Appeal 6003224

The appeal is dismissed.

The main issues are: • whether the proposal would provide adequate living conditions for the future occupants of the development, with specific regard to outlook, privacy and outdoor amenity space; and, • whether the proposed development would provide a biodiversity net gain.

The proposed development involves the change of use of the rear section of a retail premises to a residential unit. The ground floor would comprise a kitchen and lounge area, together with a bathroom and a utility cupboard. During my site visit, it was evident that, following the removal of existing walls and the installation of new partitions, this area would form a long but narrow internal space. It would be served by three windows. However, these windows would face directly onto a tall rear boundary wall and an external staircase, both positioned in close proximity. This arrangement would result in poor outlooks from the ground floor accommodation, falling short of a reasonable standard.

The upper floor of the appeal site would accommodate a bedroom, with a bathroom positioned to the rear. As a habitable room, the bedroom would be served by a set of patio doors. Beyond these doors are the windows serving the rear elevation of [address]. The Residential Design Guide Supplementary Planning Document 2014 (SPD) establishes minimum separation distances between habitable rooms, specifying a requirement of 21 metres in circumstances such as this. The appeal proposal would fall significantly short of that standard.

While it is acknowledged that the SPD provides guidance rather than absolute policy, it nonetheless constitutes an important material consideration. Applying my planning judgement, I consider that the markedly short separation distance in this case would give rise to an unacceptable level of overlooking, resulting in a material loss of privacy.

The SPD also sets out the minimum private amenity space expected for residential development. For a one‐bedroom dwelling, it specifies a requirement of 50 m2. There is no substantive evidence before me to demonstrate that the proposal would meet this standard. As a result, the development would fail to provide an outdoor area of sufficient size to enable occupants to comfortably relax outside or undertake basic activities typically associated with private amenity space, such as drying laundry outside.

It is suggested that the identified shortcomings could be addressed through design amendments. While that may be possible in principle, the responsibility for presenting an acceptable and policy‐compliant scheme rests with the appellant. I am required to determine this appeal on the basis of the plans that were before the Council at the time of its decision. I acknowledge that the proposal would meet certain requirements, including the minimum internal space standards, which weighs as an absence of harm. However, the scheme fails to comply with the relevant provisions of the SPD in other key respects.

To conclude, the proposed development would conflict with Policies HG5 and ST1 of the Ashfield Local Plan Review 2002 (LPR), along with the provisions of the National Planning Policy Framework (the Framework). These policies seek for the design and layout of dwellings to minimise overlooking and to provide an adequate garden space. The Framework stipulates at Paragraph 135 (f) that developments should create spaces that have a high standard of amenity for future occupants.

The appellant contends that the appeal site is not subject to [name] (BNG) considerations. The reason given for this is that it is a change of use, with all external space in its existing form being hard surfaced, and therefore there is no ecology on site.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) introduced a statutory framework for BNG, and it applies to all planning applications for non-major development submitted on or after 2 April 2024. Under the statutory framework, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the [name], which requires that at least a 10% increase in biodiversity value is met.

The Council refused the proposal on the basis that the application did not identify the value of existing habitats. The Planning Practice Guidance sets out the minimum information requirements for BNG that must accompany a planning application. This includes, amongst other things, a completed biodiversity metric calculation that establishes the pre-development ecological value of the site. Even if this is zero, as contended, this must be established through an evidenced based metric evaluation. Regardless of whether the appellant agrees with this stipulation, it is a mandatory national requirement.

These requirements allow for consideration of existing habitat baselines for relevant applications so there is a common understanding about the pre-development biodiversity value of the development’s onsite habitat at this stage. In determining an application, it is essential to assess whether any proposed condition relating to BNG could realistically be discharged. In this case, in the absence of key evidence, there is no basis to justify an exception to this established principle.

In view of the above, the proposal would not comply with the requirements of Schedule 7A of the Town and Country Planning Act 1990, the provisions of the Framework and Policy ST1 of the LPR. This policy requires development to not adversely affect the quality of the environment.

The parties note that the Council cannot demonstrate a five-year housing land supply. As such, Paragraph 11 of the Framework states that development plan policies which are most important for determining the application should be considered out of date. As there are no relevant policies protecting areas or assets of particular importance in this case, the requirements of Paragraph 11di)ii of the Framework therefore apply.

I have found conflict with Policies ST1 and HG5 of the LPR on the two main issues of this appeal. On that basis, I conclude that there is conflict with the development plan as a whole. These policies are in general conformity with the aims of the Framework and therefore, I attribute significant weight to these policies.

The Framework refers to significantly boosting the supply of housing. One additional unit, for a one-bedroom property, would make a small contribution to the currently low supply in Ashfield. Although this would indeed be a very small contribution, in an era of national, and in this case, local housing shortages, every home matters. This attracts considerable weight in my balance of the appeal scheme.

However, the proposal would fail to provide adequate living conditions for its future occupant, nor would it satisfy the national requirements relating to BNG. In considering the first main issue, I fully acknowledge the clear and pressing need for housing. Nevertheless, such provision must be delivered in a manner that ensures acceptable living conditions for those who will reside there. The degree of harm I attribute to this issue is not outweighed by the absence of a five‐year housing land supply in Ashfield.

When assessed against the policies in the Framework when taken as a whole, the adverse impact in relation to the living conditions of the future occupants of the proposal and the failure to provide the mandatory requirements into BNG related matters, this harm would significantly and demonstrably outweigh the benefits of the scheme.

For the reasons given above, I conclude that the proposal would conflict with the development plan as a whole and there are no material considerations that indicate that the development should be determined otherwise than in accordance with it. Therefore, the appeal should be dismissed. [planning inspector] INSPECTOR