Appeal 6004554

The appeal is allowed and planning permission is granted for the erection of two semi detached dwellings following demolition of existing dwelling; creation of new access and erection of fencing and boundary walls at [site address] in accordance with the terms of the application, [name]/2025/00486, subject to the following conditions:

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

The development hereby permitted shall be carried out in accordance with the following drawing nos: Unnumbered Location Plan, 1771/P-01A, 1771/P- 02, 1771/P-03A, 1771/P-04, and 1771/SK/09A.

No development, including demolition, shall take place until an [name] (AMS), including detailed tree protection measures, has been submitted to and approved in writing by the local planning authority. The approved tree protection measures shall be installed prior to the commencement of the development, and the development shall be constructed only in complete accordance with the approved AMS.

No trees shown to be retained on the Tree Protection Plan within the Arboricultural Impact Assessment ([name].2310.CCFC.AIA, [name] issued 01 July 2025) shall be cut down, uprooted or destroyed, nor shall any retained tree be pruned, other than in accordance with details approved pursuant to condition 3. Any retained tree that is accidentally removed, destroyed, or that becomes damaged or diseased within five years from the first occupation of the development shall be replaced in the next planting season in accordance with details that have first been submitted to and approved in writing by the local planning authority.

No development shall take place until a [name] (BMS) incorporating mitigation and enhancement measures and based on the recommendations contained in the Ecological Impact Assessment (January 2026), has been submitted to and approved in writing by the local planning authority. The BMS, and the mitigation and enhancement measures contained therein, shall thereafter be implemented in accordance with the approved details.

No development, other than demolition, shall take place until a surface water drainage scheme has been submitted to and approved in writing by the local planning authority. The surface water drainage scheme shall thereafter be implemented in accordance with the approved details.

The new vehicular access from [address] shall not be brought into use until pedestrian visibility splays have been provided in accordance with the details shown on drawing 1771/P-01A. The pedestrian visibility splays shall thereafter be permanently retained and kept clear of any obstruction over 0.6m high.

The development hereby approved shall not be occupied until facilities for secure and covered parking for bicycles and an e-bike charging point have been provided in accordance with a scheme that has first been submitted to and approved in writing by the local planning authority.

The existing dwelling on the appeal site is referred to throughout the evidence as the “[address]”, and I have used the same terminology in this decision.

The description of the development in the banner heading and the formal decision reflect the wording agreed between the parties after the application was submitted.

An Ecological Impact Assessment (EIA) was submitted with the appeal, which provides an update to the original EIA submitted at the application stage. The EIA does not alter the scheme but, rather, seeks to provide further technical information in response to concerns raised at the application stage in respect of the scope of the original EIA. The Council has had the opportunity to comment on the EIA as part of the appeal process. Therefore, I am satisfied that no prejudice is caused in me taking the EIA into account in my consideration of the appeal.

I have been provided with a signed and dated [name] (UU), which makes provision for financial contributions towards mitigation in respect of the Thames Valley Heaths Special Protection Area. The Council has had the opportunity to comment on the UU as part of the appeal process. I shall consider the UU later in this decision.

The main issues are: • the effect of the proposal on the character and appearance of the area; • the effect of the proposal on the living conditions of the occupants of [address] and [address], with regard to privacy; • the effect of the proposal on habitats and protected species; and • whether the proposal would accord with the statutory provisions for biodiversity net gain (BNG).

The appeal site lies within a built-up area where there is a wide range of dwelling types and designs. The homes nearest to the appeal site, on [address] and [address], are generally of 2-2.5 storeys and comprise a mix of terraced, semi-detached, and detached dwellings. The large college building and the associated car park and grounds are dominant features of the built form in proximity to the site, adding further to the variety of the built form in this area.

[address] is a modest two-storey, detached dwelling, that would be replaced with a larger and taller semi-detached pair. The footprint of the proposed dwellings would be broadly similar to that of nearby properties, including those on [address], such that they would be in-keeping with the local character by way of their width and depth. Moreover, given the prevalence of 2.5 storey dwellings in the locality, where dormer windows and roof lights are a common feature, the new homes would not have an incongruent appearance by way of their height and architectural features.

The submitted site sections show that the proposed dwellings would sit at a lower height than the neighbouring properties at [address] (Nos 20-22) and they would not be significantly taller than the dwelling at [address] (No 23). For this reason, the development would not be unduly dominant in either public or private views, and it would not appear disproportionate through its height, scale, and massing when viewed in context with the surroundings.

The proposal would result in the loss of a tree and some hedging, the latter of which forms the boundary between the site and the adjacent footpath. The loss of the boundary hedge would open up views from the footpath through to the proposed buildings and the appeal site. However, views of buildings and into domestic curtilages are common in this urban area, and the footpath would retain its treed character due to the extent and density of other foliage along the route.

All retained trees, including the protected trees on neighbouring land, would be safeguarded during the works and accounted for in the construction methods. The Council is satisfied that the tree protection measures would be achievable, and subject to conditions securing these measures, I have no reason to form a different view. Consequently, there would be no harmful loss of trees arising from the proposal that would lead to a deterioration of the local character.

Overall, the proposal would not cause harm to the character and appearance of the area. Therefore, there would be no conflict with Policy TD1 of the Waverley Borough Local Plan Part 1: [name] and [name] 2018 (LPP1) and Policies DM1 and DM4 of the Waverley Borough Local Plan Part 2: Site Allocations and Development Management Policies March 2023 (LPP2) insofar as they expect new development to respond to the local context and character of the area and to integrate effectively with existing development.

In seeking to protect the privacy of neighbouring occupants, The Residential Extensions Supplementary Planning [name] 2010 (the SPD) sets out a ‘rule of thumb’ that there should be a distance of at least 21 metres between proposed windows and those of neighbouring properties and 18 metres between proposed windows and neighbouring private amenity space. However, the SPD does not have the status of adopted development plan policy, and the distances it sets out are not a mandatory requirement. Indeed, the SPD itself states that the guidelines may be relaxed if the immediate character suggests that lesser distances may be appropriate.

The distance between the proposed first-floor side windows in Unit 2 and the rear windows of Nos 20-22 would fall short of the window-window guidance in the SPD. However, Unit 2 would be set back further from the rear boundary of Nos 20-22 than the existing side wall and window of the [address]. Therefore, there would be a greater window-window distance than is currently the case. Furthermore, the proposed side facing window in the roof would be at an angle that would impede direct views into the neighbouring dwellings. Overall, there would be no loss of privacy to the occupants of Nos 20-22.

The proposed rear windows would be closer to the side wall of No 23 than the existing windows on the [address]. However, there is undisputed evidence which shows that the side window in No 23 serves a staircase and hall, thus there would be no direct views into a principal habitable room. Therefore, whilst the distance between the new dwellings and No 23 would be less than is suggested in the SPD, a good degree of privacy for the occupants of No 23 would be maintained.

There would inevitably be some views from the proposed dwellings across the neighbouring private amenity areas on [address]. However, mutual overlooking of gardens is common in this area due to the density of the built form and the proximity and orientation of the dwellings. Other than the roof lights, which would be at an oblique angle thus restricting direct overlooking, the proposed side and rear windows would be at a similar height to the existing openings on [address]. Consequently, there would be no harmful increase in overlooking of gardens in respect of these neighbouring dwellings.

There is well-established tall planting along the rear boundary of [address] (No 1), which restricts views into the garden area from the site and the adjacent footpath. Given that the planting provides a sense of enclosure and privacy to the occupants of No 1, I have no reason to conclude that it is likely to be removed. Thus, there would be a good level of screening to prevent direct views from the ground and first floor windows across the garden of No 1. Moreover, the proposed front rooflights would be positioned well above the internal floor level and would be at an angle that would prevent additional overlooking. Therefore, there would be no harmful deterioration of the living conditions for the occupants of No 1.

Overall, having regard to the existing context of the site and the characteristics of the proposed development, there would be no loss of privacy caused, and the living conditions of the occupants of Nos [address] and [address] would be safeguarded. Therefore, there would be no conflict with Policy TD1 of the LPP1 and DM5 of the LPP2, which seek to avoid harm to the amenity of existing occupants and to maximise opportunities to improve their quality of life.

The EIA was undertaken by relevant professionals and follows standard methodology, including a desk top study, walkover survey, and building inspection to assess the effect of the proposal on habitats and protected species. The EIA also considers the results of dusk emergence surveys undertaken as part of the original EIA submitted with the application. The Council has not raised any concerns with the methodology used to compile the EIA nor its conclusions. In the absence of any definitive evidence to the contrary, the EIA provides a robust and thorough assessment of the ecological implications of the proposed development.

The EIA recommends mitigation and enhancement measures in respect of a range of protected species, including those relating to the timing of the works, ecological supervision, lighting, and the implementation of compensatory and enhanced habitats and bat roosting opportunities. It concludes that, subject to those mitigation and enhancement measures, the proposal would be unlikely to harm protected species or their habitats.

However, the EIA nonetheless identifies that the proposal would directly impact a confirmed bat roost and, therefore, a bat mitigation license would be required for the works to proceed lawfully. Regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 (as amended) (the Habitats Regulations) requires a competent authority to have regard to the requirements of the associated Directive, so far as it may be affected by the exercise of its function. This includes any proposal that might lead to the deterioration or destruction of the breeding sites and resting places of European protected species under Article 12(1), including bats and their roosts irrespective of whether or not bats would be present at the time the development is carried out.

Based on the information provided, I am satisfied that the proposal would not offend Article 12(1), that the mitigation hierarchy has been followed, and that there would be no significant harm to the long-term conservation status of bats as a result of the proposal. Moreover, I am satisfied that the conditions would provide certainty that the necessary mitigation measures would be secured. Similarly, I have no reason to doubt that a mitigation license would be issued on the basis of the evidence, and it is not for me to determine whether the legal tests for a license would be met, as to do so would duplicate the function of another regulatory body.

Overall, I am satisfied that the proposed development would not give rise to harm to habitats and protected species. Consequently, the proposal would accord with Policy NE1 of the LPP1 and the Framework in respect of this main issue, and insofar as it seeks to conserve and enhance biodiversity.

Schedule 7A of the Town and Country Planning Act (1990) as amended (the Act) introduced a statutory framework for 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, which include a completed metric calculation tool showing the calculations of the pre-development biodiversity value of onsite habitats.

It is clear from the application form that the proposal was not advanced as one that would be exempt from the BGC. Rather, a Biodiversity Net Gain Assessment and a [name] were submitted, which show the pre-development biodiversity value of the site and the likely effect of the proposal on biodiversity units. The Council has not raised any concerns in respect of the methodology used to prepare these documents and I see no reason to doubt the reliability of the assessment or its conclusions.

The statutory BGC would prevent the commencement of the development until it had been demonstrated that the biodiversity gain objective would be met. Given this, the Planning Practice Guidance1 makes it clear that it would generally be inappropriate for decision makers to refuse an application on the grounds that the biodiversity gain objective will not be met. Nonetheless, in this case, the appellant has indicated that the BGC would be achieved through measures including financial contributions towards a biodiversity offsetting scheme, and I have seen correspondence from an offsetting provider to indicate this would be achievable.

Consequently, I am satisfied that the proposal would accord with the statutory provisions for BNG. It follows that there would be no conflict with Policy NE1 of the LPP1 and the Framework in respect of this main issue and insofar as they seek to retain, protect, and enhance features of biodiversity.

The appeal site lies within the zone of influence of the [name] and the [name], which are European sites, designated for their networks of important bird conservation sites and, in particular the populations of Dartford warbler, Nightjar and Woodlark. The Thames Basin Heaths Special Protection Area Avoidance Strategy Review 2016 (Adopted 19 July 2016, [name] 1 April 2021) (The Avoidance Strategy) explains that, because these birds nest on or near the ground, they are particularly prone to disturbance from walkers, dog walking, and cat predation.

The Habitats Regulations require that, before deciding to give permission for a plan or project which is likely to have a significant effect on a European site, the competent authority must make an appropriate assessment of the implications of the plan or project on its conservation objectives.

The uplift in the number of dwellings that would arise from the proposal would lead to an increase in the number of households in the area, who would be likely to visit the recreational resources in these European sites. Consequently, particularly when combined with other local developments, the proposal would have a likely significant effect on the integrity of the European sites due to increased disturbance through recreational activity.

The Avoidance Strategy sets out a strategic approach to mitigating adverse effects on the [name], including through financial contributions towards Suitable Alternative Natural Greenspace (SANG) and a programme of [name] and Monitoring (SAMM) of the SPA. The appellant has established the contributions required using the Council’s dedicated calculator tool, which it states would be £8115.48 towards SANG and £2749.83 towards SAMM. The Council has not raised any concerns with the mitigation proposed and Natural England, who was consulted on the appeal, has stated that the mitigation 1 Planning Practice Guidance Paragraph 019 Ref erence ID: 74-[phone] proposed would be sufficient to avoid an adverse effect on the integrity of the [name] and the [name].

The submitted UU provides for the proposed financial contributions, and there is nothing before me to indicate that the UU would be ineffective or unenforceable. On this basis, I am satisfied that the obligations within the UU would enable the delivery of mitigation sufficient to address the harm likely to be caused by the proposal. Therefore, the scheme would not result in an adverse effect on the integrity of these European sites.

The proposed dwellings would be sited in a similar position to the existing [address] and would be spatially separated from the neighbouring dwellings by garden areas. Thus, I have no basis upon which to conclude that there would be a harmful loss of daylight and sunlight to neighbouring properties. Moreover, views of buildings and infrastructure are common in this urban area. Therefore, I see no harm arising through private views of the proposed buildings and of the adjacent college, including new views that could emerge due to tree removal. There is also no substantive evidence to suggest that the proposal would expose neighbouring occupants to a harmful increase in noise or light disturbance associated with the college.

Any nuisance arising during the construction process would be temporary in duration and could be managed through appropriate construction methods and safeguards. Furthermore, the proposal would not lead to the loss of pedestrian routes and there is no evidence to substantiate concerns raised in respect of the increased risk of trespass onto neighbouring land.

Although concerns have been expressed regarding poor drainage on the appeal site, there is nothing before me to indicate that the site is not capable of being effectively drained, details of which could be secured through a condition. I am therefore satisfied that the proposal would not increase the risk of flooding.

I note the third-party comments made in respect of the vehicular access arrangements, the risk of conflict between vehicles and pedestrians using the adjacent footpath, and the loss of college car parking spaces. However, any increase in vehicle movements arising from this proposal would be small and vehicle speeds would be low. Furthermore, from the evidence and my observations, most of the college car parking area would be unaffected by the proposal and, given the proximity of the site and the college to walking, cycling, and public transport networks, I have no reason to conclude that the proposal would lead to unsafe parking practices. The Highway Authority has reviewed the proposal, including the pedestrian visibility splays, and has not raised any concerns on traffic or safety grounds. I am satisfied that the proposal would not exacerbate public safety risks nor would it inconvenience road or footpath users.

I have necessarily assessed the scheme that is before me against the requirements of the development plan. That there may be other hypothetical ways in which housing could be delivered on this site, including through the repair of the [address], is not determinative to the outcome of the appeal.

The parties have been invited to comment on the conditions imposed, and I have taken account of the comments received.

In addition to the standard time limit condition, I have included a condition to define the permitted drawings to provide certainty.

Conditions relating to arboricultural methods and tree protection are necessary in the interests of protecting local character. I have also included a condition relating to biodiversity methods so as to safeguard protected species and habitats.

A condition is imposed in respect of surface water drainage to prevent harm through flooding and inadequate drainage.

Conditions relating to the highway access and bicycle facilities are necessary to ensure public safety and to promote sustainable travel modes in the interests of climate change mitigation.

This permission is considered to be one which will require the approval of a biodiversity gain plan before development is begun because none of the statutory exemptions or transitional arrangements are considered to apply. Because the BGC has a separate statutory basis as a planning condition, it is not necessary for me to include it within the schedule of conditions on this decision. It is also not necessary to include a condition relating to the management and monitoring of the BNG proposals as no significant on-site habitats are proposed.

The proposal would be in accordance with the development plan. Therefore, for the reasons given above, the appeal should be allowed.