Appeal 6003882

The appeal is dismissed.

The application was submitted in outline for up to 9no dwellings with appearance, landscaping and layout reserved for subsequent approval. Matters relating to access and scale are for determination. The appellant has submitted an indicative plan how the site might be developed for up to 9no dwellings. I have treated details other than access and scale as indicative and not formally as part of the scheme.

The appeal submission includes a revised application form which omits scale from the consideration. The appeal is also accompanied by three additional documents which were not considered by the Local Planning Authority at the application stage. These appear to be an [name] Note1; an [name] Assessment2 and a [name] Assessment3.

The Procedural Guide for Planning Appeals is clear that the appeal process should not be used to evolve a scheme, and it is important that what is considered is essentially what was considered by the Council, and on which interested people’s views were sought. Under the principles established by the Courts in [name] Ltd4 to consider such a modification, and the additional documentation, would be a substantive difference and procedurally could prejudice interested parties by depriving those who should have been consulted on the change the opportunity of such consultation. For this reason, I have determined the appeal on the basis of the details that were before the Council when it made its decision. 1 produced by Paul Basham Associates Ltd. [name]. ‘1007.0030/ATN/2’ 2 produced by [name] 2246D/CJO/1002 3 produced by Martin Andrews Consulting Limited 1461-FRA-01-0’ 4 Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWCH 2823 (Admin)

The main issues are: i) the effect of the proposed development on character and appearance and living conditions having regard to the quantum of development proposed; ii) the effect of the proposed development upon the character and appearance of the area, with particular regard to trees; and iii) whether the proposal would be capable of providing adequate drainage.

[address] is predominantly residential in character. Properties vary in age and type, although it largely comprises linear development which fronts the highway.

Policy LPP35 of the Braintree District Local Plan 2013-2033 (LP) is concerned with [name], Density and Accessibility. The policy states that the density and massing of residential development will be related to the character of the site and its immediate surroundings, as well as the locality. The supporting commentary to the policy also states that as a general guide the Council would expect densities in the district to be at least 30 dwellings per hectare to ensure the most efficient use of land. However, each case is subject to its own set of constraints and thus densities are likely to vary for numerous reasons.

Whilst an outline application essentially seeks to establish the principle of development on the site, in this case, the description of development sets out a quantum of development, seeking 9no dwellings. Scale is also to be determined as part of the consideration of the outline application, and I have borne in mind the site plan in this regard.

In the context of the Development Management Procedure, scale refers to the height, width, and length of each building proposed within a development in relation to its surroundings. The indicative site layout plan sets out the widths/lengths of the 9no proposed dwellings.

Irrespective of the layout being subject to reserved matters, the maximum quantum applied for must be demonstrably achievable on the site. The proposed scale of dwellings and their gardens appear to be broadly comparable with properties in the locality. However, given the site constraints, namely a significant difference in site levels at the southern boundary and the presence of landscaping I am not satisfied that the indicative drawings show a realistic form of development.

It is not disputed between the parties that engineering works would be necessary to facilitate the proposed access through an embankment, circa 3 meters in height. It is not clear what the implications of this would be upon site levels across the rest of the site, particularly where dwellings would be positioned close to the southern part of the site, proximate to the access. For instance, it is not clear how dwellings would achieve individual vehicular accesses at an appropriate gradient and this casts doubt over the ability of the site to accommodate 9no dwellings at the scale proposed.

The Council also raises concerns regarding the size of the proposed gardens. There is dispute between the parties as to the status of the 2005 [name]. Nevertheless, it provides a useful guide as to the size of gardens appropriate for developments. The Council contends that the indicative site layout fails to demonstrate that the site can accommodate 9no dwellings in a manner that would adhere to the latest guidance in terms of garden spaces. The appellant suggests that a condition could be imposed specifying the minimum garden sizes for the dwellings.

I share the concern that site constraints, namely site levels, could materially restrict the developable area of the site and the form development could reasonably take. Such constraints and the need for re-grading may compromise garden spaces, such that they would not be compliant with the Council’s policy and guidance.

Furthermore, significant changes to site levels could compromise the overall visual relationship of the development with its surrounds. However, I recognise that details of the appearance, including the orientation of the dwellings, within the site would be for consideration at the reserved matters stage.

Whilst a reserved matters application could come forward with a lesser number of dwellings than 9no, the description of the proposal specifically refers to 9no, and their respective scale. As such there would be an expectation that 9no dwellings could be built out at the scale indicated if the appeal were allowed. It would therefore be remiss of me to allow the appeal given the uncertainties identified.

The principle of residential development on the site is not disputed between the parties. However, the quantum of development lies at the heart of the consideration of the proposal. The evidence before me fails to demonstrate that the stated amount of development could be accommodated on the site in a realistic, policy compliant and acceptable manner. I am therefore not satisfied that the proposal wouldn’t represent an over-development of the site.

For the reasons stated above, I am not satisfied that the quantum and scale of development proposed can be accommodated on the site without harm to character and appearance and/or living conditions. This draws the proposal into conflict with LP Policy LPP 47 which promotes to secure a high standard of design in all new development, and respect and respond to local context. Conflict would also arise with LPP 1 and LPP52 of the LP which, collectively, require a high standard of layout and design in all developments in the district and Policy LPP 52 insofar as it requires satisfactory living conditions. Conflict would arise with Policies SP1, SP7 of the LP, which amongst other things seeks to protect the amenity of future residents and support sustainable development. The proposal would also be contrary to the National Planning Policy Framework (the Framework) requirement for development to be well designed and make efficient but appropriate use of land.

The appeal site is an irregular shaped parcel of land which fronts [address]. It is accessed via a track to its eastern boundary and comprises the garden of No 244. The land is laid to grass, with some vegetation and numerous single storey outbuildings and areas of hardstanding. The site is located within an established residential area.

The appeal site is elevated from [address] and is set behind a landscaped embankment. Due to their elevated position, the landscaping is highly visible within the streetscene and contributes positively to the character of the area.

The proposal is in outline form where the detailed siting, design and landscaping would be reserved matters. However, the means of access is not a reserved matter, and it is not disputed between the parties that engineering works would be necessary to facilitate the access which is proposed into the existing landscaped embankment. Uncertainty regarding construction techniques, and subsequent maintenance requirements, casts doubt on the degree of tree retention possible, particularly those situated on the southern boundary of the site, fronting [address].

It is inevitable that some vegetation would be required to be removed to facilitate the proposed vehicular access and this would result in some urbanisation of the land. However, I am satisfied that the insertion of the vehicular access would not appear unduly conspicuous within the street scene. Furthermore, there is no substantive evidence before me to suggest that a landscaping scheme could not be implemented that would help assimilate the development into its surroundings.

There is no doubt that the proposal would change the existing character of the site as a whole. However, the proposed development would be broadly comparable to the elevated position of dwellings located to the west of the appeal site that also fronts [address]. Accordingly, development of the site would for residential development would not be at odds with the established character of the area.

Concerns regarding the site layout and the impact of trees upon the living conditions of future occupiers of the dwellings would be a matter to be considered at the reserved matters stage when the site layout would be established. Moreover, in the absence of the layout and orientation of dwellings being determined at this stage the potential for pressure for tree removal by future occupiers cannot be assumed.

For the reasons stated, I conclude that the proposal would not be materially harmful to character and appearance, with particular regard to trees. Accordingly, the proposal would comply with [name] LPP52, LPP65, LPP67, insofar as these seek to respect or improve upon the character of the site and surrounding area, including, amongst other things in terms of landscaping.

It is understood that the site and access to be within [name] 1. This is in an area of the lowest probability of flooding. Given concerns regarding changes in land levels the Council considers that the drainage details are fundamental to the development.

[name] note local water constraints may lead to increased pollution risks. However, they recommend conditions requiring the submission of both a foul and surface water strategy.

While drainage may have implications such as how a site would be laid out or where landscaping/planting could be located, such matters are reserved for subsequent approval. I am mindful that drainage could be addressed through the imposition of conditions, as suggested by the consultee, where a more detailed and technical discussion would seemingly be appropriate as and when applications are made pursuant to those conditions.

In the absence of robust evidence before me to indicate that it would not be possible to control/mitigate the effects of drainage by condition I am satisfied that the implications of drainage do not represent a reason for the refusal of the outline permission. Subject to the imposition of conditions, the proposal would accord with the flood risk and drainage requirements of Policies LPP74, LPP75 and LPP76 of the LP. The proposal would also not be contrary to the Framework with regards to planning for climate change and flood risk.

The appellant appears to contend that the presumption in favour of sustainable development at paragraph 11(d) of the Framework applies in this case. However, the Council have confirmed that they have more than a five-years supply of housing, which has not been disputed, and I have been provided with no other evidence to suggest that paragraph 11(d) applies in relation to this appeal.

Nevertheless, a deliverable housing land supply is not a ceiling to provision, and the proposal would result in additional units of accommodation which would contribute to the Government’s broader objective of significantly boosting the supply of homes. The site is in a location with good access to services and facilities, and small and medium sized sites, such as this, can make an efficient use of land, and can be built out relatively quickly. The proposal would result in short-term economic benefits arising from the construction process. Economic and social benefits are also likely to arise from the occupation of the new dwellings. However, given the quantum of development proposed such benefits would be modest.

In favour of the development, I note the intended environmental credentials of the proposed development, including measures such as EV charging points for the proposed and existing dwelling and PV solar panels. However, the evidence submitted in these regards is limited and, in any case, the benefit that would be derived from these facets of the proposal would be limited.

The appeal site is within a ‘Zone of Influence’ for European designated sites, namely the Blackwater Estuary Special Protection Area (SPA) and Ramsar Site, [name] and Ramsar Site and Essex Estuaries Special Area of Conservation (SAC).The sites are identified as being vulnerable to harm through recreational disturbance, which would be exacerbated by an increase in the local population resulting from new residential development. Therefore, alone and in combination with other development, the proposal constitutes a likely significant effect to the protected sites. Mitigation has been developed to avoid such adverse effects in the form of the [name] and [name] (RAMS), which is funded through developer contributions. [name] been minded to allow the appeal I would have carried out an appropriate assessment (AA) of the effect of the proposal on the integrity of the RAMSAR, SPA and SAC sites. However, as the proposed development is unacceptable for other reasons, an AA is unnecessary as doing so would not change the outcome of the appeal.

In their appeal submission the Council have included an Appeal Decision5. However, it is unclear how this is comparable to the appeal scheme before me. It has therefore not been determinative to my consideration of the proposal.

For the above reasons, and having regard to all other relevant matters raised, I conclude that the appeal should be dismissed.