Agenda item

Redevelopment of stables to provide 1no 4 bed dwelling.

The Planning Officer, George Spurgeon, gave a detailed presentation on the report relating to the abovementioned planning application, a copy of which had been circulated (for copy see file of minutes).  Members noted that the written report was supplemented by a visual presentation which included photographs of the site.  The application was for the redevelopment of stables to provide 1no 4 bed dwelling and was recommended for approval, subject to conditions. 

 

The Planning Officer noted that an application for four dwellings at the site had been refused by Committee at its meeting in January 2021 and the current application had been called to Committee at the request of the City of Durham Parish Council.  The Planning Officer noted that the National Planning Policy Framework (NPPF) set out at Paragraph 149(g) that development in the Green Belt should be regarded as inappropriate unless the redevelopment of previously developed land did not have a greater impact on the openness of the Green Belt than the existing development.  He added that the proposed development was comparable to the existing stables and also noted there were no objections from the internal consultees.  He concluded by noting that it was felt the application was in accord with the relevant policies within the NPPF, CDP and Durham City Neighbourhood Plan (DCNP) and therefore the application was recommended for approval, subject to conditions as set out within the report.

 

The Chair asked Parish Councillor Grenville Holland, representing the City of Durham Parish Council, to speak in objection to the application.

 

Parish Councillor G Holland noted the proposed development at Fernhill brought with it potential damage to our precious Green Belt and to the area of great landscape value.  He added the Parish Council strongly objected to the proposal and urged Members to refuse the application.  He noted that furthermore, the Committee’s decision would measure both the strength and the integrity of three important planning documents: the 2021 NPPF, the 2020 CDP and the 2021 DCNP. 

 

Parish Councillor G Holland explained that Fernhill’s position within the city was clearly identified by the CDP Inspector in 2019, adding that he had recognised that Fernhill was an extension of Flass Vale and was therefore entrenched within the Durham City western Green Belt forming an integral part of the city.  He added that Fernhill had been in the Green Belt since 2004 under the Durham City Plan, with the definitive map still in place today in the DCNP and carried weight.

 

Parish Councillor G Holland explained that the Government attached great importance to Green Belts, noting that fundamentally you did not build houses in a Green Belt unless there were exceptional circumstances.  He added that the NPPF, Paragraph 149, stated that the local planning authority should regard the construction of new buildings as inappropriate in the Green Belt, however it offered seven exceptions:

 

1.       Buildings for agriculture and forestry - Fernhill does not qualify.

2.       Provision of sports facilities - Fernhill does not qualify.

3.       The extension or alteration of a building but not above the size of the original building - at Fernhill, the proposed building was new and was higher than and larger than the present stables, saying it was going to be well made does not meet the exception.

4.       The replacement of a new building providing that it was for the same use and not materially larger - the application was not for a stable.

5.       Limited infilling in villages - this was not relevant to Fernhill.

6.       Limited affordable housing for local community needs - Annex 2 of the NPPF made it clear that this was not a relevant exclusion for Fernhill.

7.       Limited infilling on previously developed land to meet an “identifiable affordable housing need” that will not harm the openness of the Green Belt - by definition, the proposed four bedroom house in that location was not an affordable housing need and therefore did not qualify as an exception.

 

Parish Councillor G Holland noted that, put simply, Fernhill did not qualify for any one of those exceptions, and must be refused planning permission because there were no very special circumstances as demanded by the NPPF, Paragraph 147.  He added that Fernhill was also within an area of great landscape value and that placed an additional constraint, not only in reference to the 2020 CDPP but also the 2021 DCNP.  He noted such areas warranted special protection and the construction of a four bedroom house, because of its size and mass, however nicely made, would intrude into the lovely landscape setting whose compass covers many miles to the west of Neville’s Cross.  Parish Councillor G Holland explained those essential protective measures were found in NPPF Paragraphs 148, 149 and 174, which in turn underpinned CDP Policies 20 and 39 and DCNP Policies H3 and G4.  He asked that, faced with a clearly defined set of policies that are now in place, how could the application for a four bedroom house at Fernhill merit planning permission?  He noted the report clearly sought to find a way through the very obvious fact that the application failed to meet a raft of NPPF, CDP, and DCNP policies.  He added that indeed, perhaps to alarm Members into agreeing approval, the Officer’s submission even included, at Paragraph 69, reference to a legal challenge in 2017 against Dartford Borough Council. 

 

Parish Councillor G Holland noted, however, that legal challenge did not entail the infringement of a Green Belt but was linked to a gypsy encampment and rested on an interpretation of the words “previously developed land”.  He added that, in the context of Fernhill, those three words were contained in the sentence, NPPF paragraph 149 (g), which read: “where the development would re-use previously developed land and contribute to meeting an identified affordable housing need”.  He reiterated that was Fernhill, not Dartford.

 

Parish Councillor G Holland explained that, while having some sympathy with the applicants, the policies of the planning guidance offered by the NPPF, the CDP and the DCNP must be respected and be used by Members in making their decision on the application, adding many of those policies had been hard won and must not now be forfeit.  He noted that in particular, simply presenting the proposed new building as a rather nice house whose impact would not make that much difference anyway, did not cross the threshold for the very special circumstances described in NPPF Paragraph 147.  He noted that therefore the Parish Council asked that Members refuse the application as being contrary to the NPPF Paragraphs 147, 148, 149 and 174, CDP Policies 20 and 39, and DCNP Policies H3 and G4.

 

Parish Councillor G Holland noted that, in the final analysis, the meeting was about the integrity of the planning policies that now protect our countryside.  He added it was about whether the exceptional circumstances that allowed them to be breached had been achieved.  He reiterated that the Parish Council believed that they had not and therefore, the application should be refused; and that a failure to do so would undermine the integrity of the very policies upon which, in the last decade, we had devoted so much time and effort in order to protect our environment now and in the future.

 

The Chair thanked Parish Councillor G Holland and asked Mr Michael Hurlow, representing the City of Durham Trust, to speak in objection to the application. 

 

Mr M Hurlow explained that the Trust had made clear in its objection the value of the area of high landscape value and Green Belt.  He added that the area had not been an accidental inclusion in the Green Belt, and explained it was strategically placed in the important greenspace forming the Green Belt as it ran down into Flass Vale and the City.  He noted it was very difficult to see how a site occupying over half of the area at the neck of the Flass Vale wedge, as it crosses the A167, could possibly be less than important.  Mr M Hurlow noted that the CDP Inspector upheld that, forcefully noting that it was part of the attractive rural area forming the setting of the historic city. 

 

 

He noted that it was not wholly correct to state that the site had a long history of Officer support for development, Mr M Hurlow explaining that he was an Officer with the City of Durham Council before its closure and, with others, he recognised the value of the site as Green Belt and the harm that development would cause.  He noted the principle had more recently been upheld at appeal and by rejection in relation to other proposals.  He added that to term the site as ‘private garden’ sold the area short, not a description that an estate agent would understand.  He explained it was more like a small estate complete with its own lodge and grounds, adding that it was certainly not ‘urban in character’, indeed with the Planning Inspector concluded that it was rural.

 

Mr M Hurlow noted the size of the proposed house had a larger building footprint by the Planning Officer’s calculation, the lower storey being 14m² bigger.  He added, however, that calculation failed to consider the footprint of the very large excavation to form the lower storey, car park and access and rear garden with its large retaining walls.  He noted that at least doubled the size of the development, adding that excavation of that depth and scale must surely be considered ‘development.’  Mr M Hurlow noted that removing a garage from the application has still left the application undeniably larger than the existing building.  He added it was materially much larger than the existing stable block and disproportionate in size.  He noted it cannot be possible to conclude that the development had no greater impact on ‘openness’ when the proposal took out an open area resulting in the doubling the size of the existing developed area occupied by the stables.

 

Mr M Hurlow explained that there were no Green Belt exemptions under the NPPF for sites that were less publicly visible, just because the public could not easily see the site did not mean that it could be judged as not having an impact on openness, it was a direct loss of green space to development.   He noted a High Court judgement in 2017, not reviewed by the Planning Case Officer, identified that any adverse impact was not acceptable under Green Belt policy, it was inappropriate development.  He added another High Court judgment also confirmed that any inappropriate development automatically failed to meet the policy to maintain openness.  He explained that, in the case of the application, it did not preserve the setting of the city or safeguard the countryside from encroachment and that should lead to rejection of the application as there were strong grounds for doing so.

 

Mr M Hurlow explained that the Trust considered that there were other reasons to doubt the proposal, in common with other assessments of tree impact, there was no consideration to be found of the longer term implications of such a large excavation on trees.  He added that the screening was not guaranteed to be long lasting.

 

Mr M Hurlow noted the location was not readily accessible by bus, with services being very limited along that stretch of the A167.  He added that facilities were not nearby, and, in reality, the development appeared to be accessible only by car, not fulfilling sustainable transport aims.  He added that despite Highways’ advice to the contrary, there remained local concern about the safety of introducing more access onto the A167 in that position.  He noted that it seemed obvious to the Trust that the development was large, failed to sit well with the existing buildings and surrounds and, most of all, impacted negatively on the Green Belt.  Mr M Hurlow noted that it would clearly have a greater impact on openness that the current development, something specifically regarded as inappropriate under the NPPF.

 

Mr M Hurlow added that to allow the application would be to open up the Green Belt to other developments, digging down to create a large, buried buildings but retaining a similar ground level footprint to any existing outbuildings.  He noted that must be seen as a very worrying precedent, approve a stable block but get a large, detached house instead.  He explained that protecting green space should be something that was increasingly needed as Authorities consider their response to the Climate Emergency.  He explained the Trust was not making this objection to frustrate any business interests of the applicant, it was doing so because of deep felt concern for the importance of the Green Belt, the setting of the city and safeguarding Durham’s future as we face the Climate Emergency.  Mr M Hurlow concluded by noting that the Trust therefore respectfully requested that the Committee refused this application and chose instead to support protection of the Green Belt and the city’s setting.

 

The Chair thanked Mr M Hurlow and asked Mr Paul Bracewell, the applicant, and Mr Joe Ridgeon, Agent for the applicant, to speak in support of the application.

 

Mr P Bracewell thanked the Chair and Members and noted the Committee report set out the long history of applications at the site, adding he was pleased to note the recommendation for approval from Council Officers.  He explained that the proposed development had been designed from the outset so that it was compliant with Green Belt policy and they had worked hard with the Council’s Officers to ensure that the proposals were both sensitive to the landscape in which it sits and provided a unique design which would not impact on the openness of the Green Belt.  He added he had employed notable architects, Jane Darbyshire and David Kendall, to design a scheme which was contemporary, but also reflected the locality and would use local materials.  He explained that the design was sensitive to the main house by following a similar footprint and roof profile to the existing stables, with low pitched roofs and overhanging eaves.  He noted the design made use of the sloped site to create another level of accommodation, partly set in the hillside and below the level of the stables.

Mr P Bracewell explained that, as set out by the Planning Officer in his report to Committee, the design had been fully assessed and considered to be acceptable.  He added that the proposed house would have a similar form, mass and height to the existing stable building and the visual impact would be extremely limited from outside of the site due to the boundary trees being retained and by how the house would sit, being set into the hillside.  He noted, as already set out by Officers, the proposed dwelling would not have a greater impact on the openness of the Green Belt than the existing stables and therefore accords with Paragraph 149(g) of the NPPF and Policy 20 of the new CDP.  He concluded by respectfully asking that Members approve the application.

 

Mr J Ridgeon thanked the Chair and Members for the opportunity to correct some of the points raised by the objectors.  He explained that in relation to the large garden, referring to Paragraph 59 of the Committee report, the paragraph set out the Planning Inspector’s own assessment of the site when looking at the CDP and stated, ‘Fernhill is a detached house standing within a large garden surrounded by mature vegetation’.  He added that assessment of the site related to Paragraph 149 of the NPPF and noted he would confirm, and that Members may also wish to confirm with their Officers, that what had been set out in terms of how that Paragraph should be read had been set out incorrectly.  He noted it read: ‘…complete redevelopment of previously developed land… (of which the garden site was), …whether redundant or in continuing use… (of which it was in this case), …which would: ? not have a greater impact on the openness of the Green Belt than the existing development’.  Mr J Ridgeon noted that was the test Members would need to assess the application against.

 

In reference to the point of sustainability raised earlier in the meeting, Mr J Ridgeon explained the building had been designed and orientated with solar gain in mind, and with overhanging eaves that provided solar shading in the summer, very much a sustainable design for the building.  He added that it was proposed to use locally sourced materials, including stone, to ensure that the building sat nicely in relation to Fernhill itself, which as Officers had noted was a non-designated heritage asset.  Mr J Ridgeon noted that CDP Policy 20 required compliance with national policy which in the case of the application was Paragraph 149(g) of the NPPF, and he reiterated that was the test the Members should be assessing the application against.  He added that they had worked hard to ensure that Council Officers, including Landscape Officers, Design and Conservation Officers and the Planning Policy Officers were all content that the scheme complied with policy.  He concluded by thanking Members and noting he was happy to answer any questions they may have.

 

The Chair thanked Mr P Bracewell and Mr J Ridgeon and asked the Planning Officer if he wished to comment on the points raised by the speakers.

The Planning Officer noted that NPPF Paragraph 149(g) read: ‘limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings),

which would: ? not have a greater impact on the openness of the Green Belt than the existing development’ would be an exception to the construction of new buildings as inappropriate development, as set out by that paragraph.  He added that the case law referred to within the Committee report was around the definition of previously developed land.  He noted that the NPPF defined previously developed land and it noted that garden land within the built up area was excluded, however, it did not refer to garden land outside of the built up area.  The Planning Officer noted that the case referenced demonstrated that a residential garden, outside of the built up area would be considered as previously developed land.  He noted that was a key consideration for the application as the site would have to be considered as previously developed land for the exception as set out at NPPF Paragraph 149(g).

 

The Planning Officer noted concerns had been raised in respect of the Area of High Landscape Value (AHLV) and added that Landscape Officers had looked at the proposals and had provided comments noting that the site was well screened from the landscape, the development would not be readily visible from outside of the application site and there was a row of mature trees that would provide effective screening, and the surrounding topography also screened the dwelling.  The Planning Officer explained that therefore the impact on the AHLV was not considered to be adverse.  He noted the issue of the site not being readily accessible by public transport had been raised and explained that the site was within 1.6 kilometres from the defined city of Durham, considered to be a reasonable walking distance.  He added there was a bus stop approximately 560 metres from the application site at Fieldhouse Lane. 

 

The Chair thanked the Planning Officer and asked Members for their questions and comments.

 

Councillor J Elmer noted the application site was within the Green Belt and was classified as an AHLV.  He noted that residents within the city had battled long and hard to preserve the Green Belt and the current boundaries were settled as part of the adoption of the current CDP, at the Examination in Public in 2019.  He noted that the CDP deferred to the NPPF in relation to policy on Green Belt.  He quoted Paragraph 147 of the NPPF: ‘Inappropriate development is, by definition, harmful to the Green Belt and should

not be approved except in very special circumstances’.  He added he felt very special circumstances had not been demonstrated in this situation. 

 

 

He continued by quoting NPPF Paragraph 148 ‘When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt.  ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations’.  Councillor J Elmer explained he felt the application was ‘not hitting’ that paragraph and noted that it meant that even if it could be argued that benefits outweighed harm, the applicant still needed to demonstrate that there were very special circumstances.  He reiterated that he felt there were no very special circumstances and therefore he felt it classified as inappropriate development, with the default position being to refuse planning approval.

 

Councillor J Elmer noted the NPPF continued at Paragraph 149 setting out: ‘A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt. Exceptions to this are:

 

a)       buildings for agriculture and forestry;

b)       the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, outdoor recreation, cemeteries and burial grounds and allotments; as long as the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it;

c)       the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

d)       the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;

e)       limited infilling in villages;

f)        limited affordable housing for local community needs under policies set out in the development plan (including policies for rural exception sites); and

g)       limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings), which would:

? not have a greater impact on the openness of the Green Belt than the existing development; or

? not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority.’.

 

Councillor J Elmer noted: exceptions a) and b) did not apply; in terms of c) the building was getting bigger; in terms of d) it was for a different use, not a stable, and was getting larger; e) did not apply; and f) did not apply as it would likely be an expensive property.

Councillor J Elmer noted that exemption g) was the most significant and noted that, as the proposed development was larger, there would be a greater impact on the openness of the Green Belt that the existing development.  He noted it was not about looking into the site from the outside, it was also about the densification, the growth of buildings on the site.  He noted in making those assessments there were two components, one being the effect on views looking in from outside, the other being the actual change on site, within the grounds themselves.  He added that he felt the application failed in that aspect.

 

Councillor J Elmer reiterated that the second point in exception g) noted: ‘not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority’.  He noted the word ‘and’ between ‘…re-use previously developed land’ and ‘contribute to meeting an identified affordable housing need…’ and noted the application was not contributing towards affordable housing need.  Councillor J Elmer noted he felt that it was not one without the other, both were needed due to the word ‘and’.  He noted the Officers argued that the application would not affect the openness of the Green Belt, though that was questioned by the Parish Council and City of Durham Trust.

 

Councillor J Elmer noted that whether the application should be approved was dependent upon whether it could be considered exempt from normal Green Belt restrictions as it would re-use previously developed land and contribute to meeting affordable housing needs.  He noted the applicant makes the case that it should be classified as previously developed land, citing case law of Dartford v Secretary of State, however, he felt it was not a relevant parallel situation as that application was not within a Green Belt, where development needs to meet its own specific tests and with a much higher bar to be applied.  He added that he saw the argument in that case as being that gardens in the countryside should also be regarded as previously developed land.  He noted that he felt the application site could not be considered garden land as it comprised of stables and grazing land as a component of a large, landscaped area.  He noted, if one was to follow that line of logic, the conclusion was that countryside estates, throughout the landscape, might be classified as gardens, therefore previously developed land, and therefore developable.  Councillor J Elmer noted that would set a precedent for the development of gardens and small estates across our Green Belt and beyond.  He added that even if one was to consider the site previously developed land, he felt it would need to meet the affordable housing test, which it did not.  Councillor J Elmer explained that Green Belt policies within the CDP attempted to draw a line, with the goal being to protect the heritage and environmental assets of Durham for perpetuity.  He added that approval of the application would set a precedent and make it more difficult to defend the Green Belt from future development. 

He noted he felt the application failed to cohere with Part 13, Paragraph 149 of the NPPF and Policy 20 of the CDP, both relating to the conservation of Green Belt and therefore he moved that the Officer’s recommendation of approval be rejected.  Councillor E Mavin seconded refusal of the application.

 

Councillor K Shaw moved that the application be approved as per the Officer’s report, he was seconded by Councillor A Surtees.

 

The Chair noted the two motions, with the motion for refusal having been put first and asked the Solicitor – Planning and Development to advise.

 

The Solicitor – Planning and Development noted that first he wished to make sure Members of the Committee were fully conversant with the relevant part of the Green Belt policy.  He noted that the very special circumstances test in Paragraph 148 of the NPPF only applied where the proposal was inappropriate development in the Green Belt and was a test of weighing benefits against harm.  He noted that Officers were saying that did not apply here as there was an exception which would make the proposals not inappropriate development in the Green Belt.  He explained that came down to an interpretation of NPPF Paragraph 149(g) which stated that redevelopment of previously developed land, where it would not have a greater impact on the openness of the Green Belt than the existing development, would not be inappropriate.  The Solicitor – Planning and Development noted there was no requirement for the proposal to include an element of affordable housing, adding that was a separate limb of Paragraph 149(g), being an either/or test and not a test requiring both criteria to be met.

 

In respect of previously developed land, the Solicitor – Planning and Development noted the reference to Dartford v Secretary of State case and explained that related to whether garden land, outside of the built up area could be regarded as previously developed land, with the Court in that case saying that it could.  He noted that while it was not a Green Belt case, that did not matter as the case was about the definition of previously developed land.  He explained to Committee that the nub of the policy test was did Members regard the development as having a greater impact on the openness of the Green Belt than the existing development on site.  He added that the Planning Officer had set out quite comprehensively in his report the reasons why there was not a greater impact on openness and if Members accepted that then it would be for the application to be approved, and if Members took a different view then it would likely be for refusal on the basis that very special circumstances had not been demonstrated.  The Solicitor – Planning and Development noted the motion for refusal had been moved first and asked to hear more from Councillor J Elmer in terms of his reasons for refusal.

 

 

Councillor J Elmer referred to NPPF Paragraph 149(g) and noted he disagreed as regards the either/or interpretation, adding to him it was clear it was worded: ‘not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need…’.  He added that even if the criteria did say ‘or’ rather than ‘and’ he felt that it was pretty clear that there would be impact on the openness of the site as the building was going to be bigger than the existing footprint, and not just the building but associated access structures, tarmac and so on.  He noted the mass of the building would be bigger, and the associated structures, would incur on the openness of the site and therefore he felt there was a policy justification for refusal.  Councillor J Elmer reiterated his concerns as regards setting a precedence for development in the Green Belt, adding it would be used by other applicants across the Green Belt to argue their estates could be classified as garden and therefore developable.  He added the pathway to obtaining residential development would be clear, first build stables, then convert to house.  He noted those were his major concerns in defending the line in terms of protecting the Council’s Green Belt.

 

The Solicitor – Planning and Development asked Planning Officers to display NPPF Paragraph 149(g) on screen for the Committee.  He referred Members to the two bullet points as set out under Paragraph 149(g), namely:

 

-      not have a greater impact on the openness of the Green Belt than the existing development; or

-      not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority

 

The Solicitor – Planning and Development noted the word ‘or’ in between the two bullet pointed limbs of Paragraph 149(g) and explained this meant the second limb to the exception was in the alternative.  He added it was the first limb that was in play, noting if the scheme had been for affordable housing then the second limb may well have been in play, however, it was not on this occasion.  The Solicitor – Planning and Development noted what he understood from Councillor J Elmer was that, in reference to the first bullet point of NPPF Paragraph 149(g), Councillor J Elmer took the view that the proposal had a greater impact on the openness of the Green Belt than the existing development and for that reason it took it outside of the exception to inappropriate development and in those circumstances there would have to be a demonstration of very special circumstances sufficient to outweigh the harm by way of inappropriateness and any other identified harm, and Councillor Elmer did not feel there were any such very special circumstances. 

The Solicitor – Planning and Development noted that was the reason associated with the motion for refusal by Councillor J Elmer, with the rival motion for approval being that the proposals did not have a greater impact upon the openness of the Green Belt than the existing development and therefore availed itself of the exception set out at NPPF Paragraph 149(g) and therefore there was no need to demonstrate very special circumstances, as set out in the Officer’s report.  In reference to precedent, the Solicitor – Planning and Development concluded by reminding Members that they must determine the application that was before them and not think about what may or may not happen at some unspecified time in the future.

 

Councillor J Elmer noted the Solicitor – Planning and Development summary of his position was accurate and added that concern as regards the classification of the site as previously developed land.  He noted he felt it was a very tenuous argument to make and noted Members could only go down that thread if they were to accept that definition of previously developed land based on case law that did not seem to come from a parallel situation.  The Solicitor – Planning and Development reiterated his views in terms of the case law, in that it did not matter whether it was from a Green Belt case or otherwise.

 

Upon a vote being taken it was:

 

RESOLVED

 

That the application be REFUSED as the proposed dwelling would have a greater impact on the openness of the Green Belt than the existing stable building and so amounts to inappropriate development within the Green Belt for which there are no very special circumstances, contrary to Policy 20 of the County Durham Plan and Paragraphs 147 - 149 of the National Planning Policy Framework.