Appeal 6003979

The appeal is allowed and planning permission is granted for the demolition of side extension and the erection of a dwelling at [site address] , Hertfordshire [postcode] , in accordance with the terms of the application, Ref 3/25/0554/FUL, and subject to the conditions in the attached schedule.

The Council is satisfied that the amended [name] submitted with the appeal demonstrates that the national biodiversity net gain objective would be met and therefore the second refusal reason falls away. Having read the contents of the report I find no reason to disagree. The report does not amend the substance of the development and interested parties have had an opportunity to consider its contents. Therefore, taking account of it in my decision would not prejudice the interests of any party.

The main issues in this appeal are: • Whether the proposed development would preserve or enhance the character or appearance of the Hertford Conservation Area (“the CA”). • The effect on the significance of the appeal building as a non-designated heritage asset (NDHA). • If harm arises, whether it is outweighed by other considerations.

The Hertford Conservation Area Appraisal and Management Plan, [name] 2017, shows the CA as encompassing an extensive area of the Town, with the appeal site being located within the southeast quadrant character area.

In determining this appeal, I shall have regard to my statutory duty under Section 72(1) of the Planning (Listed Building and Conservation Areas) Act 1990 (“the Act”) to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas.

The significance of the CA, insofar as it relates to this appeal, is derived partly from the rows of generally large houses built to traditional architectural styles and occupying generous plots, often contain planting and sizeable trees. Set towards the frontages of their plots on discernible building lines the relationship between those properties and the surrounding street network gives the area a cohesive and verdant suburban character.

[address] is lined on both sides by mostly large 2 storey houses that are set towards the front of their large plots and behind frontages that tend to contain planting and hedgerows. Sizeable frontage trees are common, particularly on the south side of the road and towards its eastern end. Whilst the houses are not identical, they are mostly constructed to traditional architectural styles. [address] is therefore typical of the CA and contributes positively to its significance.

The appeal property reflects the characteristics of the street, being a large house constructed to a traditional domestic architectural style and occupying a large plot containing sizeable trees and planting. It is a high-quality example of an early twentieth century dwelling with a distinctive shallow plan form and simple proportions. The building’s front elevation has a particularly well-balanced central forward projecting gable, contributing to the logical hierarchy of its built form. The gap between it and the adjacent building referred to as Number 3a, allows relatively clear views of its comparatively narrow flank elevation and shallow plan form to be obtained from the road, along with views of the trees and planting within gardens.

For those reasons the appeal dwelling has a sufficiently high degree of heritage significance to warrant being treated as a NDHA, as identified in the Hertford Conservation Area Appraisal and Management Plan, and it contributes positively to the attractive vernacular and verdant townscape along [address], and thus to the significance and special interest of the CA.

In the case of extensions to buildings, Policies DES4 and HA4 of the East Herts District Plan 2018 (“the EHDP”) require them to be complementary and sympathetic to the parent building and surrounding area, including with regard to factors such as scale, height, massing (volume, shape), orientation, siting and layout. That is the basis on which I have assessed the proposal.

None of the policies before me appear to include subservience as a free-standing decision-making test. Therefore, even if I were to agree with the main parties that the extension would have a subservient relationship to the host dwelling, I must have regard to the development plan as a whole.

The proposed dwelling would follow the established building line of the street and together with the existing dwelling it would have the general appearance of a large building occupying a large plot. Whilst the gap between it and Number 3a would be narrowed, thus eroding views of the trees and planting within gardens and their contribution to the verdant appearance of the area, the retained gap would be of a sufficient width to avoid a cramped relationship between individual buildings.

However, the scale of the proposed extension would rival and compete with the host dwelling’s front gabled façade for prominence in the street scene, thus eroding the simple appearance and balanced proportions of its existing façade. Due to its north-south orientation the proposed extension would form a sizeable cross-wing on the end of the host dwelling, which would be at odds with the narrow plan form and layout of the existing host dwelling. The massing of the deep flank wall of the proposed extension would obscure and overwhelm any appreciation of the characteristically shallow plan form and narrow side elevation and roof hip of the host dwelling.

For those reasons, the scale, height, massing, orientation and layout of the proposed extension would lead to it appearing as a bulky and contrived addition to the host dwelling that would harmfully erode its simple proportions and the hierarchy of its built form. It would fail to appear well-integrated or sympathetic to the shape and form of the host dwelling. As such, it would be harmful to the character, appearance and heritage significance of the host dwelling as a NDHA, and it would erode the positive contribution it makes to the significance of the CA as a designated heritage asset. It would therefore fail to preserve the character or appearance of the CA, and its significance as a designated heritage asset would be harmed.

The scale of harm to the existing dwelling as a NDHA carries moderate weight against the appeal scheme. It brings the proposal into conflict with [name] HA2 and DES4 insofar as extensions must be of a high standard of design and layout, which reflect local distinctiveness and respect the character of the site.

The harm to the CA would be less than substantial and at a low level on the spectrum of that harm, resulting in conflict with [name] HA1 and HA4 insofar as they require extensions and alterations to buildings to preserve or enhance the special interest, character and appearance of a Conservation Area, and be complementary and sympathetic to the parent building.

EHDP Policy HA1 requires less than substantial harm to a Conservation Area to be weighed against the public benefits of the proposal, which is consistent with the National Planning Policy Framework (“the Framework”). The Framework requires great weight to be given to the conservation of designated heritage assets. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss is a matter of considerable importance and weight, requiring clear and convincing justification.

The Framework requires that in weighing applications that directly affect non-designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset.

It is agreed between the main parties that the Council is unable to demonstrate a 5-year supply of deliverable housing sites in its area, and in the absence of any indication of the shortfall against the requirement, I have assumed it to be substantial. In that context, the proposed development would be expected make a small but nonetheless valuable contribution to housing supply in the district. It would appear capable of being built out quickly to make efficient use of the appeal land in a settlement where housing is supported as a matter of principle, and in close proximity to services, facilities and employment, which could be accessible by sustainable transport modes.

Construction and occupation of the proposed development would bring short term and lasting economic benefits to the area, including through future occupants supporting services and facilities. Energy and water could be used efficiently, and the national [name] objective would ensure nature and biodiversity is positively enhanced.

Cumulatively, even if the benefits of providing housing in the settlement are given great weight in accordance with Framework paragraph 73, the public benefits of the appeal proposal are not sufficient to outweigh its harm to the significance of the NDHA and the great weight that I attach to the low level of less than substantial harm to the significance of the CA as a designated heritage asset. When considered against the Framework, there is no clear and convincing justification for the appeal proposal’s harm to those assets.

For those reasons, I conclude that the proposed development would conflict with EHDP Policy HA1, insofar as the harm to the CA should be weighed against the public benefits of the proposal, and EHDP policies HA2, HA4 and DES4, the requirements of which are set out above. There would also be conflict with the conserving and enhancing the historic environment objectives of Framework Chapter 16.

I have no reason to doubt the appellant’s intention to implement the extant planning permission to add an extension to the host dwelling that is obviously substantially similar in scale and form to the one proposed in this appeal. It therefore amounts to a realistic fallback position from which to assess the effects of the appeal scheme before me.

There are some minor differences between the appearance of the fallback extension and the proposed development in this appeal. They include ground floor windows instead of the garage doors in the fallback scheme. However, seen in street level views by a casual observer, both developments would clearly read as an extension to the existing dwellinghouse. As such, the effects of the appeal scheme as it is shown on the submitted drawings on both the NDHA and CA, would be no worse than the fallback development.

Permitted development rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) for alterations and enlargements to the proposed dwelling under Class A of Part 1 could result in a development more harmful than the fallback scheme. Therefore, it is necessary for such permitted development rights to be removed so that the Council retains control over enlargements and alterations to the dwelling, including its concerns over any future removal of the linking element.

However, it would not be reasonable to remove long standing Class A permitted development rights from the existing dwellinghouse, which in any case are restricted to a degree by its location within the CA. I am not persuaded on the evidence before me that rights to improve the dwelling, as distinct from altering or enlarging it, should be removed, and therefore such rights have not been removed.

A future occupant may seek to subdivide the proposed dwelling from the host dwelling through the erection of boundary treatments, the laying of hard surfaces and the formation of vehicle accesses. They would be highly visible in views from the road and could markedly alter the character and appearance of the development and its effects on the NDHA and CA.

The appellant’s Heritage Statement states that it is proposed that typical permitted development rights, such as those used to pave over front gardens and erect boundary fencing are withdrawn to retain the character of the whole plot and protect the special character of the CA. The appellant’s final comments reiterate that the existing vehicular access would be shared between both dwellings with no additional access being proposed, which could otherwise indicate physical subdivision of the plot.

The potential visual effects on the CA and NDHA through utilising permitted development rights to subdivide the plot through the erection of fences, walls and gates under Class A of Part 2 of the GPDO, for the hard surfacing of front gardens under Class F of Part 1 of the GPDO, and for the formation, laying out and construction of a means of access to a highway under Class B of Part 2 of the GPDO justifies the removal of those permitted development rights. This would ensure the Council is able to retain control over those forms of development. As the removal of those rights were recommended by the Conservation Officer, the appellant would have been aware of their comments.

Occupation of the proposed dwelling would be expected to generate a greater level of comings and goings than the fallback development, and potentially more parked vehicles. However, in the context of the comings and goings of occupants and cars from the existing houses in this suburban area, and the prevalence of parked vehicles, it would not harm the character or appearance of the area. The Council reached a similar conclusion on those matters.

Taking all the above into account, the effects of the appeal scheme on the character or appearance of the CA, and the significance of the host dwelling as a NDHA would be no worse than the fallback development and can be controlled by conditions. Consequently, the fallback development carries substantial weight in favour of the appeal scheme.

There is nothing of substance before me to show that occupants of the appeal dwelling would be provided with inadequate outdoor amenity space. The shared garden space would be extensive and physical subdivision of the plot would be controlled through removing permitted development rights for boundary enclosures.

Subject to the imposition of a condition requiring the staircase window to be fitted with obscure glazing and kept in a non-opening condition to prevent overlooking across nearby properties, I am satisfied that the relative positions of all other windows in the proposed dwelling would not cause a harmful loss of privacy for occupants of nearby properties. The approved loft conversion to the host dwelling, as described by an interested party, including rear dormer windows and installation of roof lights to front and side elevations, would not alter that conclusion.

Given their relationships the proposed dwelling would not be visually oppressive or overbearing in views from nearby properties. The Council reached similar conclusions on those matters.

Having considered the evidence and visited the area of the appeal site, I am satisfied that vehicles associated with the occupation of the proposed dwelling, including parking provision, would not harm highway safety. I note the Council and Highways Authority reached similar conclusions.

Technical evidence demonstrates that trees important to the amenity of the area would be retained and protected during construction of the development and can be secured by a planning condition. The Council reached the same conclusions and no substantive evidence to the contrary has been advanced by any other party. In any case, the fallback development would have a substantially similar relationship with nearby properties and trees.

I have visited the area of the appeal site and assessed the proposal in its context, including its relationship with Numbers 3a and 3b. Therefore, any inaccuracies with how the plans show those nearby properties and others do not affect my assessment of the scheme. Even if the host dwelling accommodated 5 bedrooms instead of 4, there is nothing of substance to indicate that it would make the appeal scheme an overdevelopment of the land.

The Council has suggested a number of planning conditions in the event of the appeal being allowed. I have considered them in accordance with the tests for imposing conditions set out in the Framework and the Planning Practice Guidance. Where necessary, I have amended the wording of the suggested conditions to ensure compliance with the tests. I have added retention clauses where applicable.

In the interests of certainty of the planning permission granted, it is necessary to specify the approved plans, including clarification that the approved side elevation is labelled as number 3 on drawing 810-321. As the biodiversity net gain objective is subject to a separate pre-commencement condition, I find no evidential basis before me to require the development to be carried out in accordance with the submitted biodiversity net gain plan.

Conditions securing details of external materials for the development, landscaping and the protection of retained trees are necessary in the interests of safeguarding the character and appearance of the CA, and the significance of the NDHA. The appellant has agreed to the pre-commencement tree protection condition through their final comments. Conditions requiring the provision of appropriate cycle storage and bin storage facilities are necessary to encourage travel by sustainable modes and for the adequate servicing of the development.

A broad range of potential measures to demonstrate climate change adaption and mitigation, as required by [name] CC1 and CC2, are set out in the appellant’s [name], Energy, and [name]. The Council Officer’s Report states that those measures would be secured by condition. However, to give the main parties flexibility over the precise climate change adaption and mitigation measures that are necessary to meet those policies, I have imposed a condition requiring their agreement.

Conditions securing bat and bird boxes, electric vehicle charging points, and water efficiency measures are necessary to comply with the provisions of [name] NE3, EQ4 and WAT4. As heat pumps are not part of the proposed development, controlling their sound levels would be unreasonably speculative and not related to the planning permission granted.

To safeguard the living conditions of nearby residents, it is necessary to impose a condition to control the hours of construction and demolition work. However, given the suburban character of the area, where vehicle movements are frequent, it is unnecessary and unreasonable to restrict vehicles from arriving or leaving the site outside of those same hours. Furthermore, as ancillary activities have not been defined, I have not found it necessary to restrict them as suggested by the Council.

As the appeal site is within a suburban location, it is likely that artificial light is a characteristic of the area. No substantive evidence is before me to show that fitting outdoor lighting at the appeal site would cause any unacceptable harms, including to the amenity of occupants of nearby properties. Therefore, I have not imposed the suggested condition.

There is no clear justification that development under Class E of Part 1 of the GPDO would cause any harms that warrant the removal of such rights. Where required for a purpose incidental to the enjoyment of a dwellinghouse, the GPDO controls the size and location of outbuildings. Enlargements to the roof of a dwelling within a CA are not permitted by the GPDO and therefore do not need to be removed.

Based on the appellant’s biodiversity net gain report the Council anticipates that a net gain in biodiversity would be achieved through the purchase of credits. They would be secured through the deemed condition under paragraph 13 of Schedule 7A of the Act. As the Planning Practice Guidance1 advises that any permission granted will be subject to the deemed biodiversity net gain condition under separate statutory provisions in the Act, it should not be included in the list of conditions imposed in the written notice when granting planning permission.

The heritage harm that would arise from the proposed development brings it into conflict with [name] HA1, HA2, HA4 and DES4, and the development plan as a whole. I attach significant weight to the conflict with the development plan.

Paragraph 11 of the Framework is relevant as the Council is unable to demonstrate a 5-year supply of housing land in its area. Nonetheless, the considerable importance and weight that I attach to the harm to the CA outweighs the benefits of the appeal proposal and amounts to a strong reason for refusing the proposed development under Paragraph 11.d)i. of the Framework. [name] 11.d)ii, and the so called ‘tilted balance’ does not apply in this instance.

Subject to the imposition of conditions, the appeal scheme’s harms would be no worse than those which would arise from the implementation of the fallback 1 Paragraph: 024 [name]: 74-[phone] development. Therefore, the fallback development carries substantial weight in favour of the appeal and indicates that a decision should be made other than in accordance with the development plan. Consequently, for the reasons given above, the appeal is allowed.

The development hereby permitted shall begin not later than 3 years from the date of this decision.

The development hereby permitted shall be carried out in accordance with approved drawings 810-300, 810-301, 810-302, 810-310, 810-320, and the proposed roof plan and proposed side elevation number 3 on drawing 810-321.

No development shall take place, including site clearance, tree works, demolition, or any other works, until the details relevant to the safe retention and protection of on-site and any relevant off-site trees are submitted within an [name] (AMS) in accordance with BS 5837. The AMS shall include a detailed Tree Protection Plan (TPP) showing the positions and dimensions of protective fencing (and if necessary temporary ground protection) to safeguard all retained vegetation and mitigate risks of ground compaction. The AMS shall include all relevant details such as level changes, demolition and construction techniques (including methods of access and construction traffic management), location of services and drainage, design detail of structures and foundations, the control of potentially damaging operations such as burning, storage and the handling of materials, and access and the parking of vehicles during construction. Timings and management strategies for the erection and maintenance of tree protection fencing in line with the TPP must be included. Details of supervision at key stages of development will also be included to ensure compliance and proper methodology. The development shall not be undertaken except in accordance with the approved AMS.

No development above ground level shall take place until details of the materials to be used in the construction of the external surfaces of the development hereby permitted have been submitted to and approved in writing by the local planning authority. The development shall be carried out in accordance with the approved details.

No development above ground level shall take place until a scheme for climate change adaption and mitigation measures has been submitted to and approved in writing by the local planning authority. The dwelling hereby permitted shall not be occupied until the measures in the scheme have been implemented as approved and thereafter retained and maintained.

Prior to first occupation of the development hereby approved, details of hard and soft landscaping, including an implementation timetable, shall be submitted to and approved in writing by the local planning authority. Thereafter all hard and soft landscape works shall be carried out in accordance with the approved details and implementation timetable. Any trees or plants that, within a period of five years after planting, are removed, die or become seriously damaged or defective, shall be replaced as soon as is reasonably practicable with others of the species, size and number as originally approved, unless the local planning authority gives its written consent to any variation.

Prior to first occupation of the development hereby approved, details of an external bin storage facility within the site shall be submitted to and approved in writing by the local planning authority. Thereafter, the bin storage facility shall be provided in accordance with the approved details prior to first occupation of the development and thereafter retained.

Prior to first occupation of the development hereby approved, details of an external cycle storage facility within the site shall be submitted to and approved in writing by the local planning authority. Thereafter, the cycle storage facility shall be provided in accordance with the approved details prior to first occupation of the development and thereafter retained.

Prior to first occupation of the development the window on the side elevation serving the staircase of the dwellinghouse hereby approved and shown on drawing numbers 810_320 and 810_321 shall be non-opening and fitted with obscure glazing and permanently retained in that condition thereafter.

The dwelling hereby approved shall be fitted out so that the potential consumption of water by persons occupying the dwelling will not exceed 110 litres per person per day. The dwelling shall not be occupied until the notice of the potential consumption of water per person per day required by the Building Regulations 2010 has been given to the local planning authority.

Prior to the first occupation of the dwelling, details of the provision of at least one bird box and one bat box shall be submitted to and approved in writing by the local planning authority. The bat and bird boxes shall be installed in accordance with the approved details prior to first occupation of the development and thereafter retained.

Prior to first occupation of the development hereby approved, details of the provision of 1 electric vehicle charging point shall be submitted to and approved in writing by the local planning authority. The approved electric vehicle charging point shall be provided on site prior to first occupation of the dwelling and thereafter retained.

Site preparation, demolition and construction works shall take place only between the hours of 08:00 to 18:00 on Mondays to Fridays, and 08:00 to 13:00 on Saturdays, and shall not take place at any time on Sundays or on Bank or Public Holidays.

Notwithstanding the provisions of Class A of Part 1 of Schedule 2 the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any order revoking and re-enacting that Order with or without modification), the dwelling hereby permitted shall not be enlarged or altered.

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any order revoking and re-enacting that Order with or without modification), no development permitted by virtue of Class F of Part 1 of Schedule 2 to the Order, other than that authorised by condition 6 above, shall be undertaken on land between the principal elevation of any dwelling and the highway.

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any order revoking and re-enacting that Order with or without modification), no development permitted by virtue of [name] and B of Part 2 of Schedule 2 to the Order, other than that authorised by condition 6 above, shall be undertaken. End of schedule