Appeal 6003788

The appeal is dismissed, and planning permission is refused.

An application for costs was made by [name] against Canterbury City Council. This application is the subject of a separate decision.

The appeal results from the failure of the Council to determine the planning application within the relevant time period, and as such, there is no formal decision notice. The Council has confirmed in its appeal documentation that, had it been able to do so, it would have refused planning permission.

The parties have referred to the draft Canterbury Local Plan. However, the Council has confirmed that it is early in the process. I have no evidence before me regarding the specific stage the plan is at, specific relevant policies, whether any interim findings have been made, if there have been any main modifications and subsequent consultations upon them or if the examining Inspectors have submitted their report. Given the lack of certainty over the final form of the emerging policies, the draft plan carries very limited weight.

The main issues are: • the location of development; • the effect of the proposal on the character and appearance of the area; and • whether the proposal would result in a loss of agricultural land.

Policy SP4 of the Canterbury District Local Plan (2017) (CDLP) sets out that the urban areas of Canterbury, [name] and Whitstable are the principal focus for development, and in the open countryside development will only be permitted if required for agriculture and forestry purposes. In addition, Policy HD4 sets out a number of criteria for new dwellings within the countryside.

The evidence shows that the appeal site falls outside of, albeit close to, the defined settlement boundary of Whitstable. As it is not within a defined settlement, it is therefore located within the countryside. The proposed dwelling would not meet any of the criteria listed in Policy HD4.

The appeal site is situated within walking distance of a large supermarket and bus stop along a lit and paved footpath. Future occupiers would therefore have a variety of low-carbon transport options and would not be reliant on a private vehicle to meet daily needs. Nevertheless, the proposal would not be an appropriate location for development with regard to the development plan policies relating to the spatial strategy for the area which seek to focus development within the defined boundaries.

Whilst the appellant contends that the site falls within the urban area of Whitstable in the draft local plan, I have not been provided with a specific policy or map demonstrating as such. In any case, as highlighted owing to the significant lack of certainty over the final form of the emerging plan, this carries very limited weight.

The location of the development would therefore conflict with Policies SP4 and HD4 of the CDLP which sets out the evidence based spatial strategy and plan-led approach to the distribution of development within the district.

The Council has referred to Policy SP1 of the CDLP in its associated reason for refusal. However, this relates to the presumption in favour of sustainable development, as expressed in the National Planning Policy Framework, which I consider later on in my decision.

[address] comprises a row of mostly detached properties set in a recognisable linear pattern, set back from the road with open frontages. The properties contain gardens which back onto an open green field and the wider countryside. Ahead of these properties on the opposite side of [address] lies a suburban housing estate with development at depth comprising [address], [address] and [address].

Whilst the evidence shows that the appeal site is situated outside of a defined settlement boundary, as defined by the development plan, on the ground the area is heavily influenced by the surrounding development and appears as part of the suburban edge of Whitstable.

Presently the appeal site contains a garage/workshop structure which is in a state of disrepair and the site is overgrown and physically separated from the rear garden of No [address].

Whilst the site contains an existing outbuilding, the development would introduce a greater amount of built form through a dwelling and garage whilst also creating a distinct new residential curtilage behind the linear building line of [address]. This would appear considerably at odds with the linear pattern of development demonstrated along [address] which would be harmful to the character and appearance of the area. The introduction of a dwelling, whilst fronting onto the private road to the side, would nevertheless read as a cramped backland addition to the streetscene, rather than a logical infill development. Whilst some views of the proposed dwelling would be obscured by No 38, nevertheless views would still be achievable from [address] of the development where it would appear harmful to the streetscene. The proposal would therefore result in harm to the character and appearance of the area.

In relation to the wider countryside, given the visually suburban context which the appeal proposal would be seen within, and the development not breaching the existing established rear plot line of the properties along [address], there would be no visual encroachment into or harm to the character and appearance of the countryside.

The appellant contends that the proposal would have a similar effect as other buildings which could potentially be constructed through permitted development rights in similar locations to the rear of the other properties of [address]. However, these potential examples are not directly comparable to the appeal proposal as they would not create a distinct new dwelling and curtilage, and instead would be incidental to the host dwelling.

The proposal would therefore conflict with Policy DBE3 of the CDLP. This policy, amongst other matters, seeks to ensure that development is of a high quality design that considers the character, setting and context of the site.

Policy EMP12 of the CDLP seeks to protect the best and most versatile farmland (BMV) for the longer term. The Council contends that part of the site is shown as Grade 3 agricultural land. However, no evidence has been provided as to whether it would be Grade 3a, best and most versatile, or Grade 3b which is not. I have no site specific assessment of the soil before me.

In addition, on my visit it was clear that the site was presently not in agricultural use and contained a domestic appearing outbuilding. On balance, it has not been demonstrated that part of the site is BMV and in any case, the development would not result in the loss of active farmland and as such there would be no conflict with Policy EMP12 of the CDLP.

The evidence shows that the appeal site falls within the zone of influence of the Thames, Medway & Swale Special Protection Area and the [name] and Sandwich Bay Special Protection Area. Residential development within the zones of influence would result in a likely significant effect to the protected sites in combination with other plans and projects through additional recreational disturbance. The development would introduce a net gain of a dwelling which would therefore exacerbate the recreational pressures on these sites. As such, in combination with other projects or plans there would be a likely significant effect on these Special Protection Areas.

Policy SP6 sets out that developments which result in a significant effect on such sites are required to contribute to a [name] and [name] to mitigate the effects of the development. I have not been presented with a planning obligation securing the financial contribution or evidence that this payment has been made directly to the Council. The proposal therefore would not mitigate the adverse effect on the integrity of the Special Protection Areas.

Furthermore, the Council considers that in order to meet the self-build exception in relation to biodiversity net gain, a planning obligation is required to secure the use of the proposed property as a self-build dwelling. The appellant suggests that this could be secured by a condition. However, I have not been provided with any wording for such a suggested condition.

In any case, in relation to both these matters, since I am dismissing the appeal for other reasons, I do not need to discuss these matters further as it would not lead me to a different conclusion on the outcome of the appeal.

The appellant has raised concern regarding the Council’s handling of the application, with particular regard to paragraphs 39 and 42 of the National Planning Policy Framework (the Framework). However, this is a matter that lies outside the scope of my determination as it does not affect the planning merits of the proposal.

The proposed development is not in accordance with the aforementioned policies of the CDLP, by virtue of harm to the character and appearance of the area, and the location outside of a defined settlement boundary. [name] have not been given an exact figure, the parties agree that the Council cannot demonstrate a five year housing land supply.

The provisions of paragraph 11(d) of the Framework are therefore engaged. Footnote 8 confirms in these circumstances, the policies which are most important for determining the application are deemed to be out-of-date. Paragraph 232 of the Framework confirms due weight should be given to policies, according to their consistency with the Framework.

In relation to character and appearance, Policy DBE3 of the CDLP is broadly consistent with the Framework. Notably where it is clear at paragraph 139 that development which is not well designed should be refused. Furthermore, paragraph 135b) sets out development should be visually attractive as a result of various matters including the layout. In addition, whilst paragraph 124 of the Framework seeks to make effective use of land, this is to be achieved while also safeguarding and improving the environment. Therefore, the conflict with this policy would carry significant weight against the proposal.

In relation to the location of development, the proposal would conflict with Policies SP4 and HD4 which sets out the Council’s strategy for accommodating housing within the district. However, the adopted strategy is not meeting the local housing needs of the area. The development plan is failing to meet paragraph 61 of the Framework which sets out the Government’s objective of significantly boosting the supply of homes and ensuring sufficient amount of land can come forward. As such, conflict with these policies only carries limited weight against the proposal.

Overall, the appeal proposal would conflict with the development plan as a whole and the above mentioned paragraphs of the Framework.

The Government’s objective is to significantly boost the supply of housing, including through small and medium schemes. The proposal would contribute one dwelling towards the Council’s housing land supply. It would also lead to a small and time limited economic benefit during the construction phase, as well as some limited social and economic benefits resulting from future occupiers. There would also be some additional benefits regarding its accessibility to nearby facilities and services. However, given the small scale of the proposal, these benefits would, at most attract moderate positive weight in favour of the development.

The proposal would provide a suitable standard of living conditions for future occupiers of the development. However, it is expected that appropriate living conditions are provided for future occupiers of the development and this lack of harm is therefore not a benefit in itself.

Notwithstanding, whether paragraph 11d)i would be engaged with reference to the unmitigated effect on the footnote 7 Special Protection Areas, the adverse effects of granting planning permission would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework as a whole. Therefore, the presumption in favour of sustainable development would not apply, meaning the proposal would also conflict with Policy SP1 of the CDLP.

The proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Therefore, for the reasons given above the appeal should be dismissed.