Appeal 6004824

The appeal is dismissed.

At appeal stage the appellant submitted additional information including a drainage technical note, sustainable construction checklist, information related to biodiversity net gain, and an additional plan showing separation distances. This additional information does not fundamentally change the proposal determined by the Council, and the Council and interested parties have had an opportunity through the appeal process to comment on the submissions. No injustice would be caused by having regard to the appellant’s documents in my assessment.

Following the submission of additional detail at appeal stage, the Council withdrew its reason for refusal related to sustainable construction. On the evidence before me, and following my site visit, I see no reason to disagree. I have not therefore treated this matter as a main issue.

Whilst comments have been made relating to potential inaccuracies within the submitted drawings, I consider the plans before me to be sufficiently accurate to, when coupled with observations at the site visit, assess the proposal without being prejudicial to interested parties.

I have taken the site address from the appeal form, as it more accurately describes the site.

The main issues are: • the effect of the proposal on the living conditions of neighbouring occupiers, with particular regard to privacy, natural light, and outlook; • whether the proposal would make adequate provision for [name]; • whether the proposal would provide satisfactory living conditions for future occupiers, with particular regard to privacy, outlook, private outside space, and natural light; • the effect of the proposal on the character and appearance of the area; and • whether the proposal would be acceptable in terms of drainage.

In close proximity to the appeal site are the rear gardens of a number of residential dwellings. Although of some length, these gardens are relatively narrow and a number are physically separate from their associated dwellings, with intervening outbuildings between some gardens and associated dwellings.

There are also 3 residential dwellings in proximity to the appeal site. There is an end-of-terrace dwelling located to the approximate northwest of the appeal site, with a front garden enclosed by a low stone wall and including windows on its front elevation. This dwelling also has smaller windows on the ground floor of its side elevation, of which those closest to the appeal site are obscured. The other nearby dwellings are a pair of semi-detached dwellings located broadly to the southwest of the appeal site. These dwellings do not have windows facing towards the appeal site, nor are their rear gardens in close proximity.

The proposal would introduce two 2-storey dwellings which would be located close to the site boundaries. Both proposed dwellings would include first-floor windows on the front and rear elevations, and each dwelling would have one first-floor window on a side elevation which would serve a bedroom.

Given the length and nature of adjoining rear gardens, as well as intervening built form, the existing visibility of these gardens from the windows of nearby residential dwellings is limited. As such, these gardens have a high degree of privacy for current occupiers.

The proposal would introduce 2 residential dwellings, which would have visibility of these rear gardens both directly from a first floor side window serving one of the dwellings, as well as less direct views from the front windows of one dwelling and the rear windows of the other.

Whilst the proposed dwellings would not be sited directly adjacent to the boundary with adjoining rear gardens, the overall size of the plot is not significant. As a result, the proposed dwellings would be in close proximity to these gardens. Given this proximity, and the narrow nature of adjoining gardens, existing occupiers of these properties would be subject to direct and immediate overlooking from the proposed dwellings. This overlooking would be sustained and would affect the significant majority of the rear garden space of the nearest adjoining gardens. This would compromise the function of these rear garden spaces in providing an area for private external day-to-day activities, which would be harmful to the living conditions of existing occupiers.

Whilst nearby dwellings are oriented such that they either do not have windows facing towards the site or their rear windows are of some distance, and some other dwellings have rear gardens that are some distance from the appeal site, and are therefore unlikely to be affected by the proposal, this does not mitigate the harm identified.

Whilst one of the proposed dwellings would be located relatively close to the end-of-terrace dwelling, given its location and separation distance, the extent of natural light reaching either the windows or front garden of this existing dwelling would be unlikely to be so altered such that harm was perceived by this dwelling’s occupier. As the semi-detached dwellings do not have windows facing towards the appeal site, and their rear gardens are some distance from the appeal proposal, the extent of natural light reaching the windows and rear gardens of these dwellings would be unlikely to be affected by the introduction of the proposed dwellings.

Other dwellings are of such distance that the proposal would not be likely to impact the extent of natural light reaching them. The dwellings are not of such size that changes to the extent of natural light reaching adjoining rear gardens would affect a significant extent of the gardens. Given these matters, the proposal would not harm the living conditions of nearby occupiers with regards natural light.

One of the proposed dwellings would be relatively near to some of the ground floor windows on the side elevation of the end-of-terrace dwelling. However, given both the size of these windows and their obscured nature, views from these windows would not be materially altered.

Equally, as the existing semi-detached dwellings do not have windows on the elevation facing the appeal site, and given the distance of these dwellings’ rear gardens from the appeal site, the introduction of the 2 new dwellings would not appear dominant or overbearing to the occupiers of these properties.

Given the intervening distance to windows of other existing dwellings, the size of the proposed dwellings, and the relative length of nearby rear gardens, the outlook of other existing occupiers would not be likely to so affected by the proposal such that harm would be caused. The proposal would not therefore result in harm to the living conditions of neighbouring occupiers as a result of outlook.

[name] have not found harm with regards matters of natural light and outlook, the proposal would be harmful to neighbouring occupiers in respect of privacy and this is the prevailing consideration. Given the above, the proposal would result in harm to the living conditions of neighbouring occupiers, with particular regard to privacy. The proposal would therefore conflict with Policy D6 of the Bath and North East Somerset Placemaking Plan (2017) (the ‘Placemaking Plan’) insofar as this requires development proposals to allow existing development to achieve appropriate levels of privacy.

Schedule 7A of the Town and Country Planning Act 1990 (the ‘Act’) identifies that, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the condition that the biodiversity gain objective is met (the ‘biodiversity gain condition’). This objective is for development to deliver at least a 10% increase in biodiversity value relative to the pre-development biodiversity value of the onsite habitat. The statutory framework involves the discharge of the biodiversity gain condition following the grant of planning permission, and the determination of the Biodiversity Gain Plan (‘BGP’) under this condition is the mechanism to confirm whether the development meets the biodiversity gain objective.

The appeal included a biodiversity net gain assessment (the ‘BNG Assessment’) alongside a pre-development plan baseline map (the ‘baseline map’). The BNG Assessment identifies that the proposal would achieve a net gain of 51.07% in habitat units. The baseline map identifies that the site comprises an extensive area of sealed surface, some vegetated garden and a small area of shrub planting.

The Council has drawn my attention to what it considers to be inaccuracies within the submitted BNG Assessment. In this regard at my site visit I observed a significant number of discrepancies between the submitted information and the site itself. This included the presence of both small trees or shrubs that were not included on the baseline map or the BNG Assessment, as well as areas of the site that had been incorrectly identified as sealed surfaces. The Council also provided a dated photograph identifying that the site had recently included some existing vegetation which did not appear on the baseline assessment, and raised concerns that such vegetation may not have been adequately captured in the metric.

The submitted information also included a post development map. The post development map identified an area proposed to be used as a footway and vehicular entrance as vegetated gardens. There were therefore also clear discrepancies between the post development map and submitted plans.

However, Planning Practice Guidance (the ‘PPG’) indicates that except in certain circumstances it would generally be inappropriate to refuse an application on the grounds that the biodiversity gain objective would not be met. With regards those circumstances set out in the PPG, the proposal would not entail significant biodiversity gains onsite, and notwithstanding the identified discrepancies there is no suggestion that a proposal could not achieve an appropriate balance in terms of onsite gains, offsite gains and statutory credits where applicable.

Planning permission cannot begin until a BGP has been approved and the BGP should include both pre-development and post-development biodiversity value of the on-site habitat as per paragraph 14 of Schedule 7A of the Act. Therefore, despite the discrepancies identified, issues relating to the quality and extent of the information that has been supplied, including the quantification of the baseline, are nevertheless matters to be resolved through the discharge of the biodiversity gain

Consequently, I have no reason to doubt that matters related to biodiversity net gain could not be satisfactorily managed by condition. Therefore, the proposal would make adequate provision for biodiversity net gain and would comply with Policy NE3A of the Local Plan Partial Update (2023) (the ‘LPPU’) which amongst other matters requires proposals to deliver an appropriate net gain of biodiversity.

Nearby existing dwellings do not have openings on first floor elevations facing towards the appeal site. The end-of-terrace dwelling close to the appeal site includes ground floor windows facing towards the appeal site, with those closest to the appeal site being small and obscured.

The two proposed dwellings would face each other within the plot, and would include an external area of lawn for each dwelling. There would be existing front gardens to the rear of one proposed dwelling, and existing single storey outbuildings to the rear of the other.

Existing development would not be likely to affect the function of the proposed private outdoor space, given the absence of nearby existing first floor windows facing towards the appeal site. There would be some intervisibility between the proposed dwellings and the proposed private outside space. However, sufficient areas of private outside space would remain to enable future occupiers to enjoy private outdoor activities without resulting in perceptions of overlooking.

Whilst there are ground floor windows on the end-of-terrace dwelling close to the appeal site, given the size, obscurity and ground floor nature of these windows, future occupiers of the closest proposed dwelling would be unlikely to perceive a harmful impact to their privacy. Equally, given their location within the plot there would be sufficient distance between the front elevation of each proposed dwelling such that acceptable privacy would be provided when perceived from the proposed facing windows on front elevations. Given these matters, the proposed development would provide acceptable living conditions for future occupiers with regards privacy.

Whilst the two dwellings would face each other within the plot, there would be sufficient distance between them such that future occupiers would not perceive the facing dwelling as overly dominant or overbearing to their outlook, either from their proposed front windows or outside space. Equally, as the rear elevations of the proposed dwellings would either face over existing front garden areas or single storey outbuildings, existing development would also not appear dominant to their outlook.

Whilst limited private outside space would be provided to the rear of each dwelling, the proposal includes significant private outside space to the side of each proposed dwelling. I have not been directed to any policy requiring a specific quantum of private outside space provision and I am satisfied that, taken as a whole, the proposed private outside space would be sufficient such that future occupiers would be able to undertake typical day-to-day external private activities.

Given its location, existing development is not in such proximity to the proposed dwellings that it would be likely that inadequate natural light would reach the windows of either of the proposed dwellings. Equally, although the 2 dwellings would be located on the appeal site, the proposed distance between them would not be such that one dwelling would be likely to affect the extent of natural light reaching the other.

Given the above, the proposal would provide satisfactory living conditions for future occupiers, with particular regard to privacy, outlook, private outside space, and natural light. In this regard the proposal would comply with the relevant provisions of Policy D6 of the Placemaking Plan, insofar as it relates to the requirement for new development to have appropriate levels of privacy, outlook and natural light, and for adequate amenity space to be provided.

The appeal site is located in an established residential area. Nearby development includes residential development set in plots of varying scale, including some dwellings with relatively small areas of private outside space. Although some nearby development demonstrates a more regimented building pattern and layout, there are also a number of nearby existing dwellings in close proximity to the appeal site that do not follow this pattern.

The proposal would introduce 2 dwellings onto the site. These would have a lawn area of moderate size, much of which would be provided to the side and front of the dwellings. The rear of both dwellings would be sited relatively close to the site boundary.

Whilst the site on which the 2 dwellings would be located would be smaller than some other nearby plots, both the proposed dwellings and the appeal site would also be of similar scale to other nearby existing development. Equally, whilst the proposed dwellings would not follow the established building line and ‘front and back’ nature of some existing development, other development in close proximity to the appeal site does not currently display this pattern. In this regard the proposal would be seen as part of a varied pattern of development, and would not appear out of place in this context.

In addition, the appeal site as a whole is not of such limited size that the two dwellings would appear oversized when compared to the plot in which they were sited. Equally, although the dwellings would be sited relatively close to the site boundary, and would have smaller private outside space than some other nearby developments, given the presence of other nearby residential development set in smaller plots with small areas of private outside space, both the extent of provision of private outside space and the location of development within the plot would not appear significantly different to other nearby development.

Given the above, the proposed dwellings would not appear cramped, either within the plot itself nor when set against nearby development. Nor would the siting, scale, massing and layout of the proposal appear out of place when compared to other nearby development or within the street scene.

Therefore, the proposal would not harm the character and appearance of the area. The proposal would comply with the relevant provisions of Policy CP6 of the Bath and [name] (2014) and Policies D1, D2, D3, D4 and D5 of the Placemaking Plan. Amongst other matters, these policies require development proposals to contribute to local context, character and urban fabric, and be well designed.

The proposal would seek to manage surface water run-off through permeable paving and soakaways or infiltration trenches. In the event that such an approach proved unviable, the proposal would seek to discharge surface water run-off to a surface water sewer.

Policy SU1 of the Placemaking Plan seeks for development proposals to manage surface water flood risk through sustainable drainage, or to utilise an alternative means of drainage if such an approach is unviable. Given the proposal to utilise permeable paving and a soakaway or infiltration trench, or a surface water sewer if unviable, I am satisfied that sufficient information has been submitted to demonstrate that the proposals seek to follow the drainage hierarchy set out within the development plan. In this context, the proposal includes a sustainable drainage strategy in line with the requirements of Policy SU1 of the Placemaking Plan.

I acknowledge that existing ground conditions may be subject to variable permeability, and I have not been directed to the location of a nearby surface water sewer. Whilst full details of site drainage may not have been submitted, and the proposal does not therefore wholly meet the guidelines of the West of England Sustainable Drainage Developer Guide (2015) (the ‘Guide’), Planning Practice Guidance also sets out that information related to a sustainable drainage strategy should be proportionate having regard to the scale and nature of the development proposed. In this instance I consider it would have been reasonable for such a matter to be secured by pre-commencement condition, had I not found harm arising in other regards. Given this, I afford any such conflict with the Guide limited weight.

Given the above, the proposal would comply with the relevant provisions of Policy SU1 of the Placemaking Plan. Amongst other matters, this policy requires development proposals to include a sustainable drainage strategy and consider alternative means of effectively managing surface water without increasing flood risk in the event such a strategy is inappropriate.

The proposal would result in the provision of additional dwellings in a residential area, which may be located close to other facilities and services, would include a number of measures to enhance sustainable construction, may meet M4(2) standards, and the proposal may provide the opportunity for visual improvements on a previously developed site.

The Council is unable to demonstrate a five year housing land supply, which on the evidence before me stands at 2.5 years. In the context of the Council’s housing need 2 additional dwellings would make a small contribution to this shortfall. Given the extent of development proposed, both the provision of housing and the other benefits attract limited positive weight.

The proposal would be harmful to the living conditions of neighbouring occupiers. The harm arising from the conflict between the proposal and Policy D6 of the Placemaking Plan should be given significant weight in the determination of the appeal. [name] have found the development acceptable with regards certain matters, the proposal would conflict with the development plan read as a whole.

As the Council is unable to demonstrate a five-year housing land supply, Paragraph 11(d) of the Framework is engaged. It has not been identified that the application of policies in the Framework that protect areas or assets of particular importance would provide a strong reason for refusing the proposal. Therefore, 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.

The proposal would have a harmful effect on the living conditions of existing occupiers, and this effect would be enduring. This would be contrary to the objectives of the Framework in ensuring that a high standard of amenity is provided to existing users. Alongside the conflict with the development plan I give this matter significant weight. Given this, the adverse impacts arising from the proposal would significantly and demonstrably outweigh the benefits arising from the provision of 2 dwellings and the other associated benefits.

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