Appeal 6006549

The appeal is dismissed.

The appeal submission includes an updated drawing which illustrates an amendment to the layout of 133A [site address] (No 133A). The unit would have a single bedroom rather than two bedrooms as shown on the originally submitted drawings.

The Procedural Guide: Planning appeals – England (May 2026) outlines that it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought. The Procedural Guide states that the appeal process should not be used to evolve a scheme and there are no provisions within the Rules for amendments to be submitted.

Having regard to this guidance, and to the substantive and procedural principles established in the [name] judgement1, I consider that the amended layout to No 133A would amount to a substantial and fundamental alteration to the proposal that has not been subject to a full and formal public consultation. Indeed, the proposed layout would no longer reflect the appeal’s description of development. As such, the updated drawing cannot be accepted, and I have determined the appeal on the basis of the drawings submitted at application stage.

The main issues in this appeal are: • whether the proposal would provide future occupiers with satisfactory living conditions, having particular regard to the internal space within 133A 1 Holborn Studios Ltd v London Borough of Hackney [2017] EWHC 2823 (Admin) [site address] and the adequacy of the outdoor amenity space at [site address] and 133A [site address] . • the effect of the proposal on the integrity protected European sites.

133A [site address] (No 133A) is a two bedroom dwelling across two storeys of accommodation. Policy HOU 12 of the Ashford Local Plan (2019) (ALP) requires that all new homes achieve the minimum internal floorspace standards set out within the [name] (NDSS) (2015). These floorspace standards are outlined in table 1 of the policy, and state that the minimum internal floorspace for a two bed, three person dwelling over two storeys should be [address] metres.

The main parties disagree about the exact internal size of No 133A. However, even based on the appellant’s measurement of [address] metres, there would be a [address] metre shortfall against the standards set by Table 1 and the NDSS. On this basis, there would be a deficient amount of internal floorspace which would result in inadequate living conditions for the occupiers of No 133A. In coming to this view, I acknowledge that the stairs within 133A only take up approximately 3.[address] metres of floor space. Whilst the appeal site may be within a sustainable location, the significant shortfall against the standards indicate that the unit provides wholly unsatisfactory self-contained accommodation.

Policy HOU 15 of the ALP makes a clear distinction between the size of outdoor spaces for flats and houses. Whilst the policy sets much less onerous requirements for flats, as the proposal relates to two houses it is appropriate to assess the design against the external open space requirements for houses. The appellant accepts that the amount of external garden space for both dwellings would fall short of the starting point calculation set out within Policy HOU 15. This requires gardens to be 10 metres in depth and as wide as the dwelling they serve.

Prior to the subdivision of the appeal property, [site address] [site address] was a four bedroom house with a roughly 5 metre deep garden that extended the full width of the house. That garden has been split roughly in half and both two bed properties have gardens which remain 5 metres in depth.

Policy HOU 15 allows for flexibility where it can be demonstrated that the outdoor space is usable, well-designed and supports a high standard of living conditions, and contributes positively to the character of the area. Both rear gardens are well integrated into the site layout, in the same manner as the previous garden at the appeal site would have been prior to its subdivision. As a result of their enclosure from both [site address] and [address] both gardens provide a reasonable level of privacy and security. Due to their functional layout the gardens maintain limited but sufficient space, for sitting out, clothes drying, small children’s play, and space for some planting.

The supporting text to Policy HOU 15 indicates that the 10 metre minimum depth is partly suggested to enable a reasonable separation distance between properties where the rear windows face one another. In this instance, the nearest dwelling to the rear of the appeal site on [address] is offset from the appeal site’s rear boundary. As a result, the rear gardens at the appeal site both benefit from a good level of privacy as well as an open outlook. They would also receive adequate levels of sunlight throughout the day. On balance, for the reasons above, I consider that the two gardens, whilst modest in size would provide an appropriate standard of external space for future occupiers.

However, due to the deficiency in the internal size of No 133A, the proposal would not provide satisfactory living conditions for its future occupiers. This would be contrary to Policies SP6 (criterion g) and HOU12 of the ALP insofar as they relate to internal space standards and require proposals to be of a high standard of design and layout. It would also conflict with paragraph 135 of the National Planning Policy Framework (2024) (Framework) which requires proposals to create places that are safe, inclusive and accessible and which promote health and well-being, with a high standard of amenity for existing and future users.

[name] have found the external amenity areas to be of an acceptable standard, there would be no conflict with Policy HOU 15 of the ALP which requires development to provide a sufficient area of usable private outdoor space.

The submitted evidence indicates that the site is located within the Stour catchment which in turn can have effects on the Stodmarsh water environment. This includes a Special Protection Area (SPA), Special Area of Conservation (SAC), Site of Special Scientific Interest and a RAMSAR site. Nutrient levels (nitrogen and phosphorus) have led to the eutrophication of the [name], adversely affecting the protected habitats and species and resulting in an unfavourable ecological condition. [name] are considered to be at risk from additional nutrient inputs from new developments within the catchment area.

The SAC and SPA are European sites protected under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations). Under the Habitats Regulations, an appropriate assessment (AA) is required in relation to the effect of the development on the integrity of the sites. This responsibility falls to me as competent authority in the context of this appeal. For an AA to conclude that there is no likely significant effect, the decision maker must be satisfied that the development can achieve nutrient neutrality.

The appellant has submitted a Nutrient Assessment. The submitted evidence indicates the impact of the additional unit at the appeal site results in a small increase in nutrient pollution.

I have been referred to a regional mitigation strategy which is currently being developed, and would enable the purchase of credits to overcome any adverse impacts. I note that the appellant has confirmed that they would subscribe to this strategy once adopted. Nevertheless, I do not have any formal means of mitigation before me either through confirmation of the purchase of such credits, or an associated legal agreement securing alternative mitigation. Thus, even though the nutrient discharges from the new dwelling individually are small, I cannot be confident that the proposal, in combination with other plans and projects in the [name] catchment, would not have a significant adverse effect on the integrity of the [name].

Planning Practice Guidance states that a negatively worded condition limiting the development that can take place until a planning obligation or other agreement has been entered into is unlikely to be appropriate in the majority of cases. I have been referred to several planning applications which the appellant indicates the Council are holding in abeyance until mitigation comes forward. [name] do not doubt the appellant’s willingness to purchase the credits, at this stage, given what has been presented to me, I could not be confident that the proposal provides the required level of certainty that the mitigation is secure at the point of decision.

I must be satisfied beyond all reasonable scientific doubt that any adverse effect on the integrity of the SAC and SPA would be avoided. I am therefore unable to rule out any significant effects resulting from the proposal, alone or in combination with other developments, which would be harmful to the integrity of [name].

The proposal would therefore conflict with the Habitat Regulations and Policy ENV1 of the ALP, which states that development that will have an adverse effect on the integrity of European protected sites, alone or in combination with other plans or projects, will not be permitted. There would also be conflict with paragraph 193 of the Framework which states that, if significant harm to biodiversity resulting from a development cannot be adequately mitigated, planning permission should be refused.

The concerns expressed regarding the Council’s conduct during the processing of the planning application, and whether they could have amended the description of development are outside the remit of this appeal decision.

The appellant and Council agree that the Council is unable to demonstrate a five year housing land supply. As a consequence of the housing supply position, the presumption in favour of sustainable development as set out in paragraph 11d of the Framework is engaged. However, paragraph 11d) i disengages the presumption where the application of policies in the Framework that protect areas or assets of particular importance provide a clear reason for refusing the development proposed.

In this instance, I have found that the proposal conflicts with the provisions of the Framework relating to the protection of habitat sites. The application of these policies provides a strong and compelling reason for refusing the development. As such, the presumption in favour of sustainable development does not apply. The proposed development should, therefore, be determined in accordance with a normal planning balance.

The Framework seeks to significantly boost housing supply. It also encourages the optimal use of underutilised land. The proposal would contribute to the local housing supply and would represent a more efficient use of land in an existing urban area with access to public transport, shops and services. However, a single additional unit, whilst beneficial, would make a modest contribution to the overall delivery of housing, and I afford the social and economic benefits associated with it moderate weight.

No harm has been identified in relation to the living conditions of neighbouring occupiers or highways impacts. However, the absence of harm or conflict with other relevant development plan policies is a neutral factor and does not weigh in favour of the proposal.

On the other hand, the Framework expects development to safeguard and improve the environment and ensure safe and healthy living conditions for occupiers. Policies SP6 and HOU 12 of the ALP are therefore consistent with the Framework. Even taking into account the Council’s failure in relation to housing supply, the conflict between the development and the development plan should be afforded significant weight.

In my view, as the development does not provide a satisfactory standard of accommodation for the occupiers, the harms and policy conflicts that I have identified should, cumulatively, weigh to a very substantial extent against the proposal. I have concluded above that the benefits of the proposal, with the provision of a single dwelling, should afford moderate weight in favour of approval. It follows that the totality of harm and the policy conflicts would not be outweighed by the benefits of the development.

For the reasons given above, the proposed development would not accord with the development plan when considered as a whole. The evidence does not indicate a decision should be made otherwise than in accordance with the development plan. I therefore conclude that the appeal should be dismissed.