Appeal 6004303

The appeal is dismissed.

The appeal has been made by the executors to the estate of the late [name], who have legal authority to take on the role of appellants.

Subsequent to refusing the application the subject of this appeal, the Council granted permission for a revised proposal for a replacement dwelling1. I have had regard to this decision in my assessment of the proposal.

The main issues in this appeal are: • whether the proposal would be inappropriate development in the Green Belt having regard to the National Planning Policy Framework (the Framework) and development plan policies; • if inappropriate, the effect of the development on the openness of the Green Belt; • the effect of the proposal on the character and appearance of the surrounding area with particular reference to the Surrey Hills National Landscape and Area of [name]; • the effect of the proposal on the integrity of environmental assets with particular reference to the Thursley, Hankley & Frensham Commons Site of Special Scientific Interest (SSSI); • whether the proposal satisfies the requirement for biodiversity net gain (BNG); and 1 LPA reference WA/2025/02472 • if inappropriate, whether the harm by reason of inappropriateness, and any other harm, would be clearly outweighed by other considerations so as to amount to the very special circumstances required to justify the proposal.

The site is in the Green Belt. The Framework states that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. The Framework further establishes that development in the Green Belt should be regarded as inappropriate, subject to a number of exceptions set out in paragraph 154, criterion (d) of which allows for the replacement of a building provided the new building is in the same use and not materially larger than the one it replaces. Paragraph 155, which relates to development on grey belt land, is not applicable here as the appeal site is not identified as grey belt in the development plan or Framework terms.

Policy RE2 of the Waverley Borough Local Plan Part 1: [name] and [name] 2018 (LPP1) protects the Green Belt from inappropriate development. Policy DM14 of the Waverley Borough Local Plan Part 2: Site Allocations and Development Management Policies (LPP2) is consistent with the approach in the Framework in respect of replacement buildings, and guides that whether a development is materially larger will be assessed by considering changes in scale, mass, height, and floorspace.

The existing part two storey and part single storey dwelling would be replaced with a two storey dwelling. Whilst the overall height of the proposed dwelling would be slightly reduced, its scale would be notably larger as a result of being entirely two storey, notwithstanding the upper floor accommodation being partly within the roof space. This increase in scale is reflected in the fact that the floorspace of the proposal would exceed that of the existing by significantly more than 10%, solely because of the enlarged upper floor.

Policy DM14 advises that replacement buildings with a floorspace 10% or more greater than the existing building will normally be considered materially larger. When outbuildings are taken into account, the appellant has calculated that the overall increase in floorspace across the site would be only 9%, but such an approach runs counter to the accompanying text to Policy DM14 which states that the floorspace of a dwelling shall exclude detached outbuildings.

The appellant has argued that the 10% limit on replacement dwellings is arbitrary and simplistic, and has been applied less by commonly by LPAs since the changes to the Framework in 2024. Whether this assertion is correct or not, the percentage guideline forms only part of the assessment, with Policy DM14 making it clear that scale, mass and height should all be taken into account. The appellant has indicated that the proposal would have a similar volume to the existing house, but I have not been provided with a breakdown of the calculations, and in any case this would not alter my conclusions in respect of scale and massing.

Taking all these factors together, the new dwelling would be materially larger than the one it replaces, and would not comply with the detailed criteria in Policy DM14 of the LPP2. The proposal therefore fails to satisfy Paragraph 154(d) of the Framework, and would be inappropriate development in the Green Belt having regard to the policies in the Framework.

The appeal site comprises a substantial residential plot which forms part of a very loose ribbon of development in the countryside. It is heavily treed, particularly towards the rear of the site and around the existing dwelling. Owing to the significant distance the house is set back from [site address] and the intervening screening, the proposed dwelling would be largely hidden from public vantage points, but would be visible from the adjacent property at [name].

Openness has both a spatial and a visual aspect. The proposal would result in a loss of both aspects of openness by being entirely two storey whereas the existing dwelling combines one and two storey elements. This loss of openness, although moderate, would be particularly apparent at the front of the dwelling, where the main single storey element of the existing dwelling is located.

The proposal includes the erection of a detached double garage and workshop, with a home office in the roof space. Existing outbuildings on the site generally have a low roof line, including the outbuilding which would be demolished to make way for the proposed garage/home office. The erection of a larger, taller outbuilding close to the proposed house would increase the amount of built form on the site and erode the site’s visual and spatial openness.

The appellant has referred to permitted development rights that allow for development to take place without the need for planning permission, potentially resulting in the enlargement of the house and its outbuildings. However, as the extent of these rights has not been set out and no evidence has been provided that a Certificate of Lawfulness has been granted to confirm them, I afford this matter limited weight.

Taking the above considerations together, the proposal would result in a moderate loss of openness of the Green Belt as a whole, in conflict with the fundamental aim of Green Belt policy, set out in paragraph 142 of the Framework, of keeping land permanently open.

The appeal site is situated within the [name], which is designated as a National Landscape (NL) and an Area of [name] (AGLV). The Framework identifies that NLs have the highest status of protection and that great weight should be given to conserving and enhancing their landscape and scenic beauty. Policy RE3 of the LPP1 identifies that the protection of the AGLV will be commensurate with its status as a local landscape designation, with the same principles of protection being applied as in the NL.

The Surrey Hills comprise hills and valleys which contain extensive woodland and scrub together with chalk grassland and heathland, overlaid with a historic settlement pattern of market towns, villages and farmsteads. The area around the appeal site is characterised by heathland, and the appeal site exhibits these characteristics particularly towards the rear where it abuts [name].

The appeal site is situated amongst other low density residential plots, and therefore the site and its immediate surroundings combine both domestic and countryside elements. The replacement of the dwelling and outbuilding on the site would not cause any appreciable change in the site’s character, particularly as the buildings would be largely hidden from public view.

The existing dwelling is modest in appearance, with its mix of roof forms and materials suggesting that it has been extended over time. The proposal’s contemporary appearance, including large glazed openings, brick detailing and grey metal roof, would contrast with the existing dwelling. Its long side elevations and twin gables would be prominent, although I saw that other dwellings in the vicinity are of comparable bulk. Having regard to the area’s overall character, and the large plot on which the house would be situated, I find that the proposal would not cause harm. In the event that I were minded to allow the appeal, I would have given consideration to attaching a condition to control potential light spill, a matter raised by the Council.

Taking the above matters into account I conclude that ,in accordance with s85 of the Countryside and Rights of Way Act 2000, the proposal would further the purpose of conserving and enhancing the natural beauty of the NL, and also therefore the AGLV. The proposal would not harm the character and appearance of the area and would accord with policies TD1 and RE3 of the LPP1 and Policy DM4 of the LPP2. Together these polices seek to protect and enhance the character and qualities of the NL and AGLV by, amongst other things, requiring new development to be of a high quality that responds to the distinctive local character of the area. The proposal would also satisfy the requirement of the Framework to conserve and enhance landscape and scenic beauty in NLs.

The site abuts the Thursley, Hankley & [name], which consists of heathland and peatland, and is of national importance for its invertebrates, birds and reptiles. It forms part of the [name] 1 Special Protection Area (SPA). On the opposite side of [site address] is an area of ancient woodland.

Policy NE1 of the LPP1, although not referred to in the reason for refusal, advises that where new development is proposed that would result in a net increase in residential accommodation within 400m of the boundary of the SPA, the Council will need to be satisfied that there would be no significant adverse effects on the ecological integrity of the SPA. In this case, as the proposal is for a replacement dwelling, with no net increase in residential accommodation, it would accord with the Conservation of Habitats and Species Regulations 2017 (as amended) and have no significant adverse effects on the integrity of the SPA. There would be no conflict with Policy NE3 of the LPP1, referred to in the reason for refusal, since it concerns the [name].

Policy DM1 of the LPP2 requires proposals not to cause harm to existing environmental assets including areas of ecological value, whilst Policy NE1 of the LPP1 states that development adjacent to locally designated sites, including ancient woodland, will not be permitted where it would have an adverse impact on the integrity of the nature conservation interest. A Construction Environmental Management Plan (CEMP) was submitted with the appeal which identified the steps and procedures to be implemented to avoid or mitigate constructional impacts on species and habitats, including the storage of materials, dust suppression, waste storage and disposal, noise and vibration, and lighting.

Whilst the CEMP identified how environmental impacts could be controlled so as to prevent harm to the SSSI, it did not include measures for controlling potential impacts on the nearby ancient woodland. Consequently, there would be a risk that the construction phase could impact adversely on the ancient woodland.

I conclude, therefore, that whilst the construction phase of the proposal would not harm the integrity of the SSSI, it would risk harm to ancient woodland as a consequence of the lack of mitigation measures proposed in the CEMP. It would be contrary to the relevant parts of Policy NE1 of the LPP1, and Policy DM1 of the LPP2, the aims of which I have outlined above. It would also conflict with the aim of the Framework of resisting development which could result in the deterioration of irreplaceable habitats such as ancient woodland.

BNG is required under the statutory framework introduced by Schedule 7A of the Town and Country Planning Act 1990 (the Act), inserted by the Environment Act

The appellant has stated that the proposal is for a replacement dwelling for the owner occupier, and on this basis an exemption from BNG is sought by reference to Paragraph 17 of Schedule 7A of the Act.

Self-build and custom build proposals qualify for an exemption from BNG provided the development consists of no more than 9 dwellings, is on a site that has an area no larger than 0.5ha, and consists exclusively of dwellings that are self-build or custom build. Although the proposal is for less than 9 dwellings and satisfies the first criterion, the Location Plan confirms that the site area is 0.98ha, in conflict with the second criterion. The proposal also fails to satisfy the third criterion since there is no mechanism to secure the development as self-build. Consequently, the proposal is not exempt from providing BNG.

I therefore conclude that the proposal fails to satisfy the requirement for BNG in Schedule 7A of the Town and Country Planning Act 1990, and conflicts with the guidance on habitats and biodiversity contained in the Framework. I have not however found conflict with schedule 5 of the Wildlife and Countryside Act 1981 or schedule 2 of the Conservation of Habitats and Species Regulations 2017, which do not relate to BNG.

The existing dwelling is poorly insulated and requires reroofing and replacement windows throughout. An airtight, highly insulated, low energy dwelling designed to exceed passive house standards is proposed. The dwelling would generate its own energy through air source heat pumps and photovoltaic roof tiles, and incorporate electric vehicle charging. It would utilise efficient modern construction methods and achieve lifetime homes standards. Rainwater harvesting, low water use appliances, eco cisterns, aerating taps and showers, and permeable paving would be incorporated in the house. All materials from the existing dwelling would be recycled.

The palette of materials would reflect the area. Existing boundary planting would be retained and enhanced, and ecological enhancements would be made. Economic benefits would accrue to the area during the construction phase.

Taken together, the above factors weigh moderately in favour of the proposal.

The Framework advises that substantial weight should be given to any harm to the Green Belt, including harm to its openness. Very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.

The proposal would be inappropriate development by materially enlarging the dwelling it would replace. By replacing an existing one and two storey dwelling with a two storey dwelling, it would result in a moderate loss of openness. The proposal would result in potential harm to an environmental asset, namely ancient woodland, during the construction phase. The proposal would not achieve biodiversity net gain.

Set against this, the proposal would provide a modern, highly sustainable dwelling whose appearance would in keeping with the area, and provide economic benefits during the construction phase. Although the appellant has indicated that the proposal is for a self build dwelling, no mechanism to secure it as self build is before me, and I am therefore unable to afford weight to the appellant’s aspiration for a self build development.

Weighing these matters together, I find that the other considerations in this case do not clearly outweigh the harm identified. Looking at the case as a whole, the very special circumstances needed to justify the development do not exist.

The proposal would conflict with Policy RE2 of the LPP1 and Policy DM14 of the LPP2, which together seek to protect the Green Belt from inappropriate development. It would also conflict with Policy NE1 of the LPP1 and Policy DM1 of the LPP2, which together seek to protect the integrity of environmental assets and require new development to make a positive contribution to biodiversity in the Borough.

The proposal would conflict with the development plan as a whole, and the material considerations, including the Framework, do not indicate that the appeal should be decided other than in accordance with it. Accordingly, the appeal should be dismissed.