Appeal 6003688

The appeal is dismissed.

In its planning report the Council concludes that the proposed development would not provide a suitable standard of accommodation for future occupiers. This is not, however, reflected in a reason for refusal. I have therefore determined the appeal on the basis that the Council do not consider it to comprise one.

The main issues are the effect of the proposed development on: • The character and appearance of the area; and • The nearby protected oak tree at [address].

The appeal site is a triangular plot of land in the corner of [address], a small, suburban cul-de-sac. [address] is set out in two sections, both laid out along broadly symmetrical lines. The first section is made of two blocks of maisonettes, the second of three terraces. The terraces are each comprised of four houses, are roughly equal in length, and adhere to clear building lines. They are at right angles to each other such as to form three sides of a square around the turning head of the Close. Gaps in the corners are roughly equal in width.

These features combine to give the Close a consistent and planned feel from which it draws the majority of its beneficial character. An extension exists to the side of No8, but it is both recognisable as a domestic extension and is set back sufficiently to preserve the general uniformity of the Close.

It is proposed to erect a single storey dwelling with a flat roof towards the front of the appeal site. The plans show a tall, close boarded fence across part of the plot frontage, which the appellant contends would largely screen the dwelling from view. I note the suggestion that this fence could be substituted for a lower wall with planting behind. [name] have no details of how such an arrangement would allow access to the proposed bike and bin stores, it is not clear that such a substitution would be possible. I therefore make my assessment on the basis of the fencing shown on the plans.

Tall boundary fences are not wholly alien to the Close; they enclose garden land at one of the maisonette blocks and can be seen in the backdrop of the gap between Nos 12 and 13. The appeal scheme front fence would line up horizontally with a section of tall fencing at No8.

Even so, the appeal scheme fencing would be somewhat striking. The plans show an existing garage at the site entrance, but I saw during my visit that it is no longer there; Instead, the site entrance is open, allowing views beyond. The appeal scheme fencing would change the nature of that view significantly. It would also continue onwards the front building line of No9 in a way which would be unusual in the Close. Notwithstanding the examples given above, most boundary enclosures visible from the public realm within the Close are low. Overall, the fencing would draw attention to the proposed development as much as screen it.

Moreover, the presence of the appeal scheme dwelling would be apparent anyway; The front door would be visible from the street, its presence emphasised by regular use. A door number would be displayed. A new and separate household would come and go, and likely park a vehicle on the front drive. That parking area would be readily distinguishable from the forecourts of Nos 8 and 9 by virtue of its pitch and surface materials. The building would be visible over the front fence from a number of neighbouring upper floor windows.

[name] accept that it would involve a small building, overall, the proposed development would be a noticeable addition to the Close for the reasons given above. Its visible presence would be without precedent, and strikingly incongruous given the general uniformity of the three terraces. In filling one of the corner gaps, the scheme would erode the symmetry of the Close. Taken together, these effects would harmfully undermine the established, planned feel which is fundamental to the positive characteristics of the Close.

My attention has been directed towards three other schemes, but I have no evidence that any of them are directly comparable to that before me in terms of the surrounding pattern of development and effects upon it. I recognise that the appeal scheme follows a series of previous applications and design revisions, but that does not inform its merits. In both respects, I have made my assessment based on the merits of the scheme before me in isolation.

The proposed development would have a harmful effect on the character and appearance of the area, contrary to Policies D3 and D4 of the London Plan (2021) and Policies 4 and 37 of the Bromley Local Plan (2019), where they require development to enhance local context by delivering buildings and spaces that positively respond to local distinctiveness. Policy 8 of the Local Plan does not appear pertinent to the appeal scheme, as it addresses the retention of spaces between dwellings at first floor level.

A protected oak tree is found in the rear garden of [address], immediately alongside the appeal site. An updated Arboricultural Impact Assessment (AIA) identifies the root protection area (RPA) and crown spread for the tree; the dwelling would be clear of the former, and immediately alongside the latter.

The Council submits that it would be less able to resist applications to prune the tree if the site were in residential use. I have very little to show me, however, that works of that nature would be harmful to the health or appearance of the tree.

Moreover, the submissions indicate that the site was last used as a garden for No9 [address]. I have no evidence that any other use has been approved subsequently, that use as a residential garden does not remain the lawful use of the site, or that the site could not or would not be returned to that use if the appeal scheme does not proceed.

It is not evident, therefore, that the proposed development would introduce a new or greater threat to the tree than it has been, and would otherwise be, exposed to as a result of residential use. Indeed, the canopy extends over several residential gardens already, and did so when the Council made Tree Preservation Order No 2735/2021 fairly recently. Overall, I find little to persuade me that any potential pressure to allow pruning warrants refusal of the appeal scheme.

Though the appellant has outlined a simple approach whereby the RPA is fenced off during construction of the dwelling, the Council contends it is nevertheless unclear that the tree can be protected. The absence of details regarding foundations, surfacing, services, and construction management are cited. I consider all of these to be matters normally addressed through the discharge of planning conditions. Whilst it would be unreasonable to rely on planning conditions that could not realistically be complied with, I see little reason to anticipate such a scenario in this instance.

It is not uncommon for foundations, surfacing, and services to be designed to accommodate nearby trees. Indeed, the appellant has provided examples of schemes in which this is a notable feature. Precise details could be agreed before commencement of the development.

The dwelling would be small, and it is not evident that the modest amount of material required to build it could not either be stored along the site’s northern boundary after the RPA was fenced off but before work on the footings commenced, or delivered to the site driveway in phases. Whilst there would be some inconvenience involved, these are not uncommon logistical challenges in other, more dense urban settings. I see no reason why approaches taken to building on small spaces in cities could not be used at the site. It is not evident that the RPA would have to be impinged upon.

I see no reason to find that the proposed development would have a harmful effect on the nearby protected oak tree at [address], and see no conflict in that respect with Policies 73 and 74 of the Bromley Local Plan (2019).

The Council cannot demonstrate a five-year supply of housing land. It identifies a figure of 1.93 years and accepts it to represent a very significant level of undersupply.

I see little to support the Council’s contention that the provisions in paragraph 11(d) of the National Planning Policy Framework (the Framework) are not engaged. Firstly, whilst I recognise that an exemption is provided when “areas or assets of particular importance” are involved, the meaning of that term is set out in footnote 7 and does not include protected trees. I accept that a protected tree may happen to fall into one of the categories listed in the footnote but have no evidence that the tree in question does. Secondly, as set out above, I have no reason to find that the proposed development would have a harmful effect on the tree in any event. The provisions of paragraph 11(d) are engaged.

The appeal scheme would result in an additional dwelling that could be built quickly, helping towards undersupply in the Borough, and supporting the wider Governmental aim of significantly boosting housing supply. Temporary and lasting economic benefits would arise during the construction phase and from residential occupation. The site is in a sustainable location, and the appeal scheme would make effective use of land. The appeal scheme accords strongly to the aims of the Framework in these regards. These benefits attract positive weight in my determination in and of themselves, and that weight is increased in this instance by the local housing land supply position.

However, the Framework also considers the creation of high quality buildings and places to be fundamental to the planning and development process. There is a high degree of correlation between the Framework and the Development Plan in these regards. I have found that, rather than simply being an unusual addition to the Close, the proposed development would harmfully undermine the established, planned feel which is fundamental to its positive characteristics. The harm to character and appearance, in the context of the setting, would be significant.

Furthermore, whilst (firstly) any contribution to a very significant shortfall in housing land has greater value than it otherwise would, and (secondly) the Council has given me no reason to doubt the appellant’s contention that small sites make up more than half of the local housing target, neither consideration changes how small a contribution the appeal scheme would make.

The benefits of the proposed development would be modest and, overall, be significantly and demonstrably outweighed by the degree of harm it would cause to the character and appearance of the area.

I conclude that the proposal conflicts with the development plan and the material considerations do not indicate the appeal should be decided other than in accordance with it.

The appeal is dismissed.