Appeal 6003749

The appeal is dismissed.

The main issues are the effect of the proposal on the significance of [address] which is a [name] listed building (as ‘[address]’) and whether or not it would preserve or enhance the character and the appearance of the [site address] Conservation Area, including having regard to the effect of the proposal on trees.

The appeal site is located within the [site address] Conservation Area (‘the CA’) and is adjacent to [address] which is a [name] listed building (listed as ‘[address]’) and ‘Walls, Railings and [name] to [address]’ which is also a [name] listed building. In determining the appeal, I have therefore been mindful of the statutory requirements placed on decision makers by sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (‘the LBCA Act’).

[address] occupies a reasonably prominent location as the only building apparently fronting the northern section of [address] between [site address] and [address]. The historic core of the building which the list entry indicates dates to the early 18th Century is two-storey with attic and basement levels and includes a pitched tiled roof with square dormers set behind a parapet, tall vertical sliding sash windows and an elaborate [name] porch. It is set back from the [address] frontage within a large plot, and is served by a gated entrance within the listed ‘Walls, Railings and [name] to [address]’ which include a section of wall continuing along the eastern side of the frontage. Together with vegetation on and around other boundaries, this provides for enclosure and a degree of seclusion to the property which was built as a country house. Nevertheless and while vegetation provided screening of the building from many viewpoints at the time of my visit, its classical proportions and detailing and the quality of its architectural features and composition were broadly appreciable.

Insofar as it relates to this appeal, I find that the significance of [address] is primarily associated with its architectural value and historic interest as an elegant Georgian mansion which was one of the earliest buildings in the area.

The building also derives some significance from its setting, most closely from its immediate plot. The appellant’s Heritage Impact Assessment (‘HIA’) suggests that the plot has been reduced in size following rebuilding of the boundary wall to [address] and that the large street tree close to the gates would formerly have been within the curtilage of the House. Be that as it may, the plot remains generous and together with the scale and architecture of the building and the formal gated entrance serves to distinguish [address] from the more modest development which is typical nearby and emphasises its prominence and historic status within the area.

The appeal site sits to the east of [address] and includes a single-storey flat roof building with a basement level which is in commercial use as well as a large area of gravel parking. The site is separated from [address] by hedging and a section of the listed Walls, Railings and [name] to [address]. Further vegetation on the site includes hedging to the boundary with [address] and mature trees including two [name] close to 1 [site address] which are protected by Tree Preservation Order (‘TPO’) and two very large Plane trees close to the south west corner. The site has a gated access adjacent to 1 [site address] , but much of the rest of the boundary to [site address] is marked by a brick wall.

There have been a number of previous appeal decisions on the site, including a decision in 20211 (‘the 2021 Appeal’) where it was determined that the wall along [site address] was within the curtilage of [address] and so should be considered as part of the listed building. In making the current appeal, the appellant confirmed that the position that the wall along [site address] was considered to be listed by association with [address] was not being challenged.

They do however refer to new information in the HIA which was not available at the time of previous appeals indicating that the appeal site has not formed part of the garden curtilage of [address] at any time in its history. The HIA outlines that the appeal site was historically agricultural land, recorded in the 1841 Tithe map as forming part of a much larger arable plot, with [address] shown on a sub-rectangular plot clearly separate from the appeal site land. It notes that when [site address] was developed in the mid 19th Century, the appeal site was not developed, but neither was it incorporated within [address]’s formal gardens. Later, the site was used as tennis and netball courts associated with a school separate to the house, and in the 1970s it appears that the site was being used as car parking ancillary to office use of [address].

However, the 2021 Appeal decision refers to conveyancing paperwork from 1874 suggesting that the site was part of the [address] estate. It also notes a suggestion that the plot may have been absorbed into the estate as early as 1840. The appellant argues that there was no use, function or structural connection between the appeal site and the listed building when the law that refers to curtilage 1 Appeal ref APP/B1930/W/20/3258233 came into effect on 1 January 1969 and that if the site was used by the house, its association was through ownership only and not for pleasure. Be that as it may, while the evidence before me suggests that the appeal site may have been generally partitioned from [address] and the rest of its formal gardens, I have no firm reason to doubt that the site has historically formed part of the wider estate of [address], even if it was not an original part.

In any event, while the appellant asserts that the appeal site’s curtilage association is diminished given the new evidence in the HIA, that does not mean that the site is not part of the setting of the listed building.

It is clear that there has been significant change to the wider setting of [address] through residential development on what was formerly agricultural land. However, the existing building on the appeal site is a relatively modest structure which does not project above the boundary wall to [site address] . This significantly restricts its visibility from outside of the site and given the limited height and scale of the building, there remain unobstructed views above the boundary towards the upper part of [address] and the site has a generally open and spacious quality which reflects the listed building’s historic context. There is further an impression of both physical and visual separation between [address] and surrounding development.

Despite the boundary treatment between them, the generally open quality and presence of mature trees on the appeal site adds to the spacious and verdant setting around [address] which emphasises and reinforces its impression of status. Recognition within the HIA that the site may presumably have been left undeveloped when [site address] was developed to retain morning light to the house and perhaps to enlarge its plot, would further seem to me to reflect some relationship and a desire to maintain the grandeur and status of the house, even if the site was not part of the formal gardens.

Given the above factors, I concur with the view expressed in the 2021 Appeal that the scale of existing development within the site and its undeveloped qualities form an integral part of the setting of [address]. I further agree that the site and trees within it provide a verdant setting which emphasises the importance and landmark qualities of the House contributing to its understanding and significance. Notwithstanding that the appeal site may not have ever formed part of the gardens to [address], I therefore find that it still contributes to the significance of the listed building as part of its setting.

The appeal proposal includes a pair of semi-detached dwellings which would sit on the footprint of the existing commercial building. Apart from a single-storey section closest to [address], the dwellings would be two-storey with a pitched roof form. Although the built footprint may not increase from the existing situation, this would substantially increase the height and overall scale of development on the site and given the projection of the two-storey part of the dwellings well above the boundary wall along [site address] , there would be a much greater physical and visual presence of built form. I find that this would cause a significant increase in enclosure of the site at the upper level and erosion of the existing spacious and open quality. In addition, there would be a much clearer perception of development on the appeal site sitting adjacent to [address]. This would notably reduce the existing impression of [address] as sitting apart from more modest dwellings which predominate the surrounding townscape.

Notwithstanding the different use of the appeal site and boundary treatment which I accept provide for some distinction from the listed building, the resulting reduction in the spacious quality of the site and the sense of [address] being set apart from surrounding development would be detrimental to the significance of the listed building.

Furthermore, the dwellings would step well forward of the front building line of [address] to sit much closer to [address], including their two-storey element. Vegetation would provide some screening of the development, but this would be reduced at times of year when leaf coverage was lower and based on my observations, there would be viewpoints where there would be a clear perception of development intruding into the [address] frontage alongside [address] and indeed sitting forward of it. Notwithstanding that the size and scale of the dwellings may have been designed to replicate the [site address] street scene, the relationship would serve to reduce the prominence and landmark quality of the listed building, detracting from the legibility and appreciation of its historic status with consequent detriment to its significance.

I acknowledge that there would remain opportunities for views of the listed building to either side of the dwellings and that the spaciousness of the site and sense of separation between the listed building and surrounding development would not be wholly undermined.

I have also noted changes made from previous proposals for the site including a reduction in the number of dwellings, a reduction in height of the building closest to [address] to single-storey and other amendments to the design. The submitted details also indicate that there would no longer be any direct physical impact on the wall along [site address] . These factors mean that I find the level of harm would be less than that which would have occurred under previous residential schemes including the 2021 Appeal.

For the reasons above however, I find that there would be harm to the significance of the listed building through the development within its setting.

In reaching this view, I have noted the development of [address] in place of the former stable block to [address] which the HIA suggests establishes a precedent for development in proximity to the listed building. However, there is reference to that development as providing capital for the restoration of the listed building which would not be the case here and there is little evidence of direct compatibility with the individual circumstances of this appeal. In any event, I do not find previous change to the setting of the listed building compelling evidence that the proposal would not cause further harm. Insofar as I have found the appeal site to contribute positively to the significance of [address] as part of its setting, the current proposal is also distinguished from an appeal at land adjacent to 1 [name], [name] where the site was considered to make a neutral contribution to the significance of a nearby listed building.

The Conservation Area Character Statement (‘the CACS’) identifies that the appeal site is located within Character Area 7K of the [site address] CA which encompasses a sizeable part of the city centre. The CACS refers to [address] as the centrepiece of Character Area 7K and the oldest and most architecturally important building in the area. Elsewhere, [address] is noted as a secondary shopping street with a substantial residential element and former school buildings present too, while the rest of the area is principally characterised by a network of small-scale mid 19th century artisan terraces and late 19th century terraced and semi-detached housing.

Many of the buildings within the character area are historic and form an attractive and architecturally coherent part of [site address] ’ heritage of brick buildings. Development is typically dense, but there are occasional examples of more open sites including at The Jubilee Centre and [address] which form landmarks punctuating the streetscape and providing visual relief and interest. Indeed, the CACS specifically notes mature trees to the fore of [address], protected pines to the side and a street tree to the front as an important asset, and it identifies [address] and its relatively spacious and verdant setting as a positive element in the area.

Insofar as it relates to this appeal, I consider that the significance of the CA is primarily associated with the quality of the townscape resulting from the complement of buildings and spaces within it.

At the appeal site, screening by boundary treatment reduces the perception of the existing building from the surrounding area and there is an overall impression of openness. Together with the mature vegetation including large trees which are present, this contributes to the spacious and verdant setting to [address] and its landmark quality as the centrepiece of the character area. The site also provides for separation between the house and more modest 19th century development in the surrounding area which reflects the historic pattern of development. I find as a consequence that the appeal site makes a positive contribution to the character, appearance and significance of the CA.

I have found above that the proposal would result in notable erosion of the spacious and open quality of the appeal site; that it would reduce the existing impression of [address] sitting apart from more modest dwellings which predominate the surrounding townscape; and that the landmark quality of [address] would be reduced. These effects would detract from the character and the appearance of the CA.

I have noted the appellant’s suggestion that the proposal would complete the Victorian planned layout for the area. However, while the site may not have been planned to provide public open space, the HIA suggests that it may have been left undeveloped to retain morning light to [address] and perhaps to enlarge its plot. On that basis, the retention of an open plot on this corner would still reflect the historic evolution of the townscape.

Moreover, the dwellings would broadly follow the existing building line on [site address] and their design may be intended to reflect the style of existing development nearby, but the Council highlights differences in their proportions and roof pitches from existing Victorian buildings. The Council does not object to the design approach in principle and I have no firm reason to take a different view, but these differences would serve to distinguish the dwellings from the surrounding development, and I find that they would be clearly read as modern infill rather than a continuation of the historic townscape. This would exacerbate the visual prominence of development on the site in the street scene.

Given these factors, I find that the proposal would cause disruption to the existing pattern of development here and that the contribution that the appeal site currently makes to the character, appearance and significance of the CA would be notably diminished.

The appellant’s Tree Survey Plan and Tree Schedule identify two [name] on the site close to 1 [site address] which are protected by TPO (T1 and T2) and two large Plane trees close to the south west corner (T11 and T12) as category B trees of moderate quality. Given their significant height and quality, these trees are prominent features in the area and they make a significant contribution to the character and appearance of the locality, including the CA. I have further noted above that trees on the site contribute to the significance of [address] as a listed building.

I have been provided with a copy of an Arboricultural Impact Assessment (‘AIA’) dated August 2012 which refers to the construction of the single-storey development on the site. However, while the appellant advises that the proposal seeks retention of all trees within the site, no such assessment has been provided in respect of the appeal proposal.

The submitted plans indicate that the dwellings would sit on the footprint of the existing building which already has a basement area. From the information before me, I see no firm reason to doubt the appellant’s assertion that no additional excavation would be required as part of development. On that basis and subject to details of measures to protect trees during construction works which could be secured by planning condition, I am satisfied that the development could be carried out without adverse impacts on the root protection areas of trees on the site.

Be that as it may, effects on root protection areas are not the only potential way that trees could be affected by development. Here, the submitted Tree Survey Plan shows the canopy of the [name] T1 extending partly over the existing building which is consistent with my observations on site. The Tree Schedule also indicates a crown clearance of 5m to this tree and I saw that there were some relatively low sections of the crown. In contrast to the existing building which is only a single-storey above ground level, the closest part of the appeal development to this tree would be two-storey with a pitched roof.

Given this increase in height and my observations of the crown height and overhang, I am concerned that accommodating the development now proposed could result in conflict with tree T1 resulting in a requirement for works to the tree that could be detrimental to its health, longevity and the contribution that it makes to the character and appearance of the area. Notwithstanding arboricultural information which may have been submitted in relation to previous proposals, I have no substantive evidence considering the relationship of the development now proposed with tree T1 to ascertain that this would not be the case. Because it is also not possible on the basis of the information currently provided to determine that the relationship would ultimately be acceptable, it would not be appropriate to defer assessment of this matter to a planning condition.

Moreover, it is apparent that the canopies of the Plane trees T11 and T12 would overhang nearly all of the garden proposed for the Plot 2 dwelling. Irrespective of the overall area of the garden, it was clear from my visit that the trees would result in significant shading to the space, most acutely when the trees are in full leaf. It further seems to me that the very close proximity of the canopies to windows to the rear of the dwelling on Plot 2 could also result in notable obstruction to natural light and there is no compelling evidence before me to demonstrate that levels of light within the dwelling would be likely to be adequate to provide a suitable quality of accommodation with the trees in place. The very close relationship of the trees to the dwelling/garden could also give rise to nuisance from leaf fall or perceptions of hazard. I note the town centre location of the site and that there is nearby open space that occupiers could use. However, while the trees are afforded a degree of protection by virtue of their location within the CA, I consider that the above factors in combination could result in significant pressure from future occupiers of the site for works to the trees or removal.

Given the above, I am not satisfied that it has been demonstrated that the proposal would not result in works to trees on the site that would diminish the contribution that they currently make to the character and appearance of the area. This outcome would further exacerbate the harm that I have already identified would be caused to the significance of [address] and the CA. The proposal would accordingly conflict with saved Policies 74 and 85 of the [site address] District Local Plan Review 1994 (‘the LPR’) which broadly seek retention of healthy trees and advise that buildings shall not be sited where they are likely to justify future requests for tree felling or surgery.

I appreciate changes that have been made from previous proposals for dwellings on the site. For the reasons above however, I find that the proposal would cause harm to the significance of the [name] listed building, [address], and the character and the appearance of the [site address] CA would not be preserved which would harm its significance. In each case, the harm would be exacerbated given the failure to demonstrate that the proposal would not have an adverse effect on trees.

The National Planning Policy Framework (‘the Framework’) advises that any harm to, or loss of, the significance of a designated heritage asset should require clear and convincing justification. It states that when considering the impact of development on the significance of designated heritage assets, great weight should be given to the asset’s conservation, and the more important the asset, the greater the weight should be.

The CA covers an extensive area and given the scale of the development and that visual impacts would be relatively localised, I find that harm to the CA as a whole would be less than substantial in the terms of the Framework, and at a low level within this range. There would also be no direct effect on the fabric of [address] and the proposal would affect only part of its wider setting which it appears has not historically formed part of the gardens to the house such that I find harm to the listed building would also be less than substantial and at a relatively low level. The harm in each case nevertheless attracts considerable importance and weight.

Where a proposal will lead to less than substantial harm to the significance of a designated heritage asset, the Framework provides that this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use.

The proposal would make effective use of a brownfield site to provide two new dwellings on a site within a sustainable town centre location. The Framework seeks to significantly boost the supply of homes, and advises that opportunities to use airspace above existing residential and commercial premises for new homes should be supported. It also advises that small and medium sized sites such as this can make an important contribution to meeting the housing requirement of an area. Furthermore, the Council is unable to demonstrate a five year supply of deliverable housing sites and has not disputed the appellant’s evidence that the current supply position is around 1.12 years which is a substantial shortfall.

Against this context, the delivery of housing is an important public benefit attracting substantial weight. However, the contribution that two dwellings would make to the overall housing supply picture and the effect on reducing the shortfall would still be very small. While that does not diminish the weight that I give the contribution, it does restrict the extent of the benefit.

The appellant has also advised that they would be willing to offer an information board secured through a legal agreement detailing the meaning of the site, its surroundings and the CA. However, while this could provide some public benefit in aiding understanding and appreciation of the significance of heritage assets, the effect is likely to be small. Moreover, there is no planning obligation or other mechanism before me to secure provision. The weight that I afford to this factor is therefore very limited.

Even taken cumulatively, the limited public benefits of the proposal would not in my judgement be sufficient to outweigh the harm, taking into account effects on trees, to the listed building and to the CA which attracts considerable importance and weight. Accordingly, I am not persuaded that there is a clear and convincing justification for the harm that the proposal would cause to the significance of these

Drawing these matters together, the proposal would cause harm to the significance of the [name] listed building, [address], and the character and the appearance of the [site address] CA would be neither conserved nor enhanced. The proposal would be contrary to the LBCA Act and it would conflict with the aims of the Framework as it would fail to sustain the significance of the listed building and the CA and public benefits would not outweigh the harm. It would also be contrary to saved Policies 69, 70, 85 and 86 of the LPR insofar as they broadly seek an adequately high standard of design, housing development that has regard to its setting and the character of its surroundings and the preservation and enhancement of conservation areas and the preservation of listed buildings.

Having found that there would be harm to the significance of [address] and the [site address] CA and that the proposal has not demonstrated that effects on trees would be acceptable, the proposal would conflict with saved Policies 69, 70, 74, 85 and 86 of the LPR.

The relevant requirements in these policies broadly reflect objectives in the Framework seeking well designed places, the retention of existing trees and the conservation and enhancement of the historic environment. I therefore afford weight to the conflict in these respects, and having regard to the range and importance of the matters raised, I find that the proposal would conflict with the development plan when it is read as a whole.

The absence of a five year supply of housing land means that paragraph 11. d) of the Framework which outlines a presumption in favour of sustainable development is relevant. In light of my findings in respect of the listed building and CA however, I consider that policies in the Framework that protect designated heritage assets provide a strong reason for refusing the development proposed. The presumption in favour of sustainable development at paragraph 11. d) of the Framework does not therefore indicate that permission should be granted in this case.

The Framework advises that substantial weight should be given to the value of using suitable brownfield land within settlements for homes, proposals for which should be approved unless substantial harm would be caused. Although the harm that I have identified to the listed building and CA would be ‘less than substantial’ in the terms of the Framework, there is no clear and compelling justification for this harm and I consider that the overall harm that the proposal would cause would be substantial.

In my judgement, the benefits of the proposal would be insufficient to outweigh the collective harm and the resulting conflict with the development plan when it is read as a whole, and material considerations including the Framework do not indicate that a decision contrary to the development plan should be reached.

For the reasons given above, I conclude that the appeal should be dismissed.