Appeal 6005444

The appeal is dismissed.

During the consideration of the planning application the description of development was changed to match the amendments made to the application which included reducing the number of dwellings from four to three, and the demolition of an existing outbuilding. An amended description of development was agreed between the main parties, which matches that listed on the Council’s decision notice. I have used the amended description in the banner header above and I have dealt with the appeal on that basis.

As part of the appeal the appellant has submitted a series of documents, including a Sun and Shadow Assessment. I acknowledge that the Council did not have this information with the original planning application, but the information does not materially alter the proposal, and it was submitted with the appeal submission in a timely manner. Therefore, I am satisfied that no party, including the Council, would be prejudiced by my assessing the scheme with regard to the additional documents and I have taken them into account in determining this appeal.

The proposed development is partly within a conservation area, therefore insofar as it relates to the parts of the proposal within the boundary of the conservation area, I have in accordance with Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended) (the Act), paid special attention to the desirability of preserving or enhancing the character or appearance of that area.

The main issues are: • whether the proposed development preserves or enhances the character or appearance of the [name]. 2 and 3 Town Centre Conservation Area (the CA), and the effect on its setting, • the effect of the proposed development on protected trees, and • whether the proposed development provides an acceptable standard of living conditions for the future occupants of Plot 1 and Plot 3, with regard to outdoor amenity space.

The appeal site is located in a quiet residential area, within the settlement boundary of Burton upon Trent. Part of the site falls within the CA, with the remainder of the site immediately adjoining it. As a former garden and allotment land, accessed via a narrow track, set beyond the long rear gardens of the substantial villas that front [address], the appeal site occupies a backland location.

The significance and special interest of this part of the CA, in my view, is primarily derived from the well-preserved, large houses, which includes Victorian villas, of high architectural quality. The buildings front roads, set behind a combination of garden hedges and attractive brick walls, some of which incorporate metal railings. The substantial size of the Victorian villas, set within generous plots, with long rear gardens, displays the past social hierarchy of the area, as identified in the [name]. 2 and 3 Town Centre Conservation Area Character Appraisal, March 2009. The spacious rear gardens, as well as the preponderance of mature trees, including those within gardens, ensure that parts of the CA have an open, verdant character which further contributes positively towards the significance of the CA.

Previously part of the garden of [address], the part of the site within the CA, whereby Plot 1 of the proposal would be located, comprises a separate parcel of land. It includes a garden bothy and a brick garden wall. Whilst the garden bothy and brick wall are in a state of disrepair and are not listed or identified as being of townscape merit or special architectural interest, they have an attractive, rustic appearance. The bothy and wall, within a secluded setting, add to the historic interest of the site as a garden associated with one of the substantial villas that front [address]. Indeed, they are focal features on the land, and they are a reminder of the previous garden use of the site. As such, the land, wall and bothy positively contribute to the historic interest of this part of the CA.

Plot 2 and 3 would be located on land outside the CA. This part of the site is former allotment land, which is undeveloped with an open appearance. Like the part of the appeal site within the CA, the land provides an open and verdant backdrop to the Victorian villas, neatly framing their rear elevations and reinforcing the hierarchy of buildings and spaces in the CA. Therefore, the parts of the appeal site, adjacent, but outside the CA, contribute positively towards the setting of the CA, from which it derives some of its significance.

The land rises upwards from the road to the woodland beyond the rear boundary of the site and has a historic connection with [address], also located beyond the rear boundary. The tall trees within the woodland and those on the boundary of the site have a commanding, visual presence, further contributing to the verdant setting and appearance of the site, and the CA.

As a backland development comprising three residential buildings, the proposed houses would not front the road and would be at odds with the established linear built form and the prevailing pattern of development along this part of [address], and within the CA. Furthermore, the proposed dwellings would range in scale, form and appearance, being notably different to one another. The agrarian appearance of the proposed buildings would also be unusual within the context of the adjacent traditional Victorian villas, and I am not persuaded that they would appear as domestic outbuildings. Likewise, individually and as a small complex of buildings, the development would not represent high quality design.

While the single storey height and form of the proposed dwelling on Plot 1 would help to maintain the hierarchy of built form within the CA, the loss of the modest garden bothy, and its replacement with a larger building, that includes an expanse of glazing, would not be subordinate within the plot. The tandem parking spaces to the front would further erode the sense of space and the open character of the plot within the CA.

With a single storey height and utilitarian character, sited next to the boundary, with dense vegetation and set back from the road, the proposed building on Plot 1 would be well screened. Nevertheless, these factors would diminish but not extinguish the extent of harm to the CA.

In terms of the effect of the proposal on the setting of the CA, due to the rising topography of the land, and despite screening provided by existing houses along the road, as well as trees and vegetation within adjacent gardens, Plot 2 and 3 would be visible from the road. In particular, the scale and additional mass of the proposed dwellings would be noticeable from within the street scene through the gaps between the existing buildings and the access drive. Therefore, even though the two plots would not subdivide the historic frontage plots, the additional mass of buildings, in a backland location, as well as the uncharacteristic design and appearance of the proposed buildings, would be harmful to views from within the CA. These effects would consequently have a harmful effect on the significance that the CA derives from its setting.

Set within the context of the adjacent generous gardens, and due to the limited size of the site, the mass and built form of the development would appear cramped, rather than a subordinate built form. This would contribute to the adverse effect of the proposed development on the CA and its setting, rather than reflecting the historic evolution of former garden land.

While backland development is evident further along [address], those houses do not lie within the CA. In fact, they are significantly separated from the boundary of the CA, whereby the street pattern, built form, age and architectural quality of houses is different compared to the buildings within and immediately adjoining the CA.

The reinstatement of the brick garden wall, in particular the arch would be welcomed but the works would not overcome the concerns with the proposed development. Similarly, while a contextual material palette would be proposed, these factors do not extinguish the extent of harm to the CA.

Overall, I conclude that there would be harm to the significance of the CA and its setting. Accordingly, the proposal, comprising Plot 1, would fail to preserve or enhance the character or appearance of the CA, contrary to the expectations of the Act, and Plot 2 and 3 would be unacceptably harmful to the setting of this part of the CA. The appeal scheme would therefore have a harmful effect on the area’s character and appearance and conflict with Policies SP1, SP24, SP25, DP1, DP3 and DP5 of the East Staffordshire Local Plan, October 2015 (the Local Plan). These, together and amongst other things, require high quality design, which protect, conserve and enhance heritage assets and their settings, taking account of their significance, as well as the distinctive character of the Borough’s townscapes and landscapes.

Plot [address] to an attractive, and visually significant group of Lombardy trees beyond the side boundary, which are covered by a Tree Preservation Order - no. 469 (TPO). The proposed dwelling on Plot 3 would be set off the side boundary by its rear garden area.

The Arboricultural Impact Assessment dated 23 January 2024, although well over two years old and limited in detail, identifies the Lombardy trees. As a sloping site, ground level changes and retaining walls are likely.

A Tree Protection Plan dated 23 January 2024 has been submitted and demonstrates that root protection areas can be protected during the construction of the proposed development via tree protection barriers. I have no other substantive evidence to the contrary. As such, subject to a suitably worded planning condition to secure the prior approval of an arboricultural method statement, which identifies the final type and method of tree protection installation, and the distances on the ground that machinery will be operating from, the Lombardy trees would be suitably protected from adverse harm from the development.

Accordingly, for the above reasons, and subject to conditions, I conclude that the proposed development would not harm protected trees. Therefore, it would not conflict with Policy DP8 of the Local Plan, which amongst other things, requires development to be designed to minimise conflict between trees and buildings in the future, through the design, layout and construction of the development. Outdoor amenity space of Plot 1 and Plot 3

Each plot has a private garden area, close to tall, mature trees on or close to the site boundaries. Due to the height of the trees and the juxtaposition to each of the garden areas, some shadowing at certain times of the day can be expected, particularly during the winter months.

Plot 1 has a small garden to the side and a large patio area to the front, leading from an open plan kitchen, dining and lounge area, which has an expanse of glazing within the front elevation, as well as the roof. The patio area would provide an extension to the internal accommodation of the proposed house. Particularly during the summer months.

While trees close by would shade parts of the side garden, this is only a small space, and I am not persuaded that, even when it is shaded, the outdoor space would be an unattractive area for the future occupants of the plot. In any case, despite the orientation of the patio, the level of amenity space for the size of the proposed house would be acceptable.

Plot 3 has a large garden and patio area, and despite trees located on the boundary, the orientation of the outdoor amenity area would benefit from sunlight during certain times of the day. In these circumstances, even with possible retaining walls, the size of the garden would be a generous space that would provide an acceptable amount and quality of private amenity space for the occupiers.

In the context of the above, and the juxtaposition of adjacent trees to the proposed houses, there is no substantiated evidence that the proposed development would lead to future pressure on the removal of protected trees on the site boundaries to improve the living conditions of future occupiers.

For the above reasons, I conclude that the proposed development would provide an acceptable standard of living conditions for the future occupants of Plot 1 and Plot 3, with regard to outdoor amenity space. Therefore, it would not conflict with Policies SP1, SP24, SP25, DP3, DP5 and DP8 of the Local Plan, which together, and amongst other things, seek to ensure that development is designed to protect the amenity of future occupiers, including space around dwellings, and retain and minimise harm to existing trees. Particularly trees in a conservation area.

With reference to Paragraphs 214 and 215 of the National Planning Policy Framework (the Framework), in finding harm to the significance of designated heritage assets, the magnitude of that harm should be assessed. Given that the extent of the development and the perspectives from where it would be viewed would be relatively minor and localised, I find the harm to the heritage assets to be ‘less than substantial’ and at the lower end of that spectrum in this instance. Nevertheless, still of considerable importance and weight. However, less than substantial harm should not necessarily be equated with less than substantial planning objection. Under such circumstances, Paragraph 215 advises that this harm should be weighed against the public benefits of the proposal.

Although the repair and reinstatement of the brick garden wall, to secure its long-term stability is welcomed, this would be a response to recent damage caused to it. As such, I can only attach a small amount of positive weight to the matter.

The provision of three new houses, in a sustainable location, close to services, public transport and existing infrastructure, would contribute to boosting the supply of new housing, as referenced in the Framework. It would also make efficient use of existing underutilised land. There would also be social and economic benefits to local services during the construction and occupancy phases of the development. Even so, in the context of the small-scale nature of the proposed development these matters attract only modest weight as public benefits.

No objections have been raised with regards to the effect of the proposals on wildlife or matters of highway safety and I have concluded that acceptable amenity levels would be achieved for future occupiers. There would also be no harm to TPO trees. Nonetheless, these are requirements of planning policy and taken together they carry neutral weight.

Overall, the minor weight that I ascribe to the public benefits which would accrue from the proposal is not sufficient to outweigh the considerable importance and weight that I attach to the harm I have found. Therefore, there would be insufficient public benefit to offset the identified harm, and the proposed development would not accord with the Framework.

Given the above, I conclude that the proposal would harm and thus not preserve or enhance the character or appearance of the CA and its significance, or the setting of the CA. There are no other considerations or public benefits that would outweigh this harm. It would therefore fail to satisfy the requirements of the Act, the Framework and the development plan. Consequently, for the reasons given, the appeal should be dismissed.