Appeal 6005420

The appeal is dismissed.

The main issues in this appeal are the effect of the proposal on: • arboricultural interests; • on-street parking and the highways network; and • the character and appearance of the area.

[address] has a notably sylvan appearance owing to street trees on both sides of the road. There are several trees on land adjoining the appeal site whose canopies and root protection areas (RPAs) extend into the appeal site, and which contribute to its character of the area. The most significant of these is a protected Common Lime1, which is a [name] tree possessing high landscape value located within the rear garden of [address]. Both its RPA and its canopy extend into the rear part of the appeal site.

[name] 5837:2012 advises that the use of traditional strip footings can result in extensive root loss and should be avoided, whilst the insertion of specially engineered structures within RPAs may be justified if this enables the retention of a good quality tree that would otherwise be lost. Both the main section of the proposed house and a projection at the rear would extend into the RPA of the [name]. Although only a relatively small proportion of the overall RPA 1 Tree Preservation Order No 21, 2016 would be affected, the proposal is not supported by site-specific and specialist advice on foundation design in accordance with BS 5837:2012, and thus provides no certainty that extensive root loss could be avoided.

The appellant has argued that the design of alternative foundations such as cantilever and pile-and-beam systems is capable of being dealt with via a pre-commencement condition, which could require foundation design details, a method statement and arboricultural supervision to be approved. However, in the absence of a detailed design for alternative foundations, I cannot be certain that extensive root loss would not occur, potentially threatening the future health of the tree. It is not therefore a matter which is capable of being conditioned. My concerns in this regard are exacerbated by the lack of information about underground services and their potential impact on the roots of the tree.

The proposal includes a patio at the rear of the house which would be within the RPA. BS 5837:2012 advises that new permanent hard surfacing should not exceed 20% of any existing unsurfaced ground within the RPA. Although the appellant has provided a detailed specification for no dig construction of hard surfaces within the RPA2, no calculations have been provided to indicate the extent of the incursion into the RPA. In the absence of such information, I cannot be certain that the patio would encroach less than 20% into the RPA, with a consequent risk of harm to the tree’s health.

The dwelling would occupy a significant proportion of the appeal site. Its rear elevation would face westwards, with its kitchen/dining room and bedroom 1 directly facing the canopy of the tree, ant its patio would be partly under the canopy. Direct sunlight in the latter part of the day as well as daylight would be impeded by the canopy of the [name]. Pressure from future occupiers of the dwelling to prune the tree would be likely, given the potential effect of reduced daylight and sunlight on their living conditions. Consent to prune the tree back to the boundary with the appeal site was previously granted3, although it is unclear whether the works were ever undertaken. Given the growth of the tree in the intervening period, it is not certain that such consent would be granted again, and if it was whether it would result in adequate living conditions for future occupiers.

The scheme proposes the removal of a young Tree of Heaven at the front of the site. Although a [name] tree of low landscape value, it makes a positive contribution to the appearance of the area, which would increase over time as the tree grew. The appellant has not indicated why the tree is proposed to be removed or what alternatives have been considered, and whilst they have indicated a willingness to retain it, the plans show it being removed. The tree’s removal would have a small but measurably adverse impact on the street scene.

My attention has been drawn to an unimplemented and no longer extant planning permission to erect a dwelling on the site4. It showed a dwelling closer to the [name] than is now proposed, but at the time the canopy of the tree and its RPA were shown as being smaller than they are now. Consequently, the consented house and rear paved area encroached only marginally into the RPA. As that planning permission was granted ten years ago, it is reasonable to suppose that the tree canopy and root system have grown in the meantime, and it 2 [name] prepared by [name] 3 LPA reference 19/01188/TRE 4 LPA reference 16/06217/FUL does not therefore provide a reliable guide as to how far the proposed dwelling needs to be sited from the tree to ensure the tree’s future health.

Taking all the above matters into account, I conclude that the proposal would unacceptably harm arboricultural interests, contrary to Policy G7 of the London Plan March 2021 (LP) and the relevant parts of policies SP4, SP7, DM10 and DM28 of the Croydon Local Plan 2018 (CLP). Together these policies require local character to be respected by retaining preserved trees and ensuring that, in accordance with BS 5837:2012, they are not subject to excessive pruning.

The appeal site has a Public Transport Access Level (PTAL) rating of 3, meaning it has reasonable access to public transport. Houses in [address] generally possess off-street parking, and there is no [name] in the road. However, there are parking restrictions near the junction of [address] with [address] in the form of red and yellow lines. Several on-street parking spaces are marked out within the red and yellow lined areas, including outside the appeal site. The proposal would provide one car parking space, in accordance with the Council’s standards. Where the vehicular access to the site would be created, a small section of marked on-street parking would be lost, approximately equivalent to one parking space.

Whilst the parking restrictions near the junction of [address] and [address] are limited in extent, they nevertheless indicate that there is parking pressure in the immediate vicinity of the appeal site. My site visit, whilst a snapshot in time, indicated that available on-street parking capacity was utilised to a large degree. No evidence has been provided to demonstrate that there is no need at peak times for the existing on-street parking space, which Policy DM30 of the CLP requires to justify the loss of existing parking spaces. The loss of the on-street parking space would therefore add to parking pressure locally.

In instances where adverse transport impacts are identified, Policy T4 of the LP requires mitigation where appropriate, including through financial contributions. Policy SP8.13 of the CLP requires new development to contribute to the provision of electric vehicle charging infrastructure, car clubs and car sharing schemes. A modest financial contribution towards the measures set out in Policy SP8.13 would mitigate for the loss of the on-street parking space and would meet the three tests of Regulation 122 of the Community Infrastructure Regulations 2010 and paragraph 58 of the Framework. However, a completed deed of unilateral undertaking under s106 of the Town and Country Planning Act 1990 has not been supplied, meaning there is no mechanism to secure appropriate mitigation.

I have had regard to the judgment in Whiteside, R. (On the Application Of) v The Council of the London Borough of Croydon [2022] EWHC 3318 (Admin) (21 December 2022), which reaffirmed the evidential requirements under Regulation 122 of the Community Infrastructure Levy Regulations 2010 in relation to Policy SP8.13. However, the judgment does not remove the need for the tests to be applied in individual cases and, whilst I have found that in this case the tests are met, the judgment was not determinative in reaching this conclusion.

I am aware that when granting planning permission previously for a dwelling on the site, the Council accepted the loss of the on-street parking space without securing mitigation. That permission has now expired and consequently carries limited weight, and does not alter the need for the proposal to comply with the policies of the current development plan.

I therefore conclude that in the absence of evidence demonstrating that there is no need for the existing on-street parking space, the proposal fails to provide adequate mitigation for the loss of the space, contrary to policies T4, T6 and T6.1 of the LP and policies SP8, DM29 and DM30 of the CLP. Collectively, the relevant parts of these policies seek to maintain the safe and efficient use of streets through parking controls, require developers to demonstrate that there is no need for parking spaces which are proposed to be lost, and mitigate against adverse transport impacts through financial contributions.

The immediate area is characterised by detached and semi-detached two storey properties, which possess a uniform building line and are set within well-proportioned plots. The proposal is for a detached two storey dwelling which would be higher than the adjacent dwelling at [address] but not excessively so, and would have an appropriate separation distance to that property. It would be set forward of the building line of the adjacent dwelling but would broadly align with the position of the side elevation of [address], albeit that property is separated from the appeal site by a rear car park.

Although the houses in [address] are mixed in character, many feature hipped roofs, projecting gables and bay windows. Brick, render and hanging tiles are the predominant building materials, along with plain tiled roofs. The properties at the junction of [address] and [address] are different in scale and appearance, with No 263 being a locally listed building which features prominent gables to both road frontages and a corner turret with banded tiled hanging. The building on the opposite corner is a modern flatted development which also has prominent gables.

The proposed dwelling would have twin gables flanking a recessed front door with a balcony above, and a hipped roof. The dwelling would be rendered, with red brick lintels above the windows, and a corbelling detail running around the house between the ground and first floors. It would be roofed with brown clay roof tiles. In terms of its scale, appearance and materiality, the proposed dwelling would respond appropriately to the local context.

The Council has raised a number of detailed concerns, including the imbalance in the size of the gables, the “cut-outs” on the outer edge of each gable, the arrangement of fenestration, and the position of the corbelling detail. I acknowledge these concerns, but they do not fundamentally undermine the proposal’s satisfactory response to the local context. There is room for variation and creativity within the overall design concept, without causing harm to the appearance of the area. My conclusion in this regard is reinforced by the fact that a previously refused scheme had a similar design ethos to the proposal yet was not objected to by the Council on design grounds5.

Paragraph 216 of the National Planning Policy Framework (the Framework) requires the effect on the significance of a non-designated heritage asset to be taken into account, and for a balanced judgement to be reached having regard to 5 LPA reference 23/04589/FUL the scale of any harm or loss and the significance of the heritage asset. The locally listed [address] is a prominent corner building dating from the late Victorian/Edwardian era. Its principal aspect towards [address], which is set back behind a landscaped frontage, is where the most decorative aspects of the building are found. Its side elevation to [address] is plainer, whilst the rear elevation has been altered over time.

The setting of the building principally comprises [address], with [address] also forming part of its setting. The proposal would have minimal visual impact in views from [address], and whilst both it and the heritage asset would be seen from [address], the proposal would be sited far enough from the rear of the building that it would have only a minor impact on its setting. The proposal would not therefore harm the heritage asset’s significance.

I conclude that the proposal would not have a harmful impact on the character and appearance of the area and would therefore accord with Policy D3 of the LP and the relevant parts of Policy DM10 of the CLP, notwithstanding my earlier conclusion that the proposal conflicts with Policy DM10 in respect of its impact on trees. Together these policies require development to take a design-led approach which responds to the site’s context, including the development pattern, and the scale and appearance of the surrounding area.

The proposal would make efficient and sustainable use of a small infill plot in an accessible location. It would contribute to housing delivery by providing a family dwelling. It would provide economic benefits during the construction phase and from future residents using local businesses.

The lack of harm to local character and residential amenity is neutral. I have had regard to the previous permission for a house on the site, but it was for a different scheme and has now lapsed, and therefore carries very limited weight in the

None of these factors is sufficient to outweigh the harm to arboricultural interests, and on-street parking and the highways network, which I have identified.

For the above reasons, the proposal conflicts with the development plan, when read as a whole. Material considerations do not indicate that a decision should be taken other than in accordance with the development plan. I therefore conclude that the appeal should be dismissed.