Appeal 6003056

The appeal is dismissed.

My site visit confirmed that the appeal development has already been carried out. I have determined the appeal on that basis.

During the appeal process the appellant submitted an amended drawing showing a revised position for the vehicular access. The Council and interested parties have had the opportunity to comment on it during the appeal process. I am therefore satisfied that no procedural unfairness arises from considering whether the amended drawing should be accepted.

However, I must also consider whether the amended plan would amount to a fundamental or substantial change to the development. The amended drawing alters the location and geometry of the access, with consequential implications for visibility, boundary treatment and the relationship with the highway. These matters formed part of the reasons for refusal and were a key component of the Council’s assessment of the appeal development.

In my judgement, the amended access arrangement would result in a materially different scheme from that which was before the Council at the time of its decision. The revised access would require a different configuration of fencing, a different relationship with the highway verge and a different assessment of visibility splays. Accepting it would therefore go beyond what can reasonably be dealt with in the context of this appeal.

For these reasons, although the parties have had the opportunity to comment, I have determined the appeal on the basis of the plans refused by the Council, and I have not taken the amended access drawing into account.

The main issues are: • whether the development conserves or enhances the character and appearance of the Chilterns National Landscape; • whether the development is inappropriate development in the Metropolitan Green Belt having regard to the National Planning Policy Framework (the Framework) and relevant development plan policies; • the effect of the development on the openness of the Green Belt; • the effect of the development on the setting and significance of nearby non-designated heritage assets; • the effect of the development on biodiversity; • the effect of the development on highway safety; and • if the development is 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 appeal site is located in the Chilterns National Landscape (CNL). The statutory purpose of National Landscapes is to conserve and enhance the natural beauty of the area. Section 85 of the Countryside and Rights of Way Act 2000 (as amended) now includes the duty on relevant authorities that they must seek to further this purpose when exercising or performing any functions in relation to, or so as to affect, land in a National Landscape. Furthermore, the Framework requires that great weight should be given to conserving and enhancing landscape and scenic beauty in National Landscapes, which have the highest status of protection.

The CNL is characterised by wooded horizons, rural lanes, hedgerows and a generally soft and verdant edge to settlements. The Landscape Character Assessment identifies rural roads, roadside trees and woodland edges as key features.

Based on the evidence before me, prior to the erection of the 1.9-metre-high close-boarded timber fence, the site formed an undeveloped and distinctly rural gap within the frontage of [site address] . Although dense woodland extended up to the former post-and-rail boundary, that boundary was low and informal, and the land behind it retained a natural, unmanicured appearance. In this form, the site read as part of the countryside-influenced fabric within this part of the village.

Despite being flanked by residential properties, the site made a clear and appreciable contribution to the rural rhythm of the lane. Its informal, vegetated character contrasted with the more enclosed and managed curtilages nearby and reinforced the softer, countryside-influenced qualities that define this part of [site address] . Against this context, the site’s natural, undeveloped character played a meaningful role in supporting the rural qualities of this part of the village and the wider CNL.

The 1.9-metre-high fence that has been erected presents as a tall, stark and urbanising feature along [site address] . Its height and continuous form introduce a harsh enclosure uncharacteristic of this part of the lane, where frontage treatments are generally softer and more traditional in appearance. The development interrupts the rural rhythm of the street scene and erodes the sense of ruralness and informality that characterises this part of the village.

The appellant points to other high boundaries within the village. However, these examples relate to domestic plots and differ materially in their context, form and integration. They do not alter the prevailing rural qualities of this stretch of [site address] , and the fence before me appears visually intrusive when read against that established character.

For these reasons, the development fails to conserve or enhance the character and appearance of the CNL. Consequently, it conflicts with Policies GC1 and LSQ1 of the Chiltern Local Plan (Adopted 1 September 1997, with subsequent alterations) (LP) and Policies CS20 and CS22 of the [name] for Chiltern - adopted November 2011 (CS), insofar as they expect development to conserve and enhance landscape character, avoid harm to scenic beauty, and respect the special qualities of the Chilterns. Furthermore, I find that the duty to seek to further the purpose of conserving and enhancing the natural beauty of the National Landscape is not met.

The appeal site lies within the Metropolitan Green Belt. The Framework attaches great importance to Green Belts. It states that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open and identifies openness and permanence as their essential characteristics.

Paragraph 154 of the Framework states that development in the Green Belt is inappropriate unless it falls within one of the listed exceptions.

Policy GB2 of the LP reflects the Framework’s general aims by permitting only certain forms of development in the Green Belt.

Based on the evidence before me, it has not been demonstrated that the appeal development falls within any of the exceptions in Paragraph 154 of the Framework.

Additionally, the Framework explains that development within the Green Belt should not be regarded as inappropriate where the development meets all the criteria set out in Paragraph 155 of the Framework.

The first criterion requires that the development utilises ‘grey belt’ land and does not fundamentally undermine the purposes of the remaining Green Belt across the area of the plan. However, the definition of ‘grey belt’ excludes areas identified in footnote 7 of the Framework, where the application of relevant policies would provide a strong reason for refusing or restricting development. This footnote specifically includes National Landscapes.

The appeal site lies within such a designation, and I consider that the previously identified harm provides a strong reason for refusing the appeal development. Accordingly, the site does not constitute ‘grey belt’ land and the allowance for development in terms of Paragraph 155 of the Framework is not met.

For these reasons, I conclude that the development is inappropriate development in the Green Belt, which is, by definition, harmful to the Green Belt.

Openness is an essential characteristic of the Green Belt and has both spatial and visual dimensions.

Spatially, the fence encloses land that was previously free of built form. Although dense woodland and scrub extended up to the former post-and-rail boundary, that earlier boundary was low and informal and did not introduce a solid or continuous structure around the site. The new enclosure runs around the full perimeter and introduces a substantial built feature where none previously existed. In doing so, it creates a rigid and uninterrupted edge that materially increases the sense of enclosure and represents a significant physical intervention in the landscape.

Visually, the fence is a prominent and assertive element in the street scene. Its height, solidity and uniform appearance create a strong sense of enclosure along a notable stretch of [site address] . The new structure presents a long, unbroken frontage that interrupts the rural qualities of the lane and introduces a suburbanising influence. This results in a clear reduction in the visual openness that contributes to the Green Belt’s character in this location.

The appellant argues that the fence is temporary and that the land itself remains undeveloped. However, openness is affected by the presence of built form, irrespective of its permanence. A temporary structure can still reduce openness. Given the fence’s height, length and massing, its effect on openness is appreciable.

The appellant also contends that the site should be regarded as part of the village envelope, where more substantial boundary treatments are common. However, the Framework does not provide a general exemption for boundary structures of this scale, nor does it remove the requirement to assess their impact on openness. The fact that the site forms a gap within the built-up frontage does not diminish the need to consider the effect of enclosing previously open land.

For these reasons, I find that the development fails to preserve the openness of the Green Belt.

The site lies between [address] and [name], both identified as non-designated heritage assets (NDHAs). Their significance derives in part from their historic form, materials and contribution to the traditional linear pattern of development along [site address] . The rural setting and the informal, open character of the lane contribute positively to their significance.

The fence forms a visually assertive and incongruous feature within their setting. Its scale and uniformity contrast with the more traditional and varied boundary treatments that contribute to the significance of these buildings. The fence interrupts the visual relationship between the NDHAs and their rural surroundings and introduces a modern, suburban boundary treatment that detracts from their setting.

For these reasons, the development results in unacceptable harm to the setting of both NDHAs. Consequently, it conflicts with Policy GC1 of the LP and Policy CS20 of the CS, insofar as they require development to respect, conserve and avoid harm to the significance of non-designated heritage assets, ensuring proposals are sensitively designed so that locally important historic buildings, structures and features continue to contribute positively to the character and appearance of the area.

Although vegetation was cleared before the application was submitted, that activity does not form part of the development before me. My assessment therefore focuses on the ecological implications of the fence and access, while recognising that an accurate ecological baseline is still required in order to understand the effects of the development.

The Council’s ecological records identify the site as a [name], which is a Habitat of [name] under Section 41 of the Natural Environment and Rural Communities Act 2006.

The appellant disputes the orchard designation, but no ecological evidence has been provided to demonstrate that the site does not meet the criteria for priority habitat. In the absence of survey information, habitat assessments or expert ecological opinion, I must rely on the Council’s ecological data, which identifies the site as [name].

Turning to the effects of the development, the Council’s ecologist raises concerns that its solid, close-boarded construction creates a barrier to the movement of amphibians and reptiles, including great crested newts and common toads. The site lies within a [name] [name], and ponds lie approximately 14 metres and 100 metres from the site. The Ecological Appraisal acknowledges that the land previously provided suitable terrestrial habitat for great crested newts. The fence, by virtue of its design and lack of permeability, therefore has the potential to obstruct dispersal routes, which is a recognised impact pathway for [name].

The appellant suggests that the fence could be made permeable, but no details of such measures have been submitted. Nor has any survey information been provided to establish the presence or likely absence of protected species, the extent of their use of the site or the suitability of mitigation. Without this evidence, I cannot be satisfied that the fence avoids harm to protected species, whether through barrier effects or altered movement patterns.

The development also triggers the requirement for statutory [name] (BNG). [name] metric, baseline assessment or Biodiversity Gain Plan has been submitted. In the absence of this information, it is not possible to determine the pre-development biodiversity value, whether the development achieves the mandatory BNG requirement or whether on-site or off-site measures are necessary to compensate for the ecological impacts of the fence and access.

While the earlier vegetation clearance is not part of the development before me, the planning system must still assess the ecological baseline against which the effects of the fence are judged. Given the site’s identification as priority habitat, its proximity to ponds supporting amphibians, and the absence of ecological survey information, I cannot conclude that the fence and access avoid harm to biodiversity or comply with the requirements of the development plan and the Framework.

For these reasons, it has not been adequately demonstrated that the development avoids unacceptable harm to biodiversity. It therefore conflicts with Policy CS24 of the CS, which requires development to conserve and enhance biodiversity, protect important habitats and species, and secure long-term management, restoration and, where possible, expansion of ecological networks. The policy also requires mitigation or compensation delivering a net gain in biodiversity where harm is unavoidable.

[site address] is a classified road subject to a 30mph speed limit. Visibility splays of 2.4 metres x 43 metres are required. The 1.9-metre-high fence lies within both splays and obstructs the sightlines needed for drivers to see approaching traffic. In addition, the gate is not set back sufficiently to allow vehicles to wait clear of the carriageway.

The appellant states that the access would be used only occasionally. However, the frequency of use does not remove the need for safe access arrangements. Even infrequent manoeuvres require adequate visibility in order to allow drivers to enter or exit the site without creating conflict with vehicles already travelling along the road.

For these reasons, the development results in an unacceptable risk to highway safety. Consequently, it conflicts with Policies TR2 and TR3 of the LP and Policy CS25 of the CS, insofar as they require that development provides safe access, adequate on-site parking and turning, and must not create or worsen highway dangers.

‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the development, is clearly outweighed by other considerations.

The appellant advances material considerations in support of the development. I recognise that the appellant has experienced issues with unauthorised access and fly-tipping. These are legitimate planning considerations, and the desire to secure the land is understandable. However, the appellant has not demonstrated that alternative, less visually intrusive means of securing the site were explored or discounted. While security carries some weight, it is limited by the absence of evidence that less harmful solutions would be ineffective.

I have concluded that the development is inappropriate development in the Green Belt, which is, by definition, harmful. I have also found that it causes unacceptable harm to the openness of the Green Belt. In accordance with the Framework, I give substantial weight to these harms.

In addition to the Green Belt harms, I have identified further harm in respect of the protected landscape, non-designated heritage assets, biodiversity and highway safety. These matters carry additional weight against the development.

Balanced against these harms are the other considerations advanced in support of the development. However, for the reasons given, those considerations, whether taken individually or cumulatively, do not clearly outweigh the harm to the Green Belt, to which substantial weight must be attached, nor the other harms I have identified.

The development is inappropriate development in the Green Belt, it harms its openness and the very special circumstances necessary to justify the development do not exist. Consequently, it is contrary to the objectives of the Framework and Policy GB2 of the LP, which seek to protect the Green Belt against inappropriate development and safeguard its openness.

The appellant raises concerns about the Council’s handling of the application, including the Tree Preservation Order, enforcement actions and perceived inconsistency with other boundaries in the village. These matters relate to procedural administration rather than to the planning merits of the development and are not material to this appeal.

Concerns are also expressed regarding officer conduct, communication and tone. [name] recognise the appellant’s frustration, such matters fall outside the scope of a planning appeal and do not bear on the issues before me.

Reference is made to possible future proposals for the land. However, the appeal must be determined solely on the basis of the development applied for, and future intentions are not material considerations.

The appellant also refers to the lawful felling of trees under a Forestry Commission licence. As those works do not form part of the development before me, they do not influence the planning assessment of the fence and access.

Finally, the appellant raises concerns about the impact of the appeal process on their personal circumstances. [name] am sympathetic to the stress that planning disputes can cause, personal circumstances do not constitute material planning considerations in this case.

For the reasons given above, the development conflicts with the development plan and the material considerations, including the Framework, do not indicate that the appeal should be decided other than in accordance with it. Accordingly, the appeal should be dismissed.