Appeal 6005039

The appeal is dismissed.

The appeal scheme relates to an outline proposal with all matters reserved. Whilst plans are advanced showing a suggested means of access, layout, scale and some elements of the external appearance, they are marked as indicative and I have treated them as such.

Schedule 7A of the Town and Country Planning Act 1990 (inserted by the Environment Act 2021) (the 1990 Act) introduced a statutory biodiversity net gain (BNG) framework. The proposal is advanced on the basis that, as it seeks the provision of a self-build dwelling, it is exempt from that framework’s mandatory BNG requirement to deliver at least a 10% increase in biodiversity value, relative to the site’s pre-development biodiversity value (the mandatory BNG).

Securing the development as a self-build dwelling, is a matter that I have sought representations on during this appeal. [name] is a matter subject to a statutory framework, the proposal’s degree of compliance with it is an important planning consideration and therefore it is necessary for me to consider it as a main issue in this appeal.

In light of the above, the main issues are: • whether the proposal would meet the definition of a self-build dwelling and therefore the requirements of the BNG exemption; • the effect of the proposal on the character and appearance of the area; • whether the proposal would be in a suitable location having regard to the Council’s spatial strategy and its access to services and facilities; and • the effect of the proposal on trees.

Under the statutory framework for BNG in the 1990 Act, unless exempted, every grant of planning permission is deemed to have been granted subject to the condition that the biodiversity gain objective is met.

The application form states that the proposal would be for a self-build or custom-build dwelling. This is one of the exemptions set out in the [name] (Exemptions) Regulations 2024 (the Regulations). However, the Regulations also provide that "self-build or custom housebuilding" has the same meaning as in section 1(A1) of the Self-build and Custom Housebuilding Act 2015. In order for the proposed dwelling to benefit from the exemption, it would be necessary to ensure compliance with that definition.

Both parties consider this is a matter that could be secured by planning conditions. The Council has suggested two conditions; the first requires occupation by a named person (or their dependant(s)) for the initial two years as their primary residence, and the second requires the occupant to notify the Council of their occupation so that the two-year period can be monitored.

However, as an outline application the intended occupier is not known. Even if they were, having regard to the tests set out at Paragraph 57 of the National Planning Policy Framework (the Framework), I am not satisfied that the conditions would be enforceable. Neither party has provided any representations to persuade me otherwise on this matter. As such, it is my judgement that the suggested conditions would not be sound and should not therefore be imposed. Consequently, I have no means of securing that the development would be a self-build dwelling.

The Planning Practice Guidance advises that BNG will often be a material consideration, and it should be considered, where relevant, whether the biodiversity gain condition is capable of being discharged successfully. Indeed, there are minimum national information requirements in relation to BNG which applicants must provide. As the applicant sought exemption, this information has not been provided. I therefore could not be satisfied that were the proposal to be brought forward as a market dwelling, it would be capable of complying with the biodiversity gain condition.

Bringing the above together, I find that the proposal would not adequately secure the development as a self-build or custom-build dwelling. Consequently, the application fails to demonstrate that it would be exempt development. It follows that as a market dwelling, the proposal would not include the minimum biodiversity net gain information. In those circumstances, I cannot be certain that the biodiversity gain condition could be met.

This would conflict with the statutory requirements in Schedule 7A of the 1990 Act, which requires BNG of at least 10%, and would be inconsistent with the Framework, which sets out the policy context for the statutory biodiversity gain condition and the need for decisions to contribute and enhance the natural and local environment.

The appeal site lies between [name] (No. 35) and No. [address], [name], comprising a parcel of undeveloped land. It has a narrow frontage, widening towards the rear (north) where it extends to align with the rear garden boundaries of neighbouring properties to the west. The scale and form of development at this end of the village provide a transition to the surrounding countryside, with a clear gradation in built form along [address], from detached two-storey dwellings (Nos. 29–33), to a one-and-a-half storey dwelling (No. 35), and then to a single-storey dwelling (No. 37).

Along the northern side of [address], the set back distances of dwellings from the highway gradually increase moving east, terminating in No. 37 which is set further forward than the 4 detached dwellings immediately to its west. In the vicinity of the appeal site, the highway is narrow and devoid of footpaths. Dwellings are typically set behind wide grass verges, bound by hedgerows and occasional established street trees which give the area a verdant and rural character and appearance.

A mature hedgerow alongside established trees forms the frontage site boundary where access would inevitably need to be taken. Although matters of layout and access are reserved, the indicative plan shows that the trees closest to the frontage would be retained with only a small punctuation to be made to form a new driveway. Furthermore, the indicative plan shows a single storey dwelling sited alongside No. 35, maintaining the broad building line of the adjacent properties. Its garden would project no further than the existing gardens, such that it would not encroach into the open countryside.

I am satisfied that the indicative plans demonstrate that the introduction of a new single storey dwelling on the appeal site could be achieved and would not go against the prevailing grain or character of the area.

Furthermore, the appeal site is well contained by existing mature planting along its eastern boundary, such that with careful consideration, a new dwelling would be barely perceptible from the wider public realm. As a result of this and its single storey nature, a matter which could be suitably controlled, I find the site is capable of accommodating a single storey dwelling as a matter of principle, without causing undue harm to the prevailing rural character of the area.

Therefore, I find the effect of the development on the character and appearance of the area could be acceptable. In this regard I find no conflict with Policies S1, S8 or D1 of the Maldon District Local Plan (Local Plan) (2017) insofar as they seek to maintain the rural character of the district without compromising the identity of individual settlements, and to protect the intrinsic character and beauty of the countryside.

The evidence indicates that the edge of the defined settlement for [name] terminates a few properties away to the west. As such the appeal site lies in the countryside.

Local Plan Policy S8 is supportive of sustainable development within defined settlement boundaries. Outside of the defined settlement boundaries, it states that planning permission for development will only be granted where the intrinsic character and beauty of the countryside is not adversely impacted upon and provided it accords with one or more of a list of exception criteria; (a) to (m). [name] have found no harm in respect of the effects on the character and appearance of the countryside, the proposal does not meet any of those listed exceptions, bringing the scheme into conflict with Policy S8.

As a ‘smaller village’ falling within tier 3 of the Council’s settlement hierarchy, the evidence indicates the village itself has limited services and facilities albeit limited details are before me. Although the appeal site is not isolated, it is functionally set away from services and facilities such as employment, education establishments and retail provision that would support the day-to-day needs of future occupiers. There is no pedestrian infrastructure in the vicinity of the site and no bus stops within the village meaning that occupiers would likely be reliant on the use of the private car to access services and facilities. No details are before me detailing how far away such services and facilities are located.

In this regard the proposal would be at odds with the objectives of minimising the need to travel and where it is necessary, prioritising sustainable modes of transport, an objective of Local Plan Policy S1. It also conflicts with Local Plan Policy T2 which seeks to locate development where the impact can be suitably mitigated and to provide safe and direct walking and cycling routes to nearby services, facilities and public transport where appropriate.

For these reasons, the proposal would not be in a suitable location having regard to the Council’s spatial strategy and its access to services and facilities. This brings the scheme into conflict with Policies S1, S8 and T8 of the Local Plan. The weight I attach to these policies is a matter that I return to later in my decision.

An arboricultural report dated 8th February 2024 supports the proposal. This was undertaken without full access due to the site being overgrown.

The Tree Protection Plan shows three category C trees close to the site entrance to be retained, with proposed tree protection fencing around their root protection areas (RPA’s). The two trees closest to the road are mature [name] trees, whilst the [name] tree is further away between the appeal site and the neighbour at No. 35.

None of these trees have been identified as being of the highest arboricultural category. Indeed, [name] trees are not generally regarded as being a native species. However, collectively, they nevertheless positively contribute to the attractive verdant character at the settlement edge.

The Council have raised concerns regarding the accuracy of the survey given site access limitations. However, the three trees that stand to be impacted by the creation of a site access are located close to the site frontage with the road. In particular, the two [name] trees are located immediately adjacent to the site frontage. Therefore, even with the site access limitations, I am satisfied that I can be reasonably confident in the survey findings in respect of these trees. This shows it is possible to provide a suitable access to the site, using specialist no dig construction methods and by fencing off root RPA’s.

The siting of the proposed dwelling is not fixed so there is scope to locate it away from other existing retained trees. [name] were minded to approve this appeal, a condition to require the reserved matters to be accompanied by a further, up-to-date arboricultural report would ensure that the effect of trees could be adequately dealt with at that stage.

Based on the information before me, I am satisfied that the trees important to the character and appearance of the area can be safeguarded from adverse impacts. Given the land available, I am also satisfied that mitigation and/or compensation could be forthcoming that would ensure the mitigation hierarchy is followed. Therefore, the proposal accords with Local Plan Policies S1, D2 and N2 which seek to conserve and enhance the natural environment and minimise effects through avoidance, alleviation and mitigation measures.

The appeal site lies within the zone of influence of a number of European habitat sites protected under the Conservation of Habitats and Species Regulations 2017. [name] been minded to allow this appeal, it would have been necessary for me to consider the effects of the proposal on the integrity of these sites, particularly from recreational pressure. Indeed, a completed Planning Obligation has been submitted with this appeal which purports to secure mitigation measures. However, as I am dismissing this appeal for other reasons, I have not considered this matter further as it would not alter the outcome of this appeal.

The Council is unable to demonstrate a five-year supply of available housing land. Paragraph 11(d)(ii) of the Framework requires me to consider whether any adverse impacts of permitting the development would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.

I have found that locationally, the site runs contrary to the spatial strategy of the Local Plan. However, in circumstances where the Council’s housing delivery policies have acted to unduly restrict the supply of homes, I attach a reduced weight to these policies and I do not find the sites location away from the built-up area, to be decisive to the outcome of the appeal. Whilst the site is set away from services and facilities, it is not isolated and I am mindful that the position would be no different for houses located within the settlement boundary just metres away. Indeed, many other dwellings along [address] also lack lit pedestrian footways. These factors reduce the weight that I attach to the conflict with Local Plan Policies S1, S8 and T8.

I have identified no harm to the character and appearance of the area or through the impact on trees, which are neutral factors in the balance.

The proposal would boost the supply of homes in the district, adding an additional dwelling to its housing stock, albeit this benefit is tempered by the minor scale of the development. The proposal would also bring about economic benefits during construction and increase in local spend. In this respect I have given associated housing delivery on a windfall site, moderate positive weight in the overall planning balance.

However, I have concluded that the proposal does not validly qualify as being exempt from the mandatory BNG and I have no information before me on how the mandatory BNG would be met. This brings the scheme into conflict with the Act and the Framework, which are important material considerations. In my judgement this conflict, weighs heavily against the appeal proposal, and to which I have assigned significant weight.

Given the heavy weighting I have applied to harm, the adverse impacts of granting planning permission in this case would significantly and demonstrably outweigh the benefits which would principally stem from the proposal’s minor contribution to housing supply. Therefore, the proposal does not benefit from the presumption in favour of sustainable development.

For the reasons I have set out above, there are no material considerations, including the provisions of the Framework, which indicate a decision should be made other than in accordance with the development plan. Therefore, the appeal should be dismissed.