Appeal 6004559

The appeal is dismissed.

Accompanying the appeal are new drawings which omit the detached garage and relocate roof lights from the east facing roof slope to the west facing one. Those amendments do not amount to a substantial change to the appeal scheme and would not require consultation with interested parties.

In having regard to established caselaw, I am satisfied that determining the appeal based on those new drawings would cause no procedural unfairness to any party to this appeal. The Council has made comments on them. Therefore, I have determined the appeal based on those new drawings.

The appeal site lies within the zone of Influence of the Hatfield Forest Site of Special Scientific Interest (SSSI). The evidence indicates that all new dwellings in [name] are required to contribute to a fund that delivers [name] and Monitoring measures (SAMM). This is to mitigate harm to the SSSI from recreational pressure arising from visits by their occupants.

A signed [name] (UU) to obligate payment of the SAMM tariff was submitted a few days after my site visit and is intended to replace an earlier UU which was submitted with the appeal. I shall return to this matter later in my

The main issues in this appeal are whether the proposed development would be in an appropriate location for housing with particular regard to the development strategy in the development plan, and its effect on highway safety, the character and appearance of the area, and ecology.

The development strategy in [name], as set out in Policy DPS2 of the East Hertfordshire District Plan 2018 (“the EHDP”), is to deliver sustainable development in accordance with a hierarchy that includes sites within urban areas and urban extensions, and limited development in villages. The strategy’s guiding principles include prioritising brownfield land, directing development to within reasonable proximity to services and facilities, encouraging appropriate development in and around villages, and maintaining the district’s countryside and the rural character.

To give effect to the development strategy, and to balance the need to ensure vital and viable rural communities with the desire to conserve the countryside, [name] VILL1, VILL2, VILL3 and GBR2, seek to restrict development within villages and in the rural areas of the district beyond the designated Green Belt. They categorise villages into 3 groups based on their suitability for development, having regard to their size, and the services and facilities available within them.

The appeal site is separated from the identifiable built-up area of the Group 2 village of [site address] by a considerable distance, including intervening fields between it, and the [address]. Therefore, it is not within [site address] and would not comply with Policy VILL2. An allowed appeal found that a dwelling at Spring Paddocks1 (“the [name] appeal”), some 600 or so metres away to the east, fell within the hamlet of [name]. Therefore, the Council considers it reasonable to include the appeal site as within the Group 3 village of [name]. I see no basis to disagree. Group 3 is a residual category of small settlements not named in Groups 1 and 2.

Development within a Group 3 village is restricted to limited infill development identified in an adopted Neighbourhood Plan and subject to detailed criteria. This differs from Group 2 villages where such development can be permitted, prior to preparation of a Neighbourhood Plan. I have not been referred to a Neighbourhood Plan in force for the area of the appeal site. Therefore, even if ‘limited infilling’ the proposed development would not accord with Policy VILL3.

The appeal site is also located within the ‘Rural Area Beyond the Green Belt’, within which EHDP Policy GBR2 will permit specific forms of development, including housing, where they are compatible with the area’s character and appearance. Development types specifically permitted include (e) limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings) in sustainable locations, where appropriate to the character, appearance and setting of the site and/or surrounding area.

In terms of location, the appeal site is closer to [site address] than the [name] appeal site. Consequently, there is no dispute between the parties that the appeal site is within a sustainable location in terms of access to services and facilities. 1 APP/J1915/W/20/3258799

I have not been referred to any formal definition of limited infilling. The Council considers that 'infilling' is generally understood to mean built development that would fill a gap between existing buildings, often on an already built-up street frontage. In the absence of an alternative, I have used the Council’s definition.

The closest dwellings to the appeal site are Hollybush to the east and [address] to the west. The Council refers to the land immediately to the west of the appeal site as occupied by small agricultural development and fields, which has not been disputed. The land between those buildings, including the appeal site, is generally verdant and covered with mixed vegetation including grass, trees and hedgerows. The distance between those buildings, which the Council has estimated to be around 210 metres, is so great that the proposed development would not, in my judgement, constitute limited infilling.

In the absence of an alternative definition of previously developed land (PDL), I have used the one in the glossary to the National Planning Policy Framework (“the Framework”). The appellant contends that the appeal site is part of the curtilage of the dwelling of Hollybush, which is a modest [name] listed 2 storey cottage-style dwelling with a thatched roof. In accordance with the Framework’s definition, the appellant considers the appeal site to be “Land which has been lawfully developed and is or was occupied by a permanent structure and any fixed surface infrastructure associated with it, including the curtilage of the developed land”. Whether a parcel of land is curtilage is a matter of fact and degree on the evidence before the decision maker. Curtilage is a concept not a land use. Land used as garden land is not automatically curtilage.

The appellant states that the appeal site has formed part of the established residential curtilage of Hollybush for a prolonged period and has long functioned as private domestic garden land, rather than agricultural or undeveloped countryside. They refer to aerial photographs from 2007, which appear to show a few small buildings on the land. Those buildings are no longer present.

On the ground, the appeal site, which is shown edged red on the drawings, is clearly separate from the land edged blue on the same plans, which includes Hollybush. They appear as two distinct parcels of land. The land edged blue is enclosed by substantial boundary planting, including trees and hedgerows, and features a well-maintained lawn extending up to and around Hollybush. Its condition, function, and close physical relationship with the dwelling create a strong and intimate association with it. In my judgement, this land is the curtilage of Hollybush.

By contrast, the appeal site lies some distance from Hollybush and is largely enclosed by hedgerows and intermittent trees, with a few trees set further within the site. Its surface is uneven and shows signs of recent clearance. The land is covered with low scrub vegetation, including nettles, and lacks any clear functional connection to Hollybush or its well-maintained garden. The presence of a separate access to the highway further reinforces its sense of independence from Hollybush.

Moreover, the tall, dense hedgerow along the eastern boundary of the appeal site, which is approximately 40 metres from the front wall of Hollybush, forms a strong physical barrier between the appeal land and the land edged blue. Although there is a narrow, tunnel-like gap in the hedgerow, through which the front wall of Hollybush can just about be glimpsed, and its well-maintained garden accessed, this feature does little to diminish the overall impression of separation and separateness between those parcels of land. The hedgerow creates a clear and abrupt distinction between them in both appearance and function. While large gardens are more common in rural settings than urban ones, for the reasons set out above, the appeal land does not, in my judgement, share an intimate association with Hollybush and cannot be regarded as part of its curtilage.

For those reasons, the appeal proposal would not amount to limited infilling or the partial or complete redevelopment of PDL. Consequently, even if in a sustainable location, and appropriate to the character, appearance and setting of the site and/or surrounding area, there would be conflict with EHDP Policy GBR2 and consequently DPS2.

The Council contends that the gap in the roadside hedgerow, through which vehicles would access the appeal site, was created within the past few years without planning permission or approval from the Local Highways Authority (LHA). They contend that the hedgerow is on land which had highway rights and is therefore a highway asset.

In the context of an appeal under Section 78 of the Town and Country Planning Act 1990 as amended (“the Act”) it is not within my remit to make a formal determination on the lawfulness of any development. The appellant has the option of seeking a formal determination from the Council as to the lawfulness of the access under Section 191 of the Act. However, as a best-case scenario for the appellant I have included the existing gap in the hedgerow within the baseline condition of the appeal site for the purposes of my assessment.

The visibility splays are shown on the drawings as being clear of the frontage hedgerows on both sides of the access. However, from what I saw at my visit, those splays do not exist on the ground. This is because the edge of the hedgerow more or less follows the edge of the carriageway surface, with there being hardly any verge between the bottom of the hedgerow plants and the carriageway. The dashed lines on the submitted drawings appear to correlate with the line of a metal wire fence on the inside edge of the hedgerow. There is no site survey to indicate otherwise. Therefore, the visibility splays could only exist by removing the parts of the hedgerow and intermittent trees growing within them. The LHA reached the same conclusion.

Unless removed, the hedgerows within the visibility splays would significantly reduce the distance over which a driver exiting the appeal site to join the carriageway would be able to see an approaching vehicle (and vice versa), a cyclist or a pedestrian. Although traffic volumes were low during my visit and the speed limit is 30mph, the substandard visibility, together with vehicles taking up most of the road’s width, means that road users would have little time to react to the presence of one another and avoid a collision.

Even though the number of daily vehicle trips to and from the proposed dwelling would be small, the substandard visibility for drivers exiting the appeal site, and for other road users to see them emerging onto the carriageway, would be expected to present a relatively high probability of collisions between vehicles and other road users that could lead to serious harm or worse. For those reasons the proposed development would be contrary to EHDP Policy TRA2 insofar as it requires development proposals to ensure that safe and suitable access can be achieved for all users.

The removal of hedgerow and trees within it, to facilitate the provision of the visibility splays and resolve the harm to highway safety has not been ruled out by any party. Apart from the gap, the appeal site’s frontage is lined by a tall, dense hedgerow interspersed by the occasional tree that is growing more or less up to the edge of the carriageway’s surface. It forms part of a hedgerow that lines the southern edge of the carriageway for a considerable distance to the east and west. Together with the similarly tall and dense hedgerow on the opposite side of the carriageway, those hedgerows form an attractive landscape feature.

They are an important component of the rural landscape of the area, which consists of a generally sporadic pattern of buildings set amongst a patchwork of smaller fields, usually bordered by hedgerows and often containing sizeable trees. Although the appellant describes the hedgerow as poor quality, those roadside hedgerows are prominent in street level views. They also soften and conceal large parts of the buildings that occupy land behind them.

Given its closeness to the carriageway, I estimate that a sizeable length of hedgerow, including some trees, would need to be removed to create the access and visibility splays that are shown on the drawings. This would include a large proportion of the hedgerow along the frontage of the appeal site, along with a similar length in the opposite direction. The loss of hedgerow would harmfully erode and diminish the positive contribution that the lines of roadside hedgerows make to the attractively verdant and rural character and appearance of the area. It would also leave the proposed dwelling more exposed in views from the road.

Planting a new hedgerow behind the eastern visibility splay would be within the appellant’s control and could provide some mitigation for the proposal’s harmful visual impact on the character and appearance of the area. However, its alignment would be slightly inconsistent with the established hedgerow line, and it would take some time to mature. Planting of a new hedgerow behind the western visibility splay could not realistically be secured through a grant of planning permission, as the land falls outside the appellant’s control. This would likely result in a significant gap in the hedgerow.

The omission of the garage would avoid any harmful effects on the sizeable tree that overhangs the appeal site from land to the west. The distance of separation between the proposed dwelling and all other trees would appear sufficient to avoid any harm to their health and well-being. Planning conditions could have secured protection for those trees during construction. The Council considers that the proposed dwelling and garage would not appear overly prominent or out of character with the site or area. Even if I were to agree, an absence of harm in those respects would not be a benefit of positive weight in favour of the appeal.

For those reasons, the removal of hedgerow, including some trees, to create the access and visibility splays that are shown on the drawings would harm the character and appearance of the area. This would be contrary to [name] DES2, DES3, DES4, insofar as they require development to conserve, enhance or strengthen the character and distinctive features of the district’s landscape. That harm would conflict with EHDP Policy GBR2 insofar as it requires new development to be appropriate to the character, appearance and setting of the site and/or surrounding area.

Refusal reason 3 refers to insufficient ecological assessment of the hedgerow to be removed to achieve the visibility splays shown on the drawings. This reflects the views of the LHA. The Council’s ecologist raised no objection to the scheme. However, as these comments pre-date those of the LHA, it is unclear whether the ecologist was aware of the extent of hedgerow removal that would be required, particularly as this is not shown on the submitted drawings. The appellant’s Ecological Survey Assessment states that it was prepared on the basis that existing trees and hedgerows along the site boundaries would be retained.

For these reasons, it appears that the ecological implications of removing a substantial length of hedgerow for the proposed access and visibility splays has not been fully assessed. Applying a precautionary approach, the absence of evidence of harm should not be taken as evidence that no harm would occur. However, the Ecological Survey Assessment recommended that the thinning of hedgerow was not carried out during the bird breeding season, and it concluded that the development would not harm protected species or ecological interests.

For the purposes of this decision, I have applied those conclusions to the proposed hedgerow removal, not because this is definitively supported by the evidence, but to establish a best-case scenario for the appellant. In any event, reaching a definitive finding on this matter would not alter the outcome of the appeal as an absence of harm would not weigh in favour of the development.

[name] am dismissing the appeal for other reasons, no harm would arise to the SSSI and therefore I need not consider the submitted UU as it would not alter the outcome of the appeal. Being mitigation, payment of the SAMM tariff would be a neutral factor that would not weigh in favour or against the proposal.

As the [name] appeal development constituted infilling and did not harm the character and appearance of the area, it is materially different to the appeal scheme before me. Therefore, limited weight attaches to it. The dwelling allowed on appeal at Sacombe Green2 involved the re-development of PDL and was found to have a beneficial effect on the setting of a listed building, thus outweighing the conflict with Policies DPS2, GBR2 and TRA1. The balance of considerations in that appeal is materially different to the appeal scheme before me, and therefore I can afford it very little weight in my decision.

I do not have sufficient details of the appeal schemes at [name] 3 to know that their circumstances are directly comparable to the appeal scheme before me. The appellant’s summary of their relevance indicates that neither of them was harmful to the character and appearance of the area. The first of those decisions seems likely to have pre-dated the adoption of the EHDP. As such, those decisions have limited relevance and weight to my determination of this appeal. 2 APP/J1915/W/22/3298432 3 APP/J1915/W/16/3147738 and APP/J1915/W/18/3205669

The Council describes the dwelling approved at [name] of East End4 as limited infilling. Having seen that site, I see no reason to disagree. It is therefore materially different to the appeal scheme before me. I do not have sufficient details of the dwelling approved by the Council at [name] to Spring Paddocks5 to know whether the circumstances that led to it being granted planning permission are comparable to those in the case before me. However, it appears to be more or less the same site as the [name] appeal, which was found to be PDL.

The significance and special interest of the [name] listed Hollybush is derived partly from its age, materials and traditional architecture, and partly from its relatively spacious and verdantly rural surroundings. I have had regard to my statutory duty6 to pay special attention and have regard to the desirability of preserving its setting. Given the distance of separation between the proposed dwelling and Hollybush, including the substantial intervening planting, I am satisfied that the proposal would preserve the listed building’s setting.

It is an objective of the development strategy to restrict development within the villages and in the rural areas of the district beyond the designated Green Belt, including through criteria relating to limited infilling and PDL. This is to balance the need to ensure vital and viable rural communities with conserving the countryside. The EHDP’s development strategy is consistent with the Framework insofar as it supports housing development that enhances the vitality of rural communities, prioritises sustainable modes of transport, and is well-designed and sympathetic to local character including landscape setting.

Using the [name] appeal as a benchmark, the appeal development would be in a similarly sustainable location. Future occupants of the appeal development could support those rural services and facilities in nearby settlements. However, the appeal proposal would not constitute limited infilling or the partial or complete redevelopment of PDL, and it would be harmful to the character and appearance of the area. This brings it into conflict with the settlement strategy and [name] DPS2, GBR2, VILL3, DES2, DES3, DES4, and the development plan as a whole. This carries substantial weight against it.

The Council refers to an appeal decision dated August 20247, as confirming a housing land supply in the range of 4.20 – 4.49 years. The appellant refers to the Council’s interim calculation to February 2025 as suggesting the current supply amounts to 3.4 – 3.7 years. Taking the lower figure in the range as a best-case scenario for the appellant, I have determined the appeal on the basis that the shortfall against the 5-year requirement is significant.

Framework Paragraph 11.d)ii, is therefore relevant. In that scenario planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, including specific key policies.

The proposed dwelling would make a small but valuable contribution to increasing the supply of housing in the Council’s area. It could deliver a self-build or custom 4 3/24/1029/FUL 5 3/22/0608/FUL 6 Section 66(1) of the Planning (Listed Building and Conservation Areas) Act 1990. 7 APP/J1915/W/24/3340497 build plot, subject to being secured by a suitable mechanism, such as those referred to in appeals at Hertford8 and Milton Keynes9, supporting the needs of different groups. However, I am not aware of the demand and supply of such plots, and therefore this carries limited weight in its favour.

The proposed development would accord with the Framework’s support for making efficient use of land and for developing windfall housing sites. Occupants would be able to walk and cycle to the services and facilities in the nearby village of [site address] helping to enhance the vitality of rural communities and support the rural economy. The proposed dwelling would not be isolated, and its construction and occupation would deliver lasting economic and social benefits.

Energy and water could be used efficiently. Devices to generate renewable energy and encourage travel by zero and low emission vehicles could be fitted to help reduce carbon dioxide emissions. Beneficial gains in the appeal site’s biodiversity value could be secured through planning conditions, as distinct from any self-build exemption to the national biodiversity net gain objective.

The proposed development is likely to be built out quickly to deliver those cumulative economic, social and environmental benefits. However, as a single dwelling, those benefits would be comparatively small. Set against them, the appeal scheme would harm the rural character and appearance of the area. It would not be sympathetic to local character and landscape setting, and would be contrary to the Framework’s expectation for development to be well designed. It would not create a high-quality place, which is fundamental to what the planning and development process should achieve and a key aspect of sustainable development.

Even if I were to attach great weight to the benefits of using land within an existing settlement for a new home, as indicated by Framework paragraph 73, the Framework is clear that development not well designed should be refused. This is a determinative matter that carries substantial weight against the appeal proposal.

Consequently, for the reasons given above, the adverse impacts of the proposed development on the character and appearance of the area significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Therefore, the Framework’s presumption in favour of sustainable development does not apply in this instance.

For the reasons given above the proposed development would be contrary to the development plan as a whole. The material considerations, including the benefits of the proposed development and the provisions of the Framework are insufficient to outweigh that finding. Therefore, I conclude that the proposed development is unacceptable, and the appeal should be dismissed.