to the [name] allows for monitoring fees but does not mention administration or enforcement costs. Consequently, I do not consider that it is reasonable or necessary to include the enforcement clause3 requested by the Council.

I am therefore satisfied that the UU would secure the provisions necessary to make the proposal acceptable. On this basis the mandatory [name] (BNG) requirements under the Environment Act 2021 do not apply as self-build proposals are exempt from the statutory 10% net gain requirement. 2 Oxfordshire County Council v Secretary of State for Communities and Local Government [2015] EWHC 186 (Admin) 3 Clause 7

The Council has suggested several conditions. I have included those which meet the six tests set out in the Framework and the Planning Practice Guide (PPG), rewording where necessary, for clarity. In addition to the statutory commencement condition, a condition is necessary to ensure that the development complies with the submitted plans in the interest of clarity. In the interests of character and appearance a condition for the external finish of the proposal is necessary.

To promote sustainable modes of transport a condition for the provision of cycle parking is reasonable and necessary. To comply with Policy DES4(e) of the [name] shall impose a condition for a bin store to be agreed.

Conditions for the retention of existing landscaping and for a proposed hard and soft landscaping scheme are necessary in the interests of character and appearance and biodiversity. The landscaping condition includes retention clauses and thus a separate condition (no 9 as suggested by the Council) is not necessary. I shall impose a condition to secure biodiversity enhancements in accordance with the policies of the LP.

In accordance with DP Policy WAT4 I shall impose a condition to ensure compliance with the Building Regulations optional water efficiency standard of 110 litres (or less) per person per day.

The Council has suggested a condition for the removal of rights to extend or alter the property under Class A (enlargement, improvement or other alteration of a dwellinghouse), B (additions etc to the roof of a dwellinghouse), C (Other alterations to the roof), D (porch) and E (buildings etc incidental to the enjoyment of a dwellinghouse) of the Town and Country Planning (General Permitted Development) (England) Order 2015. The Framework states that planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so. In this circumstance I concur that it is unnecessary to remove Class C which covers other alterations to roofs such as re-roofing or the installation of roof lights/windows. However, I shall remove Class E as limiting these rights would be reasonable and necessary to maintain control over future additions in the interests of the openness of the Green Belt.

In the interests of character and appearance a condition regarding the finished site levels is necessary. To adapt to climate change, in accordance with DP policies DES4, CC1 and CC2, I shall impose a condition requiring the submission of measures to reduce carbon emissions in the build. To protect the living conditions of existing occupiers I shall impose a condition regarding the sound levels omitted from the air source heat pump.

A condition for the provision of electric car charging is not necessary as this is covered by other legislation.

Having regard to the development plan and national planning policy, the proposal would not result in substantial harm to the openness of the Green Belt and therefore complies with paragraph 154 g) of the Framework. The proposal complies with the development plan as a whole and the appeal is therefore allowed.

The development hereby permitted shall be begun before the expiration of 3 years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following approved plans: 222499-PL-001-A, 222499-PL-002-D, 222499-PL- 100-E, 222499-PL-101-E and 222499-PL-300-F.

Prior to any above ground construction works being commenced, the external materials of construction for the development hereby permitted shall be submitted to and approved in writing by the Local Planning Authority, and thereafter the development shall be implemented and maintained as such in accordance with the approved details.

Prior to the first occupation of the development hereby approved, details of cycle parking facilities shall be submitted to and approved in writing by the Local Planning Authority and thereafter the development shall be implemented in accordance with the approved details prior to first occupation and retained thereafter.

Prior to the first occupation of the development hereby approved, details of a bin store shall be submitted to and approved in writing by the Local Planning Authority and thereafter the development shall be implemented in accordance with the approved details prior to first occupation and retained thereafter

All existing trees and hedges shall be retained, unless shown on the approved drawings as being removed. All trees and hedges on and immediately adjoining the site shall be protected from damage as a result of works on the site, to the satisfaction of the Local Planning Authority in accordance with BS5837: 2012 Trees in relation to design, demolition and construction, or any subsequent relevant [name], for the duration of the works on site and until at least five years following contractual practical completion of the approved development. In the event that trees or hedging become damaged or otherwise defective during such period, the Local Planning Authority shall be notified as soon as reasonably practicable and remedial action agreed and implemented. In the event that any tree or hedging dies or is removed without the prior consent of the Local Planning Authority, it shall be replaced as soon as is reasonably practicable and, in any case, by not later than the end of the first available planting season, with trees of such size, species and in such number and positions as may be agreed with the Authority.

Prior to the first occupation of the development hereby permitted, details of both hard and soft landscaping shall be submitted to and approved in writing by the Local Planning Authority. These details shall include hard surfacing materials, retained landscape features, planting plans, schedules of species, planting sizes and densities, and an implementation timetable. The landscaping shall be implemented in accordance with the agreed details and timetable. Any trees, shrubs or other planting comprised in the approved soft landscaping, including retained boundary planting, which within five years of planting are removed, die, or become seriously damaged or defective shall be replaced in the next planting season with others of similar species, size and number.

Details of ecological enhancement measures (including but not limited to bat boxes/bricks, bird boxes/bricks) shall be submitted and approved by the Local Planning Authority prior to the first occupation of the development. The development hereby permitted shall be carried out in accordance with the approved details prior to first occupation and retained in that form thereafter.

The development, hereby permitted, shall not be occupied until measures to ensure compliance with the Building Regulations optional water efficiency standard of 110 litres (or less) per person per day have been incorporated and are available for immediate use. The measures shall thereafter be retained.

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 ([name]), or any amending Order, the enlargement, improvement or other alteration of the dwellinghouse under Schedule 2, Part 1, Class A, B, D and E of the Order shall not be undertaken without the prior written permission of the Local Planning Authority.

Prior to commencement of any above ground construction works, detailed plans showing the existing and proposed ground levels of the site relative to adjoining land, together with the slab levels and ridge heights of the proposed buildings, shall be submitted to, and approved in writing by the Local Planning Authority and the development shall be carried out in accordance with the approved details.

Prior to any above ground construction works, details of how the design, materials and operation of the approved development would minimise carbon emissions, reduce energy demand, limit overheating in the summer and reduce the need for heating in the winter shall be submitted to and approved in writing by the Local Planning Authority. Thereafter, the development shall be implemented in accordance with the approved details. The external sound level emitted from plant, machinery, or equipment (including air source heat pumps), at the development hereby approved shall be in accordance with the details contained within the submitted air source heat pump specifications produced by [name] dated 22/07/2025. ***End of Schedule***