Appeal 6003517

The appeal is allowed and planning permission is granted for the construction of 6no. dwellings at [site address] in accordance with the terms of the application, [name]/25/70687, subject to the conditions in the attached schedule.

An application for costs was made by [name] against Sandwell Metropolitan Borough Council. That application is the subject of a different decision.

My attention has been drawn to the emerging Sandwell Local Plan (SLP). However, following examination in public, the plan was found to require further work to address the borough’s housing need. Further work was requested by the Inspector, followed by a six- week public consultation. As the status of the emerging SLP is not before me, I have given it no weight in the determination of this appeal.

The application form did not provide a full address for the appeal site. I have, therefore, used the address identified by the Council on their decision notice, both for the header and in my decision.

The main issues are: • the effect of the appeal development on the character and appearance of the local area; and • whether the proposed development would provide acceptable living conditions for existing occupants of adjacent properties, with particular regard to outlook and privacy; and • the effect of the proposed development on habitats and biodiversity.

The appeal site (the site) consists of a parcel of land described as being [address] metres in area, and which lies to the north-east corner of a recently erected development of around 53 other such dwellings following a previous planning approval1. The site would take its access from a cul-de-sac known as [address], which joins the public highway at [address] to the north.

The site consists of a sloping bank which is substantially bare, having been used as a materials compound and haul road for the earlier phases of the adjacent residential development, and which runs down the eastern side of the residential estate. To the east of the site is an area of ancient woodland which runs along the ridge of the higher ground, and which links with further woodland to the south. The woodland, bank and site are included within a designation as a Site of Local Importance for Nature Conservation (SLINC) and a Local Nature Reserve (LNR).

The recently constructed residential development consists of a mix of detached, semi-detached and terraced two-storey properties. They are constructed from red brick under pitched tiled roofs. They have a consistent architectural language which includes a variety of pitched, hipped and gabled roofs, together with single storey projecting bay windows and entrance porch canopies. The materials palette is consistent, with isolated areas of render for emphasis of variety.

The proposal would extend the eastern arm of the existing cul-de-sac hammer head to provide vehicular access to the proposed dwellings, though the roadway would turn by an angle of around 15 degrees. The proposed dwellings to the north of the proposed road would be at right angles to the rear elevations of the existing properties on plots 44 to 48. The proposed dwellings to the south of the roadway would be at an angle to the existing properties on plots 39 to 43. The parking provision for the properties to the north of the roadway would be with at least one parking space being located behind the line of the principal elevation. Parking spaces for properties to the south of the roadway would be on their forecourt, though the spaces are separated between each property to prevent long runs.

The proposed dwellings would follow the architectural language of the existing residential estate. There would be a mix of gabled and hipped pitched roofs, and the material palette would be consistent. The Council noted concern with the design of Plot 3 within the decision notice. However, this has now been confirmed that their concern was with the design of the Plot 6 dwelling. They also raised concern with the provision of communal bin storage for plots 4 to 6.

Having examined the evidence before me, I find that the proposal would have a consistent architectural language with that of the adjacent residential development. At my visit it was evident that the existing development consisted of a variety of parking provision layouts, though forecourt parking was a predominant feature. Three of the properties would not have such forecourt parking, but the Plots 4 to 6 properties would. However, owing to the angle in the road, and the separation between plots, the effect of this would be minimal. Having regard to the area of the site, I find the density of development proposed would be consistent with that of the adjacent residential development with which it would be associated. 1 DC/18/62094

Whilst the proposal for communal bin storage for the Plots 4 to 6 dwellings would be consistent with other communal bin storage on the estate, I find that there would be adequate space within the garden areas of the Plot 4, 5 and 6 dwellings, for individual bin and cycle storage to be accommodated. This could be adequately addressed by a suitably worded condition. The design of the Plot 6 dwelling could be considered not to relate to the design of the dwellings on Plots 4 and 5 taken in isolation, and a full gabled format such as that of Plot 44 may have related better. However, the Plot 6 dwelling does follow the architectural design of the adjacent dwellings at Plot 40 to 43, and this, coupled to the change in finished floor levels, and in the angle of principal elevation of the development, would assimilate it into the street scene adequately.

For the above reasons, I find the proposal would follow the architectural language, palette of materials and density of development of the adjacent residential development. As this is the predominant character and appearance of the area, I do not find the proposal to be out of keeping. It follows, therefore, that it would not conflict with Policies CSP4, HOU2 and ENV3 of the Black Country Core Strategy (2011) (the BCCS), or with Policy SAD EOS9 of the Sandwell Metropolitan Borough Council – Site Allocations and Delivery - Development Plan Document (2012) (the SAD-DPD), or with [name] – Supplementary Planning Document (2014) (the RDG-SPD). These require, among other things, development to provide a high quality of design which relates to the character, density and identity of the surrounding area.

The Council have raised concerns regarding the relationship of the proposed dwellings at Plots 1 to 3 relative to the existing dwellings at No.2 and No.[address]. They relate to the potential of these dwellings within the appeal proposals to overlook these existing properties and their rear gardens due to their relative levels.

However, having examined the evidence before me, and this relationship at my site visit, I find that the proposed dwellings at Plots 1 to 3 would be set at significantly lower ground levels relative to those of No.2 and No.2a. The significant dense boundary hedges, brick wall, trees, and access lane which separates the appeal site from the rear boundaries of No.2 and No.2a, would further reduce any potential for overlooking. Additionally, the separation distances between elevations which face each other would exceed the distance recommended in the RDG-SPD. I therefore find that the Plots 1 to 3 dwellings would not affect the privacy or outlook of the occupants of No.2 and No.[address].

With regards to the effect of the proposed Plot 1 dwelling, on the outlook or privacy of occupants of the existing properties at Plots 44 to 48 of the adjacent residential development on [address], I find that the separation distance between the rear elevations of the dwellings on Plots 44 to 48, and the closest part of the Plot 1 dwelling, would exceed the horizontal separation distance recommended within the RDG-SPD, when adjusted for the differential in floor levels between properties. This would maintain the minimum 25-degree angle of view from the rear ground floor windows of the Plots 44 to 48 properties, recommended by the RDG-SPD. As the only windows in the end gable of the proposed Plot 1 property, which faces the Plots 44 to 48 properties are from en-suite bathrooms, which would be obscure glazed, I find this relationship would be satisfactory.

Turning to the relationship between the proposed Plots 4 to 6 properties, and that of the rear elevations and gardens of the properties on [address], identified as Plot 25 to 22 on the appeal drawings, I viewed this relationship in detail at my visit. Whilst the existing ground levels on the appeal site in the location of the proposed Plot 4 to 6 dwellings would appear to provide views into the rear of the upper floor windows of the [address] properties, the evidence before me identifies that the floor levels of the proposed Plots 4 to 6 dwellings would not be set at the existing ground levels, but would be lower.

At my visit it was evident that the gabion basket retaining walls to the rear of the [address] properties were of a significant height, which would already restrict the outlook of the occupants from the rear of the [address] properties, and particularly their gardens, towards the appeal site. There would be significant difference in the relative ground floor levels between the proposed dwellings and those on [address].

I find that the combination of this relative difference in ground floor levels, coupled with the height and relative location of the existing gabion retaining walls, the proposed boundary fences to the Plots 4 to 6 dwellings and the significant horizontal separation distances between the proposed dwellings and those of [address], would result in the proposed Plots 4 to 6 dwellings, being substantially excluded from the line of visibility from the rear ground and first floor windows, and the rear gardens of the [address] properties.

The horizontal separation distance between the proposed dwellings and the rear of the [address] properties, would significantly exceed the recommendations of the RDG-SPD, which would provide adequate separation to maintain the privacy and outlook of both the future occupants of the proposed dwellings and those of the existing occupants of the [address] properties.

As there would be adequate separation distance between the side gable of the proposed Plot 6 dwelling, and that of the adjacent property at Plot 43, and with no opening within the facing gable, I find this relationship to provide adequate privacy and outlook for the occupants of the Plot 43 dwelling.

For the above reasons, I find the proposal would not harm the outlook or privacy of occupants of neighbouring properties. It follows, therefore, that it would not conflict with Policies CSP4, HOU2 and ENV3 of the BCCS, or with Policy SAD EOS9 of the SAD-DPD, or with the RDG-SPD or paragraph 135 of the National Planning Policy Framework (the Framework). These require, among other things, development to provide a high quality of design which promotes health and well-being, and which provides a high standard of amenity for existing and future users.

The appeal site is located within an area identified on the [name], as area HOC15, a site designated for housing development. The western section of the SLINC and LNR designations overlap for a substantial portion with the eastern section of HOC15. Accordingly, around 26 of the 53 dwellings in the recently constructed residential development sit within all three designated areas. Of the 6 dwellings proposed on the site, one (Plot 1) would sit outside the SLINC and LNR designations but would be within the HOC15 area, whilst one (Plot 4) would straddle the SLINC and LNR boundaries but would be within the HOC15 area. The remaining 4 dwellings would be within all three designations.

There is, therefore, a conflict between policies within the BCCS and SAD-DPD where an area designated as a SLINC and an LNR is also identified as a housing development site. The Council accept that the site is within an area designated for housing development and therefore the principle of development is acceptable. However, they also suggest that the SLINC and LNR designations would also support the site being retained for nature conservation purposes.

The Council’s ecologist considered that the site’s habitat and ecological value had been degraded prior to the submission of the application to reduce the baseline habitat and biodiversity value. The Council have subsequently accepted that the site had received approval from the Council’s forestry officer for removal of diseased trees in February 2021, prior to the development of the adjacent residential development, and that it had since been used for a materials compound and haul road during the construction of that development.

At my visit, it was apparent that the site was substantially bare. It would therefore currently perform little purpose in relation to habitat and nature conservation, and the proposal would cause little further harm. The proposal would maintain a minimum of a 15-metre buffer zone, between the eastern boundaries of the proposed dwellings, and the ancient woodland to the east. The proposal would introduce tree and shrub planting within the buffer zone, together with the establishment of grassland scrub, both increasing the variety of habitat present, and increasing the ecological value of this area of the site, and therefore this section of the SLINC and LNR’s nature conservation value.

The Council’s ecologist has objected to this, their opinion being that the full area of the buffer zone should be planted with trees. However, evidence before me indicates that the proposal’s mix of trees, shrub and grassland scrub for the buffer zone, would accord fully with the standing advice, issued by Natural England and the Forestry Commission, on the establishment of buffer zones for ancient woodland. Notwithstanding the above, the exact planting of the buffer zone could be adequately controlled by an appropriately worded condition, were the appeal to be allowed.

The Council considers that insufficient information was submitted with the application to assess its impact on the SLINC and LNR and therefore makes no justification for the loss of areas of these designations, or for mitigation of such loss, and is therefore contrary to Policy ENV1 of the BCCS. However, the evidence before me indicates that the appellant submitted a significant amount of habitat and biodiversity information with the application, which would have adequately allowed assessment of the effect of the proposal on these designations. It also evidences that the appellant sought to mitigate the loss of part of the SLINC and LNR designations, by the improvement of the habitat and ecological value of the buffer zone, between the proposed development and ancient woodland.

With regards to the justification for the loss of an area of the SLINC and LNR, I find that this would likely be the result from the conflict in the land designations within the Policies map of the SAD-DPD, where an allocated site for housing development has been overlain over the SLINC and LNR designations, with subsequent negative consequences for areas of nature conservation.

The Council also consider the submitted [name] (BNG) does not identify the correct pre-development baseline figure, which they consider should be as existed on 30 January 2020 in accordance with Schedule 7A of the Town and Country Planning Act 1990 (as amended) (the Act). Having examined the evidence before me, as the site has not been subject to unauthorised pre-development degradation, the BNG baseline date would be either the date of the application or the date of the permission, as identified in parts 2(a) and 2(b) of Section 5 of Schedule 7A.

For the above reasons, I find the appeal development has adequately recognised the ecological designations of the site within the development plan, and has made reasonable justification for this partial loss through acknowledgement of the housing land-use designation in the SAD-DPD, and through mitigation via the proposal to establish and plant the 15 metre buffer zone to the adjacent ancient woodland. It has also taken account of the biodiversity value of the site in accordance with Schedule 7A of the Act. It follows therefore, that I find no conflict with Policy ENV1 of the BCCS, or with paragraph 193 of the Framework.

I have had regard to the objections received to the proposal, many of which centre around common themes. I have addressed several of them in my decision above. Other matters, such as breach of planning conditions on the wider site, wider site management and effects on property values are not matters for consideration within this appeal, or are not material planning matters.

However, my attention has been drawn to the issue of a landslip in an area of the adjacent completed development, associated with the bank between development and the ancient woodland, and which I observed at my visit. Having regards to this issue, I have applied a pre-commencement condition to the decision, requiring land instability site investigations and methodologies to be submitted to and approved by the Council prior to commencement.

The Council has stated that it can currently demonstrate a 1.86-year housing land supply. This is significantly below the 5-year [name] required by the Framework. Accordingly, paragraph 11(d) of the Framework is engaged for decision making purposes. There are no policies within paragraph 11(d)(i) and Footnote 7 of the Framework that are of relevance. Accordingly, paragraph 11(d)(ii) of the Framework is engaged, which indicates that planning permission should be granted unless any adverse impacts of doing so would significantly outweigh the benefits, when assessed against the policies in the Framework taken as a whole.

However, I have found the proposal would not harm the character or appearance of the surrounding area, would not harm the privacy or outlook for occupants of adjacent properties, and would not harm the habitat or ecological value of the SLINC or LNR as locally designated areas of nature conservation. It would, therefore, accord with the development plan in these regards. Accordingly, it is unnecessary for me to further consider the question of housing supply, and the presumption in favour of sustainable development contained in national policy, as this would not alter the outcome of my decision.

I have had regard to the 13 conditions suggested by the Council and the comments provided by the appellant. Where necessary I have amended the wording, in the interests of precision and clarity, and in order to comply with the advice in the Planning Practice Guidance and the Framework.

I have not applied the suggested condition regarding a Phase 1 [name] as such a survey was submitted with the application. In addition, Schedule 7A of the Act, requires mandatory 10% [name] to be achieved by all development. Therefore, the appeal scheme would be subject to the statutory pre-commencement biodiversity gain condition required by the Act, and which requires the approval of a Biodiversity Gain Plan (the BGP) by the Council, prior to the commencement of development. It would be for the Council and appellant to agree the base date for the establishment of the pre-development biodiversity value for the BGP, in accordance with Schedule 7A of the Act.

In addition to the standard time limit for implementation, in the interests of certainty, I have attached a condition specifying the approved plans.

Pre-commencement conditions are necessary to establish any ground instability issues to be taken account of in the detailed design, for the submission and approval of materials to be used in the external envelope in the interest of visual amenity, and for the finished floor levels of the proposed dwellings to be agreed in the interests of privacy for adjacent occupiers.

Conditions are necessary for pre-commencement contaminated land assessment, and for contaminated land remediation, verification reporting and for the reporting of any unexpected, contaminated land discovered during development, to ensure the health and safety of site operatives and future occupiers.

Pre-commencement conditions are necessary to establish a construction management plan in the interests of public safety, and for the submission and approval of surface water drainage to be provided in accordance with sustainable drainage principles.

Conditions are also necessary for foul drainage proposals in the interests of health and safety of future occupiers, and for the submission of landscape and planting proposals in the development and their replacement in the event of failure, in the interest of visual amenity. A condition is also required for the submission of landscape and planting proposals in the buffer zone, in the interest of habitat and ecological enhancement in the SLINC and LNR.

I have attached conditions to secure the proposed access, turning and parking areas, together with a condition for the submission and approval of the cycle parking provision, both in the interest of highway safety. A condition is necessary for the submission and approval of details of external lighting to be used, in the interest of visual amenity.

Conditions are also necessary for the submission and approval of details of the location and format of bin storage facilities, in the interest of visual amenity, and for the incorporation of swift nesting boxes within the development in the interest of supporting ecology.

For the reasons set out above, I conclude that the appeal proposal would accord with the development plan, read as a whole, and that there are no material considerations, including policies in the Framework, that would justify determining other than in accordance with it. Therefore, the appeal should be allowed.