Appeal 6005435

The appeal is dismissed.

This appeal relates to an outline proposal, with all detailed matters reserved for future consideration. Illustrative plans were submitted that provide an indication of how the proposed dwellings could be accommodated on the appeal site and what their scale and appearance could be.

A Unilateral Undertaking (UU) was submitted during the appeal process, which seeks to secure a financial contribution towards the Norfolk Green Infrastructure and [name] (GIRAMS).

The main issues are:  whether the appeal site is a suitable location for the proposed development having regard to the spatial strategy and accessibility;  the effect of the proposed development on the character and appearance of the site and surrounding area; and  whether the proposal meets the requirements of flood risk policy regarding the exception test.

Policy LP01 of the [site address] and West Norfolk Local Plan (2021-2040) (the LP) sets out the overarching spatial strategy and aims to direct most growth to within the development boundaries of larger settlements that provide sustainable locations for residential development. The LP does however provide some flexibility. LP Policy LP02 shows support for residential development outside of but adjoining the development boundaries of, for example, the [name], such as Clenchwarton. The policy also requires such development to comply with other relevant development plan policies and the various other criteria.

Residential development is located beyond three of the site boundaries, and it is therefore not in an isolated location. Despite this, it is a substantial distance from the development boundary of the nearest defined settlement of Clenchwarton (by approximately 690m). A combination of fields, roads and built development physically separate the site from the boundary and it is therefore far from being adjoined to it. Given that the proposal fails to comply with the first requirement of Part 2 of LP Policy LP02, it is not necessary to consider the scheme against the other criteria.

[name] LP06, LP13 and LP18, amongst other things, require new development to be in areas that minimise the need to travel and maximise the ability to make journeys via sustainable modes of transport, such as by bus.

Although the development boundary of Clenchwarton is within a reasonable walking distance of the appeal site, the services and facilities that it contains are located a greater distance into the settlement. Furthermore, it is by no means a convenient or safe route to take on foot. Residents would need to walk along a substantial length of [address] that experiences fast moving traffic, does not have a dedicated footpath and is unlit.

Bus stops are located close to the site on [address], approximately 100-200m away. However, again, pedestrians accessing the bus stops would be subjected to the same dangerous and unsuitable conditions of this part of [address] as articulated above. In addition, it is accepted that services from these stops are infrequent. More regular bus services operate from stops towards the centre of Clenchwarton. However, they are a substantial distance away from the appeal site.

Whilst it is acknowledged that rural areas are unlikely to have the same level of accessibility as more urban environments, residents in this case would be highly reliant on use of the private car to access services and facilities.

For these reasons, the appeal site is not a suitable location for the proposal having regard to both the spatial strategy and accessibility. Thus, it is contrary to [name] LP01, LP02, LP06, LP13 and LP18.

The appeal site comprises an overgrown plot of land that has a reasonably open aspect onto [address]. The opposite side of the road is particularly verdant with the presence of a substantial native hedgerow boundary. Despite the presence of some residential properties set back to the rear of the site, the plot provides a welcome gap in built form along this side of [address]. Dwellings set within substantial plots are also characteristic of the area. Collectively, these features reflect the area’s semi-rural context, which the appeal site’s undeveloped form contributes towards. The semi-detached properties adjacent to the appeal site sit within smaller plots and are of a denser grain. Thus, they appear as anomalies close to the roadside and are not reflective of the area’s semi-rural character.

Furthermore, the site lies within The Fens – [name] character area identified in the Council’s Landscape Character Assessment, which is a large scale and low-lying landscape with a sense of openness and a moderate to strong level of tranquillity.

Whilst the detailed design of the proposal is a matter reserved for later consideration; the description of development is clear that the proposal is for the construction of 4 two-storey dwellings. Although illustrative, the submitted Site Plan1 demonstrates that much of the site would need to be developed to accommodate the number of dwellings proposed, regardless of the resultant scale of each property. It would therefore result in the significant erosion of the undeveloped gap in built form and extend the uncharacteristic regimented and tighter grain of development along [address]. Thus, it would further diminish the semi-rural feel of the area and the associated tranquillity and spaciousness of the landscape character area that it contributes towards.

For the above reasons, the proposal would harm the character and appearance of the site and the surrounding area. Thus, it would be contrary to [name] LP18, LP19, LP21 and LP31, which, amongst other things require development to respond sensitively and sympathetically to local settings and be informed by and seek opportunities to reinforce the distinctive landscape character areas.

The appeal site is within [name] 3a, defined as having a high probability of flooding in the event of the tidal [name] breaching its flood defences. The presence of flood defences does not mean that the proposal would be safe, only that while the defence is maintained the risk is reduced. Furthermore, the residential development proposed is classified as a more vulnerable use and an associated risk to life and possessions therefore exists.

Consequently, a sequential risk-based approach should be taken. The appellant has satisfactorily demonstrated that there are no reasonably available sites appropriate for the proposed development in an area with a lower risk of flooding. Thus, the proposal meets the requirements of the sequential test.

In this case the exception test should then be applied, which is set out in two parts. The first part, at Paragraph 178 a) of the National Planning Policy Framework (the Framework), requires consideration of whether the proposed development would provide wider sustainability benefits to the community that outweigh the flood risk.

In this context, the scheme would have some economic benefits. These include employment and supply chain spend during the construction phase that could be localised, and through support for the local economy and community facilities once occupied, which are important in rural areas. However, the proposal is small in scale, and these benefits are therefore limited. The proposal would also provide additional housing, but this benefit is limited given that the Council is able to demonstrate a healthy supply of deliverable housing sites.

Furthermore, it is accepted that the Council has failed to approve enough self-build and/or custom-build (SBCB) housing plots to meet the requirement derived from their register, which is of severe concern given the statutory duty imposed. However, the status of the proposal as a SBCB housing development has not been secured by a legal agreement, such as a UU. A planning condition would not meet 1 [name] 2702-02A. the test of enforceability as set out in the Framework and simply including it within the description of development is not satisfactory. In the absence of firm reassurance that the proposal would bring forward SBCB housing, this benefit attracts only limited weight.

For these reasons, the sustainability benefits to the community do not outweigh the flood risk identified. The proposal would therefore not meet the requirements of Paragraph 178 a) of the Framework and given that both parts of the exception test need to be met as articulated at Paragraph 179, consideration of Paragraph 178 b), requiring the development to be safe over its lifetime, is superfluous.

Whilst the Environment Agency raised no objection to the scheme subject to securing mitigation measures, it is not their responsibility to consider whether part a) of the exception test would be met, which falls with the local planning authority.

For the above reasons, the proposal would not meet the requirements of flood risk policy, contrary to Paragraph 178 of the Framework that requires the exception test to be met. The proposal would not conflict with LP Policy LP25 given that reference to the exception test relates solely to allocated sites.

Although in outline form at present, the proposal would likely make efficient use of an overgrown and unused plot of land, and the appellant has asserted that the dwellings would utilise energy efficient technologies and modern methods of construction, and that ecological enhancements would be made. Nevertheless, these considerations would not outweigh the significant harm identified in the main issues above. The benefits of the scheme, as outlined in the flood risk main issue above, have also been taken into consideration in the overall planning balance. However, they draw limited weight for the reasons already identified.

The recent residential development to the rear of the site, whilst similar in scale to this proposal, was previously developed land. The policy considerations in that case were therefore fundamentally different, and the outcome of that proposal does not alter the findings of this appeal decision.

The appeal site is located within the zones of influence of several habitats sites. However, as the appeal is to be dismissed, there is no need to undertake an appropriate assessment or to have regard to the Conservation of Habitats and Species Regulations.

The proposal conflicts with the development plan taken as a whole, and material considerations do not indicate that the appeal should be decided other than in accordance with it. Thus, I conclude that the appeal should be dismissed.