Appeal 6003631

The appeal is dismissed.

The Secretary of State has considered the above appeal in accordance with Regulation 14(1) of The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and determined that the proposed development falls under Schedule 2, 10(b) Infrastructure projects – Urban development projects. The threshold criteria are not exceeded however the proposed development is located within a sensitive area – High Weald National Landscape (formerly an Area of Outstanding Natural Beauty), Ashdown Forest Special Protection Area (SPA) and Special Area of Conservation (SAC), and Weir Wood Reservoir Site of Special Scientific Interest (SSSI).

It has been determined that an Environmental Statement is not required for the proposed development.

The site lies within the High Weald National Landscape (HWNL). 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) places a duty on relevant authorities to seek to further this purpose when exercising or performing any functions in relation to, or so as to affect, land in an Area of Outstanding Natural Beauty (now National Landscapes).

An application was initially made for the demolition of existing outbuildings and erection of two three-bedroom dwellings. The description was subsequently changed to one dwelling. The application was determined by the Council on that basis, and I have determined the appeal on this basis.

In relation to the emerging plan, which is at examination stage, there remains unresolved objections to relevant policies, which therefore carry minimal weight.

The main issues are: • Whether the proposed development would be in a suitable location for housing, having regard to local and national planning policy; • Whether the proposed development would be sustainably located; • The effect of the proposed development on the character and appearance of the surrounding area; • The effect of the proposed development on the living conditions of [address], Hazeldene and Fieldways with particular regard to privacy; and • The effect of the proposed development on flood risk.

The appeal site slopes down from the roadside to the front of the end-terrace property ( [site address] ), which forms part of the site, before levelling out into a large side and rear garden containing three small single-storey outbuildings. The site lies between an adjoining two-storey end-terrace property ( [site address] ) and a perpendicular row of small two-storey terraced cottages, with detached dwellings on much larger plots with larger gaps between buildings opposite on [site address] .

The proposed development would utilise the existing access, which would be shared with [site address] .

Policy DP15 of the Mid Sussex District Plan 2014-2031 (adopted March 2018) (LP) requires special justification for new homes in the countryside. This may include compliance with Policy DP6: [name], which among other things, states it must be contiguous with the built-up area boundary.

The proposed development is located away from the nearest built-up area of [site address] , and would not be contiguous to it, with a wooded area acting as a barrier between the settlement boundary and rear of the appeal site.

The proposal would not relate to essential accommodation for agricultural, forestry or other rural workers, nor to the re-use of rural buildings for housing, replacement dwellings, or any other recognised special justification.

The proposed development would be located in a side garden space, an existing gap in a cluster of dwellings in the countryside comprising terraced housing on both flanks and detached homes opposite along [site address] . As result, the proposed development would not be physically separate or remote, and therefore would not constitute a new isolated home. Consequently, the proposed development fails to meet the second special-justification criterion of Policy DP15 and would not amount to acceptable development in the countryside.

Policy EG1 of the [site address] Neighbourhood Plan (2016) (EGNP) identifies the limited forms of development permissible within the HWNL, such as the conversion of redundant buildings, replacement dwellings, and extensions to existing homes. The proposal does not fall within any of these categories and therefore conflicts with Policy EG1.

In relation to Policy EG5 of the EGNP, the proposal would involve demolishing the small single-storey outbuildings, one of which partly overlaps the footprint of the proposed dwelling. Despite these buildings, the site does not comprise land that is predominantly previously developed, and no evidence has been provided to show that the remaining green infrastructure is surplus to requirements. The scheme therefore conflicts with Policy EG5 of the EGNP.

In conclusion the proposal would not be in a suitable location for housing, having regard to local and national policy. Therefore, it would not be in accordance with Policies DP12 and DP15 of the LP and Policies EG1 and EG5 of the EGNP, which collectively seek development to maintain or where possible enhance the quality of the rural and landscape character of the district, and will be permitted where special justification exists.

The proposal would also not accord with paragraph 84 of the National Planning Policy Framework (2024) (‘the Framework’), as the proposed development would not constitute an isolated home in the countryside, and the exceptions listed would not apply.

The proposed development would result in a clear increase in the built form on the site. The existing single-storey outbuildings are modest and staggered in their arrangement, with two set perpendicular to the front of the site. The rear timber structure is largely screened by the garage. All three structures appear visually unrelated, their presence softened by the garden space and surrounding vegetation.

Although the proposed development would include a building frontage facing [site address] , it would neither reflect nor respect the existing pattern of development for detached dwellings within the surrounding area, which are set on larger plots with larger gaps between buildings. Instead, the proposed development would introduce a more prominent, visually conspicuous two-storey home, which would impose noticeable massing and appear hemmed in on the long, narrow site. As a result, the proposal, which would include infilling of a built-up frontage on [site address] , would remove the visual break currently provided by the garden space: the open rural and landscape character would not be maintained, and it would not conserve or enhance the natural beauty of the HWNL.

The proposal would introduce a common, urbanised design with pitched dormers to the front façade and two single-storey bay windows on either side of a central doorway, similar to two-storey detached homes in [address] in proximity to the site within the settlement boundary. Moreover, this would not respect the character and local distinctiveness of HWNL and would not demonstrate a high-quality design.

In light of the above, I conclude that the proposed development would harm the character and appearance of the surrounding area. It would therefore conflict with Policies DP16 and DP26 of the LP, which together state that development, among other things, conserves or enhances the natural beauty of the HWNL (formerly [name]), is sensitive to the countryside by, amongst other things, being of a high quality design, protects open spaces, trees and gardens that contribute to the character of the area, and creates a sense of place while addressing the character and scale of the surrounding buildings and landscape.

The proposed development would also conflict with Policy EG2a of the EGNP which sets out that planning permission will not normally be granted for development, which amongst other things, results in the perception of openness being unacceptably eroded within this area, and contributes towards ad hoc dwellings outside the built-up area, including infilling of built-up frontages.

The proposed development also does not accord with paragraph 189 of the Framework, which attaches great weight to conserving and enhancing landscape and scenic beauty in, among other things, National Landscapes, which have the highest status of protection in relation to these issues.

The appellant has drawn my attention to a number of nearby appeal decisions1. However, one relates to a site within a built-up area, and in the other no harm was found to the character and appearance of the area or National Landscape. Whilst consistency in decision making is an important part of the planning process, all decisions are made on the particular merits of the case, including consideration of the peculiarities of the site, its surroundings and the effects of a development. As a result, neither of these appeals alter my conclusions on this issue, set out above.

The appellant argues that paragraph 175 of the Framework should apply and that a sequential test is unnecessary because the site-specific Flood Risk Assessment (FRA) shows that the layout, design and mitigation measures, including a 300mm freeboard and deeper foundations to address the shallow culvert, would keep future occupiers safe from surface-water flood risk for the lifetime of the development.

The Framework and Planning Policy Guidance (PPG) inform when a [name] does not need to be applied. The appeal site, which is within [name] 3b for surface water, and proposes a new home would be a ‘more vulnerable’ development, as set out in Annex 3 of the Framework. The proposed development would not be listed as exempt from the sequential test in Footnote 62 of the Framework, which includes householder development, small non-residential extensions and changes of use.

Paragraph 173 of the Framework is clear that a sequential risk-based approach should be carried out to individual applications known to be at risk now or in future from any form of flooding. 1 APP/Y3940/W/23/3316153 & APP/D0840/W/24/3337735

The evidence before me does not show that the proposed mitigation would address the identified concerns, including the site’s position beside an overland flow route where flood-resilience measures of at least 600mm above ground level would be required, nor does it demonstrate that a sequential test is unnecessary. The appellant’s reliance on paragraph 175 of the Framework is misplaced, and there is no evidence to show that the sequential test or exceptions test can be set aside.

On this basis, I conclude that the proposed development conflicts with Policy DP41 of the LP, which seeks, amongst other things, that proposals follow a sequential risk-based approach and ensure development is safe across its lifetime. The proposed development also conflicts with the Framework which requires that a sequential based approach is carried out to individual applications known to be at risk now or in future from any form of flooding, and that would not be listed as exempt.

The appellant has highlighted one appeal decision from October 20252 where the Inspector found that the appeal site, also located on [site address] , [site address] , would be sustainably located. The Inspector considered that local services, with examples listed, would be within walking distance, and whilst bus services are limited to five times per day with one in the evening, this limitation would not be a decisive factor. It was found that key services are accessible on foot, which would reduce the reliance on public transport and support the site’s sustainability. Finally, the Inspector concluded that whilst there would be some dependence on the private car, given the rural setting, this would not in itself render the location unsustainable.

The Council has stated that it does not dispute this decision, and there is no basis to depart from the Inspector’s findings. Accordingly, there is no demonstrable conflict with Policy DP26 of the LP, which amongst other things seeks that development is well connected, legible and accessible.

The proposal would include first-floor fenestration on two elevations serving the [name] and Bedroom 1. The gable-end windows would directly overlook the rear elevations and private gardens of the perpendicular terrace ([address], Hazeldene and Fieldways). As rear and front-facing windows are also proposed to these rooms, any overlooking from the gable-end openings could be mitigated by securing obscure glazing by planning condition. There would be no impact on the privacy or outlook of the end-terrace dwelling adjacent to the appeal site, [site address] .

I therefore conclude that with the imposition of a condition there would be no effect on the living conditions of neighbouring occupants and the proposed development would accord with Policy DP26 of the LP, which, among other things requires that development does not cause significant harm to the amenities of existing nearby residents, including taking account of, amongst other things, the impact on privacy and outlook. 2 APP/D3830/W/25/3367543

The Council has confirmed that the submitted [name] would provide the required [name] (BNG) in accordance with the statutory 10% minimum and would provide the required mitigation which would address the Council’s fourth reason for refusal. There is no evidence before me, which would contradict this position and therefore the proposed development would be acceptable in this regard.

Several other concerns, not included within the main issues of this appeal, have also been raised by interested parties including, impact on neighbouring septic tanks, highway safety and the effect on neighbouring occupiers notably the impact on daylight and sunlight. As the appeal is being dismissed for the reasons given above, these other matters do not need to be explored in detail.

The appellant has drawn my attention to a planning application3 for four dwellings on [address], [site address] . This application concluded that the benefits for this small housing development outweighed the harm caused.

However, this application relates to a different site and proposed development. In this appeal development before me, the adverse impacts on character and appearance, the location of the development, and flood risk, would significantly and demonstrably outweigh these modest benefits when assessed against the policies in the Framework taken as a whole.

The appellant has also drawn my attention to an appeal decision4 at [name], [address], Flimwell. This appeal relates to a different site and erection of a small-single storey dwelling with a very modest footprint and would include the conversion of the small stable block, on grassland immediately adjacent to the built-up area. Although the inspector found the site location to be unsustainable, there was no harm caused to [name] (now National Landscape) and the benefits would outweigh the harm.

In contrast, although the proposed development before me, would be sustainably located, it would harm the HWNL and character and appearance of the surrounding area. This appeal site would not be contiguous to the built-up area, and the moderate benefits would not outweigh the harm caused.

The main parties agree that the Council cannot demonstrate a five-year supply of deliverable housing sites (5YHLS). Where a 5YHLS cannot be demonstrated, paragraph 11(d) of the Framework means that the policies which are most important for determining the application are out-of-date, and that permission should be granted unless the circumstances in paragraph 11(d)(i) or (ii) apply.

The presumption in favour of sustainable development as set out in Paragraph 11(d) of the Framework does not apply where policies in the Framework that protect areas or assets of particular importance provide a strong reason for refusing the development proposed. Footnote 7 to paragraph 11(d) of the Framework is clear that this applies to National Landscapes. As a result of the 3 DM/23/3244 4 APP/U1430/W/22/3309165 harm I have found to the National Landscape above, the presumption in favour of sustainable development does not therefore apply in this case.

The proposal would harm the character and appearance of the surrounding area including HWNL, would be an unsuitable location for development in the countryside and it has not been demonstrated that the proposed development would be safe across its lifetime from flood risk. This would conflict with the relevant policies outlined above. I afford these harms and conflicts significant weight individually and cumulatively. The Framework is clear that small sites can make an important contribution to housing delivery, therefore I attach moderate weight to the provision of one new home. I also acknowledge that the site is within a sustainable rural location and attribute moderate weight to this.

For the reasons set out above, the proposal would conflict with the development plan when read as a whole. Material considerations, including the Framework, do not indicate that a decision should be taken other than in accordance with the development plan. I therefore conclude that the appeal should be dismissed.