Appeal 6003950

The appeal is dismissed.

I have taken the description of development from the decision notice as the appellant has indicated this description was agreed.

An amended plan was submitted as part of the appeal. I have considered whether it would be appropriate to accept this, having regard to the guidance in the ‘Procedural Guide: Planning Appeals – England’, and the tests given in the ‘[name] judgment 1. The Procedural Guide makes clear that the appeal process should not be used to evolve the scheme and that in most cases the appeal should be determined on the basis of the plans upon which the Council made its decision.

Drawing number [name] 001 Rev 1 shows the insertion of a rooflight to the front elevation of plots 2, 4, 5 and 7. Drawing number RNF005 Rev 0 seeks to address the effect of the proposal on trees and hedging at the site. As neither of these would plans would fundamentally alter the proposal before me, I have taken these plans into account when determining the appeal.

The Council has confirmed that the amended provided by drawing number [name] 001 Rev 1 has addressed their third reason for refusal and they no longer seek to defend it. I have no reason to reach a different conclusion and have not considered this as a main issue.

The appellant’s statement of case referred to a visibility splay plan and swept path analysis. However these documents were not submitted. The appellant also indicated that a unilateral undertaking was in preparation, however this had not been submitted at the time I made my decision. 1 Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin)

The main issues in this appeal are: • whether the site is a suitable location for development having regard to the locational policies of the development plan; • the effect of the proposal on highway safety; • the effect of the proposal on the character and appearance of the area including whether it would i) preserve the settings of the nearby listed buildings; ii) preserve or enhance the character or appearance of the Walkern Conservation Area and iii) provide suitable protection for trees and hedgerows; • whether the proposal would make appropriate provision for biodiversity net gain.

East Herts District Plan (adopted October 2018) (EHDP) Policy VILL1 confirms that Walkern is a Group 1 village. It is not in dispute that the site lies beyond the village boundary for Walkern as shown on the policies map in the Walkern Neighbourhood Plan (made July 2018) (WNP). All such villages are expected to accommodate at least a 10% increase in housing stock within them, but the policy does not address development outwith the village boundary.

In such circumstances EHDP Policy GBR2 applies. This confirms the types of development that would be acceptable in the countryside. This does not include market or self build housing.

The built form of Walkern extends along [address] well beyond the appeal site. Development continues along [address], from which access is taken to [address]. It is accurate to describe the site as being effectively enclosed by development to three sides. To the remaining side is [address]. This is separated from the appeal site by undeveloped land but it does provide some built context to the remaining side of the appeal site. However, there is no criteria within any of the policies to allow for flexibility in the assessment of the village boundary. The site being within the Conservation Area has no bearing on its position relative to the village boundary.

The proposal therefore would not be in a suitable location for development having regard to the locational policies of the development plan. It would be contrary to [name] VILL1 and GBR2 which seek to direct development to within village boundaries and would not be an exempt form of development.

Access to the site would be directly onto the B1037. The frontage of the site along this road consists predominantly of a substantial boundary hedge. There is a bus stop in proximity to the proposed access to the site. The local highway authority indicated additional information would be required to ensure the proposal would be able to secure the necessary 43m visibility splay, that the adjacent bus stop would have to be moved to maintain the width of the footway, a footway and pedestrian crossing would have to be provided and that a 2m strip of land would be required along the entire site frontage to secure future accessibility improvements.

There is no evidence before me to show the position of the visibility splay or demonstrating that all of the land is within the control of the appellant or the local highway authority. Without this knowledge, it would not be possible for me to impose a condition to secure the visibility splay as such a condition may be unreasonable. I therefore cannot be certain that the appropriate visibility splay could be achieved.

The site entrance would be a very short distance from the bus stop but it would be necessary for there to be a footpath to allow future occupants to access this. However, I cannot be sure that this could be secured. Nor is it clear where the 2m strip around the site would be positioned.

Given the proposed layout, it is likely that suitable turning space and accessibility for refuse vehicles could be achieved and this could be secured by condition. However, this would be neutral in my assessment.

The proposal would therefore have an unacceptable effect on highway safety. It would fail to comply with EHDP Policy TRA2 which requires development to be acceptable in highway safety terms. Character and Appearance

Farmhouse at [address] 2 (the Farmhouse) is a [name]* listed building. It dates from the mid-17th century, with later alterations dating from possibly the 18 th and 19th centuries. It is constructed in red brick and set back from the road. Its special interest lies mainly in its historic interest in evidencing the agricultural past of the settlement and its architectural interest as a vernacular farmhouse.

Its special interest also stems, in part, from its setting which includes the appeal site. Its immediate setting is informed by its garden. However, its setting extends into the surrounding undeveloped land, including the appeal site, as this has historic, visual and functional links by providing the rural setting expected of a farmhouse.

Farmhouse at [address] 3 ([address]) is a [name] listed building. It dates from the late 17th century with an extension in the 19th century. It is constructed from red brick and sits immediately adjacent to [address], although it does not have an entrance on the elevation facing the road. It’s special interest also lies mainly in its historic interest in evidencing the agricultural past of the settlement and its architectural interest as a vernacular farmhouse. The land around the building has been largely developed with residential properties, severing it from the surrounding agricultural land with which it would have been associated. Given this, and the position of the site on the opposite side of longstanding main roads, the appeal site makes only a limited contribution to the ability to appreciate the significance of [address]. 2 [name]:1176006 Date f irst listed:20 October 1952 3 [name]:1101352 Date f irst listed:31 May 1984

The appeal site also lies within the Walkern Conservation Area (CA) which follows the linear pattern of the historic core of the village. Its character and appearance and thus significance are mainly derived from its historic interest as an evolving rural settlement with evidence of occupation dating back to at least the first century AD. It also has architectural interest arising from the range of buildings of different ages, quality of materials and the interspersion of fields and holdings within the settlement providing a strong connection to its rural surroundings. The open spaces and gaps provide connection with the surrounding rural landscape and provide a softening of the built form of the settlement.

The appeal site is one such open and undeveloped space. It is a large space in the context of spaces in the village and forms part of a green finger that runs from the village into the surrounding countryside. The hedgerow along [address] and as it turns onto [address] is highlighted in the Walkern Conservation Area Character Appraisal and Management Proposal (CAMP) as being a hedgerow that makes a positive contribution to the CA. The view across the site is also identified as being an important view to be protected. This is despite the site not being directly referred to as an important open space to be protected. Overall, the site does positively contribute as one of the characteristic features of the CA.

The appeal site comprises an undeveloped field. It appears to be bounded by a post and rail fence, however this is concealed by the substantial trees and hedges along the boundary of the site to [address] and [address]. There is smaller landscaping separating the site from the Farmhouse, and only the fence separating the site from the driveway serving the Farmhouse. Beyond this driveway is a substantial line of trees.

The proposal is for seven dwellings to two designs in a suburban layout. The proposed dwellings would be effectively dormer bungalows, with prominent gable features and dormer windows. Each dwelling would be set in a substantial plot. The plans indicate that, other than where necessary to provide access to the site, it is proposed to retain the existing hedgerows.

The proposal would introduce built form to a site which is currently open. This would urbanise the site and fundamentally change its character. I acknowledge that the map regressions contained within the CAMP indicate there historically was development on part of the site. However there is no indication remaining on the land of these structures, nor is there substantive evidence before me of what those structures were. They also were sited on a relatively small portion of the site at the junction of [address] and [address]. In any event, the glossary to the National Planning Policy Framework (the Framework) acknowledges that the extent of setting may change as the asset and its surroundings evolve.

I have therefore assessed the proposal as the site and its surrounds appear today. The proposal would harm the ability to appreciate the special interest of the Farmhouse by removing part of the rural land surrounding the site which allows its historic interest to be better appreciated. In reaching this conclusion, I am mindful of the comments of Historic England who have also expressed concern regarding the effect of the proposal on the Farmhouse. This harm would not be mitigated by the height of the proposed dwellings or their layout.

[address] is surrounded by built form immediately adjacent to it. The introduction of built form in the appeal site, on the opposite side of the road, would have a neutral effect on the ability to appreciate [address]. It therefore would preserve its special interest and significance.

The proposal would result in the loss of an open space which is one of the characteristic features of the CA and is identified as an important view to be protected. However, the site is somewhat atypical of the green spaces and other views in the settlement in that it does not provide a view into the countryside in the direction indicated. There are dwellings beyond and the trees limit those views to effectively the site itself.

The appellant has submitted a plan demonstrating that the proposed dwellings would be at a sufficient distance from the existing trees that there would not be an incursion to their root protection areas. I have no reason to disagree with this assessment. The plan shows there would be an incursion into the root protection area of the hedge along the [address] boundary of the site. This would be to provide the internal footpath within the site and so would only involve limited construction works. Details of the installation of the footpath could be secured by condition to ensure any impact was mitigated.

However, it may be that the provision of the visibility splay would necessitate a reduction in the height or spread of the hedgerow. It is also not clear what the effects would be of relocating the bus stop to provide a pavement of an appropriate width and to provide the pedestrian footpath connecting the site access to the bus stop. Nor is it clear what would be required to provide the 2m of highway land to address any future accessibility improvements. These add a considerable degree of uncertainty as to the effect of the proposal on the character and appearance of the CA. While additional landscaping is indicated on the submitted tree works plan, this would not be in locations that would address this concern. The proposal shows the hedge largely being retained where it is indicated as being important.

Development extends along [address] well beyond the appeal site. Consequently, the development of the site would not in principle detract from the rural character of the village. There is not a consistent layout of development within the CA. There are other examples of dwellings in a suburban type layout, including in the vicinity of the appeal site. The spacious nature of the plots and their layout would provide a gradual introduction of built form within the CA along this side of the road in contrast with the more regular development on the opposite side of [address]. The range of built form in Walkern is such that the design and form of the dwellings as proposed would not be incongruous. However, this is to be expected of any well designed development and so would be neutral in my

Intervisibility between the appeal site and the Farmhouse, or the prominence of the Farmhouse in the street scene would not alter my assessment of the proposal. It may be that other land in proximity to the site was removed from the CA in the past. However, my assessment of the proposal must be made on the basis that the site lies within the CA.

I find the proposal would not preserve the setting of the Farmhouse and would not preserve or enhance the character or appearance of the CA. It would therefore cause harm to the significance of these designated heritage assets. It therefore would not receive any support from paragraph 219 of the Framework as that refers to proposals the preserve those elements of the setting that make a positive contribution to the asset. As a consequence, there would also be harm to the character and appearance of the area.

Paragraph 212 of the Framework sets out that great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether this would amount to substantial harm, total loss or less than substantial harm to significance. Paragraph 213 further advises that any harm to, or loss of, the significance of a designated heritage asset should require clear and convincing justification.

Given the scale of the development, I find that the harm to the significance of both the Farmhouse and the CA would be less than substantial and at the lower end of that category. Nevertheless, these harms carry considerable importance and weight. In such circumstances, paragraph 215 of the Framework confirms that these harms should be weighed against the public benefits of the proposal.

Development should be well designed and landscaped and so this would be a neutral factor in my assessment. There is no substantive evidence before me of any drainage harm. Sites should be well managed, and I do not find there is any lack of legibility to the edge of the village. Consequently these factors would also be neutral in my assessment.

There would be a moderate public benefit from the delivery of seven additional dwellings. There would also be the associated economic benefits during the construction and occupation stages. It may be possible to secure some enhancements to biodiversity, notwithstanding my later findings on biodiversity net gain. However, these would be limited given the number of dwellings proposed. Consequently, in giving considerable importance and weight to the identified harm to the significance of the designated heritage assets, I find that this is not outweighed by the public benefits arising from the proposal.

The proposal would not preserve the setting of the Farmhouse and would not preserve or enhance the character or appearance of the CA. This is contrary to the requirements of sections 66(1) and 72(1) of the Act, and the provisions within the Framework which seek to conserve and enhance the historic environment. I also cannot be certain of the effects of the proposal on the trees and hedges around the site which would harm the character and appearance of the area. The proposal is also in conflict with East Herts District Plan (adopted October 2018) (EHDP) Policies DES3, DES4, HA1, HA4 and HA7 and Walkern Neighbourhood Plan (made July 2018) (WNP) Policies WLK3 and WLK7 which taken together require development to be of a high standard of design that reflects local distinctiveness, retain and protect existing landscape features, and to at least preserve or conserve the significance of designated heritage assets.

Under the statutory framework for biodiversity net gain (BNG), every grant of planning permission is deemed to have been granted, unless exempted, subject to the condition that the biodiversity gain objective is met. The application form states that the proposal would be self-build. This is one of the exemptions set out in the [name] (Exemptions) Regulations 2024 (the regulations). However, the regulations also provide that "self-build or custom housebuilding" has the same meaning as in section 1(A1) of the Self-build and Custom Housebuilding Act 2015. In order for the proposed dwellings to benefit from the exemption, it would be necessary to ensure compliance with that definition.

The Planning Practice Guidance (PPG) 4 confirms that “In considering whether a home is a self-build or custom build home, relevant authorities must be satisfied that the initial owner of the home will have primary input into its final design and layout”. It further confirms that “Off-plan housing, homes purchased at the plan stage prior to construction and without input into the design and layout from the buyer, are not considered to meet the definition of self-build and custom housing”. The proposal before me is an application for full planning permission for seven dwellings to two designs. There is no evidence before me to identify who the initial owner of the homes would be, or that they have had primary input into their final design.

The heritage considerations in the application would not change how the assessment of the proposal as self build would be carried out. That the eventual occupiers would have the ability to alter internal layouts, materials and detailing would not amount to primary input. Nor could it be required that any such amendments to be made. Consequently, I am not satisfied that the proposal would meet the definition of self build.

Even if I were satisfied that the proposal was for self build, there is no planning obligation before me to secure the development as such. The appellant has provided examples of decisions taken by other local planning authorities where they have secured dwellings as self-build through the imposition of conditions. However, I am not satisfied that such a condition would be enforceable and so would fail the test set out in paragraph 56 of the Framework. This therefore would not be an appropriate mechanism to secure the dwellings as self build. Nor does the reference to self build in the description of development provide sufficient controls to ensure that is how the dwellings would be occupied.

There are requirements placed on local authorities with respect to granting permission for sufficient self build plots and national policy is clear on the benefits of self build. EHDP Policy HOU8 clearly recognises the importance of self build dwellings and the Council has not disputed that it has not granted permission for a sufficient number of plots. However, as the proposal would not be self build, or secured as such, it would not address the deficit.

For the purposes of mandatory BNG, the dwellings should therefore be considered as market dwellings and so would be subject to the biodiversity gain condition. The PPG5 confirms that BNG will often be a material consideration, and it should be considered, where relevant, whether the biodiversity gain condition is capable of being discharged successfully. To this end, there are minimum national information requirements in relation to BNG which applicants must provide. This information has not been provided.

The proposal therefore fails to demonstrate that it would be exempt development or that the biodiversity gain condition could be met. This is contrary to the 4 Paragraph: 016 Ref erence ID: 57-[phone] Revision date: 08 02 2021 5 Biodiversity net gain Paragraph: 002 Ref erence ID: 74-002-20240214 requirements of Schedule 7A of the Town and Country Planning Act 1990 and paragraph 187 of the Framework insofar as it requires decisions to contribute to and enhance the natural and local environment by providing at least a 10% net gain for biodiversity.

I have been directed to other appeal decisions 6 where self build dwellings have been permitted despite heritage harm being found. However, in this case, I am not satisfied the proposals would meet the definition of self-build, which in any event has not been secured. Consequently, the findings in those appeals would not lead me to a different conclusion in this appeal. I have also been referred to a further appeal7 where development was allowed outside the settlement boundary. However unlike the other appeals, I have not been provided with any details of that decision. This therefore would not alter my assessment of the proposal before me which is based on my assessment of the planning merits of this specific proposal.

It is not in dispute that the Council cannot demonstrate a five year supply of deliverable housing land. In such circumstances, paragraph 11d) of the Framework is engaged. My findings in respect of the harm to the significance of the [name]* listed building and the CA means that there are policies in the Framework that provide a strong reason for refusing the development proposed. Therefore, in accordance with paragraph 11d)i of the Framework, the proposal does not benefit from the presumption in favour of sustainable development.

The appeal proposal would conflict with the development plan when read as a whole. There are no material considerations, including the Framework, of sufficient weight to indicate the decision should be taken otherwise. For the reasons given, I conclude that the appeal should be dismissed.