Case Reference: 3243575

Costs Decision
Site visit made on 17 August 2020 by Mariam Noorgat BSc (Hons)
Decision by Andrew Owen BA(Hons) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 5 October 2020
Costs application in relation to Appeal Ref: APP/R3650/W/19/3243575
9 Brambleton Avenue, Farnham GU9 8QU
• The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by [APPELLANT] for a full award of costs against Waverley
Borough Council.
• The appeal was against the refusal of planning permission for an erection of a dwelling
with vehicular access from Hillary Road, together with associated works.
Decision
1. The application for an award of costs is refused, in the terms set out below.
Appeal Procedure
2. The site visit was undertaken by an Appeal Planning Officer whose
recommendation is set out below and to which the Inspector has had regard
before deciding the costs application.
Reasons for the Recommendation
3. The Planning Practice Guidance (PPG) advises that costs may be awarded
against a party who has behaved unreasonably and thereby caused the party
applying for costs to incur unnecessary or wasted expense in the appeal
process.
4. The PPG advises that Local Planning Authorities are at risk of an award of costs
if they behave unreasonably with respect to the substance of the matter under
appeal, for example, by refusing applications on vague, generalised or
inaccurate assertions about the proposal’s impact. Further, Councils are
required to behave reasonably in relation to procedural matters at an appeal,
for example by complying with the requirements and deadlines of the process.
5. In respect of the substantive grounds, the permission was refused by the
Council’s Development Control Committee contrary to the advice of the
planning officer. From the video evidence provided, voting on the officer’s
recommendation was tied at 6-6 with the Chairman’s casting vote, to refuse
permission, being determinative. Some limited discussion then took place
between officers and the Chairman which resulted in the motion that the
application be refused on grounds of the impact on residential amenity, despite
little of the preceding debate being dedicated to this issue. There was no
specific indication as to which residents the development would impact upon,
and the decision notice also did not identify the specific dwellings which would
be unacceptably affected. This was only made clear at appeal stage within the
Council’s appeal statement. This generalised and vague assertion amounts to
unreasonable behaviour.
6. However, it is clear that the impact on the privacy of neighbouring residents
was a reasonable grounds for refusing the application, and although the
particular properties affected was not specified, this did not affect the
application’s ability to be refused for the reason it was. As such the expense in
having to submit the appeal in relation to this reason for refusal was not
wasted.
7. The applicant states the Council did not determine the application in a timely
manner. The application was submitted in February 2019 and feedback from
the Council was provided in June 2019. The Council does have an obligation to
determine applications in a timely manner and the PPG advises that if the local
planning authority will fail to determine an application within the time limits, it
should provide the applicant with an explanation. The information submitted
shows that rather than initially refusing the application, the Council sought to
work positively with the applicant with allowing the scheme to be altered
significantly to enable a more favourable outcome to be achieved. The
applicant continued to work with the Council by submitting revised drawings
through to September 2019 and the application was recommended for approval
for committee.
8. Whilst I accept that the Council did not determine the application within the
prescribed period, it can be seen that the Council sought to work with the
applicant in a constructive manner in an attempt to see if the scheme could be
amended so as to overcome their concerns, which it did in so far as officers
were able to support the application. Further, there is a statutory remedy in the
form of an appeal against non-determination that could have also been
exercised by the appellant. For this reason, I consider that the Council did not
behave unreasonably in this regard.
9. Therefore, I find that unreasonable behaviour resulting in unnecessary or
wasted expense has not been demonstrated. For this reason, and having
regard to all matters raised, I recommend that an award for costs is
unjustified.
Mariam Noorgat
APPEAL PLANNING OFFICER
Inspector’s Decision
10. I have considered all the submitted evidence and the Appeal Planning Officer’s
report and concur that the application for an award of costs should be refused.
Andrew Owen
INSPECTOR


Appeal Decision
Site visit made on 17 August 2020 by Mariam Noorgat BSc (Hons)
Decision by Andrew Owen BA (Hons) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 5 October 2020
Appeal Ref: APP/R3650/W/19/3243575
9 Brambleton Avenue, Farnham GU9 8QU
• The appeal is made under section 78 of the Town Country Planning Act 1990 against a
refusal to grant planning permission.
• The appeal is made by [APPELLANT] against the decision of Waverley Borough
Council.
• The application Ref WA/2019/0333 dated 13 February 2019 was refused by notice dated
12 December 2019.
• The development was originally described as erection of two dwellings together with
associated works.
Decision
1. The appeal is dismissed.
Application for Costs
2. An application for costs was made by [APPELLANT] against the decision of
Waverley Borough Council. This application is the subject of a separate
decision.
Appeal Procedure
3. The site visit was undertaken by an Appeal Planning Officer whose
recommendation is set out below and to which the Inspector has had regard
before deciding the appeal.
Procedural Matter
4. Although the application originally proposed two houses, this was changed to
one during the Councils determination. As such the description of the
development used in the decision above reflects that used in the Council’s
decision notice and the appeal forms.
Main Issue
5. In addition to the reason for refusal identified by the Council within their
decision notice, it is common ground that the appeal site is located within 5km
of the Thames Basin Heaths Special Protection Area (TBHSPA) and also within
5km of the Wealden Heaths Phase I Special Protection Area (WHSPA) and
Ramsar site. Therefore the impact of the development on these European
designated sites needs to be considered. As such, the main issues are:
• the effect of the proposed development on the European designated sites;
• the effect of the proposed development on the living conditions of the
occupiers of 12 Hillary Road, with regard to privacy.
Reasons for the Recommendation
European sites
6. The TBHSPA consists of a number of fragments of lowland heath scattered
across Surrey, Hampshire and Berkshire. It is predominantly dry and wet heath
but also includes areas of deciduous woodland, gorse scrub, acid grassland and
mire as well as conifer plantations. It is a European designation for rare wild
birds, in particular the Dartford warbler, Nightjar and Woodlark, and the
protection of these species and their habitats is a particular conservation
objective.
7. The parties agree that the development would be likely to have significant
effects on the TBHSPA as a result of the potential for recreational use of it by
future occupants of the development. As such, under Regulation 63 of the
Habitats Regulations, it is necessary for me, as competent authority, to
undertake an Appropriate Assessment to consider whether the proposal would
adversely affect the integrity of the SPA.
8. It is considered that regular recreational use of the habitat site by future
occupiers of the development could damage the habitats outlined above and
could be disturbing for the bird species identified, particularly as they nest
close to the ground and hence are prone to disturbance from walkers and dog
walkers. Therefore the proposal would adversely affect the integrity of the site
and its conservation objective.
9. However the Council and Natural England are of the view that this adverse
impact can be mitigated by a financial contribution to Suitable Alternative
Natural Greenspace (SANG) and a programme of Strategic Access Management
and Monitoring (SAMM) of the TBHSPA. The Thames Basin Heaths Special
Protection Area Avoidance Strategy Review identifies Farnham Park as the
boroughs only SANG resource and the Council have confirmed that this
continues to have capacity to act as an avoidance resource diverting
recreational use of the TBHSPA. It also identifies future projects, including
replacement footbridges, repairs to vehicle bridges and improvements to the
car park, which financial contributions would help fund. With respect to SAMM,
the Review identifies that contributions would assist in limiting damage caused
to the TBHSPA including funding the monitoring of visitors or physical
measures such as limiting car parking.
10. A planning obligation has been provided which seeks to ensure that funds for
these purposes, of a scale required by the Council, would be provided to the
Council prior to the commencement of the development. The Council do not
raise concerns with the obligation and I consider that it would meet the tests in
paragraph 56 of the Framework. As such it would facilitate the delivery of
mitigation sufficient to address the adverse harm caused to the TBHSPA
resulting from the development.
11. Turning to the WHSPA, this comprises a complex of heath and valley mire and
is also designated for its populations of Dartford warbler, Nightjar and
Woodlark. The Council consider that the WHSPA is under much lower pressure
from residential development and that, due to its concentrated form, its bird
populations are much less vulnerable to effects from development than the
populations in the TBHSPA. Furthermore, they advise that, due to the limited
scale of the proposal and as alternative recreational opportunities in the area
are available, the proposal would not be likely to have significant effects on the
integrity of the WHSPA. Natural England have been consulted on this
assessment and raise no objection. As such the Council have not sought
financial contributions from the appellant and so the completed planning
obligation provides none.
12. However, although the site and the quantum of development is small, no
evidence has been provided to show what these alternative recreational
opportunities are. Indeed, little information regarding this SPA has been
provided at all. Moreover, though the evidence shows that the designated bird
populations of the WHSPA may be less vulnerable the those of the TBHSPA,
this is merely a comparison and does not demonstrate that, when considered
on its own, the designated species of the WHSPA would not be likely to be
significantly affected. Indeed bearing in mind the site’s comparable proximity
to both SPAs, I see no reason why future occupiers of the development would
be likely to utilise the TBHSPA such that contributions for SAMM and SANG are
necessary, but not likely to use the WHSPA such that contributions to SAMM
and SANG are not necessary. Adopting a precautionary approach, I do not
consider the lack of objection from Natural England satisfactorily demonstrates
the proposal would not be likely to have a significant effect, likewise the
assertions in the Council’s correspondence with Councillor Hyman.
13. As such, in conducting an Appropriate Assessment, given the increased
pressure on the WHSPA resulting from the proposal, I cannot be confident that
it would not adversely affect the integrity of the WHSPA, and so must assume
that it would. No mitigatory measures are provided in the completed planning
obligation. I have no reason to consider there are any alternative solutions with
a lesser effect, or that would avoid an adverse effect, on the WHSPA, nor that
there are imperative reasons of overriding public interest which would override
the harm to the SPA.
14. Consequently, I can only conclude that the proposal would adversely affect the
integrity of the WHSPA. The proposal would therefore fail to accord with policy
NE1 of the Waverley Borough Local Plan Part 1 Strategic Policies and Sites,
February 2018 (the ‘Local Plan’) which seeks to conserve and enhance
biodiversity and ensure that unavoidable adverse impacts are appropriately
mitigated.
Living conditions
15. The proposed development would be set within the rear garden of 9
Brambleton Avenue and would front Hillary Road. The proposed parking area
would be at the front of the proposed dwelling and would allow for a large
setback from Hillary Road. The property opposite at 12 Hillary Road
accommodates a spacious front garden and therefore there would be a
considerable distance between the two houses. Due to the downward slope of
the land from the south to the north, No 12 sits lower than the appeal site.
16. The proposed dwelling would be a chalet style bungalow with habitable space
within the roof. The front elevation of the dwelling would include windows that
would face the habitable rooms at 12 Hillary Road. Although there would be
some overlooking, I find there to be sufficient distance between the proposed
development and the front elevation of No.12 such that any overlooking, even
accounting for the difference in levels, would not be detrimental to the
occupiers of that property.
17. Based on the reasoning above, the proposed development would not result in
an unacceptable degree of overlooking and would not impact the privacy of the
occupiers of 12 Hillary Road. It would therefore not result in unsatisfactory
living conditions for these occupiers. As such, I find no conflict with Policy TD1
of the Local Plan, which seeks to ensure high quality design. It would also not
conflict with Saved Policies D1 and D4 of the Waverley Borough Local Plan
2002, adopted 23rd April 2002, which seek to ensure developments do not
result in overlooking or a loss of privacy enjoyed by neighbours.
Other Matters
18. There is dispute between the parties as to the Council’s ability to demonstrate
a five years housing land supply. In this case it is not necessary for me to come
to a definitive view on this matter as, even if I were to conclude there is a
shortfall in the five year housing land supply, paragraph 11 d) i. of the National
Planning Policy Framework would be engaged. This says that planning
permission should be granted unless the application of policies in the
Framework that protect assets or areas of particular importance provide a clear
reason for refusing the proposal. Such areas include SPAs. The Framework is
clear that if harm to biodiversity cannot be mitigated, planning permission
should be refused.
Recommendation and Conclusion
19. Although I have found that the proposed dwelling would not result in an
unacceptable loss of privacy for the occupiers of 12 Hillary Road, this is
outweighed by the fact that I can only conclude that the development would
adversely effect the integrity of the WHSPA. Therefore, for the reasons set out
above and having had regard to all other matters raised, I recommend the
appeal is dismissed.
Mariam Noorgat
APPEAL PLANNING OFFICER
Inspector’s Decision
20. I have considered all the submitted evidence and the Appeal Planning Officer’s
report and on that basis the appeal is dismissed.
Andrew Owen
INSPECTOR