Appeal 6007001

The appeal is dismissed.

The appeal scheme relates to an outline proposal, with all matters reserved. I have considered the appeal accordingly. A plan has been submitted which indicates how a dwelling could be accommodated on the site. I have taken this plan into account for indicative purposes only.

Schedule 7A of the Town and Country Planning Act 1990 (inserted by the Environment Act 2021) introduced a statutory biodiversity net gain (BNG) framework. The proposal is advanced on the basis that, as it seeks the provision of a self-build dwelling, it is exempt from that framework’s mandatory BNG requirement to deliver at least a 10% increase in biodiversity value, relative to the site’s pre-development biodiversity value (the mandatory BNG).

The Council’s officer report suggests that this is a matter which could be dealt with by condition. [name] is a matter subject to a statutory framework, the proposal’s degree of compliance with it is an important planning consideration. Despite it not forming a reason for the Council to resist the proposal, I therefore find that it is a substantive matter in the appeal.

The main issues are: • whether the proposal meets the definition of a custom / self-build development and therefore the requirements of the BNG exemption; and, • whether the appeal site is grey belt and whether the proposal would be inappropriate development in the Green Belt having regard to the National Planning Policy Framework (the Framework) and any relevant development plan policies.

The statutory framework for BNG sets out a number of exemptions including self-build dwellings as defined in Section 1(A1) of the Self-build and Custom Housebuilding Act 2015. This makes it clear that the new dwelling must be occupied by the person or persons responsible for carrying out or commissioning the building.

I have no reason to doubt that the appellant is on the self-build register, intends to occupy the proposed dwelling and was involved in the design of the proposal. However, intentions can change, as can the ownership of the site. Whilst the description of development refers to the proposal being for a self-build dwelling, the description alone would not exert sufficient control, restriction or limitation over the form of dwelling delivered.

Planning Practice Guidance1 (PPG) states that planning permission usually runs with the land and it is rarely appropriate to provide otherwise. It goes on to state that there may be exceptional occasions where development that would not normally be permitted may be justified on planning grounds because of who would benefit from the permission, including the example of residential accommodation for an agricultural or forestry worker.

However, the intended purpose of a condition to secure a self-build dwelling would relate to occupation. In the event that the condition were to be breached, it is unlikely in my view to attract the attention which would lead to a report to the Council to begin investigation. Even if a breach were to occur and subsequently be reported, it would be difficult for the Council to then negotiate and secure BNG provisions through a breach of condition process.

For the reasons set out above, I do not find that a condition would be a suitable approach, as it would fail to satisfy the tests set out in the Framework given the practicalities of enforcement.

Without means of ensuring that the dwelling in question would be occupied initially by the appellant, or another person fulfilling the same criteria, the occupation of that dwelling as a self-build dwelling would not be sufficiently certain.

An appropriate mechanism to secure that the proposed development would deliver a self-build dwelling would be a planning obligation made under Section 106 of the Town and Country Planning Act 1990. However, no planning obligation in relation to this matter is before me. PPG2 states that it may be appropriate, in exceptional circumstances, for a negatively worded condition to be used which requires a planning obligation to be entered into before development can commence. Nevertheless, it has not been demonstrated that such exceptional circumstances exist in this case.

Despite the intentions of the appellant as outlined in the application form, I therefore cannot be satisfied that the proposal would be secured as a self-build dwelling. Consequently, I do not find that the proposal constitutes a valid exemption from the mandatory BNG. 1 [name] 015 [name]: 21a-015-20140306 2 [name]: 010 [name]: 21a-[phone]

Developments subject to the mandatory BNG are required to meet the minimum information requirements set out in Article 7 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. This includes information demonstrating the pre-development biodiversity value of the site and the completed metric calculation tool. This information, and the minimum information requirements as a whole, are not before me.

As a result, I cannot determine the pre-development biodiversity value of the site. The successful discharge of the biodiversity gain condition, which would be imposed in the event that planning permission was granted, would be predicated upon a 10% increase in the site’s biodiversity value, relative to its pre-development value being achieved. Given the deficient information before me, I fail to see how the mandatory BNG would be met.

Taking all of the above into account, I cannot be satisfied that the proposal meets the definition of a self-build dwelling which would qualify as an exemption from the mandatory BNG, and I fail to see how the mandatory BNG would be met.

Consequently, the proposal would be in conflict with the Framework which advocates that developments provide for biodiversity net gains, seeking their integration as a part of their design.

The appeal site is within the Green Belt. Paragraph 153 of the Framework requires substantial weight to be given to any harm to the Green Belt, including harm to its openness, stating that inappropriate development should not be approved except in very special circumstances. The Framework does however outline several exceptions to inappropriate development at paragraphs 154 and 155.

Paragraph 155 of the Framework explains that the development of homes in the Green Belt should not be regarded as inappropriate where all the relevant criteria apply. There is no dispute between the main parties that the proposal would utilise grey belt land. There is also agreement that it would not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan. I agree on both counts.

In relation to a demonstrable unmet need, footnote 56 of the Framework clarifies that, in relation to housing, this includes a lack of a five-year supply of deliverable housing sites (‘5YHLS’). The evidence indicates that the Council cannot currently demonstrate a 5YHLS, and accordingly, there is a demonstrable unmet need for the type of development proposed.

Criterion c. of paragraph 155 of the Framework relates to development being within a sustainable location, with particular reference to paragraphs 110 and 115 of the Framework. Paragraph 115 of the Framework in particular outlines that sustainable transport modes should be prioritised. Whether locations are sustainable should be determined in light of local context and site or development-specific considerations, taking into account opportunities to maximise sustainable transport solutions.

The appeal site is situated along [address], a restricted access road which meets [address] to the north, and [site address] to the south. Whilst it does not form a through road for vehicular traffic, there remains an unbroken route between [site address] and [address] for pedestrians and cyclists.

[address] itself is rural in nature, without designated footpaths or street lamps. Nevertheless, the route from the appeal site to [address] to the north is short in its distance and given the restricted nature of the road, vehicular traffic is relatively light, concerned primarily with access to existing residential properties.

I do not find that the appeal site is within the settlement of [address], however, taking account of the site-specific characteristics of [address], it remains well connected to it. Due to the restriction of [address], it is reasonable in some cases that it would be quicker for future occupiers of the proposed dwelling to walk or cycle to the services in [address], rather than drive via [site address] . I do not find that the nature of the route would entirely discourage sustainable means of travel from the appeal site to [address].

Once along [address], the occupiers of the proposed dwelling would have access to services within the village including a post office, dentist and public house. There is also an existing primary school, which, whilst being a slightly greater distance away from the appeal site, is served by footpaths concentrated along the A129 frontage of the village.

Moreover, the A129 is served by various bus stops which cater for services to wider settlements including Basildon, Billericay and Wickford. The evidence before me includes timetables for the routes which these bus stops serve showing various services throughout the day. Consequently, I am satisfied that the nearby presence of a bus stop would present future occupiers with a reasonable means of accessing sustainable forms of transport.

Based on these factors, despite the area being identified as one of low connectivity, I find that occupiers of the proposed dwelling would not be entirely reliant on the use of private vehicles in order to access services and facilities. Thus, in the context of paragraph 155 c) of the Framework, the development would be in a sustainable location.

Criterion d) of paragraph 155 of the Framework relates to major development and is therefore not relevant to the appeal proposal before me.

On this main issue, I conclude that the proposal would not be inappropriate development in the Green Belt as it would constitute the development of grey belt land referred to by paragraph 155 of the Framework.

I note that the main parties have referred to other forms of potentially not inappropriate development in the Green Belt, including the redevelopment of previously developed land and limited infill in villages. However, because I have found that the proposal would meet the requirements of paragraph 155 of the Framework, it is not necessary for me to consider these exceptions further.

The appeal site is within the zone of influence for the [name] and [name]. One of the Council’s reasons for refusal for the application was that there was insufficient information to mitigate the impacts of recreational pressure. However, during the appeal proceedings, the appellant has confirmed that a tariff payment of £169.45 has been made.

[name] found the appeal scheme to be acceptable in all other respects it would have been necessary for me to consider this further. However, as I have found that the scheme would be unacceptable for other reasons, it is not necessary for me to do so as it would not alter the outcome of the appeal.

The Council is unable to demonstrate a five-year supply of deliverable housing sites as required by the Framework. The Council has confirmed that the present supply is 1.96 years which is a notable shortfall, demonstrating that the need for housing is pressing.

Paragraph 11(d)ii of the Framework requires me to consider whether the adverse impacts of permitting the development would significantly and demonstrably outweigh the benefits when assessed against the Frameworks policies as a whole.

Even small developments present the opportunity to make a meaningful, immediate difference to housing land supply. The proposal would also have other benefits including economic benefits through its construction and increase in local spend. In this respect I have given the associated housing delivery on a windfall site, moderate weight in the overall balance.

As above, I have concluded that the proposal does not validly qualify as an exemption from the mandatory BNG, and I set out that I fail to see how the mandatory BNG would be met. Given that I have no reasonable means to secure that the development would be for self-build purposes, I have attached this very little weight in the overall balance. In respect to BNG, I have identified conflict with the Framework as a result. The proposal’s position in respect to the statutory BNG framework is a factor which weighs heavily against the appeal proposal, and to which I have assigned significant weight.

Given the heavy weighting I have applied to the proposal’s situation with respect to biodiversity, the adverse impacts of granting planning permission in this case would significantly and demonstrably outweigh the benefits which would principally stem from the proposal’s minor contribution to housing supply. Therefore, the proposal does not benefit from the presumption in favour of sustainable development.

[name] have found that the proposal would be an acceptable form of development in the Green Belt, I cannot be satisfied that it would meet the required provisions of BNG. [name] have not identified explicit conflict with the development plan in this respect, material considerations dictate that the appeal should be dismissed.