Appeal 6005261

The appeal is dismissed and planning permission for demolition of the existing conservatory and outbuildings and erect extension to house and 2 new build dwellings and associated landscaping is refused.

The appeal is made against the failure of the Council to reach a decision on the application within the relevant statutory timeframe. The Council has not provided a statement of case to support the appeal, so it is not clear as to the decision it would have made were it to retain the jurisdiction to do so.

The evidence before me details that the site is subject to an outline permission for a total of 3 dwellings which was granted on 20th October 20231. Condition 2 of the outline consent requires applications for the approval of reserved matters to be made not later than the expiration of three years from the date of the decision.

Whilst there was a reserved matters approval on 7th June 20242, the evidence before me is not clear as to whether or not this has been implemented. In the event that it has not been implemented, the reserved matters approval would have very recently expired3. Nevertheless, given that there would remain the ability to submit a renewed reserved matters application up until 20th October 2026, I am satisfied that the outline planning permission on the appeal site remains extant.

Copies of the relevant decision notices for these applications have been provided with the appeal submission. I also requested copies from the Council of the associated officer reports. In the absence of a response, I have in this case accessed the officer reports for the applications via the Council’s website. 1 Council reference 23/00923/OUT 2 Council reference 24/00256/REM 3 Condition 3 of the outline approval requires implementation not later than the expiration of two years from the final approval of the reserved matters, i.e. in the case of the reserved matters approved under 24/00256/REM not later than 7 June 2026

Based on the evidence before me, the main issues are: • whether the proposal meets the definition of a custom / self-build development and therefore the requirements of the BNG exemption; • whether the proposal would be inappropriate development in the Green Belt, having regard to the National Planning Policy Framework (the Framework) and relevant development plan policies, including the effect of the proposal on the openness of the Green Belt; and, • the effect of the proposal on the safety of the highway network.

Schedule 7A of the Town and Country Planning Act 1990 (inserted by the Environment Act 2021) introduced a statutory biodiversity net gain (BNG) framework. For small site developments, this came into force in April 2024 (i.e. after the grant of outline planning permission). The proposal is advanced on the basis that, as it seeks the provision of a self-build and custom development, 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).

The statutory framework for BNG sets out a number of exemptions including self-build dwellings as defined in Section 1(A1) of the Self-build and Custom Housebuilding Act 2015. This makes it clear that the new dwelling must be occupied by the person or persons responsible for carrying out or commissioning the building.

[name] have no reason to doubt the intentions of the appellant in respect to the development being self-build and custom, I have not been presented with any reasonable means of securing this.

I have considered whether or not this matter could be dealt with by an appropriately worded condition. However, the intended purpose of a condition to secure a self-build dwelling would relate to occupation. In the event that the condition were to be breached, it is unlikely in my view to attract the attention which would lead to a report to the Council to begin investigation. Even if a breach were to occur and subsequently be reported, it would be difficult for the Council to then negotiate and secure BNG provisions through a breach of condition process.

For these reasons, it is my view that a condition to secure the development as self-build would not be a suitable approach, as it would fail to satisfy the tests set out in the Framework given the practicalities of enforcement.

Without means of ensuring that the new dwellings would be occupied initially by the appellant, or another person fulfilling the same criteria, the occupation of those dwellings as a self-build dwelling would not be sufficiently certain.

An appropriate mechanism to secure that the proposed development would deliver self-build dwellings would be a planning obligation made under Section 106 of the Town and Country Planning Act 1990. However, no planning obligation in relation to this matter is before me. Planning Practice Guidance (PPG)4 states that it may be appropriate, in exceptional circumstances, for a negatively worded condition to be used which requires a planning obligation to be entered into before development can commence. Nevertheless, it has not been demonstrated that such exceptional circumstances exist in this case.

Despite the intentions of the appellant as outlined in the application form, I therefore cannot be satisfied that the proposal would be secured as a custom self-build development. Consequently, I do not find that the proposal constitutes a valid exemption from the mandatory BNG.

Developments subject to the mandatory BNG are required to meet the minimum information requirements set out in Article 7 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. This includes information demonstrating the pre-development biodiversity value of the site and the completed metric calculation tool. This information, and the minimum information requirements as a whole, are not before me.

As a result, I cannot determine the pre-development biodiversity value of the site. The successful discharge of the biodiversity gain condition, which would be imposed in the event that planning permission was granted, would be predicated upon a 10% increase in the site’s biodiversity value, relative to its pre-development value being achieved. Given the deficient information before me, I fail to see how the mandatory BNG would be met.

Taking all of the above into account, I cannot be satisfied that the proposal meets the definition of custom self-build development which would qualify as an exemption from the mandatory BNG, and I fail to see how the mandatory BNG would be met. The proposal would therefore be in conflict with the Framework which advocates that developments provide for biodiversity net gains, seeking their integration as a part of their design.

The appeal site is within the Green Belt, where Policy CSSP4 of the Thurrock Local Development Framework Core Strategy and Policies for Management of Development (as amended 2015) (the Local Plan) outlines the Council’s policy is to maintain the purpose, function and open character of the Green Belt in accordance with the provisions of Planning Policy Guidance 2, which has subsequently been replaced by the Framework.

Policy PMD6 of the Local Plan states amongst other matters that planning permission will only be granted for new development in the Green Belt provided it meets the requirements of the Framework.

Paragraph 153 of the Framework requires substantial weight to be given to any harm to the Green Belt, including harm to its openness, stating that inappropriate development should not be approved except in very special circumstances. The Framework does however outline several exceptions to inappropriate development at paragraphs 154 and 155. Some of these correspond to the list within Policy PMD6 of the Local Plan. 4 [name]: 010 [name]: 21a-[phone]

The proposal includes different elements which do not precisely fall into the exception categories listed in the Local Plan or the Framework. Unlike the extant outline permission, the appeal proposal now seeks to retain the existing dwelling with proposed extensions.

Both Policy PMD6 of the Local Plan and paragraph 154 c) of the Framework outline that the extension or alteration of a building may not be inappropriate, provided that it does not result in disproportionate additions over and above the size of the original building5. Policy PMD6 of the Local Plan describes that in the case of residential extensions, this means no larger than two reasonably sized rooms or any equivalent amount.

The officer report for the outline permission details a planning history which includes various extensions to the dwelling. However, having visited the site, there is little to suggest that the dwelling itself has been extended in the form described by the descriptions of these applications. Due to the time which they were granted, they will now likely have lapsed. In the absence of evidence to the contrary, I therefore find it reasonable in this case to take the existing building as the original building, and thus benchmark on which to assess the proposal.

The plans before me annotate the floor areas for the existing and proposed dwelling. The submitted volume schedule demonstrates that, even with the elements of demolition to the existing house, the resultant volume of the main house would increase. Nevertheless, the proposed additions would be relatively modest in their extent when compared to the original building, creating a consolidated living area at ground floor and a larger bedroom at first floor. Based on the evidence before me, I am satisfied that the proposed extensions to the main dwelling would not be disproportionate when compared to the original building.

Even if I were to discount assessment against paragraph 154 c) of the Framework, the proposal as a whole, which as well as the extension to the existing dwelling includes demolition of existing outbuildings and the erection of two, detached dwellings, would represent the redevelopment of previously developed land (PDL). Paragraph 154 g) of the Framework outlines that the redevelopment of PDL will not be inappropriate development in the Green Belt provided that it “would not cause substantial harm to the openness of the Green Belt”.

The wording within Policy PMD6 of the Local Plan is similar to the wording within the Framework, albeit refers to new development not having a greater impact on the openness of the Green Belt than the existing development. This appears to be rooted in the previous version of the Framework and is therefore not entirely consistent with paragraph 154 g) of the Framework, as it imposes more stringent tests for the re-development of PDL. The requirements of Policy PMD6 of the Local Plan are therefore inconsistent with the Framework in this regard. As such, I have afforded limited weight to this policy in this respect.

Paragraph 142 of the Framework states that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open, and that the essential characteristics of Green Belts are their openness and their permanence. PPG provides advice on the factors that can be taken into account when 5 Defined in the glossary of the Framework as, “A building as it existed on 1 July 1948 or, if constructed after 1 July 1948, as it was built originally.” considering the potential impact of development on the openness of the Green Belt, with openness being capable of having both spatial and visual aspects.

The appeal site is occupied by various existing outbuildings of permanent construction. The Council’s officer report for the outline permission confirms the lawfulness of these buildings. The scale and form of the outbuildings vary significantly.

Upon demolition of the existing outbuildings, the proposal would lead to a significant consolidation of built form within the site, resulting in a notable reduction in volume of built form, as well as a reduction in the areas of hardstanding. The result of this is that there would be greater areas of the site which would be void of built form. From a spatial perspective, where openness is the counterpart of urban sprawl, the proposal would therefore have a beneficial effect to the openness of the Green Belt.

Nevertheless, from a visual perspective, the proposed new dwellings and the extensions to the existing dwelling would create added visual bulk compared to the predominantly lower lying existing outbuildings.

Taking these factors together, whilst the openness of the appeal site would be amended, the overall effect of the proposal on the openness of the Green Belt would be neutral. The proposal would therefore not amount to substantial harm to the openness of the Green Belt.

Consequently, the proposal would not be inappropriate development through paragraphs 154 c) and 154 g) of the Framework. Based on the above assessment, I have also identified no conflict with Policies CSSP4 or PMD6 of the Local Plan.

Policy PMD2 of the Local Plan, amongst other matters, outlines that development proposals must allow easy and safe access for all members of the community. The Framework details at paragraph 116 that development proposals should only be prevented or refused on highways grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network, following mitigation, would be severe, taking into account all reasonable future scenarios.

The officer reports for the outline and reserved matters approvals detail that the previously approved three dwellings were all to be accessed from a shared access from [address]. This is materially different to the appeal proposal before me in which one of the proposed dwellings would have a direct access onto [address].

[address] is an unadopted access road. I noted during my site visit that, at the point of the appeal site, the road is relatively narrow with some areas of uneven surfacing.

Whilst not objecting to the proposal, comments from the highway officer during the application process sought additional information including clarification of the proposed access arrangements and visibility splays. These matters have been addressed in the evidence before me.

[name] note the concerns relating to the use of [address] for vehicular access, I equally note that there is an existing access into the appeal site from [address], used for both residential and commercial purposes. On this basis I do not find that the use of the access for a single dwelling would represent an intensification in use when compared to the existing position.

If the appeal proposal were to otherwise succeed, then a condition could be imposed requiring the submission of a construction management plan, which would assist in mitigating local concerns regarding the use of [address].

I therefore find that the proposal would have an acceptable effect on highway safety and I have identified no direct conflict with Policy PMD2 of the Local Plan or the provisions of the Framework in respect to this main issue.

The appeal site is within the zone of influence for the [name] and [name]. [name] found the appeal scheme to be acceptable in all other regards it would have been necessary for me to examine this matter in further detail. However, as I am dismissing the appeal for other reasons, no further consideration is required.

The proposal would contribute to the Council’s housing supply through the delivery of two additional dwellings. There would also be modest short term economic benefits through the construction of the dwellings and associated social benefits through their occupation. I note that the Framework outlines support for bringing forward small and medium sized sites, acknowledging that they can make an important contribution to meeting the housing requirements of an area. The benefits are tempered somewhat given that they would be no greater than the existing outline consent at the appeal site.

The Framework is clear at paragraph 125 c) that planning decisions should give substantial weight to the value of using suitable brownfield land within settlements for homes, proposals for which should be approved unless substantial harm would be caused.

As detailed above, the site has an extant outline permission for the erection of three new dwellings. However, this was approved prior to the legislation for BNG coming into force for small sites. [name] is a matter subject to a statutory framework, the proposal’s degree of compliance with it is an important planning consideration and remains a substantive matter in the appeal, irrespective of the benefits of the proposal and the accepted fall back position.

In the absence of any appropriate means to secure that the appeal proposal would be exempt from mandatory BNG, the approval of planning permission would fundamentally undermine the statutory framework and in doing so amount to harm. This harm would be substantial and would outweigh the substantial weight to be given to the additional housing proposed.

The proposal does not explicitly conflict with the development plan, and I have found no harm in relation to the Green Belt or highway safety. However, material considerations, namely the mandatory BNG requirement and the provisions of the Framework in relation to biodiversity, dictate that the appeal should be dismissed and planning permission should be refused.