Appeal 6007448

The appeal is dismissed.

I noted during my site visit that development associated with a previous permission, which included a two-storey building containing 7 flats, was under construction on site. The appeal proposal relates to the upward extension of this building.

The main issues are: • whether the proposal makes adequate provision for any required mitigation for the Epping Forest Special Area of Conservation (SAC); • the effect of the proposed development on the living conditions of neighbouring occupiers, with particular regard to outlook and privacy; and, • the effect of the proposed development on the character and appearance of the area.

The appeal site is within the Zone of Influence for the Epping Forest Special Area of Conservation (SAC). Epping Forest is a designated Site of Special Scientific Interest (SSSI) and the Epping Forest SAC is protected as a European Site of Nature Conservation Importance. It is subject to statutory protection under the Conservation of Habitats and Species Regulations 2017 (as amended) (‘the Regulations’) which outline a duty to consider whether a proposed development may have a significant effect on the conservation objectives of such protected sites.

The qualifying features of the SAC are its value in respect of beech trees, wet and dry heaths and population of stag beetle. The conservation objectives are to ensure that the integrity of the site is maintained or restored as appropriate and ensure that the site contributes to achieving the Favourable Conservation Status of its [name] and Species. One of the pathways of impact currently affecting the SAC is noted to be recreational pressure from people visiting the forest. Therefore, for new residential development a financial contribution per dwelling is required towards [name] and Measuring (SAMM) mitigation.

Given the susceptibility and vulnerability of the qualifying features of the SAC to residential development, particularly when considered in combination with other plans and projects, the proposal would have a likely significant effect on the SAC due to increased recreational pressures. I must therefore undertake an Appropriate Assessment in accordance with my duty under the Habitats Regulations.

It is common ground between the parties that a SAMM contribution would be required to mitigate any likely significant effect of the development on the integrity of the SAC. Whilst a unilateral undertaking (UU) has been submitted, detailing financial mitigation towards the SAC, this is in draft form, unsigned and undated. Consequently, the obligations in the UU could not be enforced and it is not effective.

Planning Practice Guidance (PPG) 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 cases1. Whilst it goes on to accept that they may be appropriate in exceptional circumstances, I have not been presented with, nor have I identified any exceptional circumstances which would justify such a condition in this case.

I must be satisfied beyond all reasonable scientific doubt that any adverse effect on the integrity of the SAC would be avoided. This means there must be certainty that any necessary mitigation would be delivered. In this case, and in the absence of necessary mitigation, I cannot be assured that the proposal would not result in adverse effects on habitats, and harm to the integrity of the European site.

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 Epping Forest. Imperative reasons of overriding public interest of a social or economic nature are not present that would be sufficient to overcome the harm that would be caused to the European site.

Taking the above into account, the proposal does not make adequate provision for the required mitigation for the Epping Forest SAC. It is therefore contrary to the Regulations as well as Policy LP39 of the Redbridge Local Plan (2018) (the Local Plan). This policy outlines that the Council will protect and enhance the natural environment, including through not permitting development which would adversely affect the integrity of the Epping Forest SAC. 1 [name]: 010 [name]: 21a-[phone]

Policy LP26 of the Local Plan, in respect to living conditions of neighbouring occupiers, requires development to not have an adverse impact, including in terms of outlook and privacy.

The appeal site shares a close spatial relationship with several neighbouring dwellings, primarily comprised of two storey semi-detached and terraced dwellings. The appeal proposal would increase the height of built form to three storeys within the appeal site.

Even with the set back of the third floor from the edge of built form, the increase in height would result in the appeal proposal becoming a dominating, and obtrusive mass of development for the outlook of the occupiers of 22 and [address] (Nos 22 and 24), from both their rear windows and through use of the rear gardens.

The occupiers of No 24 in particular would likely experience a sense of enclosure, which would be to the further detriment of their living conditions, noting the bulk of built form which already exists alongside their side boundary.

The appellant has provided an extract of the Council’s Supplementary Planning Document, which cites a development elsewhere at [address] as forming an exemplar development of a back land housing scheme. It is presented that the back-to-back distances in that scheme are narrower than the appeal proposal.

However, it is clear from the information provided that the circumstances of that application are materially different, namely that the development relates to a two-storey form. I therefore do not find this scheme to be so directly comparable to the appeal proposal, to a degree which it would lead me to alter my conclusions above.

Each of the proposed units would be afforded an outdoor balcony, to be enclosed by an obscured glass balustrade. The outlook from the balcony proposed to serve the unit marked as Flat [address] of the properties along [address].

The plans do not annotate the exact height of the proposed balustrade. Even if I were able to attach a condition requiring the height of the balustrade to be increased to 1.7m, this would not necessarily prevent proposed occupiers from having an outlook above this height when stood. Given the proximity of the neighbouring rear gardens and the height of the proposed development, the occupiers of the properties along [address] would consequently experience a loss of privacy through overlooking through the use of the proposed balcony.

Based on the above, the proposed development would have a harmful effect on the living conditions of neighbouring occupiers, with particular regard to outlook and privacy. The appeal proposal is contrary to Policy LP26 of the Local Plan on this basis. The Council’s reason for refusal also refers to Policy LP30 of the Local Plan but I note that this relates to household extensions, and I therefore find it to be of limited relevance to the appeal proposal before me.

The area surrounding the appeal site is primarily residential in nature, albeit with dispersed commercial buildings nearby, including a nursery close to the appeal site access. There are significant variations to the design of dwellings in the area. [address] is comprised of a mix of two storey semi-detached and terraced properties, as well as flats set in three storey buildings. Many of the examples of flatted buildings I observed during my site visit had flat roofs.

Rather than being implicitly different because the three storey buildings address the street scene, I find that these buildings are part of the established character of the area. There is little in the evidence before me to suggest that it is inappropriate for the appeal development to conform with this established pattern, purely due to the back land positioning of the plot.

Whilst still occupying most of the roof foot print, the appeal proposal has been designed with a slight set back from the main bulk of the already established two storey built form. This assists in the additional storey retaining a degree of subservience to the overall building form. I therefore consider that the appeal proposal appropriately responds to its plot position, representing a sensitive and subservient design.

On this basis, I have identified no specific harm to the character and appearance of the surrounding area arising from the appeal proposal. In respect to this main issue, I have identified no conflict with Policy LP26 of the Local Plan. This policy, amongst other matters, seeks for development to respect the local character of the area, ensuring that it is well integrated and has regard to and respect for the surrounding area, including in terms of form and massing.

I have also identified no conflict in respect to Policy D3 of the London Plan (2021) (LP) which in part relates to the need for development proposals to enhance local context by delivering buildings that positively respond to local distinctiveness including through their scale and proportions.

Paragraph 11d) of the National Planning Policy Framework (the Framework) sets out that the presumption in favour of sustainable development should be applied where the policies which are most important for determining the application are out of date. For applications involving the provision of housing, this includes where the [name] indicates that the development of housing was substantially below the housing requirement over the previous three years.

The Council accept that its housing delivery results indicate that paragraph 11d) of the Framework should be engaged. However, this paragraph identifies that planning permission should be granted unless the policies in the Framework that protect areas of particular importance provide a strong reason for refusing the development.

Habitat sites are areas of particular importance, and paragraph 193b) of the Framework states that development on land within or outside a SSSI, and which is likely to have an adverse effect on it, should not normally be permitted. This gives a strong reason for refusing planning permission and in this case, the presumption in favour of sustainable development therefore does not apply.

Paragraph 125c) of the Framework states that planning decisions should give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved unless substantial harm would be caused.

The proposal would lead to the efficient use of well-located urban land, providing two additional units with generous internal and external space provision. In the context of the Framework, I attach substantial positive weight to the delivery of these two additional residential units.

Set against these benefits, the proposal fails to deliver adequate means for securing mitigation towards the Epping Forest SAC, contrary to Policy LP39 of the Local Plan. As above, the Framework outlines that habitat sites are areas of particular importance.

In addition, the appeal proposal would impose material harm to the living conditions of neighbouring occupiers in respect to their outlook and privacy, contrary to Policy LP26 of the Local Plan. This policy is consistent with the Framework which, at paragraph 135f), outlines an expectation that developments should have a high standard of amenity for existing users.

Taken together, I find the harms associated with the appeal proposal to be substantial, to which I have attached significant weight.

Taking all of the above into account, the benefits of the proposal, including the associated housing delivery, are not sufficient to outweigh the harm identified. This brings the scheme into conflict with the development plan when read as a whole, and material considerations do not indicate a decision otherwise than in accordance with it. I therefore conclude the appeal should be dismissed.