Appeal 6003942

The appeal is dismissed and planning permission for residential development of 6no. dwellings is refused.

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

The appeal is submitted against the failure of the Council to determine the planning application within the statutory timescale. The Council has advised that, had it been able to do so, it would have refused planning permission for the five reasons set out in the conclusion of its statement of case. I have had regard to this in so far as it provides clarity as to the Council’s view on the proposal.

Part of the site lies within the Parish of [site address] and part within the Parish of Orcop. I acknowledge that the proposed housing would be within the area in [site address] . However, the proposed drainage system and open space, which are key parts of the development, are within Orcop Parish. Therefore, I have considered the proposal against the relevant policies for Orcop, including the Orcop Neighbouring Development Plan 2021-2031 (the ONDP). In this regard the appeal before me is materially different to the appeal on the property known as Etna1, where the whole of the development was outside the area covered by the ONDP.

As part of the submission of [name] the appellant has provided a [name] and Shadow Habitats Regulations Assessment (SHRA). This additional information, albeit seeking to overcome one of the reasons for refusal, would result in a fundamental change to the information considered by the Council, consultees and interested parties at the planning application stage. The additional nutrient 1 APP/W1850/W/22/3308126 information and the SHRA is a substantive change and, as this information was submitted with [name], no other party has had the opportunity to comment on it. Consequently, the Council and interested parties would be unfairly prejudiced if I were to accept this information.

I have, therefore, not taken into account the [name] or the SHRA for the purposes of this appeal and, in the interests of natural justice, I have determined the appeal on the basis of the information as considered by the Council.

The main issues are: - the effect of the proposed development on the landscape character of the area; - whether the proposed development would provide adequate surface water and foul water management and the effect of the foul drainage system on the living conditions of the occupiers of neighbouring properties at Etna and on [address], predominately from flood risk and odour; - the effect of the development on biodiversity, especially [name] and bats; - the effect of the development on the living conditions of the future occupants of the proposal and the occupants of neighbouring properties from contamination; and - the effect of the development on the River Wye Special Area of Conservation.

The appeal site comprises agricultural fields next to the settlement of [address], accessed off the road serving the housing known as [address]. The appeal site slopes away from the road through [address] and away from the existing houses. It is enclosed by post and rail fencing along the edge with the village road, close boarded fences with the neighbouring properties and hedges and trees with the fields beyond. The appeal site is part of the open countryside around the settlement.

It lies within the [name] landscape character type as identified in the Herefordshire Council Landscape Character Assessment, 2023 (the LCA). The key characteristics of the area relevant to the appeal site include rolling hills, small-scale field pattern, woodlands, scattered hamlets linked by winding lanes and loose settlements. Even though it is not a designated landscape where additional protection is given, it is a landscape that is sensitive to change and the appellant’s Landscape and [name] (LVA) advises that it has medium landscape sensitivity.

[address] is one of the small settlements in the area. It has a loose pattern; however, the existing houses are predominately sited around a triangular road layout and along the roads extending out from the triangle. The relatively recent development of [address] has provided a new cul-de-sac off one of the existing village roads. However, that development sits close to the cluster of houses and is read as part of the settlement, similar to the small cul-de-sac of semi-detached houses at the opposite end of [address].

The appeal proposal would add a further cul-de-sac of six dwellings and associated garages and gardens extending further out from the settlement. Due to the proposed position of the orchard, attenuation pond and drainage system, the proposed houses would not be read as extending along the village roads as is the existing built form. It would result in built development on a parcel of land that is outside the physical and visual edge of the settlement and is currently open and free from development. The layout would, therefore, be out of keeping with other housing in [address], including those on [address] and, in my judgement, would not be a logical rounding off of the village.

The scale and design of the proposed dwellings are appropriate and relate to the existing housing, providing a traditional rural design. Moreover, the proposal would provide a mix of house sizes and types while having a degree of consistency in design and materials. The size and appearance of the proposed dwellings would harmonise with the existing housing. Nevertheless, the proposed layout as a new stand-alone cul-de-sac extending out from the existing road would not reflect the local grain and would appear as an alien and incongruous addition, on the edge of the settlement.

Even though allowing views through the development to the countryside beyond, and even with the proposed landscaping, the development would erode the open and rural character on this side of [address] and encroach into the countryside. The proposed new orchard and additional planting would limit views of the development and provide biodiversity enhancements. However, the provision of landscaping and the open areas would mean that the layout of the proposal would not integrate into the settlement. The effect on the landscape character would be adverse, even if I accept the LVA conclusion that it is only minor adverse.

Although the appellant refers to the site previously operating as a poultry farm, it was mostly clear of structures at the time of my visit and the Council suggest that the buildings were removed approximately 20 years ago. Any remains of the poultry structures have naturalised into the landscaping. Furthermore, poultry farming would have fallen within an agricultural use and, therefore, it would not have comprised previously developed land when assessed against the definition in the annex to the National Planning Policy Framework (the Framework). Consequently, I find that the appeal site is not previously developed land.

For the above reasons, although the principle of new housing in and around [address] is acceptable, the proposed development would adversely affect the landscape character of the area. The layout would extend out from the cluster of the settlement, beyond the natural extent of the village, not respecting the built form and layout of the houses in [address], and eroding the rural character around the settlement. It would, therefore, fail to comply with Policies SS6 and LD1 of the Herefordshire Local Plan Core Strategy 2011-2031 (the CS). Collectively these policies seek to ensure that the character of the landscape has positively influenced the design, scale, nature and site selection, ensure the protection and enhancement of the setting of settlements, ensure that development integrates appropriately into its surroundings, and requires developments to conserve and enhance environmental assets.

The Council has also referred to policies of the ONDP in the reason for refusal relating to the effect on the landscape character of the area. However, as the proposed houses would not be within the parish of [name] find that the policies of the ONDP are not material to the consideration of this main issue.

The appeal proposes to discharge the foul drainage to a package treatment plant, reed bed and then to deep infiltration. Surface water is proposed to be discharged to a swale and attenuation basin with the final outfall rate being restricted to greenfield rates. These systems have been proposed as the appellant has accepted that the site has limited capacity for discharge via shallow infiltration. The location of the proposed foul drainage is on the land behind the existing houses on [address] and within the Parish of Orcop. At my visit I saw that this part of the site, and the area proposed for the surface water attenuation basin, slopes down gradually to moderately. Although there are parts of the site that are more steeply sloping the proposed location of both parts of the drainage system are not.

Based on the various pieces of evidence before me, only one test pit was shown to be capable of percolating water from the foul drainage system, even at depth. Although three tests were carried out these were all in one pit. Given that other tests near to this one indicated poorer infiltration rates, and that no additional tests were carried out across the eight metre length of the proposed deep soakaway area, I cannot be certain that the appeal site is capable of accommodating the outflow from the foul drainage system, even with the Environment Agency permit. Moreover, that permitting regime is separate to the consideration of the planning application against the adopted development plan policies.

The limited compelling evidence that the ground is appropriate for deep discharge of the foul drainage increases the risk that the water discharging from the system would not percolate into the ground. It would be at risk of remaining in, and overwhelming, the reed bed system, especially when added to the existing ground water and rainwater falling on that area. This would increase the risk of flooding to the surrounding area and would also increase the risk of foul drainage, albeit partly treated, sitting in the reed bed system and increasing odours, both of which would be harmful to the living conditions of the occupiers of neighbouring properties. Given the uncertainty over the suitability of the ground conditions for discharging the outfall, and as it is not clear that an appropriate system would be capable of being provided, a Grampian condition would not be reasonable.

The surface water proposals would provide attenuation storage to ensure that the surface water run-off from the development would not exceed the green field run-off rate. [name] note local concerns regarding the ground conditions and poor surface water drainage it is not for the appellant to resolve existing problems. The proposed scheme would attenuate the surface water run-off for the development and would ensure that it would not increase the risk of surface water flooding. I note the concern of the Council Drainage Consultant regarding the size of the pipe for the final discharge of surface water and that the diameter may be at risk of blockage. However, the appellant has also advised that they have amended the size of the pipe. Nevertheless, this matter could be resolved through the use of a condition to ensure that the pipe is of an appropriate size to reduce the risk of blockage. This would also be a matter for the on-going maintenance of the drainage system. I, therefore, find no conflict with Policy SD3 of the CS and Policy ORC6 of the ONDP in regard to sustainable water management and surface water drainage.

Although the surface water drainage for the development would be capable of being resolved through conditions, for the above reasons, I do not have compelling evidence that the development would provide adequate foul water management. I, therefore, cannot be certain that the foul water system would not result in adverse effects on the living conditions of the occupiers of neighbouring properties at Etna and on [address], predominately from flood risk and odour from the foul drainage system. The proposal, therefore, fails to comply with the requirements of Policies SD1 and SD4 of the CS which, taken together, seek to ensure that developments safeguard residential amenity for existing and proposed residents, ensure that development would not undermine the achievement of water quality targets for rivers within the county, in particular through the treatment of wastewater, and, where non-mains foul drainage is proposed, ensure that development is provided with information to demonstrate that there will be no likely significant effects.

For the same reasons, the proposal would fail to comply with Policy ORC5 of the ONDP, which is wholly relevant to this issue as the foul drainage system is within the Parish of Orcop. Policy ORC5 requires development proposals, which are to be served by non-mains foul drainage, to provide a wastewater management strategy and system design including, amongst other matters, results of testing for discharge to ground to confirm that infiltration is a viable means of discharge, and demonstrate that there would be no undue loss of amenity to occupiers of residential property, including from odour.

The Council has also referenced Policies ORC1 and ORC4 of the ONDP in the reasons for refusal. However, these policies relate to landscape, biodiversity and design matters and do not include any policy requirements relating to foul or surface water drainage, except where it is material to the SAC, which I have considered as a separate main issue. On this main issue I have found no conflict with Policies ORC1 and ORC4.

The submitted [name] (the PEA) advises that further surveys, by means of eDNA testing of local ponds, are required to establish the potential effect on [name], especially as the appeal site has an area of scrub which would be a suitable terrestrial habitat for that species. Furthermore, the PEA advises that further surveys are recommended for the presence of roosting bats.

Although the appellant refers to the results of the eDNA testing in their [name] and advises that the Council were informed that this was being carried out I have not been provided with any further survey information relating to either [name] or bats. I also do not have any substantive evidence that the Council Ecologist accepted the PEA as being sufficient and their comments appended to the Council’s Statement of Case continue to raise an objection on the basis of the effect on protected species.

Moreover, the PEA is now of some age and beyond the date in which it advises it should be relied upon. Although this date passed after the appeal against non-determination was submitted, I also note that the planning application was not submitted to the Council until a year after the update was carried out to the PEA. The appellant had time between the first PEA, its update, and the date of submitting it to the Council to carry out the further survey work, including during the [name] survey season. The age of the PEA is not determinative in my decision. However, its age does not alter the position that the submission does not provide sufficient certainty over the effect of the development on biodiversity.

Circular 06/20052 states that “it is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision”. Ecological mitigation should only be employed where it is not possible to avoid the impact. Furthermore, mitigation measures should be specific to an identified harm. Without fully understanding the baseline ecological potential of the site it is not possible to know whether there is an impact on biodiversity, whether there is an opportunity to avoid the impact, or what mitigation could be used.

The appellant has suggested that the further survey work and mitigation could be secured by condition. The finer details of the mitigation strategy and landscaping could be secured by condition, once the baseline and presence, or otherwise, of protected species has been established. It is not appropriate to condition the requirements for a survey to establish the baseline. Given the advice in Circular 06/2005, without the additional surveys for [name] and bats I cannot be certain that any harmful effects arising from the proposal could be adequately avoided or mitigated.

In the absence of this detailed information the proposal would affect biodiversity, especially [name] and bats. It would, therefore, be contrary to the requirement of Policies SS6 and LD2 of the CS which, taken together, seek to conserve and enhance environmental assets, in particular biodiversity, require proposals to provide sufficient information on biodiversity, and seek to conserve, restore and enhance biodiversity through, amongst other matters, the retention and protection of important species.

For the same reasons, the proposal would fail to comply with Policies ORC1 and ORC4 of the ONDP which promote the conservation, restoration and enhancement of all sites and features of biodiversity interest and seek to secure net gains for biodiversity.

Both main parties agree that asbestos is buried within the red edge of the application site. It was from the removal of the poultry sheds from the site and was buried near the northern boundary of the appeal site. The appellant has referred to documents which evidence where the asbestos was buried and that it was carried out with the approval of the Environment Agency and the Council.

The appellant’s Geotechnical and Geoenvironmental Report3, although noting that all substances tested for were found to be below their respective human health threshold levels, also recommends further testing for asbestos, its removal, and subsequent testing to confirm clean soil. 2 [name] 06/2005: Government Circular: Biodiversity and Geological Conservation – [name] and their impact within the planning system. 3 Issue date: 6 October 2021, author: [name]

Although the proposed dwellings would not be near to the buried asbestos it is still within the wider application site and within land that is identified as proposed open space. The plan submitted is not definitive as to the location of the buried asbestos. It is, therefore, not wholly clear where the contamination is or how this part of the open space would be secured so as to prevent public access or ground disturbance. The provision of post and wire fencing around the area, or planting within it, would both disturb the ground where the asbestos is buried and also would not prevent residents from entering the area.

For the above reasons, based on the submitted information, I am not convinced that the development, which includes the provision of the open space, would not adversely affect the living conditions of the future occupants of the proposal and the occupants of neighbouring properties from contamination. It would, therefore, conflict with the requirements of Policy SD1 of the CS which seeks to safeguard residential amenity for existing and proposed residents, and, where contaminated land is present, requires development proposals to undertake appropriate remediation.

The appeal site lies within the catchment area for the [name] and the effect of the development on the SAC was included as a reason for refusal. The Conservation of Habitats and Species Regulations 2017 (as amended) (the Habitats Regulations) requires the decision maker to undertake an Appropriate Assessment (AA) where there are likely significant effects from the proposal, either alone or in combination with other plans or projects. This responsibility falls to me as the competent authority in the context of this appeal.

From the evidence before me the appeal scheme would result in a net increase in residential accommodation and associated drainage which could result in adverse effects upon the integrity of the SAC through increased nutrient load and phosphate pollution, especially when considered in combination with other developments. I note the appellant has submitted a Shadow Habitat Regulations Assessment which concludes that there would not be a significant effect on the SAC. However, as the competent decision-making authority, if I had been minded to allow the appeal, I would need to have examined these matters further and it would have been for me to undertake an Appropriate Assessment of the implications of the appeal scheme upon the SAC.

However, as I am dismissing the appeal on other main issues, the outcome of an assessment would have no bearing on the overall outcome of the appeal. Therefore, it is not necessary for me to consider this matter further and I have given limited weight to the shadow assessment submitted by the appellant.

Both main parties agree that the Council cannot currently demonstrate a five-year housing land supply with the figure quoted as somewhere between 3.06 and 3.11 years. Both figures indicate a relatively significant shortfall and, therefore, Paragraph 11d) of the Framework would apply.

Paragraph 11d) advises that permission should be granted unless the application of policies in the Framework that protect areas or assets of particular importance provide a strong reason for refusing the development proposed. The policies referred to in this part of the Framework are set out in footnote 7 and include habitat sites and those sites listed in paragraph 194 of the Framework, which include SACs. Paragraph 195 of the Framework confirms this.

In this case, as I have not undertaken an AA and, notwithstanding the appellant’s shadow habitats regulations assessment, I cannot be certain that the SAC would provide a strong reason for refusing the development. I have, therefore, carried out

Policies SD1, SD3, SD4, SS6, LD1 and LD2 of the CS and Policies ORC1, ORC4, ORC5 and ORC6 of the ONDP are the most relevant in considering the proposal. None of these policies seek to limit development in the countryside and the principle of development on the edge of Orcop has been accepted by both main parties. The relevant policies are all broadly consistent with the Framework as a whole in seeking to ensure sustainable development in rural areas, achieving well-designed places that are sympathetic to local character and the surrounding built environment and landscape setting, ensuring that development is appropriate for its location taking into account the likely effects of pollution on living conditions, ensuring that sites are suitable for the proposed use having regard to contamination, and minimising impacts on, and providing net gains for biodiversity.

The appeal conflicts with the policies of the development plan, including the ONDP, as referenced in the main issues, for the reasons given. I have given the conflict with these policies significant weight in this appeal. Consequently, the proposal would conflict with the development plans as a whole.

Paragraph 14 of the Framework advises that in situations where paragraph 11d) applies, the adverse impacts of allowing development that conflict with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits providing that: the neighbourhood plan became part of the development plan less than five years from the date of the decision, and where the neighbourhood plan contains policies and allocations to meet its identified housing requirement.

The ONDP is less than five years old. Although the proposed houses are not within the area covered by the ONDP there is associated drainage and open space which would not be proposed without the housing. Nevertheless, from the evidence before me there is some doubt over whether the site allocated for housing in the ONDP is capable of being developed due to containing an existing drainage field. The Council has not provided any evidence to the contrary and I, therefore, find that there is some doubt over whether the ONDP contains allocations to meet its identified housing requirement. Therefore, when considered against paragraph 14 of the Framework, the ONDP would not outweigh the 11d) presumption. Nevertheless, the lack of allocations does not make it out of date and, as far as it seeks to ensure high quality design and development, it is broadly consistent with the Framework.

The proposal would accord with the Framework which seeks to boost the supply of housing, recognising the contribution small sites can make to meeting the housing requirement of an area, and supporting the rural economy. The proposal would also provide economic benefits both during and post construction and would provide a mix of size, type, and tenure of housing. There would also be environmental benefits from the area of public open space and the orchard. I afford significant weight to the provision of these new houses. However, as only six dwellings are proposed the benefit is limited when weighing the merits of the scheme. I therefore afford significant weight to the limited benefit the development would make to addressing the housing shortfall.

On the other side of the balance, the proposal would result in environmental harm from the adverse effect on the landscape character of the area. Although the harm would be low there would still be harm which weighs against the development in the overall balance. There is also harm from the proposed foul water management system; harm to the living conditions of the occupiers of neighbouring properties and the occupiers of the future development from flood risk, odour, and contamination; and harm to biodiversity. Collectively, these are significant matters which are afforded significant weight. In my judgement the adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework, taken as a whole. Therefore, the presumption in favour of development does not apply.

I am aware that the access road, [address], is in private ownership. As part of the appeal the appellant has served the correct notice on the management company for the road. Nevertheless, whether the appellant can provide access over the privately owned road is a private matter between the parties and does not alter my decision. This is also the position in relation to a separate land ownership issue that was raised during the consideration of the appeal.

For the reasons given above I have found that the proposal is contrary to the development plan as a whole, including the Orcop Neighbourhood Development Plan and the Framework. There are no other material considerations that would indicate that the proposal should be determined other than in accordance with the development plan. Therefore, I conclude that the appeal should be dismissed.