Appeal 6004388

The appeal is allowed, and Permission in Principle is granted for limited infill residential development at [site address] [postcode] in accordance with the terms of the application, [name]/2024/0557.

An application for an award of costs was made by [name], on behalf of Approved Land Ltd, against the decision of North Warwickshire Borough Council. This application will be the subject of a separate decision.

The proposal is for permission in principle. Planning Practice Guidance (PPG) advises that this is an alternative way of obtaining planning permission for housing-led development. The permission in principle consent route has two stages: the first stage (or permission in principle stage) establishes whether a site is suitable in-principle, and the second (‘technical details consent’) stage is when the detailed development proposals are assessed. This appeal relates to the first of these two stages.

The scope of the considerations for permission in principle is limited to location, land use, and the amount of development. All other matters are considered as part of a subsequent technical details consent application if permission in principle is granted.

An applicant can apply for permission in principle for a range of dwellings by expressing a minimum and maximum net number of dwellings as part of the application. In this instance, taking the information from the submitted application form, permission in principle has been sought for a minimum of one dwelling and a maximum of nine. An indicative layout was included within the submitted Flood Risk Assessment. However, this is clearly marked as indicative and the appellant confirmed this at the hearing. I have therefore considered it as such.

The description of development in the banner heading above is taken from the application form but with the details of the address removed as this is not required to describe the development. However, I have taken the address from the Council’s decision notice as this better describes the location of the site.

The Council’s first reason for refusal refers to Policy DP1 of the Nether Whitacre Neighbourhood Plan (the NP). However, from the evidence before me this was an error as there is no Policy DP1 in the NP and this should have referred to Policy DB1. I have, therefore, considered the appeal against Policy DB1 of the NP, amongst others.

The main issues are: • whether the site is suitable having regard to the National Planning Policy Framework (the Framework) which seeks to steer new development away from areas at the highest risk of flooding; • whether the site is suitable for residential development, having regard to its location, the proposed land use, and the amount of development, with particular regard to its relationship to the existing settlement; • whether the proposal would be inappropriate development in the Green Belt, having regard to the Framework and any relevant development plan policies; and • whether any 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 appeal site comprises the front part of a larger field/paddock between existing dwellings in [site address] . It lies within [name] 3 for fluvial flooding. Although it is protected by flood defences, and the appellant contends that it should be considered as [name] 1, it continues to lie within an area identified as within [name] 3, even if there has not been any fluvial flooding recorded recently. Given the [name] 3 status the sequential test, as set out in the Framework, should be applied.

The appeal site is also in an area at risk of flooding from groundwater sources and I was provided with a significant amount of evidence from interested parties showing the appeal site being flooded for a substantial amount of time, and of flooding within the wider village. The Framework seeks to avoid inappropriate development in areas at risk of flooding from any source by directing development away from areas at highest risk.

The appellant’s [name] is based on there not being any other sites available within [site address] at lower risk of flooding as the whole of the settlement is within [name] 3. The appellant accepted that they had not considered sites within or on the edge of immediate neighbouring settlements, which is the advice provided in the PPG as to the area to be applied to the sequential test for non-major housing. Neither the PPG nor the Framework sets a distance as to what is considered immediate neighbouring settlements and, even taking account of the distances quoted at the hearing, I find that the settlements referred to are immediate neighbouring ones.

Although the Council has not suggested any alternative suitable sites, I have no compelling evidence that there are no other sites in immediate neighbouring settlements that would be at lower risk of flooding and are reasonably available, even if they are not owned by the appellant and even if they are also in the Green Belt. The sequential test is, therefore, limited in its detail.

The development of the site would result in hard surfaces from roofs, roads, driveways, and patios that would not all be permeable surfaces. However, it would need to be designed so as to ensure that there is no increase in run-off over the existing level, even if there is not a betterment achieved. The Technical Details Stage application would need to include details to comply with Policies LP29 and LP33 of the North Warwickshire Local Plan 2021 (the NWLP) in providing flood storage and compensation, reducing flooding risk and ensuring that the dwellings are not at risk of flooding.

At this permission in principle stage there is no requirement for the developer to provide details of the means of mitigating groundwater or surface water flood risk. The indicative layout and indicative details in the Flood Risk Assessment (the FRA) are not full details of the scheme. [name] accept that the evidence indicates that the site and surrounding area is at risk of flooding the appellant was confident that there would be a solution, including through limited ground level raising and on-site attenuation, to ensure that the future occupants of the development are not at risk of flooding and that the development would not increase flood risk elsewhere.

I have no compelling evidence to the contrary and no compelling evidence, at this stage, that the development would not be safe for its lifetime, without increasing flood risk elsewhere. It is, therefore, reasonable to conclude that, subject to the technical details being acceptable, the development can be made safe for its lifetime.

Nonetheless, the appellant has not provided sufficient evidence that the sequential test has been met for all sources of flooding. Consequently, the development would not comply with national planning policy which seeks to steer new development away from areas at the highest risk of flooding. It follows that the proposal would conflict with Policies LP29 and LP33 of the NWLP.

Following the Gladman1 and Mead Realisation2 caselaw the failure of the sequential test can be a strong reason to refuse but this does not automatically remove the requirement to carry out a planning balance. The sequential test could have been more detailed and considered sites near to other settlements.

Nevertheless, the appellant has provided some information in the form of a sequential test and, in this regard, the appeal before me is materially different to both of the appeals at [address] and [address] where there was no information relating to the sequential test or exception test. I, therefore, find that 1 Gladman v SSHCLG and Lancaster City Council [2026] EWHC 51 (Admin) 2 [name] v SSLUHC [2024] EWHC 279 the limited information in the appeal scheme’s [name] is not a strong reason to refuse the application.

A decision on whether to grant permission in principle must be made in accordance with the relevant policies in the development plan. [site address] is identified in the NWLP as a Category 4 settlement. The appeal site lies outside the defined settlement boundary and is, therefore, considered to be within open countryside. Policy LP2 of the NWLP supports the principle of development within the settlement boundaries whilst also advising that development adjacent to settlement boundaries may also be acceptable.

Policy LP2 requires development within Category 4 settlements to enhance or maintain the vitality of rural communities and be proportionate in scale to the settlement. The Council sought to argue that the appeal would not enhance or maintain the vitality of [site address] due to the level of services and facilities and the over-reliance on the private car. Moreover, in the Council’s view, the size of the development proposed would not be proportionate to the settlement. My attention was also drawn to the increase in the number of houses in [site address] since the adoption of the NWLP and the reduction in services and facilities.

[name] accept that there are limited services and facilities in the settlement, including limited public transport, and that the local shop is not within the same built-up part of the settlement as the appeal site, [site address] remains a settlement where Policy LP2 supports new housing both within and adjacent to the settlement boundary.

The appeal site is immediately adjacent to the settlement boundary and both main parties agreed that it feels part of the village. Having visited the site and walked around the village I agree that the appeal site is part of the settlement, albeit that it is outside the development boundary. The two public houses, church, church hall, village hall, and bus stops are within easy walking distance. The village shop is further away and I accept that it is unlikely that residents of the appeal site would walk to the shop. Nevertheless, there are services and facilities in [site address] that any new development would be capable of supporting, enhancing, and maintaining the vitality of.

The reliance on the private car for access to shops, places of education and employment, doctors and other facilities would be no different for the residents of the appeal site and the residents of existing housing in the village, including those either side of the appeal site. The Framework accepts that the opportunities to maximise sustainable transport solutions will vary between urban and rural areas such as in this case. Moreover, albeit infrequent there are bus services that serve the village which would, alongside the option to cycle to the train station in Coleshill, provide genuine alternative means of travel for the future occupants of the development.

The proposal would be a minimum of one dwelling and a maximum of nine. It would, therefore, fall below the Policy requirement of sites to be of no more than ten units, as set out in LP2. It would, in that regard, be substantially different to the much larger development proposed in the appeal for the site on [address] which was found to be a significant increase in housing.

Whilst there would be a degree of urbanisation there is no reason to suggest that an appropriate layout, scale, and design could not be secured at the [name]. The details would be capable of reflecting the surrounding context and built form and positively improving the character and appearance of [site address] , even if the finished floor levels needed to be raised slightly to prevent flooding. From the evidence before me the appeal development is not intended to be raised more than 150mm above ground level. The proposal would, therefore, not be raised to the extent that other recent housing developments in the village were raised by, which I saw are visually higher and out of keeping with other housing nearby. I also have no compelling evidence that the existing trees along the roadside boundary, including those covered by the Tree Protection Order, would be harmed by the development, including from the provision of an access into the site.

Although the density, even at the maximum of nine dwellings, would be below the 30 dwellings per hectare expected by Policy LP7 of the NWLP, the density would reflect the surrounding area where the houses are set within large or long plots. Policy LP7 expects a density of no less than 30 dwellings per hectare but accepts that efficient use of land must not compromise the quality of the environment. Nonetheless, the appeal site would be capable of providing a higher density, without increasing the number of housing units above the maximum of nine, by providing undeveloped gaps between groups of houses.

I also have no compelling evidence that it would not be possible to design a scheme which would provide one to three bedroom units, as recommended by Policy HP1 of the NP. Consequently, the [name] application would be capable of securing a density closer to the target in Policy LP7 of the NWLP and securing housing of a scale to comply with Policy HP1 of the NP.

For the above reasons, I find that the appeal site is suitable for residential development, having regard to its location, the proposed land use, and the amount of development, with particular regard to its relationship to the existing settlement. I, therefore, find no conflict with Policies LP1, LP2, LP14 and LP30 of the NWLP. Collectively these policies allow for development adjacent to the boundaries of category 4 settlements where they would enhance or maintain the vitality of rural communities and where the development is proportionate in scale to the settlement, require development to positively improve the settlement’s character, appearance and environmental quality, conserve and enhance landscape character, and respect and reflect the existing pattern, character, and appearance of its setting.

Furthermore, although there is some conflict with the density requirement of Policy LP7 of the [name] have no reason to find that the development would not be able to secure a density closer to the target. Moreover, the development would not conflict with the thrust of the NWLP as a whole.

The site is located within the Green Belt and is outside the settlement boundary for the village, as defined in the NP. Paragraph 154 of the Framework sets out the categories of development which may be regarded as not inappropriate in the Green Belt, subject to certain criteria. Policy LP3 of the NWLP reflects the Framework in seeking to resist inappropriate development in the Green Belt except in certain circumstances. One such circumstance is limited infilling which may be acceptable where a site is clearly part of the built form of a settlement, i.e. where there is substantial built development around three or more sides of the site.

In my judgement the appeal site is a gap in the built form along [site address] and is within the village of [site address] , albeit that it is outside the development boundary. Moreover, there are houses to three sides of the appeal site.

In this regard the appeal before me is materially different to the appeal at Strawberry Cottage3 which was determined under a previous local plan where development outside the settlement boundary was resisted and in which the, now adopted policies, were only emerging and, therefore, given limited weight. That proposal, albeit accepted as limited infill, was not within the village. The appeal off [name] Lane4 is also materially different as that was found to be physically separated from the settlement and the appeal at Station Road5 was also found to not constitute infilling.

In the case before me, although there is substantial built development on the opposite side of [site address] , there are only a few houses either side of the appeal site and the houses behind the site are sporadic and beyond the remainder of the field. The housing on two sides of the site could not be described as ‘substantial’ built development and a third side is open to a field/paddock. The appeal site forms part of the built form of the settlement. However, there is not substantial built development around three or more sides and the proposal would, therefore, conflict with the definition of ‘infilling’ in Policy LP3.

Paragraph 155 of the Framework identifies further circumstances where development is not inappropriate in the Green Belt. Grey belt is defined as either previously developed or other land that does not contribute strongly to the Green Belt’s purposes as set out at paragraph 143(a), (b) and (d). The definition also confirms that ‘Grey belt’ excludes land where the application of the policies relating to the areas or assets in footnote 7 (other than Green Belt) would provide a strong reason for refusing or restricting development. For the reasons already given, the limited information in the sequential test and, therefore, the flood risk of the site, is not a strong reason to refuse the application when considering footnote 7. I, therefore, find that the appeal site would fall within the definition of grey belt.

Although the Council initially accepted that the appeal site did not contribute strongly to any of the three purposes listed, prior to the hearing they submitted a new Green Belt Study6. On the basis of that document the Council sought to argue that the appeal site strongly contributes to purpose (a) – to check the unrestricted sprawl of large built-up areas; and moderately contributes to purpose (b) – to prevent neighbouring towns merging into one another.

The Green Belt Study is a strategic scale analysis; it clearly confirms that it is not an assessment of defined parcels of land and, although there are some areas of less than ten hectares identified, it mainly focuses on areas of a minimum of ten hectares. Moreover, the ratings given to an area represent the strongest contribution within it. 3 APP/R3705/W/19/3237408 4 APP/R3705/W/23/3335824 5 APP/R3705/W/23/3335824 6 Green Belt Study – Strategic Green Belt Assessment, prepared by LUC, dated December 2025

The appeal site forms part of a larger parcel of land which is within [name], near the edge of Birmingham. Coleshill is identified in the NWLP as a market town and the Green Belt between Coleshill and the appeal site is also seeking to prevent its unrestricted sprawl. There is also a separate section of the Green Belt which seeks to prevent Coleshill merging into Birmingham.

The appeal site is not next to Coleshill, Birmingham, or [name], it is enclosed by existing housing and is part of the settlement of [site address] . Even though [site address] is identified as a settlement where development may be perceived as sprawl of Coleshill the appeal site is positioned within the settlement and there are physical features around it that would restrict and contain development. There is no evidence before me that the Green Belt Study has assessed the contribution the appeal site plays to the purposes of the Green Belt, separate to the purpose the appeal site plays as part of a wider area. In my judgement, the proposal would not be perceived as unrestricted sprawl of any large built-up area, including Coleshill. Neither would the development of the appeal site result in any of the neighbouring towns from merging into one another as a substantial sized gap would remain.

Furthermore, the site is enclosed by existing housing, albeit not substantial, and also by trees and hedges. The development would not extend out into the Green Belt any further than any existing housing already does and would not result in loss of the open areas around [site address] . Having viewed the appeal site from the surrounding area and taking into account the landscape evidence provided during the appeal, in carrying out a site specific assessment against the relevant three purposes of the Green Belt, I find that the appeal development would not strongly contribute to purposes (a), (b) or (d) of paragraph 143 of the Framework.

In considering compliance with paragraph 155(a) of the Framework, it is also necessary to determine whether the proposal would fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan. One of those purposes, namely purpose (c), is to assist in safeguarding the countryside from encroachment. In this instance, I have found that the appeal site is visually and physically contained by existing development and would be perceived as part of the settlement. As such, the development would not give rise to an encroachment into the countryside and would not conflict with this purpose. Finally given the appeal site’s location, it would not undermine purpose 143(e). The development would therefore comply with criterion (a) of Para 155.

Although interested parties raised concerns regarding the lack of need for additional housing in [site address] the Council accepts that it cannot demonstrate a five-year supply of housing across [name]. There is, therefore, a demonstrable unmet need for the development for the purposes of criterion (b) of paragraph 155.

Given my findings on the location of the development in relation to the access to services and facilities, I find that it would be sustainably located for the purposes of criterion (c). As the proposal is not a major development it would not need to meet the ‘[name] in criterion (d).

For the above reasons the development would comply with the relevant criterion of paragraph 155 of the Framework insofar as they relate to this case. The proposal would, therefore, not be inappropriate development in the Green Belt.

Nether Whitacre Parish Council and local residents have objected to the proposal and a number of interested parties attended and spoke at the hearing and raised issues not considered above. [name] have had regard to these comments, I have already set out that a permission in principle is not a planning permission in itself and my consideration of the case is limited to very specific matters. As such, issues such as detailed access arrangements, the effect on the living conditions of occupiers of neighbouring properties, and the effect on biodiversity, among other things, must be considered at the subsequent [name] stage.

Significant concerns were also raised regarding the capacity of the foul drainage system to accommodate additional dwellings. My attention was drawn to the frequent presence of vehicles required to remove foul water from the pumping station and that wastewater floods into gardens, driveways, roads, and watercourses. [name] acknowledge the severity of this issue and the extent of local feeling on it, this would also be a matter for the [name]. It would be for the developer to resolve in negotiations with the sewerage provider to ensure that sufficient capacity was provided.

Moreover, under the Water Industry Act 1991 the local sewerage provider has a legal duty to accept connections to the public sewers from new development, and to provide, maintain, and extend public sewer systems and sewage treatment works to ensure effective drainage. As set out in the Framework, planning decisions should not be based on the control of processes that are the subject of control through separate regimes.

There is no dispute between the two main parties that the Council cannot demonstrate a five-year supply of deliverable housing land. Figures provided to me range between 2.2 years and 0.82 years. Even at the highest figure there is a significant shortfall below the five-year requirement. [name] accept the interested party’s argument, that there are external influences on the five-year housing land supply, the situation is that the Council cannot currently demonstrate a five-year supply.

Policies LP1, LP2, LP3, LP7, LP29 and LP33 of the NWLP and Policy DB1 of the NP are the most relevant in considering the proposal. For the reasons given above I have found conflict with Policies LP3, LP29 and LP33 and the proposed development would conflict with the development plan as a whole. I attribute considerable weight to this harm.

Policies LP29 and LP33 of the NWLP are consistent with the Framework in seeking to ensure that development would not be at risk of flooding or increase flood risk elsewhere. As such, even with a lack of a five-year housing land supply, I have given the conflict with these policies significant weight in this appeal. However, Policy LP3, in defining infill development goes beyond the advice in the Framework and is, therefore, more onerous than the Framework. Given the significant shortfall in housing land supply I, therefore, attribute limited weight to the conflict of the development with Policy LP3.

The proposal would provide between one and nine additional houses in an area with some services and facilities and, although I accept that the future occupants would be dependent on the use of a private car to meet some of their day-to-day needs, I find that the site is in a sustainable location and is in proportion with the settlement of [site address] . The development would also contribute towards the borough’s housing supply, would accord with the Framework aim to significantly boost the supply of housing, and would provide some economic benefits both during and post construction.

I afford significant weight to the provision of these new houses and their associated benefits. Although, as only up to nine dwellings are proposed the benefit is moderate when weighing the merits of the scheme. I therefore afford significant weight to the moderate benefit the development would make to addressing the housing shortfall.

Consequently, the harm from the conflict with the development plan would not significantly and demonstrably outweigh the benefits that would arise from the development, when assessed against the policies in the Framework as a whole. Accordingly, there are material considerations, which indicate a decision should be taken other than in accordance with the development plan.

The PPG makes it clear that it is not possible for conditions to be attached to a grant of permission in principle, whose terms may only include the site location, type, and amount of development. Therefore, I have not imposed any conditions.

The proposed development conflicts with the development plan when considered as a whole. However, there are material considerations, notably the provisions of the Framework, which indicate that the decision should be taken other than in accordance with the development plan. The appeal is therefore allowed.