Appeal 6004088

The appeal is dismissed.

Schedule 7A of the Town and Country Planning Act (1990) as amended (the Act) introduced a statutory framework for biodiversity net gain (BNG). Under the statutory framework, subject to some exemptions, every grant of planning permission is deemed to have been granted subject to the [name] (BGC), which requires at least a 10% increase in biodiversity value is met. The Town and Country Planning (Development Management Procedure) Order 2015 (as amended) (DMPO) sets out the minimum information requirements that should accompany applications for proposals that would be subject to the BGC. The proposal is advanced on the basis that, as a self-build dwelling, it would be exempt from the BGC. Therefore, the minimum information requirements were not provided.

Although the Council did not identify any concerns relating to BNG in its reasons for refusing the application, I must necessarily consider whether the proposal would accord with the statutory provisions for BNG, including whether it is exempt from the BGC and, if not, whether the BCG is capable of being successfully discharged. Because this matter relates to a statutory requirement it is of principal importance, and I have dealt with it as a main issue in this appeal. As part of the appeal, I provided the parties with the opportunity to comment on the effectiveness and enforceability of the measure proposed to secure the dwelling as a self-build property and I have had regard to the comments received.

The main issues in this appeal are: • whether the site is a suitable location for the proposed development, having particular regard to accessibility to services and facilities by sustainable travel modes; and • whether the proposal would accord with the statutory provisions for BNG.

Due to its proximity to other dwellings, and having regard to case law1, the appeal site is not in an isolated location in the terms of Paragraph 84 of the National Planning Policy Framework (the Framework).

However, Policy ST1 of the Waverley Borough Local Plan Part 1: [name] and [name] 2018 (LPP1) nonetheless expects developments to be located where opportunities for sustainable travel modes can be maximised. Policy DM9 of the Waverley Borough Local Plan Part 2: Site Allocations and Development Management Policies (March 2023) (LPP2) also expects proposals to promote sustainable travel modes and patterns. These policies are supported by the sustainability objectives of the Local Transport Plan 2022-2032. The Framework also seeks to prioritise sustainable transport modes and to focus development where there would be a genuine choice of transport modes.

The Council states that Dockenfield lacks basic facilities and services and this has not been disputed by the appellant, although there is a public house near to the site. Based on the third-party evidence, the nearest other facilities, comprising a post office, shop, public house, and doctor’s surgery, are located at Rowledge. However, Rowledge is over 1.5 miles from the appeal site and the journey to it from the site would entail travelling on narrow, undulating roads with inconsistent lighting and an absence of dedicated facilities for pedestrians or cyclists.

When combined with the distance, these features of the route would make it unappealing for all but the most enthusiastic of walkers and cyclists, particularly during hours of darkness and in inclement weather. Moreover, I am not persuaded that there are alternative leisure routes that would be of a suitable terrain such that they would provide a realistic option for regular travel on foot or by bicycle. Even though the opportunity for cycling could be facilitated through the provision of on-site bicycle parking and electric bike charging facilities, I do not consider it would be a regular transport option for the reasons I have already set out.

For a wider range of services and facilities and employment opportunities, future residents would need to travel further afield to larger settlements such as Farnham and Bordon. Journeys to these settlements would be frequent, despite the availability of on-line shopping services and home-based employment, which are not universally available.

The evidence suggests that the regular bus service from Dockenfield is aimed at school travel and, therefore, it would be unlikely to meet travel needs at other times of the day or during weekends and school holidays. There is also evidence of an on-demand bus connecting Dockenfield with Farnham. However, there is very little information before me through which I can establish the reliability of this service nor the duration of its journeys, and these are factors which would influence its appeal to future residents. Therefore, in all probability, residents would be heavily reliant on the private car to meet their everyday needs. 1 [name] v SSCLG, Greyread Ltd & Granville Developments Ltd [2018] EWCA, Civ 610

The number of vehicles associated with this single dwelling scheme would be low and, if electric vehicles were used, the environmental effects of car journeys could be reduced. There is also Bentley railway station within a short drive, providing onward travel services to Guildford, Alton and Farnham. However, there is limited information about the frequency of the rail services from here, thus I cannot be certain that there would be genuine options for regular transport by rail.

Overall, the site’s poor connectivity by sustainable travel modes points to it being in a location where opportunities for sustainable travel would not be maximised, contrary to the provisions of the development plan and the Framework.

The appellant has referred to other developments that have been permitted in the area, including one decided on appeal. I have not been provided with copies of the decisions in full and, therefore, I cannot be certain about all of the circumstances that led to those favourable decisions. However, there is no evidence to suggest that any of the sites referenced were deemed to be well-served by sustainable travel options, which is the key issue here. Therefore, these other decisions are not determinative to my conclusions in respect of this main issue.

Whilst the proposal is advanced as one that would provide for the appellants’ personal preferences for a home in this area, the scheme does not have the character of a development that would meet the needs of local business or the community. Therefore, I do not find paragraph 89 of the Framework to be pertinent to my considerations on the suitability of the site for this proposal.

Overall, I conclude that the site would not be suitable for the proposed development, having regard to accessibility to services and facilities by sustainable travel modes. Therefore, there would be conflict with Policy ST1 of the LPP1 and DP9 of the LPP2 which expect developments to be located where opportunities for sustainable travel modes can be maximised and promoted.

The appellants have invested significant resources in designing a house for their own occupation. If built and occupied on this basis, I have no reason to find that the house would not fall within the definition of a self-build home as set out in the Self-build and Custom Housebuilding Act 2015 (SBCH). However, in order for there to be certainty that the BNG exemption would apply, there must be an effective mechanism through which the dwelling could be secured for SBCH.

The Council suggests that a condition could secure the dwelling for SBCH, and the appellants have agreed to this approach. However, unlike a condition securing the agricultural occupancy of a dwelling, which could be tied to the use of the land rather than to an individual or individuals, the suggested condition would relate to the person(s) who had primary input into the design and layout of the dwelling.

I have concerns over the practicalities of enforcing the suggested condition. Specifically, there is nothing in the condition that would prevent the sale of the property, notwithstanding the community infrastructure levy provisions. Therefore, the condition would not be enforceable. Moreover, if the property were sold and occupied by a third party within the occupation period, I am not convinced it would be practicable or reasonable to then require the person(s) who had designed the home to reside in it. Therefore, the proposed condition would fail to meet the tests for conditions set out in the Framework.

In the absence of an effective mechanism to secure the proposal as SBCH, the development would not be exempt from the BGC and, therefore, the minimum information requirements set out in the DMPO would apply. Without this information, the proposal would fail to comply with the statutory provisions for BNG and I am unable to conclude that the BGC could be successfully discharged.

The site lies within the buffer zone of the Wealden Heaths Special Protection Area, which is a European site as defined by the Conservation of Habitats and Species Regulations 2017 (as amended). However, because I am dismissing the appeal for other reasons, it is not necessary for me to undertake an Appropriate Assessment.

The proposal would conflict with the aforementioned development plan policies, which brings the proposal into conflict with the development plan when read as a whole. Developments that conflict with the development plan should normally be refused unless material considerations indicate otherwise.

The Council concedes that it cannot demonstrate a five-year supply of deliverable housing sites. The supply stands at 1.28 years, which is a considerable and serious housing shortfall. In this circumstance, paragraph 11 d) of the Framework is engaged. There is no evidence to indicate that there would be strong reasons to refuse the development proposed under the provisions of paragraph 11 d) i. Therefore, the scheme falls for consideration against the test in paragraph 11 d) ii.

Although the social and economic benefits arising from a single dwelling would be small, the proposal would nonetheless support the national objective to significantly boost the supply of homes. The Framework recognises that small sites can make an important contribution to meeting housing requirements, and the appellant states that this was found to be the case locally in a recent housing land supply position statement. This has not been disputed by the Council.

Other social and economic benefits would arise during the construction process, including in association with the supply chain and construction employment. The dwelling would meet the long-term housing needs of the appellants and, should the host property be occupied by new residents, there would be increased spending in nearby villages which would support the vitality of rural communities.

There would also be environmental benefits associated with sustainability measures such as renewable energy generation, and additional landscaping which could also provide some biodiversity enhancements. The site is not excluded from the Framework’s definition of previously developed land, and the proposal would make more efficient use of the site in terms of housing delivery.

Due to the extent of the housing shortfall, I ascribe significant weight to housing delivery. Moderate weight is given to the other benefits I have identified given the small-scale of the scheme.

In the absence of an effective mechanism to secure the dwelling as self-build, I ascribe limited weight to the contribution to self-build housing in the area because there is no guarantee that it would be delivered.

The Council has not advanced any reasons for refusal based on the site’s location outside of defined settlement boundary and in the countryside; and it has not identified harm in respect of the design of the dwelling or its effects on neighbours, the landscape, trees, existing habitats, or highway safety. Based on the evidence, I see no reason to take a different view in these respects. The absence of harm is a neutral matter that weighs neither for nor against the proposal.

The Framework does not preclude housing in rural areas, and it recognises that opportunities to maximise sustainable transport solutions will vary between urban and rural areas. In this case, there would be some, albeit very limited, connectivity by bus and the provision of bicycle storage and charging points would facilitate cycling for those willing and able to do so.

Moreover, if private vehicles were to be used to reach the nearest service centres, the journeys would be short and thus the impact on the environment would be reasonably low. These service centres would provide the opportunity to travel by a mix of modes, including sustainable modes, given there would be onward bus services and connectivity by rail from Bentley railway station.

Given the extent of the housing shortfall in this area, it is likely that sites in suboptimal locations would need to be considered to meet housing needs and this is a key consideration in this case. In these circumstances, I attach limited weight to the conflict with Policy SP1 of the LPP1 and Policy DM9 of the LPP2. [name] do not have the full decisions before me, I note reference in the evidence to a similar approach having been taken in other appeal decisions.

However, the proposal would also fail to comply with the statutory provisions for BNG, and this is a matter of principal importance to which I attach considerable negative weight.

Consequently, in the particular circumstances of this case, the adverse impacts of the proposed development 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 sustainable development provided for in paragraph 11 d) of the Framework does not apply to the scheme.

The proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Therefore, for the reasons given above, the appeal should be dismissed.