Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision Site visit made on 31 January 2023 by I A Dyer BSc (Eng) FCIHT an Inspector appointed by the Secretary of State Decision date: 10 Febuary 2023 Appeal Ref: APP/X1545/W/22/3298297 Land adjacent 31 Woodrolfe Road, Tollesbury, Essex CM9 8SB • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. • The appeal is made by Ms Janice Hay and Mr Ian Pettican against the decision of Maldon District Council. • The application Ref OUT/MAL/21/00900, dated 25 August 2021, was refused by notice dated 2 December 2021. • The development proposed is erection of 1no detached three-bedroom chalet (1.5 storey). Decision 1. The appeal is dismissed. Preliminary Matters 2. The application sought outline planning permission with only landscaping reserved for determination at a later date. The appellants have provided drawings showing some landscaping. For the purpose of this appeal I have taken the landscaping details shown on the submitted drawings as illustrative only and I have determined the appeal on this basis. 3. As part of this appeal the applicant has submitted amended plans.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision The ‘Procedural Guide – Planning Appeals – England’ advises that: - “If an applicant thinks that amending their application proposals will overcome the local planning authority’s reasons for refusal they should normally make a fresh planning application”. (Annexe M.1.1) and: - “If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people’s views were sought”. (Annexe M.2.1) 4. The amended plans move the proposed location of the building further towards Woodrolfe Road. This amendment significantly alters the scheme from that which was considered by the Council and upon which interested parties were consulted. 5. To accept the amended plans would deprive those who should have been consulted on the changed development of the opportunity of such consultation contrary to the Wheatcroft Principles (Bernard Wheatcroft Ltd v SSE [JPL 1982 P37) and I have considered this appeal on the basis of the drawings submitted with the application and upon which the Council made its decision. https://www.gov.uk/planning-inspectorate

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision Appeal Decision APP/X1545/W/22/3298297 Main Issues 6. The main issues in this appeal are: - • The effect of the proposal on the character and appearance of the site and the surrounding area; • Whether the proposal would provide adequate living conditions for future occupiers, with particular reference to the provision of outdoor amenity space; and - • The effect of the proposal on European Protected Sites. Reasons Character and appearance 7. The appeal site (the site) is an open and undeveloped corner plot with frontages on Woodrolfe Road and Thurstable Road, the Thurstable Road frontage being wider. The site lies within an established residential area of dwellings of mixed design and scale, although semi-detached properties of two storeys predominate in the vicinity of the site. Dwellings are generally set back off the street on roughly consistent building lines, with modest or moderately sized front gardens and more generous rear gardens. 8. The overall character and appearance of the vicinity of the site is of street facing dwellings with generous rear gardens which define a strong pattern and grain of development. Each dwelling establishes a presence in the public realm with its own street frontage. 9.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision The layout of the proposal would place the gardens for the dwelling either side of the building, set back off the street by a very modest forecourt with no obvious relation to the frontage lines of either Woodrolfe Road or Thurstable Road. 10. Whilst fronting onto Thurstable Road and establishing a presence there, the positioning of the dwelling, distant from the street corner, would result in an incongruous relationship to the building line on Woodrolfe Road. It would leave an ambiguous empty space on a prominent street corner. 11. The building, sited close to the footway and visually separated from its neighbours by the gardens would be a prominent feature in this location, as would the anomalous gardens, particularly that which would be on the corner. 12. Given the importance that I have placed on the relationship of dwellings to their building lines and gardens in establishing the grain of development and the importance of that grain to the character and appearance of the area, the proposed development would be out of character and incongruous with the form of existing development when viewed from the street. In this particular context that lack of conformity would be so significant as to amount to harm. 13.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision The appellants have brought to my attention, the layout of 33 Woodrolfe Road (No 33), which has a similar boundary treatment around its garden to that proposed for the northern garden. However, No 33, despite not having a door facing onto Woodrolfe Road, has an end gable roughly in line with the Woodrolfe Road building line and has a significant presence on that corner. I https://www.gov.uk/planning-inspectorate 2

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision The appellants have brought to my attention, the layout of 33 Woodrolfe Road (No 33), which has a similar boundary treatment around its garden to that proposed for the northern garden. However, No 33, despite not having a door facing onto Woodrolfe Road, has an end gable roughly in line with the Woodrolfe Road building line and has a significant presence on that corner. I https://www.gov.uk/planning-inspectorate 2

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision Appeal Decision APP/X1545/W/22/3298297 therefore do not consider that No 33 presents such contextual similarity to the proposal as to set a precedent. 14. I therefore conclude that the development would have a harmful effect on the character and appearance of the area, contrary to Policies S1, D1 and H4 of the Maldon District Approved Local development plan 2014-2029 (2017) - the LDP - which together seek to ensure, amongst other things, that development respects the character and local context of the surrounding area. Living conditions 15. Both parties identify a requirement for the provision of 100m2 of private amenity space for the proposed dwelling, in order that the proposal would comply with the Maldon Design Guide Supplementary Planning Document. However, there is dispute between the parties as to the total area of usable private amenity space that would be provided by the proposal. 16. Drawing 20126/002b notes the provision of “Min 100 sq m garden space”. No figured dimension is provided for the garden space other than for a narrow area to the rear of the proposed dwelling. This area is narrow and enclosed and would not provide usable private amenity area. 17.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision In the absence of a dimensioned plan showing each area of garden space I cannot be satisfied that the development would provide satisfactory living conditions for future residents and so the proposed development would be contrary to Policy D1 of the LDP in as much as this requires that all development should provide sufficient and usable private amenity space. 18. For similar reasons the proposal would be contrary to the aims of Section 12 of the National Planning Policy Framework (the Framework). European sites 19. The site is located within the zone of influence of the Essex Estuaries Special Area of Conservation, Blackwater Estuary Special Protection Area (SPA) and Ramsar site, Dengie SPA and Ramsar site, Crouch and the Roach Estuaries SPA and Ramsar site which are European Designated Sites afforded protection under the Conservation of Habitats and Species Regulations 2017 as amended (the Habitat Regulations). Policies S1, D1, N1 and N2 of the LPD seek to protect such sites from harm and, where necessary, seek mitigation against any adverse effect of development.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision The Essex Coast Recreational Disturbance Avoidance and Mitigation Strategy (RAMS) Supplementary Planning Document (2020) incorporates strategic mitigation measures to be delivered to avoid adverse impacts. 20. However, the Court of Justice of the European Union has ruled that the decision maker, when considering the effect that a proposal may have on a European Site, must consider mitigation within the framework of an Appropriate Assessment (AA) rather than at the screening stage1. This responsibility now falls to me within this appeal. Such an assessment is necessary regardless of the status of the policies of the development plan. 21. Paragraph 180 of the Framework states, with regard to habitats sites, that “if significant harm to biodiversity resulting from a development cannot be 1 People over Wind and Sweetman v Coillte Teoranta ECLI:EU:C:2018:244 https://www.gov.uk/planning-inspectorate 3

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision Appeal Decision APP/X1545/W/22/3298297 avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused”. The Protected Sites are used for public recreation and therefore the proposed development is likely to generate an increased recreational use and thus, in combination with other development, have a significant effect on the features of interest of the Protected Sites. 22. Although I note the willingness of the appellants to enter into a legal agreement to provide the RAMS payment, a financial contribution towards mitigating the effects of the proposal on the SPAs, no such agreement is before me. 23. I am, therefore, unable to complete the AA favourably and, as such, I must conclude that, following Appropriate Assessment, the proposal would cause harm to the Protected Sites. Therefore, the scheme would conflict with Policies S1, D1, N1 and N2 of the LPD. Similarly, it would conflict with those parts of the Framework that seek to protect the natural environment. Other Matters 24.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision Whilst the matter of landscaping is reserved at this stage, I have no evidence before me that a scheme could offset the harm that I have identified above. 25. The appellants have brought to my attention a withdrawn application (Council Reference 21/00900/OUT. This application was withdrawn prior to determination and I place very limited weight on the draft officer’s report provided by the appellants. 26. In their evidence the appellants refer to several other applications2. These developments lie some distance from the site and do not inform the context of the proposal directly. I have, therefore, afforded them very limited weight in my deliberations. 27. The appellants have expressed dissatisfaction with the way in which the Council dealt with their application. However, this is a matter between them and the Council. Planning Balance 28. The development would provide public benefits in terms of provision of an additional dwelling, of a size identified as being of greatest need, on an undeveloped site in an accessible location within an established settlement. The Council acknowledge that they are currently unable to demonstrate a five-year supply of housing land.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision Given that I have found harm to habitats sites, the tilted balance of Paragraph 11d) of the Framework is not engaged. The overall benefit from the provision of one additional dwelling, in a sustainable location, to the local housing market would be limited. 29. There would be likely minor benefits to the local economy in terms of short term employment in the construction industry and longer term support of local businesses. There would be social benefits in terms of the support that the proposal would provide to the community. However, benefits would be limited by the scale of the development. 30. The benefits of the proposal would be of limited weight overall. 2 Council references 21/01115/OUT, 20/00785/OUT, 21/00735/RES and 20/00260/FUL https://www.gov.uk/planning-inspectorate 4

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision Appeal Decision APP/X1545/W/22/3298297 31. The proposal would result in a substantial level of harm to designated European Sites and the character and appearance of the site and the surrounding area. It would, further, have a harmful effect on the living conditions of future occupiers. 32. The LPD was adopted prior to the publication of the current Framework. Nonetheless, the policies concerned are broadly consistent with the aims and provisions of the Framework in regard to achieving well-designed places and conserving the natural environment living conditions of future occupiers of development and so, taken together I attribute them very significant weight. 33. I note that the proposals would accord with certain policies within the development plan, however accordance with other policies has a neutral effect on my considerations. 34. I am mindful of the appellants’ willingness to make a RAMS payment.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — Appeal Decision However, even had I found that the development would have satisfied any mitigation requirement in regard to the European Sites, the identified harm would significantly and demonstrably outweigh the limited benefits provided by the scheme when considered against development plan policies and the Framework when read as a whole. Conclusion 35. The proposed development would be contrary to the development plan and there are no other considerations which outweigh this finding. Accordingly, for the reasons given, the appeal fails.

Land adjacent 31 Woodrolfe Road , Tollesbury, Essex, CM9 8SB — Maldon District Council — I A Dyer INSPECTOR https://www.gov.uk/planning-inspectorate 5