Appeal 6003523

The appeal is dismissed.

The proposal is for permission in principle. Planning Practice Guidance (PPG) advises that this is an alternative way of obtaining planning permission for housing-led development. The permission in principle consent route has 2 stages: the first stage (or permission in principle stage) establishes whether a site is suitable in-principle and the second (‘technical details consent’) stage is when the detailed development proposals are assessed. This appeal relates to the first of these 2 stages.

The scope of the considerations for permission in principle is limited to location, land use and the amount of development permitted. All other matters are considered as part of a subsequent [name] (TDC) application if permission in principle is granted.

Article 5B (1) of the Town and Country Planning (Permission in Principle) Order 2017 (as amended) (the Order) means that permission in principle cannot be granted for habitats development. Habitats development is defined in Article 5B (5) of the Order as development “(a) which is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects) and is not directly connected with or necessary to the management of the site; and (b) for which the competent authority has not given consent, permission, or other authorisation in accordance with Regulation 63 of the Conservation of Habitats and Species Regulations 2017”. Therefore, as the effect of the proposal on European designated sites may be a determinative issue, I have addressed this matter as a main issue in my consideration of the appeal.

The application form for permission in principle states that a maximum of one dwelling is proposed on the site. I have determined the appeal accordingly.

Whilst plans showing the design and siting of the dwelling were submitted with the appeal, these are matters for the TDC stage if the appeal is allowed. I have therefore treated them as indicative only.

On 16 December 2025, the Government published a consultation on proposed reforms to the National Planning Policy Framework (the Framework). Whilst broad changes to the structure of the Framework are proposed as part of this consultation, these proposals could be subject to further change and can only be given very limited weight at this stage. It has therefore not been necessary to consult the parties on the proposed changes, and in reaching my decision, I have had regard to the Framework published in December 2024.

Against this background the main issues are • whether the site is suitable for residential development, having regard to its location, the proposed land use and the amount of development; and • the effect of the development on the East Devon Pebblebeds Heaths Special Area of Conservation (SAC) and Special Protection Area (SPA).

The site is physically and visually some distance outside the Built-up Area Boundary of [site address] . Whilst there is a small number of other dwellings and buildings close to the site, it is not within a settlement and lies within an area of attractive, rolling countryside comprising open fields, trees, woodland and narrow country lanes.

The site is located within the East Devon National Landscape. In addition to the statutory duty at section 85 of the Countryside and Rights of Way Act 2000, the Framework requires that great weight should be given to conserving and enhancing landscape and scenic beauty in National Landscapes. Strategy 46 of the East Devon Local Plan 2016 (EDLP) has similar objectives and states that development will only be permitted where it complies with 3 criteria.

The character of the landscape around the site which I saw on my visit reflects that of the wider landscape described in the [name] and Blackdown Hills Landscape Character Assessment 2019 (LCA) in which the site lies within [name] 3B ‘[name] and Settled Valley Slopes’.

The use of the site as a residential garden was allowed in a previous appeal1. Whilst the site is enclosed by fencing and a mature hedgerow and has a small shepherds hut and outbuilding on its eastern side and a small shed in its south western corner, it retains a pleasant, open verdant character. The erection of a dwelling on the site, even if single storey, would result in the erosion of this open, verdant character by giving the site a distinctly more developed character and appearance. 1 APP/U1105/W/24/3345084

Although the proposed dwelling would be largely screened from close views by the existing hedgerows and the presence of existing structures means that part of the site may be previously developed land, it would nevertheless result in the linear expansion of residential development westwards along the northern side of the lane. This incremental erosion of the rural character of the site and its surroundings would not conserve and enhance the landscape character of the National Landscape.

The scale, siting and form of the dwelling would be matters for the TDC stage if this appeal is allowed. Nevertheless, as the proposal would result in the encroachment of built form beyond the existing pattern of development into the countryside it is an example of one of the forces for change acting on the landscape identified in the LCA. The presence of the existing small structures on the site and its use as a garden do not justify the harm which would be caused to the character of the site and its surroundings by the introduction of a new separate dwelling. The visual harm which would be caused to the scenic beauty of the National Landscape would, however, be limited due to the existing boundary screening.

Access to the site from [site address] and the services and facilities it provides is via unlit rural lanes without street lighting. High hedges along the lanes limit the opportunity for pedestrians to take refuge from passing vehicles. Whilst it may be feasible for future occupiers to walk or cycle to the village, the distance to the village coupled with the narrow, unlit nature of the road means that it would not be a safe and suitable route for all users, especially after dark or in bad weather. Together with the absence of public transport, it is therefore likely that future occupants of the dwelling would rely on the use of the car to access the services and facilities to meet their daily living requirements.

Whilst not referred to in the 2nd reason for refusal, the Council’s delegated report indicates that EDLP policy TC2, amongst other things, requires that new development should be located so as to be accessible to pedestrians, cyclists and public transport.

Although the existing garden on the site is currently used in association with the appellant’s dwelling approximately 10km away, the evidence does not demonstrate how frequent car journeys to the site are or what their purpose is. In the absence of clear evidence to the contrary, in my judgement, the pattern of movement of a householder living 10km away visiting the garden, is likely to be quite different to those of the occupants of a permanent dwelling on the site. Future occupiers would be expected to make regular, frequent journeys to local towns and villages to meet their day to day living needs such as for employment, shopping, healthcare and education. The current garden use would be unlikely to require journeys to be made for these purposes.

Therefore, whilst recognising that opportunities to maximise sustainable transport solutions will vary between urban and rural areas, the location of the proposed dwelling would cause a moderate level of harm to the Council’s objectives to promote development in the most sustainable locations.

The fact that there are other existing dwellings in the vicinity whose occupants may make journeys by car to services and facilities does not justify the harm which would result from the erection of a further dwelling in a location which would not have safe and convenient access for all users by sustainable transport modes.

[name] am aware of an appeal decision to allow the conversion of a barn to a dwelling at [address], Brooklands Cross2, I am not aware of the full details of that site or its planning context. Nevertheless, it was materially different to this appeal in that it was for the re-use of an existing building rather than the erection of a new dwelling. The Inspector also noted that whilst the barn in that case had been little used, a more intensive use would have resulted in a greater level of vehicular movements. As a consequence, the uplift as a result of a single dwelling would be modest. For the reasons already given, I am not convinced that this would be the case in this appeal.

Therefore, for the above reasons, the use of the land to develop a single, new dwelling in the proposed location conflicts with [name] 7 and 46 and policy D1 and policy H3 of the [site address] and Harpford Neighbourhood Plan (2020-2031) in so far as they seek to control development in the countryside and conserve and enhance the distinctive landscape character of the area. It also conflicts with EDLP policy TC2 regarding the accessibility of new development.

The site lies within the 10km zone of influence of the SAC and SPA. The qualifying features of the SAC are the European dry heaths and northern Atlantic wet heaths with cross leaved heath and their population of southern damselfly. The qualifying features of the SPA are its populations of Dartford warbler and nightjar

If a proposed development for permission in principle is likely to have a significant effect on a qualifying European site or a European offshore marine site without any mitigation measures in place, an Appropriate Assessment (AA) must be carried out.

The South-east Devon European Site [name] 2014 (the [name]) shows that the close proximity of the appeal site to the SPA and SAC means that future occupants of the development could contribute to disturbance of these protected areas through recreational activities. The impacts from increased recreational activity include disturbance to breeding nightjars and Dartford warblers; increased risk of wildfires damaging the heathland habitat and its dependant birds; increased nutrients; disturbance of birds by dogs; and the trampling of vegetation and soils. The potential for adverse effects is likely to increase with the amount of residential development in the area meaning that the combined effects could be significant and effect the integrity of the SPA and SAC. I have therefore carried out an AA.

The Mitigation Strategy establishes a joint approach with adjoining Councils towards the mitigation of likely significant effects on the SPA and SAC arising from the cumulative effect of residential schemes. A financial contribution is sought for each new dwelling which is then used to deliver mitigation for the recreational impacts on the protected sites.

The PPG indicates that there is no scope to secure obligations at the permission in principle stage. The Council suggests that appropriate mitigation via a financial 2 APP/U1105/W/20/3248033 contribution could be secured at the TDC stage if permission in principle is granted. However, to reach a conclusion that there would be no adverse effects on the integrity of the internationally protected sites, there should be no reasonable scientific doubt as to the absence of such effects.

Without a legally binding mechanism, such as a planning obligation, I cannot be sure that the mitigation measures have been secured and there would be no adverse effects on the integrity of the SAC and SPA. Moreover, the suggestion that the required mitigation measures could be secured at the next stage means that I cannot be sure about the exact nature of the mitigation or how and when it would be implemented. Applying the precautionary principle, I therefore do not have the necessary certainty that an adverse effect on the integrity of the SAC and SPA would be avoided.

I am aware of an appeal decision in West Mersea3 where permission in principle was granted after taking into account the effect of the proposal on the integrity of European designated sites. [name] am not aware of the full details of that site or its location, in that case the appellants had already paid a financial contribution towards the required mitigation. Taking into account the views of Natural England about the suitability of the mitigation, the Inspector was therefore satisfied that the mitigation measures had been secured. These circumstances differ significantly to this appeal where no financial contribution has already been paid.

I therefore conclude that the proposal constitutes habitats development which would have a significant adverse effect on the protected sites and, for the reasons given above, permission in principle cannot be granted.

Whilst the East Devon Local Plan 2020 to 2042 Regulation 19 [name] 2025 (the draft plan) is not part of the adopted development plan, the harm I have identified also results in conflict with [name] SP06, DS01 and OL02 of the draft plan which seek to control development outside settlement boundaries and protect local distinctiveness and the National Landscape.

The proposal would have the moderate benefit of adding a single dwelling to the Council’s supply of housing and the further moderate economic benefit arising from its construction and the use of local services by future occupiers.

The Council can only demonstrate 2.97 years’ housing land supply. Notwithstanding that permission in principle cannot be granted for habitats development, footnote 7 to paragraph 11d) i. of the Framework means that the conflict with the Framework’s policy for protecting habitats sites and conserving and enhancing National Landscapes provide a strong reason for refusing the proposed development. As a consequence, paragraph 11 d) ii. of the Framework would not be engaged.

The proposal constitutes habitats development for which permission in principle cannot be granted. Even if this was not the case, the proposal conflicts with the development plan and the material considerations do not indicate that the appeal 3 APP/A1530/W/20/3250629 should be decided other than in accordance with it. For the reasons given above the appeal should be dismissed.