Key decisions

Housing new build

No exceptional circumstances have been found to justify a scheme for 165 homes in the High Weald AONB in Kent.

The secretary of state, in a decision issued on his behalf by the planning minister, disagreed with an inspector that a scheme proposed for the edge of a market town should be allowed because exceptional circumstances had been demonstrated. The decision was issued after Natural England requested that the scheme be called in, partly due to concerns over the potential significance given to the weight afforded to protected landscapes in future decision-making. 

The inspector had recommended approving the scheme, after assessing that the proposal would cause only limited harm to the area of outstanding natural beauty (AONB), particularly in the longer-term. In his view, a “unique” combination of factors led to exceptional circumstances justifying the development. These included market and affordable housing need, lack of a strategy to meet this need, the constrained nature of the borough and apparent lack of alternative sites.

Assessing the design quality, the inspector judged the proposal was of a high standard and had evolved “having thoughtful regard to its context”. The inspector believed the proposed development would also deliver key benefits. These included exceeding 10 per cent biodiversity net gain and reinstating hedgerows along historic boundaries and a shaw in the southern fields, which he noted would be beneficial to the historic character of the AONB. 

Furthermore, the proposed re-creation of a historic recreational feature in the local landscape land would provide heritage benefits. New woodland planting and management of existing woodland would benefit the environment and landscape, he found, while additional footpaths and substantial new publicly accessible amenity space would enhance recreational opportunities.

However, in his decision letter, the secretary of state did not accept some of the proposal’s benefits as identified by the inspector. In particular, he did not find that the proposal was of a high standard or that the scheme’s design was sensitive to its setting. The proposal’s design did not reflect the expectations of the AONB housing design guide, he held. In his view, it was of a generic suburban nature which did not reproduce the constituent elements of local settlements. He also considered that the scheme’s layout did not respond to its AONB setting. Rather than being a benefit of the scheme, as suggested by the inspector, the secretary of state considered that the scheme’s design was a neutral factor in the planning balance. 

Furthermore, limited weight was afforded to harm to air quality and harm to the plan-making process through prematurity. Overall, the secretary of state held that the harm to the landscape and scenic beauty of the AONB attracted great weight, and that the development would not be in the public interest.

Inspector: Gareth Jones; Call-in
DCS number: 200-011-745 

Comment: Following soon after last month’s Shropshire solar farm case, this month sees another high-profile disagreement between the secretary of state and his inspector. This time, the disagreement led to a dismissal rather than an approval. Assessing the 165-home proposal for a site in the High Weald AONB, the inspector had brought together a number of key features of the scheme to his assessment of the planning balance. These included the apparent lack of alternative sites for housing in the district, as well as benefits brought by the scheme and reinstatement of hedgerows, woodland planting and additional footpaths, as well as what he appraised as limited harm to the AONB. Overall, he found that this “unique combination” of factors was sufficient to constitute exceptional circumstances justifying major development in the AONB. However, the secretary of state gave a different weight to the various factors, notably that the scheme’s design was not in line with the expectations of a local design guide. In his view, the clinching factor was the great weight to be given to harm to the AONB, with this leading to the conclusion that the development would not be in the public interest.

A proposed urban extension in Essex has been judged to be in a sustainable location in a planning application decided directly by a planning inspector.

The application for up to 200 homes on the edge of a large village was considered by a specially appointed inspector after the secretary of state had designated the council for major applications under special measures powers. The designation enabled applicants for major development to apply directly to the secretary of state for planning permission. 

Assessing the proposal, the inspector noted that the site lay next to a larger development of up to 350 homes, including a primary school. In terms of the site’s locational sustainability, he noted that bus connectivity was limited. However, in his view, the development would be reasonably accessible to a range of facilities and it had some benefits as a sustainable location, including its proximity to a railway station.

With regard to its impact on area character and appearance, the inspector judged that adverse visual effects could be mitigated through a sensitive programme of woodland creation and screening. 

The inspector noted that the tilted balance in favour of sustainable development applied, because the council could not demonstrate a five-year supply of housing land. He held that its policies restricting development outside settlement limits were therefore out of date, and that conflict with countryside policies attracted limited weight. Overall, the inspector concluded that the identified harm did not significantly and demonstrably outweigh the benefits.

Inspector: Graham Kean; Hearing
DCS number: 200-011-775

Comment: This is the third case decided in Uttlesford district by a specially appointed planning inspector under the “special measures” procedures in just over a year. This follows the approval of a solar farm on land owned by Stansted Airport in August 2022, and a 96-home scheme approved in October. In this case, the 200-home scheme was proposed as an urban extension to the village of Elsenham, just to the north of Stansted Airport. The main issue identified by the inspector was the sustainability of the location. He recognised that the bus connectivity to the site was limited, but acknowledged that a planning obligation would ensure secure facilities for cycling and a residential travel plan. With the district unable to demonstrate a five-year housing land supply, the inspector concluded that the scheme’s adverse impacts would not outweigh its benefits. 

Latest cases

Community facilities

The benefit of restoring buildings has been held to be not sufficient to overcome the unsustainable location of a proposed retirement village in west Scotland.

The new buildings were proposed as a means of raising the funds necessary to enable the restoration of listed buildings at the site. The new buildings would comprise a 60-bed care home, 51 assisted living flats in two blocks and 122 bungalows, whose occupancy would be restricted to people over 55 years of age. There would be a restored dwelling in a listed cottage and a further 15 assisted living flats in the main house, which was also listed. The appellants confirmed that the development as a whole would be a ‘retirement village’ including community facilities with an office, meeting room, café, shop, salon and clinic.

The reporter agreed the new buildings were needed to enable the restoration of the heritage assets which were on the Buildings at Risk register. However, he had significant concerns about the sustainability of creating what in effect would be a new settlement in the countryside. In his view, this would be contrary to a number of development plan policies, despite the appellant’s plans to provide community mini-buses, shared car and bike schemes and the provision of on-site community facilities. The nearest main towns were several kilometres away, the reporter noted, with no bus service between them and the site. 

The reporter noted the scheme’s benefits, including the heritage benefits and the ability to provide a range of housing meeting different needs together with some biodiversity benefits associated with restoration and management of the estate. However, he concluded these were outweighed by the policy conflict regarding the location of the proposal. 

Reporter: David Liddell; Written representations
DCS number: 400-039-957

Housing new build 

A proposed greenfield housing scheme in Suffolk has been dismissed, in part because no sequential flooding test had been carried out.

An inspector refused the proposal for up to 279 homes at the edge of a town, after being unconvinced that a sequential test had been carried out for flood risk. 

The appellant stated that all of the proposed housing would be located in flood zone 1 and only the site access would fall within flood zone 3. On this basis it was asserted that a sequential test had been undertaken to ensure all the houses were sited within the lowest flood risk area.

However, the inspector noted that the access fell within the red line plan submitted as part of the scheme and without which there was no means for vehicles to enter or leave the site. In her view, vehicle access formed an integral part of the development and without which the scheme as proposed could not proceed. She therefore concluded there was no reason why it should be considered separately from the development. Since no sequential test had been submitted, the application conflicted with national and local planning policy, she held.

In addition, government guidance was clear that within flood zone 3a only “water compatible” or “less vulnerable” uses were exempt from the exception test. Annex 3 of the National Planning Policy Framework (NPPF) gave no indication that a road serving a residential development could be classified as such. The list was not exhaustive, the inspector noted, but equally it provided no indication that an access should be considered less at risk than the development it served and accordingly the exception test also applied.

On other issues, the inspector held that the appellant’s transport assessment omitted to include a number of development sites in the area. This led to inaccuracies in how the baseline traffic data had been calculated and undermined the confidence in the accuracy of the assessment, she held. She was therefore unable to conclude that traffic from the proposal could be safely accommodated on the wider highways network.

In addition, the inspector decided that the scheme would harm landscape character and would not provide acceptable living standards for future residents based on the potential impact of an adjoining football club. 

Inspector: Anne Jordan; Inquiry
DCS number: 200-011-735

The benefits of a housing scheme on the edge of Bristol have been held to outweigh the loss of important trees on the site.

In allowing the proposal for up to 260 homes on a site part-allocated for housing, an inspector had to judge whether certain trees on the site could be classed as veteran. In making this assessment, he took account of their size, age and condition. While he accepted that all the alleged veteran hawthorn trees met the age criteria, he held that none met the size or condition criteria. He therefore decided they did not have sufficient biomass or variety and nature of condition to be of ‘exceptional biodiversity value’, which was the only relevant criteria for these trees in judging whether they were veteran. Nonetheless, they were important and notable trees of considerable age and with some veteran characteristics. The appellant’s own evidence stated that they sat approximately in the top 20 per cent of hawthorns in terms of size, the inspector noted.

It was proposed to fell about 25 per cent of the existing tree/woodland habitat on the appeal site and this would include four notable hawthorns and an area of woodland, both of which the inspector considered to be relatively important. However, the woodland to be lost was required to create the primary access to the appeal site and it was common ground that its loss was inevitable, the inspector ruled.

The inspector noted that the council could not demonstrate a five-year supply of housing land and there was a significant under-supply of affordable housing. The appellant had committed to providing a minimum 10 per cent biodiversity net gain and there would be various social and economic benefits, the inspector held. In his view, these outweighed the moderate harm to the character and appearance of the area and the loss of trees, hedgerows and meadow land. 

Inspector: Owen Woodwards; Inquiry
DCS number: 200-011-761

Conflict with policy seeking to protect the stock of self-contained homes has scuppered a proposal to replace flats with co-living units in east London.

The appellants proposed replacing 34 flats with 115 new-style co-living units. The inspector noted that, although the units would provide an alternative form of residential accommodation, they would not be self-contained. The appellants argued that the appeal scheme would free up 64 self-contained homes in multiple occupation (HMOs). However, in the inspector’s view, co-living was a relatively new type of accommodation and there was no certainty over what type of accommodation future occupiers would be drawn from. HMOs would not necessarily revert to self-contained housing in any event, he held.

The inspector noted that the council was able to demonstrate more than five years of housing land supply and was doing better in achieving housing growth than many other local planning authorities. He concluded that the local plan policy requirement to ensure that supply of self-contained housing was not undermined weighed more heavily in the planning balance than strategic policy aimed at increasing the overall supply of housing.

Inspector: Guy Davies; Inquiry
DCS number: 200-011-786

Special circumstances have been found to justify a proposed 100-home development on green belt land in Surrey.

The development was proposed at the edge of a village on land used for playing fields, a pavilion and a paddock. Due to the mature landscaping surrounding the site, flat topography and built-up backdrop, the inspector held the scheme would have limited impact on openness. Although the proposal would encroach upon the green belt, harm would be localised because of the village's irregular pattern, he held. 

The inspector noted that the site had been allocated for development in the council’s emerging local plan, which had already been submitted. The council had argued that, due to the publication of the proposed revisions to the National Planning Policy Framework (NPPF), it would be premature to give weight to the emerging allocation. However, the inspector considered that as the revisions to the framework had only just completed the consultation process, the effect on the local plan would be limited. He also noted that the council had recently indicated it intended to proceed with the emerging local plan. 

Assessing housing need, the inspector noted that the council could not demonstrate a five-year housing land supply, and that it had consistently performed poorly in the housing delivery test. This persistent under-delivery of housing weighed heavily in favour of the proposal, he held. There was also an under-supply of affordable housing in the area, he found, which would be partially alleviated by the proposed 40 per cent affordable provision of the scheme. 

Other benefits of the development identified by the inspector were the re-provision of enhanced sports facilities on the site, a net gain in biodiversity and the accumulation of economic, social and environmental benefits. In the inspector’s view, the benefits of the development clearly outweighed the harm to the green belt, such that very special circumstances were demonstrated justifying the scheme.

Inspector: David Troy; Inquiry
DCS number: 200-011-752

Concerns over harm to the setting of a conservation area have ruled out a proposal for 52 homes on the edge of a Northamptonshire village.

An inspector ruled that the proposal would adversely affect the setting of the Grand Union Canal conservation area, and that the benefits did not outweigh the harm. After assessing the scheme’s impact, the inspector held that introducing housing to the site would erode the landscape setting given the proximity of the canal towpath. The towpath and the range of trees along the canal made a major contribution to its character, she noted. In her view, the estate would adversely impact its setting but this to a degree would be contained by existing vegetation, so would cause less than substantial harm.

Assessing the locational sustainability of the site, the inspector noted that the village had a range of facilities including shop, pub, health centre, pre-school, primary school, secondary school and a community centre. While the appeal site was somewhat removed from the High Street where many of the services were located, this was within a 10-minute walk, she held. 

The inspector concluded that accessibility was not so poor as to not offer a genuine choice of transport modes as required by the National Planning Policy Framework (NPPF). This was reinforced by the proximity of the appeal site to bus stops which provided a service to large towns, the inspector held.

Overall, the council could demonstrate a 6.9-year housing supply in the rural areas, the inspector judged. While the scheme would contribute to this supply and provide affordable housing and economic benefits, the harm to the conservation area was attributed substantial weight so the inspector dismissed the appeal.

Inspector: Zoe Raygen; Hearing
DCS number: 200-011-760

Conflict with a council’s spatial strategy has ruled out an edge-of-village housing scheme in Somerset, despite the absence of a five-year housing land supply.

An inspector rejected the proposal for up to 49 homes, after finding that the adopted local plan sought to focus the majority of new housing on the larger towns, whereas the appeal site would lie on the edge of a settlement defined as a primary village. 

The plan supported the development of 65 dwellings and since the start of the plan period 81 had been completed or had planning permission, the inspector noted. Overall, this cumulative growth would result in the village’s housing stock increasing by around 30 per cent. This would be significantly higher than the proportionate 15 per cent envisaged by the spatial strategy, which, in the inspector’s view, would result in an excessive amount of unplanned development at the village.

Assessing the impact on area character and appearance, the inspector held that the site was distinctly open and rural compared with adjacent development. In her view, the openness and rural nature of the site, its large size and sloping and domed landform, meant it made an important contribution to the village’s countryside setting. Additional landscaping would not mitigate the impact on these factors, she judged.

In combination with the harm to the setting of a grade I listed building, the inspector decided the scheme’s benefits did not significantly and demonstrably outweigh the harm.

Inspector: Yvonne Wright; Hearing
DCS number: 200-011-776

Concerns over harm to a conservation area and listed building have ruled out a proposed affordable housing exception site scheme in Bedfordshire.

An inspector refused the scheme for 20 affordable homes in a village, finding the development’s significant benefits were outweighed by harm to the designated heritage assets and area character. The site comprised part of a designated important green space within the village conservation area, he judged, which was formerly part of the original landscaped parkland surrounding a listed house. In the inspector’s assessment, the proposed development would unacceptably urbanise the site through loss of green space, and the introduction of housing together with an engineered access, lighting and loss of tranquillity. In his view, the proposed development would cause less than substantial harm to the significance of the conservation area and setting of the listed building.

The proposal was predicated on being an entry-level exception site contrary to spatial strategy, in accordance with National Planning Policy Framework (NPPF) paragraph 72. However, given his finding of harm to designated heritage assets, the inspector held that the proposal did not meet the paragraph 72 requirement to not compromise areas or assets of importance. In the overall balancing exercise, he ruled that the benefit of addressing a shortfall in affordable housing in an edge-of-settlement location was not outweighed by the harm to area character and heritage assets.

Inspector: Mazer Aqbal; Written representations
DCS number: 400-039-844

Householder development

Impact on green belt openness is not a matter for upwards extension prior approval schemes, an inspector has ruled.

The prior approval application for a bungalow in Cheshire proposed a first floor extension built off original masonry forming the footprint of the original property. The council thought that the external appearance of the resulting house would conflict with the openness and unspoilt character of the green belt and the locality in general. 

However, an inspector held that matters set out within the general permitted development order (GPDO) do not include the effect of the development on a green belt, including any impact on openness. In considering the interpretation of Class AA the inspector took account of CAB Housing Ltd, Beis Noeh Ltd & Mati Rotenberg v SSLUHC [2022] which confirmed that “external appearance” of the dwellinghouse was not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations. In addition, it indicated that control of the dwelling’s external appearance was not limited to the impact on the subject property itself, but also included impacts on neighbouring premises and the locality, he noted.

In making the assessment, the inspector noted that the property was at the end of a small collection of residential and commercial properties, with the land directly adjacent to the settlement being in agricultural use. The properties in the immediate locality had a range of designs, some of which had been extended, resulting in a varied pattern of buildings in terms of location, scale, and design. In the inspector’s view, the proposal would be of a scale and appearance that would be in keeping with properties within its immediate surroundings. It would be seen in the context of the neighbouring properties, which were predominantly two storeys in height, and as a result it would not appear as a prominent or discordant feature within the street scene, he held.

Inspector: John Gunn; Written representations
DCS number: 400-039-907

Mixed development 

Loss of daylight for nearby residents has ruled out a proposed mixed-use scheme in south London.

The scheme involved the demolition of existing office buildings in a town centre, and the construction of a 29-storey building to provide 121 apartments and flexible commercial floorspace. The secretary of state agreed with the inspector’s recommendation that the appeal should be dismissed on the grounds of impact on the residents of an adjoining development due to loss of daylight.

The inspector noted that Building Research Establishment (BRE) guidelines were the main source of guidance on the issue of daylight and had long been considered as ‘best practice’ within the development industry. In this case, they had been used by both the appellant and the council, with a two-stage approach agreed as appropriate, to assess the impact on nearby residents.

The BRE guidelines suggested that a 27 per cent vertical sky component (VSC) was an ideal target, but the inspector noted that this was a one-size-fits-all target that could be applied across suburban and highly urban areas alike. The appeal site lay in a town centre among other tall buildings, both existing and consented, and therefore the inspector held that this figure should not be viewed as a target which could be applied to the scheme.

Taking into account qualitative factors, the inspector held that the scheme would give rise to significant harmful impacts on daylight entering a number of residential units adjoining the site which would substantially harm their living conditions.

In the inspector’s view, the degradation of living conditions in some of the flats would be considerable, and he acknowledged this could impact on their mental health. Overall, he gave this very significant negative weight in the planning balance. The secretary of state agreed that the effects would be severe, and that the high level of harm should be given very significant weight.

In relation to the impact on heritage assets, these were generally judged to be acceptable with the exception of the impact on a nearby conservation area. The scheme would terminate a key view out of the conservation area and while this view was already punctuated by tall buildings, the slender form and height of the proposal would draw the eye and detract from the historic and architectural importance of the area. This harm would, however, be outweighed by the public benefits, the inspector determined.

Nonetheless, overall the secretary of state agreed with the inspector’s conclusion that the harm caused by the scheme would significantly and demonstrably outweigh the benefits.

Inspector: Glen Rollings; Inquiry
DCS number: 200-011-744

The benefits of a greenfield homes scheme in West Sussex have been held to outweigh the harm caused.

The proposal was for up to 48 homes and a doctor’s surgery on top grade agricultural land in a settlement gap between two villages. An inspector allowed the scheme after giving substantial weight to the benefit of housing in a constrained district with a worsening housing supply.

There was consensus between the main parties that the council had only 2.4 years' supply of housing land. A draft annual monitoring report published in January 2023 concluded that supply had dropped to 2.36 years, the inspector noted. She found that this equated to a shortfall of more than 6,000 homes over the next five years and the housing delivery test for the district had also been below 70 per cent since the local plan was adopted in 2018. The inspector stated this provided evidence of a significant and persistent housing crisis in the district. She recognised the difficulty of identifying suitably unconstrained sites based on existing policies, but noted there was no prospect of a plan-led solution in the short to medium term.  

In the inspector’s assessment, this part of the settlement gap was of lesser importance in defining the separation between the two settlements than other land, and the development would not significantly erode the physical or visual separation. In addition, landscape and visual harm would be limited and localised, she held. In her view, the level of harm from conflict with development plan policy carried less weight than the benefit of market housing and 30 per cent affordable housing.

Inspector: Andrea Mageean; Inquiry
DCS number: 200-011-743

Including flats in a mixed-use scheme in Essex has scuppered the proposal following concerns over loss of employment space.

Located on a backland site between listed buildings in a conservation area, the mixed-use scheme would include four Class E units in two new blocks, the conversion of a locally listed granary building to a further four Class E units, and a four/five-storey building with nine flats and two retail units. 

As the site had been allocated for a mix of employment uses, the inspector accepted that most of the scheme complied with local policy. The scheme’s well-designed buildings would have helped to regenerate the rundown site, he judged. However, despite the area having an undersupply of housing land, the site allocation had a strong presumption against housing to make space for employment uses. The appellants had failed to justify the inclusion of housing in the scheme, the inspector held, which weighed against the proposal.

Including residential uses added further complications to the scheme as the site was in Flood Zone 3a and near existing industry. As residential uses were not included in the allocation a sequential test for flood risk became necessary. In the inspector’s judgment, this was failed due to housing sites being available nearby. In addition, the location of the proposal next to a working flour mill and busy roads meant the occupants of the flats would have unacceptable living conditions due to high noise levels. 

Inspector: David Reed; Hearing
DCS number: 200-011-767

Retail development

The benefit of restoring a historic community building through converting it to a shop has been held to outweigh conflict with the retail sequential test.

The appellants proposed changing the use of the former Sunday school building in West Yorkshire to a shop, arguing that the building had not been used as a church hall for more than a quarter of a century and was last used by a community group around a decade ago. The inspector accepted that other community buildings existed in the area, including one a short walk from the appeal site which had a larger car park.

The inspector also acknowledged that the building was in a relatively poor condition. There was evidence of past water ingress and damp was evident in substantial patches of green mould and plaster on various parts of the appeal building’s interior walls and ceiling. Overall, the inspector held that there was no proven need to retain the building in community use.

In terms of complying with the sequential test, the inspector held that the appellant had not decisively shown there to be no suitable sequentially preferable locations in the district for the proposed retail use. The sequential test had therefore not been passed. The proposal would also inflict some harm to the vitality of nearby centres, he accepted.

However, this harm was outweighed by the fact that the proposal would provide for occupancy of the listed building for the retail use, which would help contribute revenue, and maintenance and repair work for the upkeep of the fabric of the historic building.

Inspector: William Cooper; Hearing
DCS number: 200-011-780

Transport development

Harm to area character has ruled out a proposed overnight truck stop in the Warwickshire countryside.

An inspector dismissed the proposed facility which would have capacity for 293 heavy goods vehicles (HGVs) and a hotel, close to a trunk road and other key haulage routes. In his view, there was a mismatch between the extent and location of the proposal and the evidenced need for lorry parking.

The inspector considered need in quantitative, qualitative and locational terms. He found that while motorway services were within a 30-minute drive of the site, these did not meet the needs of trunk road users and there was a gap within the network for dedicated HGV roadside facilities and a need in the general area for some dedicated overnight lorry parking. However, in his view, the evidence did not clearly demonstrate a level of need which matched the extent of development proposed or that it needed to be on the particular site.

On landscape impact, the inspector found there would be harm to the character and appearance of the area resulting from development of currently verdant undulating fields, and that this could not be mitigated with landscaping. 

The inspector considered that even with the emphasis in paragraph 109 of the National Planning Policy Framework (NPPF) on the importance of provision of adequate overnight lorry parking facilities, the demonstrated level of need for lorry parking in the general area did not outweigh the harm identified as arising from the scheme.

Inspector: John Longmuir; Inquiry
DCS number: 200-011-756