Appeal 6005397

The appeal is dismissed.

The evidence indicates that the appeal site lies within the zones of influence (ZoI) of the Benfleet and Southend Marshes Special Protection Area (SPA), [name] and Essex Estuaries Special Area of Conservation (SAC). They are habitats sites subject to statutory protection under the Conservation of Habitats and Species Regulations 2017, as amended (“the Regulations”).

The Regulations place a statutory duty on me as the Competent Authority (CA) to consider the effects of the appeal proposal on the nature conservation interests of those habitats sites. In discharging my duty, I must undertake an Appropriate Assessment (AA) and be satisfied that the appeal proposal would not result in adverse effects on the integrity of those habitats sites. This is reflected in my main issues below.

Legislation1 which brought the mandatory [name] (BNG) objective into force requires a development for planning permission to deliver at least a 10% increase in biodiversity value, relative to the site’s pre-development value. It requires planning applications to be accompanied by certain minimum information requirements, including an assessment of the pre-development biodiversity value of the site and the completed BNG metric calculation tool.

The BNG objective applies to all applications for planning permission, except where an exemption specified in the legislation applies. In this instance the appellant has claimed an exemption from the BNG objective under the self-build provisions. If the exemption is valid, the minimum information set out in the legislation, which has not been submitted, is not required. This is also reflected in my main issues below. 1 Article 7(1A) of the Town and Country Planning (Development Management Procedure) Order 2015

I wrote to the main parties concerning mitigation for the likely effects on habitats sites and whether a valid BNG exemption would be secured if permission was granted. Whilst the appellant did not respond, I have had regard to the Council’s comments in determining the appeal.

The main issues in this appeal are: • The effect of the proposed development on the Benfleet and [name], [name] and [name]. • Whether the proposal meets the definition of a self-build dwelling and the relevant exemption to the BNG objective. • The effect on the character and appearance of the area. • Whether future occupants of the development would be provided with satisfactory living conditions with particular regard to the outlook from the bedroom and outdoor amenity space. • Whether the size of the car parking space is adequate and the effect of car parking on nearby roads.

The SPAs and SAC are amongst several protected habitats sites of nature conservation importance on the Essex coastline that are designated as habitat supporting internationally important populations of bird species. Those species are shown to suffer disturbance from recreational activities on the coastline, causing their populations to decline and threatening the integrity of the protected habitats sites.

New housing development within the ZoI of each protected habitats site is likely to increase the resident population using the coastline for recreation, thus increasing disturbance to those bird species and harming the integrity of those sites. This is contrary to the nature conservation objectives of the protected habitats sites, which is to maintain their bird populations at favourable status.

Unless mitigated by the measures in the [name] disturbance Avoidance and [name], Supplementary Planning Document (“the RAMS”), which include access management measures and habitat enhancements, the appeal proposal is likely, both in isolation and cumulatively with other housing developments, to have a significant adverse effect on the integrity of those habitats sites.

Those mitigation measures would be delivered on a strategic basis and funded by financial tariff-based contributions (the RAMS tariff) secured through the grant of planning permission for new residential development. The RAMS states that those financial contributions would be secured by a planning obligation, which can be a [name] or a multi-party Section 106 Agreement under the Town and Country Planning Act 1990 (“the Act”).

The Council has received a direct payment of the RAMS tariff from the appellant, which is administered by a different Essex Council. However, as no planning obligation has been entered into, there is no legal mechanism before me to give certainty that the payment would be allocated to funding the mitigation measures in the RAMS, or whether it would be index linked to rise in line with inflation and cover the likelihood of rising mitigation costs at the point at which the dwelling is occupied, which could be a number of years into the future. I do not have certainty over the circumstances under which the RAMS tariff would be refunded and whether the appellant could be legally precluded from seeking a refund.

Unlike a direct payment, securing the RAMS tariff by a planning obligation would establish a transparent link between the development and the mitigation, giving legal certainty that the mitigation measures would be fully funded at the appropriate time and the circumstances under which the contribution would be refunded. In this instance, I do not have the certainty that a planning obligation would provide.

I have taken a necessarily precautionary approach to this matter given that a number of legally protected habitats sites could be adversely affected by occupation of the proposed development. Based on the evidence before me and in discharging my duty as CA under the Regulations, I am unable to conclude beyond all reasonable scientific doubt that the proposal would not harm the integrity of the protected habitats sites.

I have considered whether there are any effective alternative mechanisms to a legal agreement. However, the Planning Practice Guidance (PPG) is clear that the payment of money cannot be required by a planning condition2. In having regard to the guidance on planning obligations in the PPG3 there are no very exceptional reasons to secure the necessary legal agreement by a planning condition.

As the CA, I am not satisfied that the necessary measures to mitigate the harm to the habitats sites would be properly secured if planning permission was granted. I therefore conclude through my AA that occupation of the proposed development would have significant adverse effects on the nature conservation interests of the habitats sites arising from recreational disturbance, contrary to paragraphs 187 and 193 of the National Planning Policy Framework (“the Framework”).

The statutory framework for mandatory BNG sets out a number of exemptions to the objective of delivering at least a 10% increase in biodiversity value, relative to a site’s pre-development value. As claimed in this appeal, those exceptions include self-build dwellings as defined in Section 1(A1) of the Self-build and Custom Housebuilding Act 2015 (“the SBCA”), as amended by the Housing and Planning Act 2016, as “the building or completion by: (a) individuals, (b) associations of individuals, or (c) persons working with or for individuals or associations of individuals, of houses to be occupied as homes by those individuals.”

To qualify as a self-build dwelling and meet the relevant exemption to the BNG objective, the SBCA makes it clear that a new dwelling must be occupied by the person or persons responsible for carrying out or commissioning the building. In this instance, the Council has suggested a planning condition to secure the 2 Paragraph: 005 [name]: 21a-005-20190723 3 Paragraph: 010 [name]: 21a-[phone] and Paragraph: 013 [name]: 23b-[phone] proposal as a self-build dwelling. The suggested condition would require the first occupation of the proposed dwelling by a person or persons who had a primary input into the design and layout of the dwelling and who will live in the dwelling for at least 3 years.

Even if it were reasonable in the context of paragraph 57 of the Framework to impose a condition requiring such a person to occupy the dwelling for 3 years or more, the suggested condition would, in my view, fail to meet the test of enforceability as it would be difficult to detect whether the condition had been breached.

Even if a breach of the condition could be detected, I consider that it would be difficult for the Council, within the terms of the wording of the suggested condition, to retrospectively secure the BNG objective of a 10% increase in the site’s biodiversity value to remedy the breach. This is because the minimum information requirements, including the pre-development biodiversity value of the site and the completed metric calculation tool, which set the benchmark for measuring the BNG, have not been submitted. If such a breach could only be remedied by achieving the BNG objective on land off-site, achieving it in practice would appear to be especially problematic. Consequently, the suggested condition fails to satisfy the test of being reasonably practicable to enforce against.

In my view, a planning obligation made under Section 106 of the Act would likely be an appropriate mechanism to secure a self-build dwelling and meet the exemption to the BNG objective. It could set out how the dwelling would be occupied, and how the exemption and the BNG objective could be enforced against, therefore aiding any breach of the obligation to be remedied. However, no planning obligation in relation to this matter is before me. Whilst it may be appropriate, in exceptional circumstances, for a negatively worded condition to require a planning obligation to be entered into before development can commence, no such exceptional circumstances have been shown to exist in this case.

Consequently, on the evidence before me, the proposal would not meet the self-build exemption from the mandatory BNG objective, and the minimum information has not been provided. Therefore, if the appeal was allowed, I cannot be satisfied that the proposal would meet the mandatory BNG objective through the discharge of the biodiversity gain condition4, which would be deemed to be imposed on the grant of planning permission.

I therefore conclude that in the absence of a legally binding mechanism to secure the development as a self-build dwelling, it is not a self-build dwelling and would not meet the relevant BNG exemption. Consequently, the mandatory BNG objective would not be met, contrary to the Framework which requires developments to provide for biodiversity net gain.

The appeal site is a parcel of land fronting [address] that is situated to the rear of Number [address] (“Number 60”), and within a predominantly residential area. The character and appearance of [address] is mainly defined by its long rows of generally wide fronted terraces and semi-detached 4 Paragraph: 024 [name]: 74-[phone] dwellings. They are set back from the road on strongly defined building lines and behind modest frontages usually containing car parking spaces. Although there are a few bungalows along the street, particularly opposite the appeal site, most buildings are 2 storeys high, resulting in a broadly consistent street scene.

The appeal site is currently occupied by a sizeable single storey outbuilding that has a simple utilitarian appearance, being largely finished in timber cladding with a corrugated roof. Although physically subdivided from Number 60, the building is set back from [address] behind a tall boundary fence of the same type and appearance as that which encloses the rear/side garden to Number 60, and which largely screens the lower walls of the outbuilding.

The siting, scale and appearance of the outbuilding gives the impression in street level views that it is a fairly typical domestic garden building with a strong association with Number 60. I disagree with interested parties who consider the existing building to be harmful to the appearance of the area. It is seen in the context of several other outbuildings to the rear of the houses fronting [address].

The appeal scheme would see the replacement of the outbuilding with a detached single storey dwelling on a similar but slightly larger L shaped footprint, with a noticeably bulkier built form due largely to the main roof slope facing the road and the roof ridgeline running parallel to it. The proposed dwelling would not read as a domestic outbuilding to Number 60 and fencing would not screen its lower walls. Instead, the largely open frontage to the plot would reveal its physical subdivision from Number 60, and it would read as a detached dwelling within the [address] street scene.

It would be obvious that the proposed dwelling and its plot, which would be highly visible, are considerably smaller than all others in the street scene. Although space would be retained between it and the buildings on either side, the visual impression would still be of an uncommonly small dwelling occupying a small plot between much larger buildings on larger plots. Therefore, it would be as somewhat discordant addition to the street scene that would not accord with the guidance in RDG1 and RDG2 of the Castle Point Borough Council Residential Design Guidance, 2013 (“the RDG”), which states that plot sizes and the spaces around development should be informed by the prevailing character of an area.

The forward projecting wing of the proposed dwelling, although small, would disrupt the consistency of the strong building line of the terraces to the south. This would be contrary to the guidance in RDG3, which states that development must not result in disruption to a distinct pattern of development which creates an exceptionally strong building line. It therefore exacerbates the discordance of the proposed dwelling’s small size and plot in the street scene. Although not projecting forwards of the flank wall of Number 60, that property does not front [address] and it relates to the [address] frontage instead.

That said, the proposed dwelling would not be a prominent or dominant building in the street scene. Single storey bungalows are already a feature of the street scene, being intermingled amongst the houses and the proposed dwelling would bear an obvious resemblance to the single storey bungalows opposite. Nonetheless, when considered in its full context, the proposed dwelling would, for the reasons given above, be inconsistent with the prevailing character and appearance of the [address] street scene, resulting in a relatively low level of localised harm to the street scene. It would therefore conflict with Policy EC2 of the Castle Point Borough Council Local Plan, Adopted 1998 (“the LP”), which requires development to not be harmful to the character of its surroundings. It would also be at odds with Framework paragraph 135 insofar as planning decisions should ensure that developments are sympathetic to local character.

The guidance in RDG5 seeks to ensure the dwellings have reasonable outlooks, with primary windows on principal elevations and within attractive residential environments. The proposed bedroom would be served by a fully glazed door with a tall, glazed window to its side, providing an outlook across the amenity space towards the boundary fence and the rear elevation of Number 60 above it.

The outlook from the bedroom would not be extensive as the amenity space is not large. That said, the boundary fence and nearby buildings would not be so close to the bedroom window and door as to be dominant or oppressive to occupants in views from the proposed bedroom. Those occupants would therefore have a reasonable outlook from the bedroom. The principal outlook from the proposed dwelling would be out from the living room and towards the road.

RDG6 requires outdoor amenity space to cater for the needs of occupants in terms of the usability of its space. It sets a minimum amenity space of [address] metres for a dwelling with 3 habitable rooms or fewer. Sizeable gardens are the norm in this area, which is more suburban than town centre urban. However, the proposed dwelling is highly unlikely to be occupied by a family with children. As a small dwelling with a likely low occupancy level, I consider the guidance in RDG6 that relates to amenity space for flats is a relevant consideration, amongst others. Flats are not uncommon in the area, such as at Number 60 next door, and there are some large flat blocks at the southern end of [address].

Relative to the likely occupancy level of the proposed dwelling, it is my judgement that the proposed outdoor amenity space would be of a sufficient size and practical shape to establish a small outdoor seating area for relaxation and recreation, alongside space for drying laundry and storage of some domestic paraphernalia. It would be conveniently accessible from the building, and capable of being secure and private. Therefore, it would contribute to providing satisfactory living conditions for future occupants and their outdoor needs.

Future occupants could well choose to store bins closer to the site frontage to make more efficient use of the outdoor space, which is common at other properties in the street. Occupants would also be able to reach the spacious nearby recreation ground a short walk away. I am not satisfied that space to accommodate a garden shed would be necessary to achieve satisfactory living conditions. It seems to me that the limited amount of soft landscaping would reduce the need for storage of associated tools and machinery. Cycle storage is shown to be provided in a separate dedicated facility.

For those reasons, satisfactory living conditions would be provided for future occupants of the proposed development, with particular regard to the outlook from the bedroom and outdoor amenity space. It would therefore accord with the overarching guidance in RDG5 and RDG6 insofar as dwellings should provide occupants with reasonable outlooks and usable amenity space that caters for their outdoor needs. It would accord with Framework paragraph 135 insofar as planning decisions should ensure that developments create places with a high standard of amenity for future users.

LP Policy T8 states that the local planning authority will apply the standards for car parking in Essex, published by Essex County Council. The Council has clarified that those standards no longer apply and have been superseded by the Essex Parking Guidance Supplementary Planning Document 2024, (“the EPG”), published by the Essex Planning Officers Association, which is a material consideration.

There is already a dropped kerb in the highway in front of the access gates to the appeal site and the existing building. A small hatchback car was parked on the appeal site, just in front of the building and behind the gates. The dimensions of the length and width of the proposed perpendicular parking space have been added to a site plan submitted with the appeal. They show that the proposed parking space would meet the minimum dimensions in the EPG, which the Council has not disputed.

As the proposed car parking space would be alongside the access track to the south that leads to several outbuildings, it need not be bound by solid structures or obstructions abutting the track. This is not disputed by the Council. On the evidence before me I am satisfied that the proposed parking space would be conveniently accessible by a conventional car. The wall of the front wing of the proposed dwelling would only extend halfway along the northern edge of the car parking space. It seems to me that it would not be expected to significantly obstruct the opening of car doors or make it difficult for drivers and passengers to get in and out of a parked car.

In this instance it would not be necessary to increase the width of the proposed parking space by an extra half metre as suggested by the Council and the guidance in the EPG. There is no evidential basis to consider that the proposed car parking space would be underutilised by future occupants in preference to parking on the road. It would therefore qualify as a parking space and there appears to be no dispute between the main parties that a single car parking space would be adequate as a matter of principle.

Interested parties have raised concerns over the effects of car parking. Nearly all homes in the area have some off-street parking. I visited the area of the appeal site during the evening and morning on consecutive weekdays. I saw that car parking spaces on the road close to the appeal site were available and that parking around junctions is controlled by double yellow lines. Even if future occupants of the proposed dwelling were to own 2 cars, consistent with the parking standards for larger dwellings, I am satisfied that the potential displacement of a single vehicle onto the highway would not be harmful to highway safety, nor would it be likely to adversely affect the ability of existing residents to find car parking spaces relatively close to their homes.

For those reasons, the proposed development would be provided with adequate and conveniently accessible car parking provision that would meet the standards in the EPG, and I find no conflict with LP Policy T8, or Framework paragraph 135 insofar as planning decisions should ensure that developments will function well.

For the reasons given above, the proposed development would have a significant adverse effect on the integrity of the habitats sites referred to above. It would not qualify as an exemption from the mandatory BNG requirements and would therefore fail to meet the BNG objective. It would also harm the character and appearance of the area, resulting in conflict with LP Policy EC2.

Although it would be consistent with other policies of the LP, the conflict with LP Policy EC2 results in conflict with the development plan as a whole. There would also be conflict with Framework paragraphs 135, 187 and 193 insofar as they require development to be sympathetic to local character, for development to achieve net gains for biodiversity and for habitats sites to be protected.

The Council is unable to demonstrate a 5-year supply of deliverable housing sites. I have assumed the shortfall against the housing requirement to be substantial in the absence of evidence to the contrary. Land in built-up areas such as residential gardens is excluded from the Framework’s definition of previously developed land. Nonetheless, the proposed development could be delivered quickly to provide a small home in a sizeable settlement where housing development is acceptable as a matter of principle. Framework paragraph 73, great weight should be given to the benefits of using suitable sites within existing settlements for new homes. The proposal would make efficient use of land and make a small but positive contribution to boosting housing supply.

The proposed dwelling would use energy efficiently and incorporate devices to generate renewable energy, thus reducing carbon emissions. Construction and occupation would generate economic activity, with future occupants contributing to services and facilities in the area. Even if the Council’s duty to deliver enough self-build plots to meet demand was not being met, without a proper mechanism in place to secure a self-build dwelling, it attracts limited weight in favour of the appeal.

In my judgement the cumulative benefits of the proposed development would not outweigh its harm to the habitats sites, the failure to meet the mandatory BNG objective and the low level of harm to the character and appearance of the area. Together, those harms carry substantial weight against the appeal.

Given the Council’s housing land supply position, the presumption in favour of sustainable development in Framework Paragraph 11.d)ii. would normally apply and the policies most important for determining the application would be deemed out-of-date. However, under Footnote 7 to Framework Paragraph 11.d)i. the potential harm to the habitats sites provides a clear refusal reason. Therefore, the proposal does not benefit from the Framework’s presumption in favour of sustainable development.

The harm to habitats sites is a determinative matter that requires me as the CA to refuse planning permission as directed by Regulation 63(5) of the Habitats Regulations. No other solutions, imperative reasons of overriding public interest to permit the development, or other compensatory measures have been put forward by the appellant as alternatives.

Even if I were to accept that the RAMS tariff had been properly secured, it is mitigation and would not amount to a benefit in favour of the appeal. However, it would have meant that Framework Paragraph 11.d)ii. was relevant and the presumption in favour of sustainable development would have applied to the appeal scheme. In that scenario the significant weight that I attach to the failure to meet the statutory BNG objective, when taken together with the modest weight that I attached to the proposal’s low level of harm to the character and appearance of the area, would have significantly and demonstrably outweighed the scheme’s benefits when assessed against the policies in the Framework taken as a whole.

For the reasons given above the proposal conflicts with LP Policy EC2 and the development plan as a whole. The material considerations, including the proposal’s benefits and the provisions of the Framework, do not indicate that a decision should be made other than in accordance with the development plan. I therefore conclude that the appeal scheme is not acceptable and the appeal should be dismissed.