Appeal 6004822

The appeal is dismissed and planning permission for full planning application including reserved matters for the erection of a single storey detached dwelling, seeking approval of access, appearance, landscaping, layout and scale is refused.

An application for costs was made by [name] of [name] & Training Ltd against Wigan Metropolitan Borough Council. This application is the subject of a separate decision.

The appeal relates to a planning application that was not determined by the Council within the prescribed period. The Council has provided an officer report and an appeal statement explaining the reasons why it would have refused planning permission should it have made a decision on the development.

From the evidence before me, the main issues are: • whether the proposal would be inappropriate development in the Green Belt; • the effect of the proposed development on the openness and purposes of the Green Belt; • whether the proposed development meets statutory biodiversity net gain objectives; and • if the development is inappropriate, 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 necessary to justify the development.

The appeal site is located within the Green Belt. Policy JP-G9 of the Places for Everyone Joint Development Plan Document (2024) (PfE), seeks to enhance the beneficial use of the Green Belt without harm to its openness, permanence or ability to serve its five purposes. This policy conforms with the provisions of the Framework.

The National Planning Policy Framework (the Framework) identifies that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open, with the essential characteristics of the Green Belt being their openness and permanence. The Framework goes on to state that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

The Framework establishes that development in the Green Belt should be regarded as inappropriate, subject to a number of exceptions set out in paragraphs 154 and 155. The appellant’s submissions contend that the proposed development meets the exceptions at 154 (d); 154 (e) and 154 (g), and that the appeal site represents Grey Belt land. 154 (d) – replacement building

The exception at 154 (d) 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. The appeal proposal seeks to remove 3no. storage containers from the site and replace them with a residential dwelling. The evidence before me details that the existing containers are used for storage purposes and the proposed new building (dwelling) would therefore not be in the same use as the containers it would replace.

In addition, I have not been provided with any elevational drawings of the existing containers, or any footprint and volume comparisons. However, based on the information before me and my observations on site, I find that the proposed dwelling would be materially larger than the existing containers, in terms of both footprint and volume.

In view of the above, the proposed development would not meet the exception at paragraph 154 (d). 154 (e) – limited infilling in villages

With respect to whether the appeal site is located within a village, the appellant has referred to established case law1 (Wood case) which found that the boundary of a village defined in a local plan may not be determinative in considering whether a site is within a village and regard should also be had to the ‘on the ground’ situation.

In this regard, I observed that the appeal site occupies a backland site, located on the edge of a settlement. Thus, based upon my ‘on the ground’ assessment, I find that the appeal site is located within a village for the purposes of the Green Belt assessment.

With regard to limited infill, the Framework does not include a definition of ‘limited infilling’ and my attention has not been drawn to one within the adopted development 1 [name] v SSCLG, Gravesham Borough Council [2015] [name] 195 plan. However, case law establishes that whether a development constitutes limited infill or not is a matter of fact and planning judgement for the decision maker. I have therefore reached my own conclusions on this matter taking into account the nature and size of the proposed development, the location of the site and its relationship to existing adjoining and adjacent development.

In this regard, the appeal site’s side of [address], as well as Leyland Green Lane to the west, are both largely defined by linear built form with the properties predominantly fronting directly onto the highway. The proposed dwelling would be accessed through an existing gap between two properties fronting on [address] and would be sited on a parcel of land situated behind the properties fronting this highway. The proposed dwelling would therefore occupy a backland position, set back from the highway, with open fields located to the rear.

When viewed from the highway of [address] the appeal site does not appear as a gap within an otherwise built frontage and does not form part of the established row of linear built development on this side of the highway. I find the proposed development would therefore not infill an existing gap to complete a built-up frontage along this highway.

In coming to this view, I note there is a detached dwelling currently being built behind the dwellings to the west of the appeal site. However, I do not have all the details before me in respect of this development and observed on site that there would be a visual separation, as well as a physical separation provided by the brook, between the proposed dwelling and this dwelling currently under construction to the west. As such, I find the presence of one single dwelling to the west, behind the established linear form of built development fronting onto [address] and Leyland Green Lane, does not result in this backland appeal proposal representing an infill development.

In view of the above, I find that the proposal would appear as a backland development tucked behind the existing linear form of built development fronting onto this side of [address]. I therefore conclude that the proposed development would not represent limited infilling to satisfy the exception at paragraph 154 (e) of the Framework. 154 (g) – redevelopment of previously developed land

Paragraph 154 (g) of the Framework allows for the partial or complete redevelopment of previously developed land, whether redundant or in continuing use, which would not cause substantial harm to the openness of the Green Belt.

The appeal site consists of a hard surfaced access track leading to an area of overgrown grass land containing self-seeded trees and shrubbery. There are 3no. storage containers situated at the eastern end of the grassed area.

The Framework defines previously developed land as 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 (although it should not be assumed that the whole of the curtilage should be developed). It also includes land comprising large areas of fixed surface infrastructure such as large areas of hardstanding which have been lawfully developed.

It is well established that the definition of previously developed land in the Framework has flexibility in that a finding that land is previously developed may not require every part of the appeal site to be previously developed. However, the same is also true that the presence of some previously developed land on a site does not mean the whole of the site is previously developed.

In this regard, the hard surfaced access track serving the appeal site also provides access to the dwelling currently under construction to the west. As such, I find that the access track part of the appeal site represents previously developed land.

However, based on the evidence before me and my observations on site, the proposed dwelling would be sited on an area of overgrown grassland, trees and shrubbery. I acknowledge that this grassland does contain 3no. storage containers, however the definition in the Framework requires the land to be “lawfully developed” and I have not been provided with any substantive evidence in relation to the lawfulness of these containers on the appeal site.

I note the appellant’s submissions state that the containers have been on site for more than 20 years, thereby suggesting they are lawful through the passage of time. However very limited evidence has been provided in support of this claim. It has therefore not been adequately demonstrated that these containers represent a lawful development of this site.

In addition, and in any case, I observed that these containers only cover a fairly limited section of the grassed area upon which the larger dwelling would be sited. As such, I do not find that the presence of containers on a section of this grassed area results in the whole of this grassland area meeting the definition of previously developed land.

My attention has been drawn to an appeal decision2 whereby an inspector concluded that the containers subject of that appeal to be of sufficient size to constitute buildings. However, I have limited information before me in respect of the size of those containers in comparison to those on the appeal site. Nevertheless, even in the scenario whereby I was to conclude that the existing containers represent a building or permanent structure, it would not alter my above findings on whether the appeal site has been lawfully developed, or whether the grassed area as a whole constitutes previously developed land.

The appellant has also referred to previous engineering and land level works that have taken place on the appeal site. Again however, there is limited detailed information before me in respect of these previous works.

In view of all the above, whilst I acknowledge that the hardsurfaced access track represents previously developed land, I do not consider that the section of grassland upon which the proposed dwelling would be sited meets the Framework’s definition of previously developed land. Consequently, I conclude that the appeal site as a whole does not constitute previously developed land. The first criterion of the exception at paragraph 154 (g) for the development to represent the partial or complete redevelopment of PDL does not therefore apply to the proposal.

Turning to paragraph 155 of the Framework, the development of homes in the Green Belt should also not be regarded as inappropriate if all the stated criteria (a – d) apply. 2 APP/J0504/X/23/3318584

The first consideration is whether the development would utilise Grey Belt land. Grey Belt is defined in the Framework as land in the Green Belt comprising previously developed land and/or any other land that, in either case, does not strongly contribute to any of the purposes (a), (b) or (d) in paragraph 143. Additional guidance is provided in the Planning Practice Guidance (PPG).

The appeal site is located on the edge of a settlement. Based on the evidence before me, the site does not check the unrestricted sprawl of a large built-up area; prevent the merging of towns; or preserve the setting and special character of a historic town. Having considered the position and characteristics of the appeal site, I am therefore satisfied that it does not make a strong contribution in the context of purposes (a), (b), or (d) of paragraph 143 of the Framework. The appeal site therefore falls within the definition of Grey Belt land.

Turning to paragraph 155, with regard to criterion (a) the location of the site would not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan. The development therefore meets the requirement of criterion (a).

With regard to criterion (b), the relevant test for applications involving the provision of housing is whether there is a lack of a five-year supply of deliverable housing sites, including the appropriate buffer where applicable, or whether the [name] result was below 75% of the housing requirement over the previous three years.

The Council state that they can demonstrate a five-year supply of deliverable housing and the appellant has not contested this. Furthermore, there is no evidence before me to demonstrate that the Council’s Housing Delivery Test was below the 75% of housing requirement over the previous three years. Therefore, the criteria set out in paragraph 155 (b) is not met.

I conclude that the proposed development does not meet any of the exceptions listed in paragraph 154 of the Framework. It does also not meet all the required criteria within paragraph 155 of the Framework, specifically criterion (b). The development therefore represents inappropriate development within the Green Belt as defined by the Framework, which is, by definition, harmful to the Green Belt.

Paragraph 142 of the Framework sets out that the fundamental aim of Green Belt Policy is to prevent urban sprawl by keeping land permanently open and the essential characteristics of Green Belts are their openness and their permanence. The PPG advises that openness is capable of having both spatial and visual aspects.

As mentioned, the appeal relates to a parcel of overgrown grassland containing 3no. storage containers and self-seeded trees, situated to the rear of the properties fronting onto [address]. Directly to the rear (north) is a brook, and beyond this is an open field which due to the natural undulating topography rises away from the appeal site.

The appeal site, including the containers, is visible from the highway of [address], through the access gap between the properties at numbers 164 and [address] (Nos. 164 and 166). However, in its existing state the appeal site does still allow for views of parts of the open field to the rear from the highway of [address] and the rear of the property at No. 164, both above and around the existing trees and modest sized containers. I therefore found that the appeal site does make a modest contribution to the openness of the Green Belt.

The erection of a single-storey dwelling, along with the associated works and domestic paraphernalia, including new areas of hard surfacing for car parking, would result in a form of built development which exceeds that currently observed on the appeal site. The submitted plans show that the proposed dwelling would occupy a significantly larger footprint than that of the existing 3no. containers on the site. The appeal proposal would inevitably therefore reduce the spatial openness of the appeal site within the Green Belt.

Furthermore, being located to the rear of the existing properties fronting onto [address], I find the development of this green section of land would not safeguard the countryside from encroachment, and thus conflicts with one of the five purposes of the Green Belt.

In visual terms, the proposed dwelling would also be visible from public vantage points along the highway of [address], and from surrounding residential properties. Whilst acknowledging that the existing containers are currently visible from these vantage points, the proposed dwelling would occupy a considerably larger footprint and based on my observations on site would be significantly larger in height and mass, than these existing containers.

In addition, the submitted plans also show that areas of the existing grassland would be hard surfaced to provide access, as well as car parking and patio areas. As such, the proposed dwelling along with the associated works and domestic paraphernalia, including the parking of vehicles, would have a greater visual impact on openness than the existing site, which currently contains 3no. modestly sized storage containers.

In view of the above, the erection of a single-storey dwelling, along with associated works and paraphernalia, into an area of overgrown grassland that contains 3no. storage containers and self-seeded trees, would have a harmful impact on the openness of the Green Belt in both spatial and visual terms. The proposal would also conflict with the purpose of the Green Belt which seeks to safeguard the countryside from encroachment. This identified harm would be in addition to the inappropriateness of the scheme.

Therefore, I conclude that overall the proposal would cause moderate harm to the visual and spatial openness of the Green Belt, as well as the purpose of the Green Belt which seeks to safeguard the countryside from encroachment. I consequently find conflict with PfE Policy JP-G9 and the Framework, in so far as these policies set out that openness is an essential characteristic of the Green Belt and one of the purposes is to safeguard the countryside from encroachment.

Under Article 7(1A) of the Town and Country Planning (Development Management Procedure) Order 2015 (’the DMPO’), planning applications relating to small residential sites submitted on or after 2 April 2024 are required to be accompanied by certain information relating to BNG.

The minimum information required includes, as set out at c) (i) of Article 7(1A), that applications for planning permission must be accompanied by “the completed biodiversity metric calculation tool or tools (as the case may be) showing the calculation of the biodiversity value of the onsite habitat...”. This requirement applies to all planning applications, except where one of the exemptions specified in the legislation applies.

These exemptions are set out in paragraph 17 of Schedule 7A of the Town and Country Planning Act 1990 (as amended) (TCPA) and the [name] (Exemptions) Regulations. The appellant has not put forward an argument that the appeal proposal would meet any of these exceptions.

As such, and as part of their submission, the appellant has provided a [name] ([name]) which details that the proposal would deliver a net gain of approximately 14.16% in biodiversity units. During the planning application process an excel spreadsheet metric was provided in support of this [name].

The Council however contend that the submitted metric is not the legally required metric and consequently the proposal does not meet the legal requirements for BNG.

In this regard, the BNG section of the PPG3, when referring to the pre-development biodiversity value of a site, states “This is calculated using the official biodiversity metric tool to ensure a consistent approach to calculating biodiversity values is taken.” It also includes a link to the statutory biodiversity metric tools and guides.

Furthermore, the Government Guidance ‘Calculate biodiversity value with the statutory biodiversity metric’ also states that “The statutory (official) biodiversity metric is the way of measuring biodiversity value for the purposes of BNG”.

As such, I find that the government guidance is clear that the “official biodiversity metric” must accompany planning applications where the general [name] would apply, to ensure there is a consistent approach to measuring and calculating biodiversity values.

[name] acknowledge that the appellant states that the submitted metric is a [name], it does not appear to be the same version as the ‘Small Site Metric (the [name])’ found on the government guidance ‘Statutory biodiversity metric tools and guides.’ I am not therefore convinced that the submitted metric is the “official biodiversity metric” that was required to be submitted. Consequently, the submitted application does not meet the minimum information requirements in respect of BNG.

I note the appellant has commented that this is a procedural matter that could have been resolved during the determination period of the planning application, and that neither the Council nor its ecological consultee has raised any concerns regarding the methodology, habitat assumptions, or the calculated net gain itself.

Nevertheless, and based on the information before me, the minimum information requirements have not been provided with the planning application, in this case the required “official biodiversity metric”. On this basis, I cannot but conclude that the appeal proposal fails to meet the statutory duty for BNG as set out under Schedule 7A of the TCPA (as inserted by Schedule 14 of the Environment Act 2021). I cannot also be certain that the proposal complies with PfE Policy JP-G8 where it requires 3 Paragraph 33 [name]: 74-[phone] development to deliver a net enhancement of biodiversity and specifically to achieve a measurable net gain in biodiversity of no less than 10%.

The Framework states that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. 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 Framework seeks to significantly boost the supply of homes and at paragraph 73 it states that small and medium sites can make an important contribution to meeting the housing requirement of an area, and are essential for [name] housebuilders to deliver new homes, and are often built-out relatively quickly.

The provision of one additional dwelling on a small site would make a positive contribution to the Council’s housing land supply. Nevertheless, the social benefits arising from the provision of one additional dwelling would be limited.

Economic benefits would arise from the proposal, including contributions to the local economy during the construction phase of the development. These however would be short term benefits. Further economic benefits would also arise from additional spending in the wider area, by future occupants of the dwelling. Cumulatively, given the scale of development the economic support to the area arising from the appeal proposal would be relatively small. I therefore attach limited weight in respect of the economic benefits.

The appellant states that the proposal would result in the removal of the unsightly containers from the appeal site. However, as detailed, there is very limited substantive evidence before me to demonstrate that these containers represent a lawful development of this site. This therefore limits the weight I can attribute to their removal in favour of the appeal proposal.

As part of their final comments submission the appellant has made reference to an approved planning application4 for the erection of a detached dwelling on land to the north of [address], [address]. The appellant states that this relates to the same parcel of land as the appeal site. I have however been provided with limited details and plans in respect of this approved application from 2002 to demonstrate that it relates to the exact same site as the appeal proposal, and if it does that the condition / appearance of the site is the same as when this previous application was approved.

Furthermore, having read the provided Decision Notice and officer report, it appears that this approved planning application relates to a site located within the neighbouring authority of [name]. As such, and based on the limited information before me, I cannot be sure that this referenced application relates to the same site, and land, as the appeal proposal. In any case, I am not beholden to previous decisions made by Councils, and I have therefore determined this appeal on its own merits, based on the evidence before me and my own observations on site. 4 St Helens Council Ref: P/2002/1190

Additionally, the appellant also makes reference to two other planning applications5. However, these sites are also located within the neighbouring authority of [name] and having read the officer reports provided it would appear that they were not located within the Green Belt. As such, these other two approved applications are not directly comparable to the appeal scheme before me.

The appeal proposal constitutes inappropriate development in the Green Belt and results in moderate harm to openness and the purpose of the Green Belt which seeks to safeguard the countryside from encroachment. By virtue of paragraph 153 of the Framework this harm attracts substantial weight.

Furthermore, based on the information before me, I have also found that the minimum information requirements have not been provided to meet the statutory duty for BNG as set out under Schedule 7A of the TCPA (as inserted by Schedule 14 of the Environment Act 2021) and I cannot be certain that the proposal complies with PfE Policy JP-G8 where it requires development to achieve a measurable net gain in biodiversity of no less than 10%. I attribute significant weight to this harm.

The Framework makes it clear that the harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the development, must be clearly outweighed by other considerations for planning permission to be granted. In this case, I find that although there are other considerations which weigh in favour of the appeal proposal, the weight of these other considerations does not clearly outweigh the totality of the harm arising to the Green Belt and the failure to provide the minimum information requirements to meet the statutory duty for BNG.

Consequently, the very special circumstances that are necessary to justify inappropriate development in the Green Belt do not exist in this case.

The proposal conflicts with the development plan taken as a whole and there are no material considerations, including the Framework, to suggest the decision should be made other than in accordance with the development plan. Therefore, for the reasons given, and having regard to all other matters raised, the appeal is dismissed.