Appeal 6003125

The appeal is dismissed and planning permission is refused.

The appeal relates to a planning application that was not determined by the Council within the prescribed period. I note that the Council would have refused planning permission had it made a decision on the proposal for reasons relating to the effect of the proposal on the provision of social and community infrastructure and biodiversity. I have had regard to the parties’ submissions in establishing the main issues which I set out below.

The main issues are: • the effect of the proposed development on biodiversity; and • the effect of the proposed development on the provision of social and community infrastructure.

Policy G6 of the London Plan specifies that development proposals should manage impacts on biodiversity and aim to secure net biodiversity net gain. Policy 26 of the Local Plan sets out that new development should incorporate opportunities to enhance biodiversity, wherever possible.

The appellant has provided a [name] and Preliminary Roost Assessment (PEA&PRA) which details the results of a site survey and recommendations for further work. The report acknowledges that the survey was completed outside of the optimal survey period. There is no evidence before me to suggest that, in the context of the survey having been undertaken outside of the optimal period, a precautionary approach has been taken in respect of what this may mean for the findings of the survey. In the absence of this, I am not satisfied that the biodiversity value of the site has been fully established, thereby limiting the potential for impacts on biodiversity to be fully managed.

Moreover, the submitted report does not fully assess the value of the site for roosting bats, with assessment limited to the buildings on site and 2 trees which were identified to be removed at the time the report was prepared (referred to as T1 and T2). The submitted plans and [name] indicate that additional trees are proposed to be removed to facilitate the development, including T4, T10 and T11.

The PEA&PRA specifies that it should be updated once impacts to trees are established and that if additional trees are to be felled to facilitate the development a Ground Level Tree Assessment may be required. No such assessment is before me and the [name] provided considers the existing buildings only.

Some commentary is provided within the appellant’s final comments regarding the suitability of T10 and T11 for roosting bats. However, there is no evidence before me to suggest that the bat roosting potential for T4 has been considered. In this context, I am not satisfied that the suitability of the site for roosting bats has been appropriately and robustly assessed. In the absence of this, I have insufficient information before me to conclude that the proposed development would not have a harmful effect on biodiversity, particularly on bats which are a protected species.

In addition to the above reports, a Biodiversity Net Gain Assessment was provided by the appellant. The Council raises concerns regarding the baseline biodiversity value of the site identified in this assessment. Nevertheless, this matter could be dealt with through the discharge of the biodiversity gain condition which would be attached to any planning permission in accordance with Schedule 7A of the Town and Country Planning Act 1990 and, as such, does not warrant the refusal of planning permission.

Nonetheless, on the basis of the information before me and in taking a precautionary approach, I conclude that the proposed development would have a harmful effect on biodiversity. As such, the proposal would not accord with the relevant provisions of Policy 26 of the Sutton Local Plan 2016-2031 (adopted

(the Local Plan) and Policy G6 of the London Plan 2021 (the London Plan).

The appeal site comprises a vacant tennis club which has not been in use for a long period of time. While the pavilion on site has previously been used for residential purposes for a temporary period, this use ceased in 2017. Consequently, the proposed development would result in the loss of the existing lawful use of the site as a tennis club.

Policy 21 of the Local Plan identifies that the Council will support development that involves the retention and improvement of facilities that promote healthy lifestyles, such as leisure facilities and open space. Policy 22 of the Local Plan states that the Council will not grant planning permission for development that involves the loss of social and community infrastructure unless (i) it can be demonstrated that the facility is no longer required in its current use or for any alternative social or community use and (ii) suitable alternative provision is made or is available nearby. Policy 22 specifies that evidence should demonstrate that for a period of 12 months there had been no interest in using the premises/land for their current or other community purposes at a reasonable charge.

Policy S5 of the London Plan specifies that existing sports and recreational land should be retained unless an assessment has been undertaken which clearly shows the sports and recreational land or facilities to be surplus to requirements (for the existing or alternative sports and recreational provision) at the local and sub-regional level.

The Council does not dispute that there is alternative provision of tennis courts in the surrounding area. From the information before me, I have no reason to disagree with this finding.

A Marketing Report has been provided by the appellant which identifies the marketing activities undertaken since 2024. The marketing particulars before me refer to the suitability of the site for the existing use or other community related leisure or recreational facilities. It is evident that the site was marketed with no fixed price in order to attract as much interest as possible.

Reference is made within Appendix 2 of the [name] to a number of commercial sports/leisure companies who made enquiries in response to the marketing activities. Limited details are provided of the companies who made enquiries, as well as the nature or timing of their enquiries. However, there is no substantive evidence before me to demonstrate that marketing has not been undertaken as detailed in the submitted report. Moreover, it has not been demonstrated why full details of engagement with interested companies are required, particularly in the context of data protection regulations.

The Council has not suggested any additional type of potential operator who should have been contacted as part of the marketing activities.

The Marketing Report summarises the feedback received from interested companies. It is clear from the information provided that the size and location of the site and the lack of parking were among the reasons why companies decided not to progress their interest in the site.

Taking all of the above into account, I am satisfied that adequate information has been provided to, in accordance with the requirements of Policy 22 of the Local Plan, demonstrate that the facility is no longer required in its current use or for an alternative social or community use.

I accept that the pre-application provided by the Council dates from 2016, prior to the adoption of the current Local Plan, and that if a further pre-application submission had been made the Council would have identified the need for robust marketing evidence in accordance with Policy 22 of the Local Plan. However, as I have explained above, I am satisfied that the requirements of Policy 22 have been met.

For these reasons, I conclude that the proposed development would not have a harmful effect on the provision of social and community infrastructure. As such, it accords with the relevant provisions of Policies 21 and 22 of the Local Plan and Policy S5 of the London Plan.

The Council does not object to the proposed development on character and appearance, living conditions, parking, highway safety, sustainability or fire safety grounds, subject to appropriate conditions being secured. Nevertheless, an absence of harm in relation to these matters is neutral in my determination of the appeal.

The proposal would contribute positively towards the supply of housing and would reflect the aims of the National Planning Policy Framework (the Framework) to significantly boost the supply of housing. The housing would be provided on previously developed land, support for which is found in the Framework. Development would provide a biodiversity net gain. The proposal would also result in economic benefits during construction and once completed, including through increased use of local services and the [name]. Development would be delivered by a local small and medium enterprise housebuilder, which paragraph 73 of the Framework supports. However, given the limited scale of the proposed development, the contribution to housing supply and other benefits would be relatively limited in extent. I, therefore, afford these benefits moderate weight.

The appellant suggests that the Council is currently unable to demonstrate a 5-year housing land supply. This is disputed by the Council, based on their Five-Year Housing Land Supply Assessment 2025-26 to 2029-30 (dated April 2025). [name] to agree with the appellant on this matter, paragraph 11d) of the Framework would be engaged. Paragraph 11d) establishes that where the policies which are most important for determining the application are out-of-date, planning permission should be granted unless i. the application of policies in the Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed or ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework 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.

The proposal would deliver benefits as noted above. However, balanced against this, it would have a harmful effect on biodiversity. The Framework makes clear at paragraph 187 that decisions should contribute to and enhance the natural and local environment, including by minimising impacts on and providing net gains for biodiversity. Paragraph 192 supports the conservation, restoration and enhancement of priority habitats and the protection and recovery of priority species. For the reasons set out in relation to the first main issue, the proposal would fall wholly short of these expectations of the Framework. I afford significant weight to this conflict with the Framework in relation to biodiversity and, consequently, the Framework as a whole.

Accordingly, in this case, if paragraph 11d) were engaged, the adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole and the presumption in favour of sustainable development would not apply.

I have found that the proposed development would not have a harmful effect on the provision of social and community infrastructure. It would also deliver benefits, including by contributing towards the supply of housing. However, it would have a harmful effect on biodiversity.

Consequently, for the reasons given above, the proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Therefore, the appeal should be dismissed.