Appeal 6003681

The appeal is dismissed.

An application for costs was made by [name] against Cotswold District Council. That application is the subject of a separate decision.

The appellants argue the Council’s reference in its appeal statement to a need for a section 106 agreement raises a new matter. However, the officer report made clear that such an obligation would be required if permission were granted. I am therefore satisfied that the appellants were aware of the Council’s position and had the opportunity to address it, including by submitting a planning obligation with the appeal.

A public right of way crosses the site. If planning permission is granted, any diversion of that route would need to be pursued through separate statutory procedures and does not fall to be determined as part of this appeal.

The main issues are: • the effect of the proposal on the character and appearance of the area having particular regard to the effect on the Cotswolds National Landscape • whether the location of the site is appropriate for the proposed development having regard to the Council’s spatial development strategy; and • whether the proposal would satisfy the requirements of the statutory framework for [name].

The site is a corner of a larger undeveloped agricultural field on a gentle slope accessed from [address] which leads to the centre of Ebrington. Nearby are farm and commercial buildings, including the adjacent former agricultural building now converted for gym use, and a small number of residential properties on the opposite side of [address]. To the south of the site are expansive views of open countryside. The boundaries are marked by mature hedgerows. A public right of way ([name] 30) (PROW) which is part of the long distance [address] passes through the site.

The proposal would be within the Cotswolds National Landscape, where national and local policy require great weight to be given to conserving and enhancing landscape and scenic beauty, and where decision‐makers have a statutory duty1 to seek to further the purpose of conserving and enhancing the natural beauty of the area.

The Cotswold Landscape Character Assessment identifies the site as lying within the [name] 1 – [name], and Landscape Character Area 1f – Meon and [name], which is described as highly sensitive to encroachment. Key features include distinctive hills rising above the vale and lower slopes with pastures and farmland. It also includes a series of guidelines for development, including extensions to settlements on visible hillsides and seeks to avoid development that will intrude negatively into the landscape and cannot be successfully mitigated.

The appeal site is prominent on a slope which rises towards Ebrington. Although there are nearby buildings including the gym and dwellings across [address], within the pattern of fields and hedgerows the site forms part of an open rural fringe which positively contributes to the transition between the settlement and countryside and the gateway to the village when approaching along [address] or the PROW. I have had regard to the Nolli plan showing the relative locations of built form, but treating the site as an infill opportunity does not fully acknowledge the role of the site within the landscape and its resultant sensitivity to change.

Introducing the proposed large detached dwelling and its associated domestic features would degrade the transition from settlement to countryside creating a more suburban character. Retention and enhancement of hedges and trees would provide some mitigation over time but would emphasise the change from its current open character and not materially address the loss of the site’s transitional role described above. Notwithstanding the proposal is for only one dwelling, it would cause moderate harm to the landscape character in this location.

Visibility is limited from some directions by undulating topography, the built form of the village, and boundary vegetation. However, on this side of the village, there are publicly accessible locations affording views albeit some are partial or oblique. The site is plainly visible from parts of the PROW, and from [address] approaching the site from either direction. Users of the PROW are receptors with high sensitivity, as [address] Act 2000 - section 85 are local non-motorised users of [address]. Although less sensitive, the site would also be visible to drivers approaching and leaving the village.

In some more distant views along the PROW, the proposal would be read in association with existing built elements including the nearby gym building, and the backdrop of the village. Although the proposal is for a single dwelling with materials and form intended to reflect the local vernacular, it would be a substantial building within the site. Furthermore, the light coloured stone and the extensive fenestration on the elevation facing away from the village would draw attention in views from the south, adding to its visual prominence. I acknowledge the obvious glazing on the end of the gym building is already conspicuous, but the proposal would add to and emphasise this visually discordant feature.

Mitigation measures including the retention of existing hedgerows and trees, additional native planting and meadow creation would over time soften views. However, while domestic paraphernalia, lighting, and boundary treatments could be controlled by condition if planning permission were to be granted, nevertheless they would add to the visual prominence of the proposal.

When users of the PROW enter the site from [address], they experience expansive views of the landscape across the valley. The proposal would interrupt those views resulting in users of the PROW passing between the new dwelling and the site boundary. While users may not always use the definitive line of the PROW, at present there is no interruption in those views regardless of the route taken across the site.

I acknowledge that the change in experience would be localised over a short part of the overall route, after which the path either enters the village environment or continues with wider views available, however the proposal would be very apparent fundamentally changing the views and experience of users of this section of the PROW. Accordingly, there would be significant harm to users of the PROW as visual receptors in this location.

Taking these matters together, I conclude that the proposal would harm the character and appearance of the area having particular regard to the effect on the Cotswolds National Landscape. It would therefore conflict with the policies EN1,EN4 and EN5 of the Cotswold District Local Plan 2011-2031 (the Local Plan) which among other things expect development to take account of landscape and historic landscape character, visual quality and local distinctiveness, and give great weight to the conservation and enhancement of the natural beauty of the landscape, its character and special qualities when determining development proposals in the Cotswolds National Landscape. It would also conflict with chapter 15 of the National Planning Policy Framework (the Framework) in respect of its advice regarding the protection and enhancement of the natural environment including National Landscapes.

The Council did not cite Local Plan Policies DS3 or DS4 of the Local Plan in its reasons for refusal, but the officer’s report indicates that the proposal is not accepted in principle because the site lies outside the settlement. On that basis the Council treats the land as countryside and concludes Policy DS4 resists the proposal.

Policy DS3 advises that small-scale residential development will be permitted within [name] such as Ebrington provided it meets the criteria set out in the policy. Accordingly, if the site is within the settlement it could benefit from this policy.

The site lies on the edge of Ebrington and within walking distance of local facilities, so it is not isolated in accessibility terms. However, it is separated from the core and built up area of the village and, for the reasons set out above, does not read as an infill plot. Rather, it forms part of the open countryside edge where it meets the village. Development nearby is more sporadic in nature, comprising agricultural and former agricultural buildings on this side of [address], with the nearest dwellings on the opposite side. The appearance, scale, and character of buildings in the vicinity differ from those within the built-up part of the village. Accordingly, I conclude that the site is not within the settlement and Policy DS3 does not apply.

Policy DS4 says that new open market housing will not be permitted outside [name] unless it is in accordance with other policies that expressly deal with residential development. Policy H3 allows single self-build plots within, adjoining or closely related to the built up areas of villages where the applicant meets criteria set out in the policy.

The proposal has been stated to be self-build development for a family with local connections, however there is no mechanism before me such as a completed obligation under section 106 of the Town and Country Planning Act 1990 to secure it as self-build development. Moreover, I do not have clear evidence before me to demonstrate that the appellants meet the criteria in policy DS4. Consequently, the proposal does not comply with Policy H3 and therefore does not accord with Policy DS4.

For these reasons I conclude that site is not an appropriate location for the proposed development having regard to the Council’s spatial development strategy. Accordingly, it conflicts with Policies DS4 and H3 of the Local Plan in so far as new-build open market housing will not be permitted outside [name] unless it is in accordance with other policies, including rural exception sites where single self-build plots may be brought forward where the stated criteria are met.

[name] (BNG) is a mandatory requirement under Schedule 7A of the Town and Country Planning Act 1990 (the 1990 Act) which operates through a pre‐commencement BNG condition so development cannot lawfully begin until a Biodiversity Gain Plan (BGP) has been submitted to and approved by the Council. Through the BGP process the Council confirms whether the BNG objective will be met, including the final metric position and the delivery and maintenance arrangements. Planning Practice Guidance (PPG) indicates that it would generally be inappropriate to refuse an application on the ground that the BNG objective would not be met but also recognises that decision‐makers may need to consider if the BNG condition is capable of being successfully discharged.

The main parties’ ecologists differ about whether the information submitted with the application was sufficient to demonstrate a deliverable 10% BNG on site. The Council’s concerns relate principally to the robustness of the assumptions about the proposed habitat condition enhancements and levels of habitat distinctiveness achievable as well as the certainty of the delivery and management commitments, rather than identifying a definitive barrier to delivery. They consider a section 106 obligation is needed now to secure long term management and monitoring, and a monitoring fee. The appellants’ ecologist considers that the metric inputs are appropriate and that the 10% objective can be achieved through the proposed on-site enhancements.

Under the statutory condition, the BGP must be approved prior to commencement of development. therefore, it is not necessary to resolve every element of the final BGP now, although there should be a credible and deliverable route by which the BNG condition could be discharged at the proper time.

The proposal identifies a defined on‐site area for habitat which is outside the proposed residential garden area and there is no cogent evidence before me that it would be impossible to deliver the required BNG on site. Moreover, the disputed matters could be addressed through the post‐permission process, including the agreed habitat plan, target conditions, delivery timescales and the management and monitoring regime. Accordingly, I am satisfied that the BNG condition is capable of being discharged.

The scheme includes habitat condition enhancement and the creation of higher distinctiveness habitat (including wildflower meadow). Having regard to the scale of the development and the role that the enhancement land plays in achieving the 10% objective, the on‐site uplift would represent a significant increase in biodiversity value relative to the pre‐development baseline of the onsite habitat. Where an increase is considered significant, paragraph 9 of Schedule 7A of the 1990 Act states that the increase may only be taken into account in calculating the post‐development biodiversity value if the resulting habitat enhancement is secured through a planning condition subject to which the planning permission is granted, a planning obligation or conservation covenant, to be maintained for at least 30 years after completion of the development.

If planning permission is granted, that statutory requirement could be secured by imposing a [name] and Monitoring Plan (HMMP) condition to ensure delivery, management, monitoring, and reporting for the on‐site enhancement land for the required period. As to the Council’s request for a section 106 obligation to secure a financial contribution for monitoring, development could not begin before approval of the BGP and discharge of the BNG condition, so this could be addressed during that process. Therefore, the absence of a legal obligation at this stage does not show that the condition is incapable of discharge.

For these reasons I conclude that subject to the statutory BNG condition and HMMP condition I have referred to above, the effect of the proposal on the statutory aim of achieving a 10% net gain in biodiversity would be acceptable. Accordingly, the proposal would comply with the requirement of policy EN8 of the Cotswold District Local Plan 2011-2031 (the Local Plan) to conserve and enhance biodiversity and geodiversity, providing net gains where possible.

The proposal has attracted considerable support on the basis it would allow members of a local family with strong connections to the village to return. As discussed above the proposal is described as self-build development but without a legal mechanism to secure it as such, it is of minimal weight in my determination.

The parties agree that the Council cannot demonstrate a five-year supply of deliverable housing sites with a stated figure of 1.8 years indicating a very significant shortfall. Accordingly, the presumption in favour of sustainable development in paragraph 11(d) of the Framework is applicable.

As a single dwelling, the proposal would modestly boost housing supply; however, in the context of the district’s acute shortfall, this attracts significant weight. The Framework recognises that small and medium‐sized sites, including windfalls, can contribute to supply and advises that great weight should be given to suitable windfall sites within existing settlements. However, given my findings on the site’s suitability and location, I afford this limited weight. Whilst the Framework supports the provision of self‐build housing, without a mechanism to secure it as such, the scheme has no material weight as self‐build development because it wouldn’t be.

There would be economic benefits from construction and some support to the vitality of Ebrington consistent with paragraph 83 of the Framework, although limited given the scale of the proposal. The proposal could meet biodiversity net gain requirements which, whilst a statutory requirement, it is a benefit weighing in its favour.

The Framework sets out that planning permission should be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole.

I have found that the proposal would cause harm to the National Landscape, where there is a duty to seek to further the purpose of conserving and enhancing the natural beauty of the area to which the Framework advises great weight should be given. Taken together with the conflict with the spatial strategy in the development plan, I afford substantial weight to the harms which would arise. I therefore conclude that the adverse impacts of the proposal would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole.

The proposal would conflict with the development plan when read as a whole and the material considerations are not of sufficient weight to indicate that a decision should be taken otherwise than in accordance with it.

For the reasons given above the appeal should be dismissed.