Case Reference: 3296353

Appeal Decisions
Hearing Held on 16 August 2022
Site visit made on 22 August 2022
by D M Young JP BSc (Hons) MPlan MRTPI MIHE
an Inspector appointed by the Secretary of State
Decision date: 8 September 2022
Appeal A Ref: APP/F2415/W/22/3296353
Land adjacent to Walton Hall, Chapel Lane, Walton, Leicestershire LE17
5RL
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission.
• The appeal is made by [APPELLANT] against the decision of Harborough District
Council.
• The application Ref 21/01090/FUL, dated 11 June 2021, was refused by notice dated 15
October 2021.
• The development proposed is a self-build and custom housebuilding development of a
two-storey detached dwelling incorporating a home office, associated landscaping and
new access formed through the front brick boundary wall off Chapel Lane with new
dropped kerb. Trees are proposed to be felled as part of the works.
Appeal B Ref: APP/F2415/W/22/3300240
Land adjacent to Walton Hall, Chapel Lane, Walton, Leicestershire LE17
5RL
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission.
• The appeal is made by [APPELLANT] against the decision of Harborough District
Council.
• The application Ref 22/00837/FUL, dated 5 April 2022, was refused by notice dated 30
May 2022.
• The development proposed is a self-build and custom housebuilding two-storey
detached dwelling incorporating home office, associated landscaping, felling of trees and
formation of dropped kerb and new access through the front boundary wall off Chapel
Lane.
Decision
1. Appeal A is allowed and planning permission is granted for a self-build and
custom housebuilding development of a two-storey detached dwelling
incorporating a home office, associated landscaping and new access formed
through the front brick boundary wall off Chapel Lane with new dropped kerb.
Trees are proposed to be felled as part of the works at land adjacent to Walton
Hall, Chapel Lane, Walton, Leicestershire in accordance with the terms of the
application, Ref 21/01090/FUL, dated 11 June 2021, subject to the conditions
set out in the schedule to this decision.
2. Appeal B is allowed and planning permission is granted for a self-build and
custom housebuilding two-storey detached dwelling incorporating home office,
associated landscaping, felling of trees and formation of dropped kerb and new
access through the front boundary wall off Chapel Lane at Land adjacent to
Walton Hall, Chapel Lane, Walton, Leicestershire in accordance with the terms
of the application, Ref 22/00837/FUL, dated 5 April 2022, subject to the
conditions set out in the schedule to this decision.
Preliminary Matters
3. As set out above there are two separate appeals which relate to identical
schemes on the same site. Although there are differences in the supporting
information, specifically the assessment of local housing need, the Council
opposes both applications due to the site’s unsustainable location. Because
both appeals involve the consideration of similar issues, I have dealt with them
both in a single decision letter.
Main Issue
4. The main issue in both appeals is whether the development would accord with
the development plan and if so, would any other considerations indicate that
permission should be refused.
Reasons
5. The appeal proposals involve the erection of a two-storey, self-build dwelling.
Under Section 2A of the Self-Build and Custom Housebuilding Act 2015 (as
amended by the Housing and Planning Act 2016), and associated secondary
legislation, local planning authorities are under a duty to grant a sufficient
number of suitable permissions to meet the demand for self- and custom-built
housing within their area. This demand is to be measured by the number of
new applicants entered on the local Self-Build Register in each base period;
and that number must be matched by new suitable permissions granted within
3 years of the end of each relevant base period. Under Section 2 of the same
Act, authorities must have regard to the Register when carrying out their
planning functions, including making decisions on planning applications.
6. Paragraph 62 of the National Planning Policy Framework (the Framework)
identifies ‘people wishing to commission or build their own homes’ as a distinct
section of the community, for which the size, type and tenure of housing
needed should be assessed and reflected in planning policies. It is common
ground that the Council has not met its statutory duty to have issued a
sufficient number of permissions to meet demand arising from its Self-Build
Register in respect of Base Periods 1, 2 and 31. While the Council is looking to
redress the shortfall, current policies seem unlikely to prevent the situation
from getting worse in the foreseeable future. I therefore find it probable that
the demand arising from Base Period 4 will also go unmet. In the light of the
shortfall in provision the need to increase the supply of self and custom-build
housing is an important planning consideration which must carry substantial
weight.
7. A planning obligation contained in the Unilateral Undertaking (UU) would
ensure compliance with the self-build and custom housebuilding legislative
framework and prevent the dwelling from being built and sold as market
housing, something I understand has happened elsewhere in the district. The
obligation would also tie the initial occupancy of the dwelling to the Appellants.
1 See Statement of Common Ground paragraphs 6.11-6.12
8. The Council rightly point out that the dwelling could ultimately be sold on the
open market. However, that argument could be made in respect of any self-
build scheme, and it is very clearly not the intention here. There is nothing
before me to suggest the Council has sought planning obligations in respect of
other self-build permissions it has granted under Policy GD4 of the Harborough
Local Plan 2011-2031 adopted April 2019 (the LP) nor has any alternative
drafting been suggested which would overcome its concerns. It was accepted
at the Hearing that an obligation tying the occupancy of the dwelling to the
Appellants for a specified period of time, would almost certainly fail the various
legal tests. Consequently, I am satisfied that as far as reasonably possible, the
proposed development would not be, in the words of the Council, an
‘unfettered’ new dwelling.
9. The dwelling would provide much needed accommodation for the Appellants
and their two young children who not only have deep-rooted ties to Walton but
were also subject to a ‘no fault’ eviction from their previous rented property in
2021. Since that time, they have resided at a private rented property which is
said to be too small to meet the family’s current and future needs.
10. Although several development plan policies are listed in the Council’s reason for
refusal, it was agreed at the Hearing that the determinative policy is LP Policy
GD4. This explains that development in locations such as Walton will only be
approved, where, amongst other things, it comprises one of six forms of
development, set out in sub-sections a-f. Only category (a) is relevant to
these appeals which allows for:
“Housing on small sites of no more than 4 dwellings which are within or
physically and visually connected to settlements and which meet a local need
for housing of a particular type, including small dwellings for the elderly and
Starter Homes, providing this has been evidenced through a rural housing
needs survey or a neighbourhood plan”
11. It was agreed at the Hearing, that the appeal site is ‘physically and visually
connected’ to the settlement of Walton. It was further agreed that self-build
and custom housebuilding would be a ‘housing of a particular type’ covered by
the policy. In light of the foregoing, the key consideration is whether the need
for the proposed self-build dwelling has been properly evidenced through the
housing needs surveys2.
12. The 2021 Survey was submitted with the first application and at the time was
the most up-to-date assessment of housing need across the parish. It found
the greatest level of need was for self-build and custom housebuilding with
56% of respondents with an identified housing need specifying their preferred
type and tenure as being to build or commission their own home. In refusing
the first application, the Council dismissed the findings of the 2021 survey on
the basis that it was subjective rather than objective. Accordingly, the Council
took the position that it did not supersede the findings of a previous survey
carried out in 2019.
13. That survey was carried out by Midlands Rural Housing in connection with a
planning application for two bungalows on the site immediately adjacent to the
2 21/01090/FUL was accompanied by the “Kimcote and Walton Parish Housing Needs Survey” by Tetlow King
Planning (the 2021 Survey). 22/00837/FUL was accompanied by the “Kimcote and Walton, Harborough District
Housing Needs Survey” by CNB Housing Insights (the 2022 Survey)
appeal site3. Unlike the Appellants’ surveys it related solely to the village of
Walton rather than the wider parish. It found a ‘requirement’ for six new
homes (two of which should be affordable) in order to enable local people to be
suitably housed within their community. At the Hearing the Appellants’ expert
witness detailed a number of deficiencies with the 2019 report which the
Council were unable to repudiate with any real conviction. I also note that the
2019 survey will very shortly be out-of-date on the Council’s own terms4.
14. The 2022 survey was commissioned in order to overcome the Council’s
concerns with the 2021 survey. It was a more detailed survey of housing
needs than its predecessors and carried out by an independent and reputable
organisation5. It followed established government practice guidance6 regarding
housing needs surveys and assessments as well as relevant aspects of the
Framework. It was based on evidence from official data and a household
survey. It concluded that of those households identified as being in housing
need, four sought self and custom-build housing for which they would be owner
occupier. These needs comprised 1 x 3-bed bungalow and 3 x 4-bed detached
dwellings.
15. In refusing the second planning application, the Officer Report made the
following observations in relation to the 2022 survey:
‘although the provider of the document has no direct connection with the
application, it remains subjective, rather than objective, in its purpose. It even
states in Paragraph 2.4 that its aim is to gather evidence to support a proposed
development within the village of Walton. An objective assessment would
ordinarily come before development proposals and be unprejudiced by any
specific demand or desire within a particular location’.
16. When asked to provide examples of where this perceived subjectivity might
have manifested itself in the report, the Council were unable to provide any
examples. Indeed, under questioning, it became apparent that the main, if not
only, reason why the 2019 document was still preferred over the Appellant’s
more comprehensive and up-to-date surveys, was simply because it was
authored by an organisation the Council has previously worked with.
17. There was no cogent explanation why or how a housing needs survey would
come to the Council other than to support a planning application and no
examples were provided of where this had occurred. There is thus nothing to
support the assertion that such surveys “ordinarily come before development
proposals”.
18. The Council argued that the 2019 survey was treated more favourably because
it did not support a proposed development. However, under scrutiny, it
emerged that that was simply not the case. The 2019 survey was in fact
commissioned by the adjacent landowner in order to support the Chapel
Cottage application which was similarly assessed under Policy GD4.
Accordingly, I see very little difference in the ‘purpose’ of the surveys.
3 Chapel Cottage LPA ref: 19/01907/FUL
4 Paragraph 5.6.1 the SPD states that in respect of Local Housing Needs Surveys/Parish Housing Need Surveys,
“survey findings are considered valid for three years”
5 CNB Housing Insights
6 Local Housing Need Assessment: A guide to good practice (DETR 2000)
19. No substantive criticisms have been made of either of the Appellants’ surveys
in terms of scope, methodology, analysis, interpretation or conclusions. In
short, nothing of any substance that would ‘discredit the findings of the
surveys’7 has been adduced by the Council. To that end, it is not surprising
that the Appellants have raised concerns about the lack of consistency in the
Council’s decision making.
20. Taking all these considerations in the round, I consider that the need for the
development has been clearly ‘evidenced through a rural housing needs
survey’. There is no suggestion that the identified need can be met from other
sites, allocated in the development plan or otherwise.
21. I therefore conclude that the schemes would accord with Policy GD4(1)(a). For
the reasons set out above, they would also accord with Policies GD2, GD3, H3
and H5. No other policy conflicts have been alleged or identified. I am thus
satisfied that both proposals accord with the development plan taken as a
whole. Accordingly, the section 38(6) test is passed and in accordance with
paragraph 11(c) of the Framework, the schemes should be approved without
delay.
Other Matters
22. The Council have raised the wider issue of locational sustainability and point to
a previous appeal decision8 where an Inspector found that Walton was not ‘an
appropriate location for new development’. However, that proposal was for
two market houses and not a self-build/custom dwelling. Accordingly, and as
the Inspector makes clear, it did not benefit from any of the exemptions set
out in Policy GD4. The Kimcote Road decision is therefore of limited relevance
here.
23. The supporting text to Policy GD3 (which allows for rural housing in accordance
with Policy GD4) explains that the policy aims to strike a suitable balance
between encouraging a thriving rural economy, maintaining and where
possible, improving the sustainability of smaller rural settlements. In effect
matters of sustainability are already inbuilt into Policy GD3 and by extension
GD4. Accordingly, there is no policy basis to consider separately the merits of
the site’s location.
24. Finally, it is also worth noting that issues around the lack of services in Walton
were noted in the Chapel Cottage officer’s report. Despite Walton being
identified as an unsustainable location for development, the Council approved
that application on the basis that it met the requirements of Policy GD4(1)(a).
I have taken the same approach here.
25. The Council is concerned about the issue of precedent perhaps understandably
so. However, my determination must be based on compliance with the
development plan taken as a whole. In these cases, I have found there would
be compliance with the relevant plan policies with no material considerations
indicating that permission should be refused. Should applications for self-
build/custom housing come forward in the future, these would equally need to
be assessed against the relevant development plan policies. There is no reason
why this decision would make it harder for the Council to refuse applications
that did not accord with the development plan.
7 See Officer Report for 2019/01907/FUL
8 APP/F2415/W/19/3237885
26. Finally, the Planning Practice Guidance (PPG) states that Inspectors may use
their powers to make an award of costs where they have found unreasonable
behaviour, including in cases where no application has been made by another
party. As is clear from my decision, I have found the Council’s approach to
these applications to be concerning. I have therefore given serious thought to
exercising these powers in this instance.
27. Within the overall legal framework of section 38(6) of the Town and Country
Planning Act 1990, it is as much for the Council to make out its case as to why
planning permission should be refused as for the Appellant to make out a case
that it should be granted. Moreover, for the Council to have acted ‘reasonably’,
it must “produce evidence to substantiate each reason for refusal”, within a
context where those reasons should have been clearly and precisely stated. It
should also determine ‘like cases in a like manner’.
28. At the Hearing the Council was simply unable to offer any reasonable
explanation as to why it had rejected the Appellants’ housing needs surveys
nor why its approach was so contrasted to that it took in relation to the Chapel
Cottage scheme. There was no satisfactory response to the Appellants’
criticisms of the 2019 report nor were the Council able to point to any
deficiencies with the 2021 or 2022 surveys. All this means the Council failed to
present positive evidence to support its case that the development ‘would not
meet an objectively assessed need and, consequently, would result in the
construction of an unfettered new dwelling in an unsustainable location’.
29. Because of these failings the Council has come perilously close to crossing the
‘unreasonable behaviour’ threshold. Nevertheless, I have exercised my
discretion not to initiate an application for costs on this particular occasion.
The Council should however take note of these comments to avoid any
prospect of such an award being made in the future.
Conditions
30. The parties agreed a list of planning conditions for the schemes which I have
considered against the advice in the PPG. In some instances, I have amended
the conditions in the interests of brevity or to ensure compliance with the PPG.
31. Conditions covering time limits and the approved plans are necessary to
provide certainty and in the interests of proper planning. I have imposed a
condition in relation to construction hours to protect the amenity of local
residents. However, the suggested condition requiring a Construction
Environmental Management Plan would have been disproportionate given the
modest scale of the proposed development.
32. Conditions covering landscaping and external materials are necessary to
safeguard the appearance of the Walton Conservation Area. A condition
requiring the access driveway to be hard surfaced for the first 5 metres is
necessary in the interests of highway safety. Finally, a tree protection
condition is necessary to retain healthy trees on the sites.
33. Details of the finished floor levels and boundary treatments are shown on the
approved plans and therefore captured by the plans condition. Details in
relation to the access and alterations to the wall are capable of being dealt with
through the landscaping condition. There is no evidence of newts either on or
near the site. Consequently, conditions 4, 6, 7 and 10 all fail the test of
necessity.
34. Finally, the PPG advises that ‘Area-wide or blanket removal of freedoms to
carry out small scale domestic and non-domestic alterations that would
otherwise not require an application for planning permission are unlikely to
meet the tests’9. Although the appeal site is in a conservation area, I am not
persuaded that this in itself is a sufficiently strong reason to withdraw
permitted development rights. In light of the above, I have omitted condition
12.
Conclusion
35. For the reasons set out above I conclude that the appeals should succeed, and
planning permission allowed subject to the conditions set out below.
D. M. Young
Inspector
9 PPG paragraph 21a-017-20190723
APPEARANCES
Harborough District Council
Adrian Eastwood MRTPI Development Manager
Emma Baumber MRTPI Senior Planning Officer
Rachel Danemann MRTPI CICHCM Principal Planning Policy Officer
Appellant
Andrew Moger Tetlow King Planning
Leonie Stoate Tetlow King Planning
Chris Broughton CNB Housing Insights
Conditions - Appeal A and B
1) The development hereby permitted shall begin within 3 years from the date
of this decision.
2) The development hereby permitted shall be carried out in accordance with
the following approved plans:
Proposed Site Plan (Drawing No. 1592(2)-P02C)
Proposed Floor Plans (Drawing No. 1592(2)-P03)
Proposed Roof Plan (Drawing No. 1592(2)-P04A)
Proposed Elevations (Drawing No. 1592(2)-P05A)
Proposed Garage/Home Office (Drawing No. 1592(2)-P06B)
3) Construction works shall take place only between 08:00 and 18:00 Monday
to Saturday and not at any time on Sundays or on Bank or Public Holidays.
4) Prior to construction of any external walls, details of all external materials to
be used in the construction of the development hereby approved shall be
submitted to and approved in writing by the Local Planning Authority, and
the development shall only be carried out in accordance with the approved
details.
5) Prior to the first occupation of the dwelling hereby approved a landscape
scheme shall be submitted to and approved in writing by the Local Planning
Authority. The landscape scheme shall include full details of proposed hard
and soft landscape works, including access, driveway, parking, turning and
all other surfacing materials, retained planting/hedges/trees and new
planting/hedges/trees; screened bin store area; and a timetable of
implementation. Thereafter, the landscape scheme shall be carried out in
accordance with the approved details prior to the first occupation of the
dwelling. Any trees, shrubs, hedges or plants which, within a period of five
years from their date of planting, are removed, or become seriously
damaged or diseased shall be replaced in the next planting season with
others of similar size and species, unless the Local Planning Authority gives
written approval to any variation.
6) Prior to the first occupation of the dwelling hereby approved, the access shall
be surfaced in a bound material (not loose aggregate) for at least the first 5
metres back from the highway boundary. Once provided the surfacing shall
be maintained thereafter.
7) All trees and hedges to be retained on the site shall be protected by fencing
(and ground protection where necessary) which complies in full with
"BS5837:2012 Trees in relation to design, demolition & construction -
Recommendations". The fencing (and ground protection) shall be installed
before any equipment, machinery or materials are brought onto the site for
the purposes of the development, and shall be maintained until all
equipment, machinery and surplus materials have been removed from the
site. Nothing shall be stored or placed within any fenced area, and the
ground levels within those areas shall not be altered, nor shall any
excavation be made, unless the Local Planning Authority gives written
approval.