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Writer's pictureClass Q

New dwelling approved in Grade II Registered Park & Garden as fallback overcomes policy conflict

Updated: Aug 17, 2022

Uttlesford District Council have approved our application for a new dwelling in the heart of the Shortgrove estate in Saffron Walden despite non-compliance with the development plan, neighbourhood plan and the NPPF, and the identification of less than substantial harm by Historic England and The Gardens Trust.

The site comprises two steel-framed agricultural buildings which occupy an isolated but prominent location within the designed landscape of Shortgrove, a Grade II Registered Park & Garden.


The proposal involved the demolition of one of the existing agricultural buildings and its replacement with a new-build Dutch-style barn.

Metal-framed, barrel-vaulted Dutch barns have a distinctive appearance, structure, form and materiality and, following feedback on the design from Historic England in terms of potential heritage impacts, the importance of the retention of this character and aesthetic was clear. As such the dwelling's design reflects its original character and that of the history of the site.


The external envelope of the barn has been wrapped in corrugated cladding that lends a rhythm and texture to its elevations and curved roof. This new profiled cladding unifies the façade and roof, simplifying the overall volume and reducing the appearance of the barn to its purest form when seen from a distance. The proposal also introduces a brick-built extension connected to the Dutch barn by a glazed link.

The application site benefitted from an extant permission—permitted under prior approval—for the change of use of the buildings from agricultural to four residential dwellings (UTT/20/0963/PAQ3).


Under the Prior Approval, the Dutch barn would be converted into two “larger dwellinghouses”, both with mezzanine floors allowing some second storey space. The modern barn would be converted into two single storey “smaller dwellinghouses”. All dwellings would be served by a private terrace and parking.


The Gardens Trust opined in their consultation response to the prior approval application that:


“The Dutch barns which it is proposed to convert are not things of any architectural merit, but in an isolated rural setting next to a large block of woodland, are recognisable as agricultural buildings. This legible identity would be confused by the insertion of large areas of glazing which would be an alien element in this context, together with the inevitable domestic setting and paraphernalia (boundaries, patios, cars etc) that they would be likely to acquire.”


It is established in case law that permitted development rights can legitimately represent a fallback position when considering alternative proposals for development of the same site.


The relevant legal principles relating to fall back were set out in R v Secretary of State for the Environment and Havering BC (1998) EnvLR189. In that case Mr Lockhart-Mummery QC, sitting as a Deputy High Court Judge, accepted submissions that there were three elements to the fallback test:


"First whether there is a fallback use, that is to say whether there is a lawful ability to undertake such a use; secondly, whether there is a likelihood or real prospect of such occurring. Thirdly if the answer to the second question is “yes” a comparison must be made between the proposed development and the fallback use.”


As regards the test set out by Mr Lockhart-Mummery QC in EnvLR189, it was clear that the applicants had a lawful ability to implement a residential use on site, and that there was a real prospect of such a use occurring. It therefore held that a comparison was required between the proposed development and the fallback use.


The heritage assessment which supported that applicaiton discussed the significance of the heritage asset and the impacts of the proposed development on it. Notwithstanding this, there seemed to be a level of agreement between the applicants and heritage consultees that the proposal would result in a degree of harm to the heritage asset.


Historic England were consulted on the proposal during a pre-application in which they stated:


“We agree with your assessments to date that this would be ‘less than substantial harm’ in the language of the NPPF (paragraph 202).”


The designs were subsequently amended to accomodate Historic England's recommendations and they responded as follows:


“The revisions respond directly to the advice set out in our letter...and the resulting reduction in visual impacts is an improvement over the proposals submitted in December 2021…


…Nevertheless, there remains a level of less than substantial harm to the significance of the registered landscape caused by the proposed development, even as revised.”


Paragraph 202 of the NPPF states:


202. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use.


There can be little doubt that the proposal resulted in a less harmful development when compared with the fallback scheme, a scheme which was described as “damaging” by the Gardens Trust.


The Gardens Trust expressed concerns over the effect of a series of incremental developments at Shortgrove in an article titled “Developments at Shortgrove eroding Capability Brown landscape” which was published on their website in August 2020, presumably as a direct response to our Class Q application. That article stated, “while each individual development may not in itself be particularly damaging, the cumulative effect is to erode the significance of this important historic park. This is a common issue encountered by our casework team, and one that is recognised by Historic England.”


Historic England stated in their pre-application response dated 4th May 2022, in relation to the further amended designs:


“We recognise the effort that you and the applicant have taken to respond to NPPF paragraph 195 (and NPPG) in developing a design more sensitive to the significance of the registered park and garden than what was originally proposed. We also recognise that the revised proposals remain preferable to the extant permission for conversion to 4 dwellings under Class Q (ref UTT/20/0963/PAQ3).”


In making an assessment of any application for development, a decision maker is bound to consider what the alternatives might be for a site: in terms of what could occur on the site without any permission at all (historic use rights) or using permitted development rights for alternative forms of development.


As such, whilst the officer found conflicts with various policies of the development plan, the neighbourhood plan and the NPPF, he ulimately found that all were overcome by the fallback position, which would result in a greater degree of harm when contrasted with the proposal before him.

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