Appeal 6006222

The appeal is dismissed.

A proposal for a dwelling on the appeal site was refused by the Council in March 2024 ([name]: DM/23/01789/FPA) and subsequently dismissed at appeal in August 2024 ([name]: APP/X1355/W/24/3340699). I have had regard to that decision. However, I have determined the current proposal on its own merits, having considered the evidence before me in this case.

Reference is made to the need for a planning obligation to secure a financial contribution towards off-site open space. The appellant disputes this requirement, and no obligation has been submitted in support of the appeal. However, the appellant has indicated a willingness to provide a contribution by way of a planning condition if it is found to be necessary in determination of the appeal. This matter is considered later in this decision.

The main issues in determination of the appeal are the effect of the proposal on: • character and appearance of the area; and • the living conditions of future occupiers, with regard to private amenity space.

The appeal site forms the enclosed northern part of the garden to [site address] . It is triangular in shape and fronts [address]. Along and to the opposite side of the shared boundary with the neighbouring rear property there are established trees of varying maturity and other vegetation. The area is predominantly residential, with a mix of dwelling types, including terraces opposite and nearby detached and semi-detached properties. Despite this variety, the street scene exhibits a reasonably clear and consistent pattern in terms of building line, spacing and layout, resulting in a cohesive and harmonious character.

The proposal would be a detached two-bedroom dwelling of simple L-shaped form, comprising a one-and-a-half storey element with rooms in the roof and an adjoining single-storey section, both with pitched roofs. It would be sited with the principal gable slightly set back from the footpath, while the front elevation would face the street but be recessed behind a driveway. Private garden space would be provided to the side and rear. External materials would include rendered walls with dressed stone detailing and red brick at lower level, with dark concrete roof tiles incorporating solar panels. Windows would be dark grey uPVC and the front door an oak composite feature. A low front fence, similar in appearance to the existing boundary treatment, would enclose the frontage.

It is common ground that the site lies outside any conservation area or other designated landscape.

Even with the above characteristics, the constrained triangular form of the appeal site, and its relationship with [site address] and the adjoining corner would result in the proposed dwelling occupying a forward and exposed position within the appeal site. It would be out of alignment with [site address] and overly prominent within the street scene. It would disrupt the more established pattern of development and erode the sense of continuity and consistency that exists in this part of the surrounding area.

Although some nearby properties, including those at [address], are positioned in proximity to the footpath, they follow a consistent building line with adjoining development and do not appear unduly prominent in the street scene. Consequently, they are not directly comparable and do not justify the forward siting or more prominent presence of the proposal. Likewise, while there is some variation in development density within the surrounding area, and the proposal may not appear markedly different in purely numerical terms, I did not observe any directly comparable neighbouring dwellings which would present the same staggered building arrangement, level of exposure and visual prominence that would arise. The existing variation in density therefore does not outweigh or justify the harm identified in respect of the proposed dwelling.

The appellant’s reliance on dimensional comparisons between the building footprint, garden sizes and overall plot areas of nearby dwellings, including [site address] , [address] and [address], does not address the concerns identified above. The principal issue arises from the appeal site’s triangular configuration and limited depth. These constraints prevent the proposed dwelling from being positioned sufficiently back within the plot or arranged in a manner that would reflect the prevailing pattern of development, thereby limiting opportunities to reduce its visual prominence. Accordingly, a simple comparison of site coverage or plot subdivision fails to capture these unique site constraints. It is the resultant spatial relationship between the proposed dwelling and its surroundings that is determinative in this case, and this would lead to a form of development that appears cramped and overdeveloped.

While the proposal would in the main predominantly accord with the separation distances set out in the Durham County Council Residential Amenity Standards Supplementary Planning Document 2023 ([name]), and notwithstanding the appellant’s suggestion that alternative materials could be used as mitigation, these matters would not address the concerns I have identified. In particular, they would not overcome the unacceptable effects arising from the siting, form and prominence of the development.

Reference is made to criterion p) of Policy 29 of the [site address] Plan 2020 (CDP), which supports higher density in the context of major development. However, as the proposal does not constitute major development, this element of the policy holds little weight. In any event, it does not justify or outweigh the harm I have identified.

Further to this, the appellant indicates that the proposal would comply with Policy 39 of the CDP, which relates to landscape considerations. [name] have had regard to this policy, it does not form part of the Council’s reason for refusal. In this case the key issue is the proposal’s visual relationship with the existing built form, rather than its effect on landscape features. There is no substantive evidence before me to demonstrate that compliance with Policy 39 would outweigh the identified visual harm. As such, the appellant’s reliance on this policy does not alter my overall conclusion.

The appellant further contends that an outbuilding occupying up to 50% of the curtilage could be erected under the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended), and that this fallback position should be afforded weight. While this may represent a theoretical fallback, the GPDO imposes a range of limitations on siting, scale, height and form that would constrain what could be constructed. No substantive evidence has been provided to demonstrate that any such outbuilding would be comparable in its effects to the appeal proposal. In the absence of clear and convincing information the suggested fallback would not give rise to equal or greater harm. I therefore attribute it only limited weight.

In addition to the harm identified above, a further concern arises in respect of the proposal’s effect on the established trees and vegetation along the shared rear boundary. These features make a positive contribution to the character and appearance of the area and provide effective screening to the neighbouring property. The submitted Arboricultural Impact Assessment (2023, unreferenced), albeit prepared for a previous scheme, identifies the root protection areas and canopy spreads of the trees, and its findings are reflected on Drawing GLD339/03 [name]. This indicates that the proposal would encroach into both the root protection area and canopy of T3. It also shows that the canopies of T2 and T3 would extend across much of the rear garden, with T4 overhanging part of the side garden. Regardless of the existing relationship between the trees and the appeal site, it is likely that these effects would intensify over time as the trees continue to grow.

There is no substantive evidence to demonstrate that the proposal’s incursion into the root protection area would not harm the long-term health and stability of the affected tree. Furthermore, the extent of the canopy would give rise to notable overshadowing, together with seasonal effects such as leaf fall, across much of the proposed rear garden and, to a lesser degree, the side garden. Although it is suggested that canopy leaf cover would only be over part of the year and a proportion of the side garden would remain unaffected, there is still a realistic prospect that future occupiers would seek to remove the issues the trees would cause by undertaking extensive pruning or tree removal, whether directly or through pressure on the adjacent landowner. Such potential outcomes are expressly identified as concerns within the Durham County Council Residential Trees, Woodlands and Hedges Supplementary Planning Document 2024 ([name]). It is therefore likely that the contribution that the trees presently make to the character and appearance of the area would be liable to be diminished by the proposal.

While tree-related concerns were not raised in the previous application or appeal, the [name] was published after those decisions. It is therefore appropriate to assess the current proposal against this updated guidance. Although the boundary trees are not subject to statutory protection and could potentially be removed with the agreement of the adjoining landowner, they are present at this time, and their impacts need to be carefully considered.

Taken together, the proposal would unacceptably harm the character and appearance of the area. It would be contrary to Policies 6, 29 and 40 of the CDP and Sections 12 and 15 of the National Planning Policy Framework 2024 (the Framework). These seek new development, amongst other matters, to be appropriate in terms of scale, design, layout, and location to the character of the settlement, contribute positively to the area’s character and to not result in the loss of, or damage to, existing trees that make a positive contribution to the locality.

The proposal would provide a small triangular rear garden and a larger triangular side garden.

The proposed rear garden would be significantly overshadowed by the trees along the shared boundary. While it is contended that none of the first-floor windows at [site address] serve habitable rooms, no substantive evidence has been provided in this regard. From my observations on site, and in the absence of evidence to the contrary, it is likely that at least one of these windows would serve a bedroom and therefore constitute a habitable room for the purposes of the [name]. A degree of overlooking would therefore be likely to occur to the proposed rear garden. Taken together, these factors would result in a space that, while usable, would be of limited attractiveness and would provide a poor standard of amenity for future occupiers.

Although the side garden would provide a greater overall area, its triangular form and progressively narrowing width towards the shared boundary would limit its functional use. The most usable part would be confined to the wider section nearer the street, where it would be more exposed and, consequently, less inviting. As such, the space would appear compromised in both its function and overall quality and would not provide an attractive or practical area for future occupiers.

Collectively, these considerations reinforce my view that the spatial relationship between the proposed dwelling and its plot would be poor, with the garden areas appearing as residual spaces of limited quality, offering little meaningful benefit to future occupiers or to the character and appearance of the area. The proposed gardens would therefore fail to meet the expectations of the [name], which requires private garden space to be usable, well laid out and to provide a reasonable degree of privacy. While future occupiers may choose to accept these limitations, this does not justify a design that fails to secure an appropriate standard of private amenity space.

While the Council raises no concerns regarding the garden to remain at [site address] , and I see no reason to disagree with this position, this does not overcome the deficiencies identified in relation to the proposed dwelling, nor does it render the private amenity space acceptable.

Consequently, the proposed development would adversely affect the living conditions of future occupiers, with regard to private amenity space. It would be contrary to Policy 31 of the CDP. These seek amongst other matters, for future occupiers of new development to have acceptable living conditions.

It is clear from the previous application and appeal, and from the appeal before me, that the principle of development under Policy 6 of the CDP has not been disputed, and I see no reason to take a different view. However, this does not in itself render the proposal acceptable. For the reasons set out above, it conflicts with other relevant policies and therefore fails to comply with Policy 6 when considered as a whole.

The proposal seeks to address concerns identified in the previous appeal through a reduced footprint, increased setback from the frontage, and reorientation of the principal elevation. However, for the reasons given above, these changes are insufficient to overcome the identified harm, which remains inherent in the proposal.

The appellant raises a number of concerns regarding the reasoning and conclusions of the previous application and appeal, as well as the current proposal. While these matters are noted, this appeal provides an opportunity for the proposal to be considered afresh on its own merits. Furthermore, although I have had regard to the appellant’s comments on the CABE guidance and the urban design assessment, the material before me does not demonstrate that the proposal would achieve an acceptable standard of design or overcome the identified harm. Accordingly, these matters do not alter my overall findings.

The absence of objections does not indicate that the proposal is acceptable. The development must be assessed against the development plan and all other material considerations, and for the reasons given, it fails to satisfy those requirements.

Policy 26 of the CDP requires new residential development to provide open space to meet the needs of future occupiers, with reference to the standards in the Council’s Open Space Needs Assessment. Where on-site provision is not appropriate, a financial contribution is required to secure provision or enhancement elsewhere. No substantive evidence has been provided to demonstrate that this requirement would be inapplicable or fail the Framework tests. A contribution is therefore necessary. The appellant has confirmed a willingness to secure this by way of a negatively worded condition, which the Council does not dispute. I return to this matter in the overall planning balance and conclusion.

The Council cannot demonstrate a five-year supply of deliverable housing sites, identifying a supply of 4.4 years. Paragraph 11(d) of the Framework is therefore engaged. This sets out that, where the policies which are most important for determining the application are out-of-date, permission should be granted unless the application of policies in the Framework that protect areas or assets of particular importance provides a strong reason for refusal, or any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework taken as a whole. In applying this balance, the Framework advises that particular regard should be had to key policies relating to the delivery of development in sustainable locations, the effective use of land, the achievement of well-designed places, and the provision of affordable housing.

In this case, Policies 6, 29, 31 and 40 of the CDP are the most important policies for determining the appeal. There is no substantive evidence to suggest that they are out of date, and they are broadly consistent with the Framework’s objectives, including securing high-quality design, safeguarding character, protecting amenity and retaining existing trees. I therefore afford them significant weight and the proposal’s conflict with these policies weighs heavily against it.

The proposal would make a contribution to the supply of homes in line with Government objectives. It would add to the range of housing locally, assist in addressing the shortfall, and could be delivered quickly, with associated economic and social benefits, including support for local services and construction activity. These considerations weigh in favour of it, and I acknowledge the role of smaller developers in promoting a competitive housing market. However, taking a proportionate view of these benefits in relation to the harm identified, given the very limited scale of the scheme and housing delivery would be minimal, I attach moderate weight to these benefits.

While there is some doubt on how a financial contribution to off-site open space could be secured, the appellant has clearly indicated a willingness to provide this. If secured, this would weigh in favour of the proposal as a public benefit. However, given the limited scale of the development, the contribution would be modest. I therefore afford it moderate weight in favour of the proposal.

Paragraph 124 of the Framework supports the efficient use of land in meeting housing and other needs, but this is subject to safeguarding and improving the environment. Paragraphs 125 and 129 provide further guidance, including making effective use of underutilised land and securing wider benefits from development. While the proposal would make some contribution in these respects, it would be limited in scale and, for the reasons set out above, would fail to safeguard or improve the environment. I therefore attach only limited weight to this matter in favour of the proposal.

The proposal would include measures to improve energy efficiency and reduce carbon emissions. It would also benefit from access to public transport, provide biodiversity net gain and ecological enhancements, and would not result in unacceptable impacts in respect of flooding, drainage or highway safety. While these are positive attributes supported by policy, they are generally expected of new development and therefore carry limited weight.

Taken together, these benefits attract no more than moderate weight. Set against this, the proposal would conflict with the development plan and would cause significant harm to the character and appearance of the area, as well as to the living conditions of future occupiers. Having regard to the Framework as a whole, the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits.

Accordingly, the presumption in favour of sustainable development set out in Paragraphs 7 and 11 of the Framework does not indicate that permission should be granted. The proposal would not represent sustainable development and would fail to meet the social and environmental objectives in Paragraph 8 of the Framework. Furthermore, for this reason, Paragraph 39 of the Framework, which promotes the approval of sustainable development where possible, would not apply in this instance.

Although a financial contribution for off-site open space has not been secured, the proposal is unacceptable for other reasons. It is therefore unnecessary for me to consider this aspect any further as it would not affect my overall conclusion.

For the reasons given above, the proposal would conflict with the development plan and the material considerations, including the Framework, do not indicate that the appeal should be decided other than in accordance with it. Therefore, the appeal should be dismissed.