Appeal 6007012

The appeal is dismissed.

The address on the application form includes reference to ‘[name] [name]. This is a description of the location, rather than part of the address. For this reason, I have omitted it from the banner heading above.

The application form states that the proposal would be exempt from the mandatory requirements for [name] (BNG), as it would be a self-build dwelling. Accordingly, it is necessary for me to consider this as a main issue, and I have sought further comments from the main parties on this matter.

The appellant has submitted amended plans as part of the appeal, which seek to change the proposed roof and window frame materials. Having regard to the principles established in [name] Ltd1, I am satisfied that the changes shown on the amended plans are not substantial alterations to the scheme and the proposal would not be fundamentally different to what was considered by the Council when it made its decision. The Council has also had an opportunity to comment on the revised details. Therefore, on this basis, no party has been prejudiced in this regard, and I have taken the amended plans into account in determining this appeal.

An existing agricultural building (the barn) on the appeal site benefits from an extant prior approval2, under Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). If implemented, the approval would convert the barn into a dwellinghouse (the Class Q scheme). The Class Q scheme has not been implemented but it is a material consideration in the determination of this appeal. 1 Holborn Studios Ltd v The Council of the London Borough of Hackney [2017] EWHC 2823. 2 Council reference: 1/0010/2025/AGMB - Prior notification for the change of use of agricultural building to 1 no. dwellinghouse and associated building operations under Class Q.

The main issues are: • the effect of the proposed development on the character and appearance of the area, and • whether the requirements of BNG are relevant to the proposed development and, if so, whether such requirements are met.

The appeal site comprises the barn, as well as another building, and associated land, located adjacent to but outside the settlement of Winkleigh, within the open countryside. Access to the site is via a track, off the adjacent A3124.

Located on the edge of the village, the site and immediate surroundings have a semi-rural character, with housing within the village to one side, fields to the other side and beyond the rear, including [address], and a new residential development opposite. The adjacent fields are bounded by hedgerows and there is an abundance of mature trees adjacent to the site, along the main road and within the wider area, which contribute to the verdant and semi-rural appearance of the locality.

The existing barn is a modest building with a traditional and functional, agricultural appearance, comprising low level blockwork walls with metal sheet cladding above and to the roof. The barn is set back from the road behind an existing bund and due to its modest scale and form, as well as its dark green colour, it is an unassuming building within the landscape. Likewise, the other building, with a rear lean-to, is single storey, with a simple appearance, and the buildings and land have a rural character.

In contrast, with a sizeable footprint and a two-storey height, the proposed detached dwelling would be a large building, which would be highly noticeable within the landscape. Notably from vantage points along the main road to the front. The white render walls and contrasting dark stone cladding, while appropriate for the area, would nonetheless increase the prominence of the proposal within the landscape. Particularly when compared to the existing buildings on the site.

The new house, garden area, driveway and parking areas would increase the amount of built development on the land. The retention and refurbishment of the other building, despite the lean-to being demolished, would also contribute to the amount of built development as part of the appeal scheme. As a consequence, the encroachment of residential development onto the land would be harmful to the rural character of the site. With some harm to the appearance of the landscape also.

The harm to the landscape would be relatively localised with views from the village being restricted by mature trees adjacent to the site. A soft landscaping scheme could also be proposed to screen and soften the appearance of the proposal.

Additionally, while the proposal would be prominent on the approach to the village, the harm would be somewhat tempered by its proximity adjacent to the sizeable new build residential development opposite, which is currently under construction. That development comprises a range of two storey dwellings, including detached houses, with a relatively comparable footprint to the proposal, a number of which are finished in an off-white colour. Accordingly, within this context the proposal would not be stark. Overall, taking into account the above factors, the identified harm to the landscape would be modest.

For the reasons given, I conclude that the proposed development would be harmful to the character and appearance of the area. Therefore, it would conflict with Policies ST04, DM04, DM08A and ST14 of the [name] and Torridge Local Plan 2011-2031 (the LP) and Policies HCLW1, ENV1 and ENV2 of the Winkleigh Neighbourhood Plan 2018 to 2031 (the NP). These together and amongst other things, require development to be of a high quality, inclusive and sustainable design that has an appropriate scale, mass and design that recognises and respects landscape character and is sympathetic to setting.

Schedule 7A of the Town and Country Planning Act 1990 (as amended) (the Act) introduced a statutory framework for BNG, and it applies to all planning applications for non-major development submitted on or after 2 April 2024. Under the statutory framework, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the [name] (BGC), which requires that at least a 10% increase in biodiversity value is met. The proposal is advanced on the basis that as a self-build dwelling it is exempt from the BGC.

However, this exemption can only be applied if the decision-maker has certainty that the proposed development represents a self-build or custom build proposal. In order to provide this certainty, the development would need to be secured as a self-build or custom-build dwelling, with a mechanism required to ensure that the proposed dwelling would fall within the definition of a self-build home as set out in the Self-build and Custom Housebuilding Act 2015, as amended (the Self Build Act).

The main parties agree that a Section 106 agreement would be an appropriate mechanism to secure the development as a self-build dwelling. Nonetheless, no such obligation has been entered into or provided.

Consequently, with no legal agreement, undertaking or other mechanism to secure the proposed development as a self-build or custom-build dwelling, as per the definition in the Self Build Act, I conclude that there is no valid exemption from the statutory BNG requirement. The proposed development is therefore subject to the biodiversity gain condition and the minimum information requirements.

In the absence of the minimum information requirements being provided with the planning application, I conclude that the appeal proposal fails to meet the statutory duty for BNG as set out under Schedule 7A of the Act.

The appeal site is located some distance from the nearby Winkleigh Conservation Area (the CA). Due to the distance of the appeal site from the CA and the presence of existing mature trees, which largely screen views of the proposed development from the CA, the proposed development would preserve the setting of the CA.

The main parties accept that the Class Q scheme represents a fallback position. However, there is disagreement between the parties in respect of whether the design of the appeal scheme would constitute an improvement in comparison with the Class Q scheme and whether the proposal would therefore amount to a 'betterment' or not.

I have had regard to the submitted information in respect of this issue, including the case of Mansell v Tonbridge and Malling Borough Council [2017] [name] 1314, cited by the Council and the implications of this judgement in my decision.

The Class Q scheme allows for the change of use of the existing barn into a dwellinghouse. Although the Class Q scheme would be much smaller than the appeal scheme, there is a greater than theoretical possibility that it might take place as a fallback position should this appeal fail. As such, the Class Q scheme is a realistic prospect and constitutes a fallback position. However, for significant weight to be afforded to a fallback position it would also need to be equally or more harmful than the appeal scheme.

Compared to the Class Q scheme the proposed dwelling would be much larger and more prominent. It would also result in a greater degree of encroachment of residential development onto the land. In this respect it would be more harmful than the Class Q scheme. However, the existing barn has a functional appearance and due to the introduction of a large number of double doors and windows into the walls of the building, the Class Q scheme would not be a sympathetic conversion of the building. In contrast, despite its size, the design and appearance of the proposed development would represent a higher design quality. It would also be viewed within the context of the houses opposite and have a similar appearance and palette of facing materials. As such, in this respect the proposal would be an improvement compared to the Class Q scheme.

With the above in mind, although the proposed development would lead to a greater degree of harm to the character and appearance of the site and landscape compared to the existing building and the fallback position, in the context of its higher design quality, the additional harm would be modest. For these reasons, I afford the fallback position moderate positive weight in support of the appeal scheme.

The replacement of the existing barn and the construction of a new dwelling would contribute to boosting the supply of new housing, as referenced in the National Planning Policy Framework (the Framework). The development could also be delivered relatively quickly due to it representing a small, windfall site. The proposal would also provide a comprehensive package of sustainability measures, such as integrated photovoltaic panels, an air source heat pump and a dedicated electric vehicle charging point. It would also provide an acceptable level of internal and external amenity space for the future occupiers. In combination, the benefits attract positive weight in my determination, as does the fallback position. Overall, despite the small-scale nature of the proposed development, the benefits of the scheme attract moderate weight in the balance.

The proposed development would harm the character and appearance of the area, contrary to policies of the development plan. The Framework makes it clear that weight should be afforded to policies of the development plan according to their degree of consistency with the Framework. In this regard, the Framework seeks the creation of high quality, beautiful and sustainable buildings and places, that are sympathetic to local character. Therefore, Policies ST04, DM04, DM08A and ST14 of the LP and Policies HCLW1, ENV1 and ENV2 of the NP, are consistent with the Framework and the development plan policies can be given significant weight in this appeal.

The appeal scheme would fail to comply with the statutory provisions for BNG, and this is a matter of principal importance to which I attach significant negative weight. In combination with the harm to the character and appearance of the area, I attach significant weight to the combined level of harm.

The Council accept that they cannot demonstrate a five-year supply of housing land, and although the shortfall is modest, at 4.61 years, the presumption in favour of sustainable development, as set out at Paragraph 11(d) of the Framework applies. In these circumstances, paragraph 11(d)(ii) of the Framework states that planning permission should be granted unless any adverse effects of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, having particular regard to key policies which include, amongst other things, securing well-designed places and BNG.

As described above, the benefits associated with the proposed development, including the fallback position would attract moderate positive weight, particularly when taking into account the Council’s housing land supply position. The Framework states that good design is a key aspect of sustainable development, creates better places in which to live and work and helps make development acceptable to communities. It also gives significant weight to development which reflects local design policies. The Framework also states that decisions should contribute to and enhance the natural and local environment by, amongst other things, providing net gains for biodiversity.

Consequently, the adverse impacts of the effect on the areas’ character and appearance, and the failure to provide the minimum information requirements to meet the statutory duty for BNG, would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole. As a result, the presumption in favour of sustainable development does not apply.

For the above reasons, I conclude that the proposed development would conflict with the development plan when considered as a whole, as well as the requirements of Schedule 7A of the Act. No material considerations would outweigh this conflict. Accordingly, the appeal should be dismissed.