Appeal 6003975

The appeal is dismissed.

The appellant has confirmed that the development has already been completed and therefore planning permission was sought on a retrospective basis. The development as-built appears to match that shown on the drawings and that is the basis on which I have considered the appeal scheme.

The appellant has described the current use of the appeal site as a restaurant within Class E(b) of the Use Classes Order 1987 (as amended), which is a commercial use for the sale of food and drink for consumption on the premises. The Council’s third refusal reason refers to the loss of a [address] through change of use to a restaurant. In determining this appeal, I have relied upon the description of development on the planning application form which does not include a change of use.

Within the context of an appeal under section 78 of the Town and Country Planning Act 1990 (as amended) it is not within my remit to formally determine the lawful use of the appeal property. If the appellant wishes to ascertain a formal determination on that matter, they may make an application to the Council under section 191 of that Act. [name] have referred to a public house or restaurant use in this decision, I do so without determining the lawful use of the appeal property to be either of them.

The main issues in this appeal are: • Whether the development is inappropriate in the Green Belt having regard to any relevant development plan policies and the National Planning Policy Framework (“the Framework”). • The effect of the development on the openness of the Green Belt. • The effect of the development on the character and appearance of the area. • Whether the development has caused the loss of a community facility. • If the development is inappropriate in the Green Belt, whether the harm by reason of inappropriateness and openness, and any other harm, is clearly outweighed by other considerations so as to amount to the ‘very special circumstances’ required to justify it.

Policy GBR1 of the East Herts District Plan 2018 (“the EHDP”) states that planning applications within the Green Belt will be considered in line with the provisions of the Framework. Framework Paragraph 154 states that the construction of new buildings in the Green Belt should be regarded as inappropriate development, subject to specific exceptions.

As set out in Framework paragraph 154.c), the extension or alteration of a building is not inappropriate development in the Green Belt provided that it does not result in disproportionate additions over and above the size of the original building. The Framework defines an original building as a building as it existed on 1 July 1948 or, if constructed after that date, as it was built originally.

Whilst the Framework does not define a disproportionate addition, the test of proportionality in Paragraph 154.c), is narrowly set against the size of the original building to be altered or extended, and not against the sizes of other buildings in the area. In determining whether an extension is a disproportionate addition, numerical calculations such as an increase in floorspace or volume over and above the original building, and physical changes to the size of the original building, such as its spread, mass, bulk and height can all be relevant indicators.

In this instance, based on the Council’s seemingly undisputed calculations, the original building had a floor area of some [address] metres. The rear extension, not accounting for the external bin store, has added some [address] metres of floor space to the pre-existing building. The pre-existing building appears to have been formed through subsequent extensions and additions that enlarged the original building, which may have included a previous pergola-type structure that the appeal extension replaced.

The floor space of the appeal development is not much smaller than that of the original building. I therefore find that the floor area calculations provide a clear indication that the appeal development is a disproportionate addition over and above the size of the original building. Despite the roof levels of the extension and bin store being much lower than that of the original building, it is clear from the drawings and my observations that the totality of the development is a sizeable addition that has significantly increased the spread of the building across the land, and its volume, bulk and massing.

Therefore, whichever way I assess the size of the appeal development, I find that on the evidence that is before me, including my observations at my visit, the size of the appeal development is a disproportionate addition over and above the size of the original building, contrary to the exception in Framework paragraph 154.c).

The appeal development is clearly an extension to a building that falls to be assessed under the exception in Framework paragraph 154.c). However, the appellant also considers the appeal development to constitute limited infilling in a village under the exception to inappropriate development in the Green Belt in Framework paragraph 154.e). Whilst the Framework does not provide a definition of limited infilling, to my mind the use of the word ‘limited’ implies that it would involve the infilling of a relatively small gap between buildings with a small amount of development.

Just beyond the boundaries of the appeal site towards its north, west and southwest are buildings, including some sizeable dwellings. The buildings to the south are much further away still. I saw at my visit that the extension occupies land between the pre-existing restaurant building and a large dwelling located just beyond the southwest boundary of the appeal site. However, the extension is set some distance away from that dwelling and other buildings in the area.

Even if I were to regard the appeal site as land between buildings within a village, the size of the appeal site, and the land around the appeal extension, is so large that the appeal development does not, in my judgement, constitute limited infilling. Consequently, the appeal development does not meet the exception to inappropriate development in the Green Belt in Framework paragraph 154.e). [address] judgment in Braintree1, was primarily concerned with the meaning of “isolated” in the context of the Framework’s phrase “isolated homes in the countryside” under the rural housing chapter, as opposed to a dispute over the interpretation of Green Belt policy. Therefore, whilst it refers to villages, Braintree is of limited relevance and weight to my consideration of this main issue in this appeal.

The details before me of an allowed appeal scheme 2 for an infill development in Essex appear to show a new dwelling occupying a relatively narrow gap within a clearly defined row of buildings. Compared to the appeal scheme before me, the Essex appeal was considered under a specific local policy that supported sensitive infilling of small gaps in small groups of houses in the countryside and involved a different type of development that was not located in the Green Belt. Therefore, it did not relate to any of the exceptions to inappropriate development in the Green Belt under the Framework’s national policies. Consequently, the Essex appeal does not provide any useful comparison to the case before me and is of little relevance and weight to my considerations in this appeal.

Even if I were to agree with the main parties that the development utilises grey belt land as defined in the Framework’s glossary and is consistent with Framework paragraphs 155.a. and 155.c., there is no substantive evidence of a demonstrable unmet need for a development of this type under paragraph 155.b. Therefore, the exception to inappropriate development in the Green Belt under Framework Paragraph 155 does not apply to the appeal development.

Taking all the above into account, I conclude on this main issue that the appeal development is inappropriate development in the Green Belt when assessed against the exceptions in the Framework, and EHDP Policy GBR1. Inappropriate development in the Green Belt is harmful by definition and should not be approved except in very special circumstances. There is nothing in the Framework to 1 [name] v SSCLG, Greyread Ltd & Granville Developments Ltd [2017] EWHC 2743 (Admin); [2018] [name] 610 2 APP/C1570/W/19/3221623 indicate that Green Belt purposes override the relevant exceptions to inappropriate development in the Green Belt in this appeal. I therefore find no basis to undertake a freestanding assessment of the appeal development against the purposes of the Green Belt in Framework Paragraph 143, as it would not alter my conclusions.

The Framework indicates that openness is an essential characteristic of the Green Belt, and a fundamental aim of Green Belt policy is to keep land permanently open. The openness of the Green Belt has a spatial aspect as well as a visual one. The evidence indicates that the extension was built on a previous patio/decking area and replaced a pre-existing pergola-type structure. Photos of that structure indicate that it was much smaller than the extension. By comparison, the scale of the appeal development, whilst of a relatively low height and with extensive glazing to its walls, has reduced the openness of the Green Belt through occupying a sizeable space on the appeal site where built form of a comparable scale did not exist previously.

Although the bin store is visible from the public highway, the built form of the extension is hardly visible in public views. Whilst visible within the appeal site and from nearby properties, the built form of the appeal development is closely associated with that of the host building, which is markedly taller and with a traditional masonry construction. Nonetheless, the scale, spread and resultant massing of the appeal development has resulted in a localised reduction in visual openness of the Green Belt through enlarging the size of the host building.

For those reasons, the appeal development has resulted in a modest loss of openness in the Green Belt, causing harm that is contrary to the aim of keeping it permanently open.

The origins of the appeal site as a roadside public house are clearly appreciable. It stands at the end of a long row of predominantly residential buildings of varying sizes, designs and proportions, and close to the wide and busy road that runs through the settlement. Set within a large plot and having the appearance of a traditional roadside commercial premises, the appeal site has a different character to its largely residential surroundings.

The extension occupies a position amongst a garden area with grass and some trees to its sides. It is constructed from a metal frame with clear glazed side panels and a type of fabric roof covering. The sides and roof of the extension can mostly be opened and closed by mechanical means, revealing a largely open-sided and open-roofed structure. Even in their closed positions, due to the combination of the clear glazed side panels and thin profiled framing the appeal extension’s appearance has a relatively simple and somewhat permeable aesthetic.

I was unable to obtain a view of the extension from the public highway and along the vehicular access to the appeal site as it was screened by existing buildings and boundary treatments. With prior knowledge of its existence, I was able to obtain a glimpse of it through dense planting when stood on the roadside footway to the south of the appeal site. However, to the casual observer, the extension is hardly discernible from any vantage point accessible to the public at large. Therefore, its visual effects are localised to views from within the appeal site and in private views from nearby properties.

Despite its size and spread across the appeal site, the extension is set away from nearby properties with space around it. The dark coloured framing of the extension ensures a sufficient degree of continuity with the black coloured cladding and window frames of the host building. The extension has a dark colour tone and a degree of permeability that is recessive against the backdrop of the trees and the host building in localised views from the north, west and southwest. Seen in the context of the taller host building and the solidity of its traditional brick-built structure, the simple design of its glazed sides and dark colour finish ensures that the extension is not visually incongruous or harmfully dominant. It relates well to the style of the host building.

For those reasons, I consider the appeal development to be consistent with EHDP Policy DES4 insofar as it requires development to be of a high standard of design and layout, and to reflect and promote local distinctiveness.

EHDP Policy CFLR8 seeks to avoid community facilities being lost to other uses. However, as already indicated in my procedural matters above, the appellant has not applied to change the use of the premises and therefore I need not reach a finding on this matter. Given my conclusions in respect of the Green Belt, even if I were to take the appellant’s position that the restaurant use is lawful it would not alter the outcome of the appeal.

The Council considers that the development supports economic and social growth in the rural area, consistent with EHDP Policy ED2. The Framework supports the growth and expansion of businesses, including in rural areas, through well designed new buildings. The appellant’s evidence indicates that the appeal development has provided a dining environment which can be used in all weathers and has increased the number of weekly diners by some 30%. Therefore, it is reasonable to suppose that the appeal development makes some form of beneficial contribution to the appellant’s business and the customer experience, thus helping to sustain employment in the local area, including within supply chains and related industries.

However, the evidence before me does not contain the depth of analysis necessary to demonstrate the magnitude of the benefits that are derived from the appeal development, over and above the baseline position before the appeal development was brought into use. No contextual analysis has been put before me to show the consequential effects, such as on the business, employees and supply chains, of this appeal being unsuccessful. Consequently, on the limited evidence that is before me I attach only moderate weight to its cumulative benefits.

A number of Local residents have raised several concerns in respect of the appeal development. These include effects on their living conditions, on ecology, drainage, loss of trees and the creation of a large car park. As the car park is not part of the appeal development it is not before me for consideration. Several of those matters are addressed in the Council’s delegated report, including the car park. However, it is unnecessary for me to reach a finding on any of those other matters as they would not alter the outcome of the appeal. Even if I were to agree that no harms have arisen from the appeal development other than those set out in this decision, an absence of harm would not have weighed positively in favour of the appeal.

As the appeal development is inappropriate development in the Green Belt and harms Green Belt openness, it should not be approved except in very special circumstances. The Framework requires me to give substantial weight to any harm to the Green Belt. Whilst very special circumstances do not necessarily need to be unique, they will not exist unless the totality of the harm to the Green Belt is clearly outweighed by other considerations.

The appeal development is socially and economically beneficial for the reasons summarised above. However, even if I were to give significant weight to those benefits, as put to me by the appellant, they would not clearly outweigh the substantial weight that attaches to the Green Belt harm through inappropriateness and a loss of openness. Consequently, the very special circumstances necessary to justify the appeal development do not exist.

For those reasons the appeal development is contrary to the Framework’s policies on the Green Belt, and it conflicts with EHDP Policy GBR1 and the development plan as a whole. Even if Framework paragraph 11 and the so-called ‘titled balance’ was relevant, the conflict with its policies that protect the Green Belt provides a strong reason for refusing the appeal development. There are no material considerations, including the provisions of the Framework that outweigh that finding. Accordingly, the appeal development is unacceptable, and the appeal should be dismissed.