Author Archives: Farhana Hussain

 

Our Girl On The Tube takes on the Three Peaks Challenge in 28 hours

 

This last weekend 29th September saw our girl on the tube take on the challenge of climbing the three peaks in 24 hours to raise money for Breast Cancer Now just at the start of breast cancer awareness month. Having checked the weather over the days before, things were looking rather gloomy. But we can safely say Kathryn got off all three mountains and was back in the office on Monday morning with only sore calfs thighs and shoulders.

So what’s it all about?

The national three peaks challenge sees participants try to climb the three highest mountains and travel between the three within 24 hours.

Ben Nevis or “The Ben” is the highest mountain in Scotland at 1,344.527m (or 1,345m on the new Ordnance Survey maps when modern GPS systems found a few extra metres) At the summit are the ruins of an observatory which closed in 1904.


Scafell Pike is located in the Lake District National Park and is  the highest mountain in England at 978 miles. This mountain is climbed over night.

Mount Snowdon located in Snowdonia National Park is the tallest mountain in Wales at an impressive 1085m in height. Climbing the pyg track up…

…and the tourist route down, Snowdon proved to be the most challenging with winds and gusts of about 75 miles per hour.

In all the challenge involved 42 kilometres (26 miles) of walking and approximately 9,600 feet of ascent, with total travel between the mountains of around 475 miles.
Kathryn’s been raising money for Breast Cancer Now in memory of her mother who died in 2001 at the age of 48 after being diagnosed with breast cancer in 1996. One in eight women in the UK will face breast cancer in their lifetime. And every 45 minutes, another woman dies from the disease.

With the aim of ensuring that by 2050 every person who is diagnosed with breast cancer survives their diagnosis Breast Cancer Now spend a significant proportion of their funds on research for risk and prevention, early detection and diagnosis, treatment and secondary breast cancer.

Find out more at: http://breastcancernow.org/breast-cancer-research

You can still donate at: https://www.justgiving.com/fundraising/kathryn-waldron1

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Could Micro Housing alleviate the housing crisis or is it a passing fad?

 

Urbanissta’s Legal Beagle – Farhana Hussain, examines the topic of micro housing in the UK.

  • What are micro homes?
  • Who would be the target audience?
  • Has the need for larger homes become less of a priority?
  • House costs and affordability

Farhana’s findings…

I recently submitted my dissertation and it was centred upon whether micro housing could solve the housing crisis. I’ve observed a number of micro housing schemes popping up across London, so, I thought, why not do a blog on my findings and address what’s been making the headlines. Is there room for micro homes in this current climate, how affordable are they and could they really alleviate the housing crisis?

Context

I find that there is a common perception that rising housing prices have forced developers to sacrifice space and quality by seeking higher density and higher revenue per sqf to offset rising land value and construction costs and so offer affordable housing. It is thus widely believed that the introduction of micro housing capitalises on this pattern. Apartments and houses that are small by traditional standards are currently being sold at 20 per cent below market rate in London, and are now being considered in urbanising locales, particularly high-density cities where affordability is stretched.

What are Micro Homes?

A working definition of micro housing is a unit of less than 500 sq.ft, with a fully functioning kitchen, bathroom and WC. A small room at 160 sq.ft with a communal kitchen, bathroom, etc., is not to be considered a micro home as it does not fall under this definition. It is difficult to pinpoint the ideal unit size. Furthermore, for micro homes to gain popularity on a meaningful scale, and so potentially alleviate the housing crisis, it is important to understand that these homes need to be targeted at a specific audience and serve a specific purpose, particularly if they fall below minimum space standards.

Who would be the target audience?

London has a target to deliver a minimum of 55,000 homes per annum for the next decade. As in the image below, the biggest age group in Inner London is 25 to 29 olds and in Outer London it is 30 to 34. The Households and Household Composition in England and Wales report for 2001-2011 showed an increase of 564 single-person households, the highest proportion of which was in London (35%). With the highest population in London being below the age of 30, it is evident that not enough is being done to house this audience. This is reinforced by the 37% over the ten-year period in the number of 20 to 34-olds living with parents.
Has the need for larger homes become less of a priority?

Yes and no.

The needs of society are not the same as they were at the time of two World Wars. The economic status of the country, digitisation, lifestyle changes and under-occupancy may all have contributed to the reduction in minimum standards, while the increase in one-bedroom households is more likely due to cost limitations rather than personal preference. Nevertheless, the evident demand for one-bedroom homes in London, where the largest age demographic is between 25 and 29, indicates that there may be a market for micro home. Micro housing appeals mainly to younger audiences for whom location, economics and privacy are important, or to older generations looking to downsize.

House costs and affordability

Due to the housing crisis, housing costs of all types and tenures are rapidly increasing across the UK, particularly in London and the South East. Affordability, however, is not just confined to private ownership: tenures of all types are now disproportionate compared to average income, with almost three million households in the UK now spending more than a third of their income on housing. Thus, it is widely agreed that the supply of affordable housing is at an historic low and requires urgent policy intervention. In order to improve affordability, it is estimated that 300,000 new homes are needed in England every year, more than double the current rate of building.

London has seen a slight increase in affordable housing, with many local authorities making the provision of affordable housing a prerequisite in securing planning permission. There has been a rise in shared ownership and sub-market rented homes, yet questions remain over just how affordable they really are, and to whom. Some of these ‘affordable’ homes require the occupiers to be on incomes over £60,000, double the average London household income. Clarity over what is meant by affordable housing is therefore paramount, and to whom we are relativising the housing cost. With middle-income households demanding homes at 60-80% of market prices, this by no means infers a reduction in the need for social rent for low-income households.

Within the overarching definition, the London Plan’s supporting texts set out criteria to assess affordability based on different schemes:

Affordable housing includes social rented, affordable rented and intermediate housing… and should: (a) meet the needs of eligible households including availability at a cost low enough for them to afford, determined with regard to local incomes and local house prices; (b) include provisions for the home to remain at an affordable price for future eligible households; or (c) if these restrictions are lifted, for the subsidy to be recycled for alternatively (London Plan, 2016).

 

Further details for each scheme stipulated by the policy are listed in the table below

 

Type of housing Criteria
Social rented housing Guideline target rents are determined through the national rent regime or provided by other bodies under equivalent rental arrangements to the above, agreed with the local authority or with the Homes and Communities Agency.
Affordable rented housing Affordable rent is subject to rent controls that require a rent of no more than 80% of the local market rent.
Intermediate housing Affordable to households whose annual income is in the range £18,100-£64,000. Two bedrooms, suitable for families; the upper end of this range will be extended to £74,000.
London living rent Yet to be rolled out by the government.

 

 

Despite the government’s efforts and the 56%  increase in residential consents, closer analysis indicates that there has not been any increase in the areas where affordability is most stretched ( see image below. Source: Savills, 2017).

Figure 14. Affordability in England
Source: Savills, 2017

It is, therefore necessary for developers to take advantage of market demand in order to drive the success of their market-sale programmes and generate subsidy for affordable housing. Priorities need to be shifted from aimlessly building homes to homes being built where they are most needed. Ultimately, for micro homes to make a meaningful contribution to the housing market, they should be deployed in areas of stretched affordability, particularly in London and the South East.

Can Micro Housing alleviate the housing crisis?

The UK housing crisis is made up of a number of interconnected issues, including the lack of construction workers, reduced LPA powers, a lack of transparency, increased demand through deregulation, and lax policy-making. Some have argued that the housing reform to this point, if anything, has exacerbated the problem. This would suggest that the government need to look first at stabilising the market before the crisis can be solved in the long term before diving head first into eliminating the crisis.

As highlighted above, 25 to 29-olds are the largest age demographic in Inner London; in Outer London, it is 30-34 year olds. The Households and Household Composition in England and Wales reported an increase of 564,000 single-person households between 2001 and 2011, the highest proportion of which is in London holding (35%). Taking both the above indicators together, it is clear that not enough is being done to house the under-thirty market in London.  Come micro housing developers are marketing micro homes as a potential solution for Inner Londoners, a one-bed micro home is currently being marketed at over £200,000 (after 20% discount): this would require an average annual income of at least £40-50,000. I n reality, the average for those aged between 25 and 29 is £28,000. This would suggest, therefore, that the micro housing schemes currently being implemented in London are not serving their original purpose. Moreover, it is understood that the Mayor of London has already invested millions of pounds into the development of micro homes, without any clearly-advertised criteria against which these schemes will be assessed. Given that such schemes are in their relative infancy, it would appear that LPAs are taking the initiative without empirical supporting evidence.

Conclusion

It appears, in practice, that current micro housing developments are solely targeting those on the higher end of this scale, effectively ignoring the majority of those who fall within it. As such, a new definition will need to be considered. Affordability must take into account expenditure, commuting costs, dependents, and a number of other socio-cultural determinants. Given that salaries and house prices differ from borough to borough, there is an argument for local authorities to be given greater powers to assess what is genuinely affordable in their areas, rather than being held to a standardised yet ultimately ambiguous definition. Furthermore, given how space standards have decreased over time, and will most likely continue to do so, the definition of micro housing may need to shift with the times as well: unless micro units are launched as a separate entity or affordable housing scheme, they may no longer by necessary as small one-bedroom properties become the norm.

Don’t miss out on Farhana’s case law reviews. Tracking planning decisions and proposed developments. Read more about Urbanissta’s Legal Beagle. 

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From London to Brazil

 

Brazil … where the city meets the sea.

A country that is famous for its natural beauty, carnivals, beaches and rainforests. It is the largest country in South America with 4655 miles of coastline. Brazil boasts seaside splendour, vibrant culture and a wide range of tropical and subtropical landscapes.

Urbanissta’s Legal Beagle, Farhana Hussain has journeyed through parts of Brazil. Visiting places such as Recife – situated in an impressive coastal setting with an intriguing historic centre. Followed by Sao Paolo – an urban area full of high rises, crowded commercial spaces and thundering traffic.

Read on to find out more about Farhana’s journey in association with the University of Westminster.

It’s all about the experience. It’s an education, an observation of the governance, inefficiency, opportunities, developments and constraints.

Brazil … a place where serious planning and strategies are needed.

Fahrana was accompanied by others who were organized into multidisciplinary groups boasting knowledge from architecture, planning, governance, urban design and law.

Farhana’s notes…

16th May – 3rd June 2017

It’s been roughly one month since I returned back from a 2 week trip to Brazil – where the sun shines on the wealth, the poverty and the potential.

It was an experience that I will never forget, organised by the University of Westminster. My colleagues and I worked with INCITI and proposed a master plan to the NGO with our vision in transforming Recife into a sustainable City. Going beyond the boundaries of science and business to include human development, values and different culture.

We travelled to Recife, Olinda and Sao Paulo with our sketch books in hand and explored the culture, food and architecture to get an insight on the challenges and opportunities faced by the coastal city.

Recife

Recife, a beautiful coastal city sits between two rivers, Beberibe and Capibaribe. We stayed in a hotel by the coast with a view of the city from a distance. Upon arrival, I wondered why Recife looked like it was stuck in the past, lagging behind its sister cities, Sao Paulo and Rio who were well advanced, cosmopolitan and vibrant. But somehow, Recife had an undeniable charm which I had not seen in any other city – it embraced and worked with this quirk.

I came to learn that the same charming city has a slightly darker history which has contributed to its character and eerily quiet streets. The historic city is characterised by listed buildings protected by the Protection of the Historic Heritage (DPH), most of which are vacant due to the high costs involved in maintaining and renovating them. Unfortunately, there are no policies imposing taxes on vacant buildings or offering incentives to rent out the properties which in effect leave them neglected. Further research showed that these million dollar buildings are owned by politicians – the same people who create the laws and policies.

It became evident as to why the middle/lower class were being priced out. Strangely enough – there isn’t a housing crisis in Recife, there appears to be a political battle and a desperate need for policy reform and governmental restructure.

History

Recife Antigo consists of the initial Portuguese settlement in the 16th century around the port. Sugar cane production from Pernambuco was delivered to Portugal through Recife’s port. While Recife had port functions, Olinda was the capital. In 1630, the Dutch invaded Pernambuco, set Olinda partially on fire and Recife became the seat of the Dutch government. Count John Maurice of Nassau-Siegen became Governor General of the Dutch colony and built a new town on a neighbouring island. This city was named Mauritsstadt and the Palacio do Campo das Princesas, seat of the State of Pernambuco government, is built on its ruins.

The Dutch were forced out in 1654 of a Recife with good infrastructure, for they had built canals and improved the port and the defences of it. A flourishing Jewish community lived in Recife under them and they had to leave it because of the Portuguese Inquisition. Thus, a group of 24 Portuguese Jews who had previously migrated from Portugal to the Netherlands because of antisemitism, headed further North with the Dutch, where New Amsterdam –present-day Manhattan– was founded. The first Synagogue built in the Americas, the Kahal Zur Israel Synagogue, is located in Recife Antigo, on Rua do Bom Jesus, formerly Rua dos Judeus, or Street of the Jews. The Portuguese synagogue was founded in lower Manhattan and it is located on Central Park West in Manhattan nowadays under the name Portuguese & Spanish synagogue.

Week 1 – Week one involved exploring Recife. We walked around the bustling markets – unlike the markets found in London, the market in Recife was unregulated and organic which offered a great spot for the locals to get together and socialise. I immediately noticed the divide in rich and poor after witnessing high levels homelessness.

The history of Old Recife shows that the invasion of the Dutch in 1630 –is when Recife developed its first urban plan. This explained the Dutch influenced architecture. Unlike the UK, who places great importance on preserving the character of a designated area – Recife was characterised by old 18th century buildings adjacent to modern buildings. The juxtaposition added character.

Having explored old Recife and carried out some research, we came across three areas of concern:

  • Governance
  • Movement
  • Social (and economic)

Week 2 –The second week revolved around preparing the presentation for INCITI. We were organized into multidisciplinary groups boasting knowledge from architecture, planning, governance, urban design and law. It was interesting to share knowledge and plug in gaps using knowledge from others. I was allocated a role in governance. My role included researching the governance system in Recife. The following were identified:

Governance:

  • Legal instruments – IPHAN Institute of National Historical and Artistic Heritage is a federal institution created in 1937
  • Monitoring and control system-completely absent from planning activities from municipalities
  • Community articipatory system restricted- developer dominant – institutional structures don’t change due to politicians not willing to give up their positions
  • NGOs and academics usually the only ones to react to directives imposed in respect of the built environment
  • Built environment – conservation area – most of the historic buildings along the water front are privately owned – these are large assets worth millions of dollars (expensive rent and maintenance)

The following key stakeholders and their roles were identified:

In order to tackle the issues found, the following were proposed:

  • Set up inter-governmental forum
  • Monitoring and evaluation system (early warning system – pilot projects)
  • Community based strategy (activation)
  • Improve accountability transparency
  • Ensure transparency and equal distribution of rights and privileges

A greater number of potential competitors lead to a greater possibility that the economic conditions stemming from competition are more advantageous to users.

  • Capacity building – education
  • Penalty system for tax dodgers
  • Revenue collections
  • Community and trust – housing benefits
  • Reforming of conservation policies

We came to the conclusion that the above could be achieved using the following strategy:

  • Pilot project
  • Public/private partnership
  • Participatory budgeting / compulsory purchasing
  • Community consultation prior to implementation
  • Devolution of powers

The second area of concern surrounded movement.

Transport and Movement:

The following observations were noted during our stay:

The following opportunities and constraints were identified:

Opportunities:

  • Promote tourism in the area
  • Increase permeability to Estelita
  • Better integration between metro, BRT, buses, bicycles and water bus
  • More bicycles hubs and cycle paths
  • Use the water ways
  • Produce a bus map for tourists
  • Separate lanes for bus, bicycles and cars
  • Fix the drains and pavements
  • Develop a pedestrian area around the market
  • Constraints: Main avenue divides east and west
  • Poor access to waterfront at Estelita
  • Concentration of buses in the north
  • Lack of dedicated cycle paths
  • High cost of public transport with poor connections
  • BRT operates only in the north of the island
  • Historic urban fabric

Having identified the opportunities and constraints, the following suggestions were made:

  • Maintain and improve the existing infrastructure
  • Fix the drains
  • Repair the pavements and roads
  • Dedicated cycle path along waterfront
  • Move the existing BRT station, connect to the metro, extend to Estelita
  • Water bus and terminal
  • Rehabilitate the tram for tourists
  • Make Estelita permeable
  • Remove the market from Danta Barreto and create a green boulevard
  • Adjust ticket pricing to allow changing mode of transport

Opportunities:

  • It has architectural assets
  • Social interactions
  • Big space for movement
  • It has well established grid
  • River can be utilised
  • Lively street activities (street vendors)

Constraints:

  • Underused public space
  • State of the road
  • Land use zoning
  • Priority have been given to cars
  • Lack of green open space
  • Poor maintenance old buildings
  • Lack of housing

Strategy – Public realm

  • Improve the pedestrian pathways (Shade, continuity, material, greeneries)
  • Maintenance of sewage systems
  • Improve the public spaces
  • Dedicated bicycle and bus lanes
  • Provide more street elements (bench, trash bin, etc.)

Tenure and building typology:

  • Shopkeepers mainly own their narrow frontage multi storey properties and live elsewhere
  • Upper floors underused as storage space
  • No vertical mixed use (see also regeneration of Recife Antigo)
  • Unable to afford upkeep of historic building fabric (Catholic church as well it seems)
  • Only Chinese traders live above their shop
  • Potential for comprehensive upgrading of paved areas/public realm

Plans: Plan for Novo Recife rejected by popular protest

Redesign to allow connection on the boulevard to Boa viagem.

Malakoff Tower, in Recife Antigo

Recife Antigo (Old Recife) is the historical section of central Recife, Brazil. It is located on the Island of Recife, near the Recife harbor. This historic area has been recently recovered and now holds several clubs, bars and a high-tech center called Porto Digital.

Sao Paolo

The last 3 days were spent in Sao Paulo – a vibrant city compared to sleepy Recife. Despite the 36 degree weather and its metropolitan atmosphere – it seemed dark. I noticed numerous high rise buildings, of all shapes and sizes cramped together in the city center hub. They created visual interest but seemed to block out the sun which caused a shadow above the city. Despite this, the city was buzzing, unlike Recife. The streets were filled after midnight with office workers going out for after work drinks.

In a way, it reminded me of London.

My travels came to an end. I made many discoveries and I hope that the battle against corruption in the allocation of public sector engineering and infrastructure projects are successful.

 

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The Urbanissta Legal Beagle is on the case (July’17)

 

Welcome to the Urbanissta Legal Beagle’s case law reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgments and decisions that might be useful to you, day to day.

We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. Remember to keep an eye out for further iterations, in the weeks to come!


This month, our Guest barrister, Giles Atkinson from 6 Pump Court Chambers has also provided some very interesting insights.

 

 

1. Is there a general presumption in favour of Sustainable Development?

Barwood Strategic Land II LLP v East Staffordshire BC and Secretary of State for CLG [2017] EWCA Civ 893.

Following the Supreme Court’s decision in Suffolk Coastal[1] earlier this year, we now have an important decision from the Court of Appeal on the scope of the ‘presumption in favour of sustainable development’ in the NPPF.  It is particularly important because different Judges in the High Court have arrived at different conclusions on the topic, notably Coulson J in the Wychavon case[2] and Jay J in Cheshire East[3].

In the present case, the appeal was against a decision of the High Court to quash an Inspector’s decision allowing permission for ‘up to’ 150 houses in Burton upon Trent.  The Inspector had found that the proposal was in conflict with the development plan but that this conflict was outweighed by other material considerations.

It was agreed that the central issue for determination by the CA was whether the Inspector misdirected himself in performing the task set for him under section 38(6)[4] by mistaking the true meaning and scope of government policy for the ‘presumption in favour of sustainable development’ in the NPPF.

The Court of Appeal’s ruling was given by Lindblom LJ, with Underhill LJ and Gross LJ in agreement.  Lindblom LJ begins by reminding us that the NPPF is not a statute nor does it have the same status as the development plan.  It is one of the other material considerations which section 70(2) of the TCPA 1990 requires the decision maker to have regard to alongside the provisions of the development plan, when dealing with an application for planning permission.  Indeed, the NPPF itself acknowledges its own place in the plan-led system of development control.  The weight to be given to the NPPF is for the decision maker, of course, although the CA observes that it is likely to command significant weight on account of being Government policy.

The Court then sets out what the NPPF has to say about the presumption in favour of sustainable development, referring to the paragraphs within it that are no doubt familiar to readers of this column.  Paragraph 14 is set out in full.

The NPPF’s imperative for an up-to-date local plan is also spelled out, particularly in the context of policies for housing, notably paragraph 49[5].  Lindblom LJ then distils 5 basic points from the SC decision in Suffolk Coastal to show how the presumption in favour of sustainable development at NPPF 14 operates when a LPA cannot demonstrate a 5 year supply.  Importantly, he finds that they provide the context for cases such as the present one when the LPA does have an up-to-date local plan and can demonstrate a 5 year supply of housing.

The Court then tackles the differing approaches that have been taken by the High Court in Wychavon and Cheshire East.  The essential difference is that, in the former, Coulson J found that the presumption in favour of sustainable development exists across the NPPF not just at paragraph 14, whereas in the latter Jay J found that the determination of whether a development was sustainable or not can be answered by following the path set by paragraph 14 alone – an algorithm he called it – not by reference to other parts of the Framework.  Jay J’s view had subsequently been preferred by Holgate J in Barker Mill Estates[6].

The CA in the present case agreed with the analysis made by Holgate J in Barker Mill Estates and takes three points from it:

  • The “presumption in favour of sustainable development” in the NPPF, unlike the presumption in favour of the development plan in section 38(6) of the 2004 Act, is not a statutory presumption. It is only a presumption of planning policy, which requires of a planning decision-maker an exercise of planning judgment within the balancing exercise mandated under section 38(6) and undertaken in accordance with the principles in the relevant case law.

 

  • Paragraph 14 of the NPPF describes what the “presumption in favour of sustainable development” means, explaining in clear and complete terms the circumstances in which, and the way in which, it is intended to operate. The presumption, as described in paragraph 14, is the so-called “golden thread running through both plan-making and decision-taking”. There is no other “presumption in favour of sustainable development” in the NPPF, either explicit or implicit, and no other “golden thread”.

 

  • When the section 38(6) duty is lawfully performed, a development which does not earn the “presumption in favour of sustainable development” – and does not, therefore, have the benefit of the “tilted balance”[7] in its favour – may still merit the grant of planning permission. On the other hand, a development which does have the benefit of the “tilted balance” may still be found unacceptable, and planning permission for it refused. This is the territory of planning judgment, where the court will not go except to apply the relevant principles of public law. The “presumption in favour of sustainable development” is not irrebuttable. Thus, in a case where a proposal for the development of housing is in conflict with a local plan whose policies for the supply of housing are out of date, the decision-maker is left to judge, in the particular circumstances of the case in hand, how much weight should be given to that conflict. The absence of a five-year supply of housing land will not necessarily be conclusive in favour of the grant of planning permission. This is not a matter of law. It is a matter of planning judgment.

Lindblom LJ held that the Inspector’s decision in the present case had to be quashed.  The mistake that the Inspector had made was that having found the proposals to be inconsistent with the development plan he had then ‘resurrected’ the presumption in favour of sustainable development.

The correct analysis is that if a proposal is inconsistent with the development plan then it cannot be said to benefit from the presumption in favour of approval – the presumption has at that stage been rebutted and, as para 12 NPPF makes clear, if a proposal is inconsistent with the development plan it should be refused.  That does not mean there is no discretion outside of para 14, or that permission may not nonetheless be granted, but it does mean the discretion does not include a presumption in favour of approval and, moreover, the starting point is not neutral but is adverse to the grant of permission.

The Inspector had been influenced by the faulty reasoning of the decision in Wychavon by taking account of a wider, general presumption in favour of sustainable development that does not exist in the NPPF outside the confines of paragraph 14.

The correct approach when a proposal is found to be contrary to the DP is to discount the presumption in favour of sustainable development at para 14 NPPF from any further part to play in the decision.  This presumption, once discounted, cannot be ‘acquired’ or resurrected from any other parts of the NPPF.  By this analysis the CA has made a distinction between the concept of sustainable development which is indeed promoted throughout NPPF and the operation of the presumption in favour of sustainable development (the ‘golden thread’) which is governed by paragraph 14 alone.

The final remarks of Lindblom LJ are important, emphasising again the oft-made Judicial point about the importance of planning judgment:

  1. I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system, or in proceedings before the Planning Court, or in subsequent appeals to this court. The court should always resist over-complication of concepts that are basically simple. Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law (see paragraphs 8 to 14, 22 and 35 above). I would endorse, and emphasize, the observations to the same effect made by Holgate J. in paragraphs 140 to 143 of his judgment in Trustees of the Barker Mill Estates.

 

Power to the planners!

Download Decision here.

[1] Suffolk Coastal DC v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East BC [2017] UKSC 37

[2] Wychavon DC v SoS for CLG and Crown House Developments Ltd [2016] EWHC] 592 (Admin)

[3] Cheshire East BC v SoS for CLG [2016] EWHC 571 (Admin)

[4] Of the Planning and Compulsory Purchase Act 2004: If regard is to be had to the development plan for the purposes of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.

[5] Housing applications should be considered in the context of the presumption in favour of sustainable development.  Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites.

[6] Trustees of Barker Mill Estates v Test Valley BC and SoS for CLG [2016] EWHC 3028 (Admin)

[7] This is the now widely accepted term for the second bullet of the ‘decision taking’ limb of paragraph 14 NPPF.

2. Under supply of housing results in permission for up to 400 dwellings.

Appeal Ref: APP/V0728/W/16/315833
Appeal Decision Date: 13th June 2017
Appellant: Theakston Estates (Investments) Ltd
Respondent: Redcar & Cleveland Borough Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission

Background

An appeal was made by Theakston Estates (Investments) Ltd against the non-determination of a planning application for residential development (Use Class C3) together with access, infrastructure, open space and landscaping with all matters reserved except for access at land west of Flatts Lane, Normanby, Middlesbrough TS6 0SR.

In allowing the appeal and granting permission the Inspector gave consideration to the three main issues.

  • whether the council can demonstrate a five-year land supply
  • the effect on future occupants in respect of accessibility
  • Whether the material considerations outweigh the conflict with the Development Plan

Five-year Land Supply

The Council put forward an OAN calculation of 206 dpa for the 5 year period starting on April 2016. The Appellant on the other hand calculated a figure of at least 358 dpa. The Inspector favoured the appellants AON calculations and considered the lower end of the figure as such, 335dpa to be a robust figure which is in line with the conclusions in respect of Longbank Farm.

With respect of the supply of deliverable housing sites, the Council contended that there is a supply of 1,839 dwellings over the 5 year period. The Appellant disputed the deliverability of 2 sites and contended that there was no clear evidence that Spencerbeck Farm and The Dunes would be implemented within 5 years  The Inspector however concurred with the Council that the sites were deliverable within the timeframe.

The Inspector noted that there has been an undersupply in the provision of housing in 3 out of the past 5 years. The Inspector looked to the Cotswold judgement and considered the housing over a range of time periods. He found that there was an undersupply supply in 3 out of 10 years and 4 out of 14, with a significant undersupply as a whole since 2004/5. As such, a 20% buffer was applied. Consequently, this resulted in the decision that the Council could not demonstrate a 5-year supply of deliverable housing sites with only a supply of about 4.27 years.

Impact on future occupants

“The appeal site is situated to the south of Normanby, separated from the existing built up area by the A174 dual carriageway.  A bridleway passes through the site from Flatts Lane to the Woodland Country Park and there are informal paths to the west of the site leading to a pedestrian underpass beneath the A174, which connects with informal paths to the north”

It was acknowledged that the appeal site was not close to services, shops and facilities for journeys on foot, many services and facilities and employment locations were within the suggested maximum acceptable walking distances. The Appellant proposed various improvements to the west side of Flatts Lane, the bridleway and the underpass to provide pedestrian links from the appeal site to Ormesby.  A footway/cycleway was proposed from the underpass along the western edge of the appeal site to the country park. The Inspector considered the routes to Although the target mode of walking was 8.1%, the Inspector did not consider this to be unacceptable given that it is reflective of the existing urban area to the north. The proposal was said to accord with Core Strategy Policy CS1 and Core Strategy Policy CS19 as access to shops and community facilities and services by means other than the private car was acceptable. The scheme was therefore considered to be in a sustainable location.

Material Considerations

The Inspector noted that the scheme conflicted with key policy DPD Policy DP1 concerning the location of development as such it did not accord with the development plan as a whole. It was found that “the purpose of the development limits is to contain future development and to make a clear distinction between the urban area and the countryside.  The appeal proposal conflicts with DPD Policy DP1 through the extension of the urban area beyond the defined limits, with the appeal scheme not meeting one of the exceptions as set out in the policy”. It was acknowledged that the appeal scheme would give rise to some harm through development encroaching into agricultural land – as the scheme did not show that it would present unacceptable pressure upon the Eston Hills, nor have any adverse effect on the setting of the North York Moors National Park such as change was not considered as unacceptable.

Conclusion

The Inspector concluded that Policy DP1 did not serve to provide a 5-year supply of deliverable housing sites. Strict application of this policy would restrict development as such Paragraph 14 of the NPPF was invoked. When looked at in conjunction with the NPPF, Paragraph 14 of the NNPF indicates that where relevant policies are out of date permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken. It was concluded that on balance, the adverse impacts identified did not significantly and demonstrably outweigh the benefits of the proposal.

It was also noted that the Council could only demonstrate a 4.27 years land supply, as such there was presumption in favour of sustainable development. Significant weight was attached to the provision of 400 units with 15% of which would be affordable. Modest weight was attached to the wider benefits to the community such as the proposed bus service, and ongoing management and maintenance and ecological mitigation. The social, economic and environmental benefits of the appeal scheme outweighed the adverse impacts identified, consequently, the development would represent sustainable development.

On the basis of the above, the appeal was allowed.

Download Decision here.

3. Development of 146 dwellings allowed in the countryside as the economic benefits were seen to outweigh the harm imposed.

Appeal Ref: APP/R0660/W/15/3135683

Appeal Decision Date: 14th June 2017
Appellant: Richborough Estates
Respondent: Cheshire East Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission

Background

An appeal was made by Richborough Estates against the failure to give notice within the prescribed period of a decision on an application for outline planning permission. The development proposed to develop 146 dwellings with associated infrastructure and open space provision.

In allowing the appeal and granting permission the Inspector gave consideration to the following issue:

  • Whether having regard to material planning considerations, any adverse impacts of the development proposed would significantly and demonstrably outweigh any benefits, when assessed against the policies of the Framework as a whole

Tilted Balance

The site is located in the open countryside and there was no dispute that the development conflicted with the relevant policies in the development plan. The Council accepted that they could not demonstrate a 5-year land supply. According to the Inspector, Paragraph 49 of the Framework was engaged via the tilted balance set out in paragraph 14 of the Framework. The adverse impacts that would arise from landscape, visual impact and loss of agricultural land was not significant with the Inspector attaching modest harm to the same. Significant benefits would come with the development which would amount to social, economic and environmental growth. The development was said to boost the supply of housing in the area and as such, the adverse impacts of the development did not significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework.

On the basis of the above, the appeal was allowed.

Download Decision here.

4. Development allowed for 32 dwellings located next to a listed building and within the AONB.

Appeal Ref: APP/K1128/W/16/3156062
Appeal Decision Date: 5th June 2017
Appellant: H2land
Respondent: South Hams District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission

Background

An appeal was made by H2land against the refusal to grant permission for residential development of 32 dwellings at Garden Mill, Derby Road, Kingsbridge.

In allowing the appeal and granting permission the Inspector gave consideration to four main issues.

  • The effect on a Grade II listed building
  • The design of the scheme
  • Whether the scheme makes adequate provision for affordable housing, education and open space facilities
  • The effect on South Devon Area of Outstanding Natural Beauty

Buttville House

The site is located to the south-west of the listed building. The site is enclosed by vegetation and trees along Derby Road. The appellant proposed to retain and supplement the trees and vegetation at the north-east of the site which is closest to the listed building in order to screen the development. It was acknowledged that views of the site from the garden of Buttville House is less enclosed by vegetation than at the point closer to the listed building, Derby Road would retain its essentially rural character and thus the immediate setting of the house and garden would be little changed. Furthermore, changes to the landscape would be confined to the south beyond Derby Road – the sylvan character would be retained. The Inspector considered that the relationship of the listed building to its gardens and surroundings would not be harmfully eroded. It was decided that with effective landscaping, the development has the capacity to preserve the setting of the listed building and its heritage significance. As such, no conflict was identified with Policy DP6 of the Development Policies Development Plan Document 2010 (DPD).

Design

The site forms part of allocated site K4 with an allocation for up to 50 dwellings. This includes the Garden Mill industrial estate and Buttville House. As the land within K4 is in multiple ownership, a co-ordinated approach was considered difficult. No evidence was put forth to show that the site inhibits or prevents future development, north of Derby road. The Inspector decided that the absence of an allocated site wide development strategy was not a reason to resist development and on the evidence before provided no basis on which to conclude that the proposal would prejudice development of K4 as a whole.

The Inspector further note that “the mix of these house types on a relatively small site is unconventional and there is a wide disparity between the low density of the green roof houses and the very high density of the terraces.  There is no evidence to suggest however that the design of the lower density housing has impacted on the quality of the design and layout of other parts of the site.  Rather the design overall appears to respond principally to the slope, but also to adjoining development including the setting of Buttville House (considered above) and the nature and layout of the existing houses to the south”. She concluded that there was nothing intrinsically fundamentally wrong in the design of the various elements and the scheme as a whole would express a clear design strategy and an overall legible coherence. In terms of affordable housing, the scheme made a provision of 12.5% whilst policies AH1 and AH2 sets a target of 55% on allocated sites. However, the viability assessment produced by the appellant was agreed with the Council.

With respect to education and open space facilities, the Council sought an education contribution of £87,556.80 and an Open Space contribution of £29,260.  No provision is made for either of these within the submitted planning obligations.  The Inspector noted that the Council was unable to identify what any sums collected would be spent on. The Council further sought a financial contribution of £380 per resident towards the increase or improvement of the sports facilities at the Recreation Ground. The officer’s report however noted that recreational facilities are in place and equipped to a reasonable extent at present.  The Inspector decided that such a contribution would fail to meet the tests of being necessary to make the development acceptable in planning terms or be fairly and reasonably related in scale and kind to the development. In light of this, it was concluded that the failure to make these contributions do not weigh against the proposal.

AONB

The Inspector noted that the appeal site lies within the South Devon Area of Outstanding Natural Beauty (AONB) and within Devon Character Area 49 – Salcombe to Kingsbridge Estuary. The Inspector concluded that “the site is visually contained, lies immediately adjacent to existing development and in this context I consider a development of 32 dwellings, retaining walls and associated infrastructure would not amount to major development in the AONB.  Paragraph 116 of the National Planning Policy Framework (the Framework) is not therefore engaged. Nevertheless for the reasons given I conclude that the proposed development would have a harmful impact on the landscape and scenic beauty of the site contrary to DPD Policy DP2 which requires development to conserve or enhance the landscape character.  Beyond the site boundaries any harmful effect on the AONB landscape would at worst be negligible.   Whilst, in accordance with paragraph 115 of the Framework I give great weight to conserving landscape and scenic beauty in the AONB, the harm in this instance though present would thus be very limited”.

Conclusion

The Site does not form part of any proposed allocation in the emerging local plan, as such it was indicated that development was unsuitable. However, as the emerging plan is currently in the early stages of the plan making process  – limited weight was given to the same. The site has been identified in the adopted plan as an allocated site and the Council accepted that the proposal complies with policy K4. The Inspector found no prejudice to the rest of the allocation as a result of the development. In terms of housing supply, the Council could only demonstrate a 2-year supply. Although the development would deliver less than the policy target, of affordable home, the inspector found that the scheme nevertheless would accord with the Council’s policies and provide much needed homes in the area. Considerable weight was attached to this benefit.  As noted above, the listed building would be preserved and there would be no harm in terms of design quality, the scheme therefore accords with the development plan. Limited harm would be presented to the AONB and it was concluded that the considerable benefit of the provision of housing is sufficient in this instance to outweigh that harm.

On the basis of the above, the appeal was allowed.

Download Decision here.

5. Development of up to 50 residential dwellings allowed despite the impact on character and appearance of designated area.

Appeal Ref: APP/E2205/W/16/3159895
Appeal Decision Date: 12th June 2017
Appellant: Gladman Developments Limited
Respondent: Ashford Borough Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission

Background

An appeal was made by Gladman Homes against the refusal to grant permission for “up to 50 residential dwellings (including up to 35% affordable housing), introduction of structural planting and landscaping, informal public open space and children’s play area, informal village green area, surface water flood mitigation and attenuation, vehicular access point from The Street and associated ancillary works. All matters to be reserved with the exception of the main site access”.

In allowing the appeal and granting permission the Inspector gave consideration to two main issues.

  • effect of the proposed development on the character and appearance of the surrounding area, including, the Low Weald National Landscape Character Area, the Beult Valley Farmlands Character Area and the entrance to and visual and functional amenity of Smarden
  • The effect of the proposed development on users of the public right of way along the southern boundary of the site

Character & Appearance

The site is located to on the outskirts of Smarden covering 3.3ha of open field. The site was previously used for agricultural uses and sits within the Low Weld National Landscape Character  It was acknowledged that the development would change the character of the open arable field and thus would have a negative effect. However, the appellant proposed to retain the existing field boundaries and take advantage of existing mature tree and field boundary in order to screen the majority of its boundaries and supplement and enhance where appropriate.  The Inspector concluded that there would be some localised harm to the landscape character of the area, however this harm would be contained an limited with appropriate mitigation.

Concern was also raised about the visibility of the site from the public footpath and the access to the village when entering the village from the open countryside and beyond. The Inspector however stated that the retention of the boundary hedge would retain character of the landscape and serve to reduce the impact from the development and additional landscaping would reduce the intrusive visual impact. It was concluded that although there would be some minor localised harm to the entrance to the village along the road frontage, this would be mitigated by the retention of the boundary hedge, and the structural landscaping.

Reduced weight was given to policies TRS2 and TRS17 in the TRSDPD and policy CS1 of the Core Strategy due to the council falling short of the five-year housing supply as such, the tilted balance of paragraph 14 of the Framework was addressed. Significant weight was given to the emerging plan as the Council was considered to be proactive in addressing the housing need, however when taking into account the 20% buffer due to the councils poor performance in housing provision and with the council being at a very early stage limited weight was given to the policies.

Public right of way

The proposed development would reduce the openness and final section of the ProW, however with maintenance of the buffer zone and appropriate landscaping it was considered to not be an unpleasant environment and would still appear as a footpath at the outskirts of the village heading towards the open countryside. The inspector concluded that the development would not result in the material harm to the public right of way along the southern boundary of the site.

Conclusion

As the site would bring forward much needed homes in the area, significant benefit was attributed to the provision of affordable housing. As such, the minor adverse impacts would not clearly and demonstrably outweigh the benefits of the scheme and therefore planning permission was granted the appeal was allowed.

On the basis of above, the appeal was allowed.

Download Decision here.

6. Development of 88 residential dwellings allowed in the countryside despite the Council establishing a 5 year land supply.

Appeal Ref: APP/F1610/16/W/3151754

Appeal Decision Date: 13th June 2017
Appellant: Great Gable Ltd
Respondent: Cotswold District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission

Background

An appeal was made by Great Gable Ltd against a failure to give notice within the prescribed period of a decision on an application for outline planning permission for “the erection of up to 88 dwellings, to include vehicular access off Park Way; new pedestrian and cycle links to the wider area; improvements to Siddington School, including improved access facilities and the erection of a new purpose built school hall; a solar park; ecological enhancements; strategic landscaping; and associated infrastructure”.

In allowing the appeal and granting permission the Inspector gave consideration to one main issues.

  • the effect of the proposed development on the character and appearance of the countryside, particularly with regard to its effect on the landscape and to its design

Character & Appearance

The site is located to in the countryside and to the south of Cirencester. The site was previously used for agricultural uses. The site is well screened with the proposed development to be set back within the site. The scheme proposes new planting to mitigate any visual effect on the countryside, however the Council contended that it would take 20 years for the development to be completely screened. It was acknowledged that the development would change the character of the site, particularly with the number of dwellings proposed and increase in vehicles etc and as such this will reduce the tranquillity of the area. Regardless of how well designed the proposal is, it would not be characteristic of the existing development in the area. The inspector concluded that there would be some harm to the character, appearance and distinctiveness, however, considering the site is undesignated, with “medium landscape value; the limited area to be developed with housing and its set-back, less-visible position; the extensive landscaping and planting proposed; and the eventual screening of the development from view..” the harm was considered as minor.

Conclusion

As the site would bring forward much needed homes in the area, significant benefit was attributed to the provision of affordable housing; 44 affordable dwellings. This was considered to be a significant benefit to which considerable weight was attached despite the council demonstrating a 5-year land supply. The policies restricting development were given little weight as the LP pre-dates that framework. LP policies 42 and 45 however were considered as consistent with the framework and the Inspector attached full weight to these, however the harm identified was considered as minor. The adverse impacts of the proposed development would therefore be significantly and demonstrably outweighed by the benefits; in the terms of paragraph 14 of the Framework it would amount to sustainable development.

In light of the above, the appeal was allowed.

Download Decision here.

7. Development of 74 residential dwellings allowed in the countryside as Local Plan Policies were considered to restrict development.

Appeal Ref: APP/R0660/W/17/3170338
Appeal Decision Date: 23rd June 2017
Appellant: Muller Property Group
Respondent: Cheshire East Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission

Background

An appeal was made by Muller Property Group against a refusal to grant outline planning permission for outline planning application for residential development and access, all other matters reserved.

In allowing the appeal and granting permission the Inspector gave consideration to one main issue

  • Whether the proposed development would be acceptable in principle in this location, having regard to local and national planning policies

The site comprising 2.7 ha of agricultural land fell outside of the defined settlement limits and within the open countryside. The site is adjacent to a new residential development currently under construction which was granted permission on appeal. It was noted that the proposals conflicted with policies RES.5 and NE.2 as development proposals were not intended for infilling for agricultural forestry. As the Local Plan was adopted prior to 2011, and the settlement boundary was defined to allow for sufficient growth for that period up to 2011, the current settlement boundary would in effect constrain development within the countryside. It was however acknowledged that although these policies restricted development, they served to protect the countryside and safeguard the character and amenity which is consistent with one of the core principles of the NPPF. The policies therefore were given moderate weight despite being outdated.

Landscape & Visual Impact

In terms of landscape and visual effects, the LVIA acknowledged that there would be substantial visual effects on the occupiers of neighbouring properties due to the close proximity of the development. The Council’s Landscape architect however advised that any landscape harm could be overcome by landscaping, including trees, open spaces and hedgerows. The Inspector concluded that the harm would be very modest nature given the ability to mitigate the harm through appropriate landscaping. Limited weight was therefore afforded to the landscape changes that would result from the proposed development.

Agricultural

The proposal was supported by an Agricultural Quality Report (AQR) which identified the land as Class 3B which falls below the what the Framework regards as best and versatile Land (1.2 and 3a). The Inspector concluded that even if the proposed development lead to the loss of some of the best and most versatile agricultural land, it would not be a significant loss, and consequently limited weight was attached to the loss.

In terms of accessibility, the site is located in a sustainable area. The site was considered by the Council for selection to deliver residential development in Alsager, the site was considered to be sustainably located as it met the minimum standards for access to the majority of services identified in the Sustainability Appraisal, Accessibility Assessment. In light of this, the inspector concluded that there would be no conflict with the core policies of the Framework.

Conclusion

As the council could not demonstrate a 5-year land supply, this was seen as a material consideration. The policies restricting development were given little weight as the LP pre-dates that framework and the harm identified was considered as minor. The adverse impacts of the proposed development would therefore be significantly and demonstrably outweighed by the benefits; in the terms of paragraph 14 of the Framework it would amount to sustainable development.

In light of the above, the appeal was allowed.

Download Decision here.

8. Residential development refused in Islington, London due to the inadequate provision for delivering the maximum reasonable amount of affordable housing.

Appeal Ref: APP/V5570/W/16/3165633
Appeal Decision Date: 16th June 2017
Appellant: TPS Brighton Developments Ltd
Respondent: London Borough of Islington.

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission

Background

An appeal was made by PS Brighton Developments Ltd against a refusal of permission for the demolition of the existing building and redevelopment of the site to provide a part two, part four, part five storey mixed use building (plus basement) comprising 598sq.m. A1 retail floorspace at ground floor and basement level and no.13 (C3) residential units at first to fourth floors (6 x 1 beds, 5 x 2 beds, 2 x 3 bed), with associated amenity space and cycle storage.

In-principle approval was granted for the site in early 2016, however the application was refused due to the Appellants failure to agree on affordable housing delivery.

In dismissing the appeal the Inspector gave consideration to one main issue

  • whether the proposed development makes adequate provision for delivering the maximum reasonable amount of affordable housing

Affordable Housing

The Council’s adopted Core Strategy 2011 requires all sites delivering 10 or more units to provide affordable homes on site. Policy 3,12 of the London Plan 2016 also prioritises n site affordable housing – the Council’s policies were regarded to be broadly consistent with the London Plan in this instance. The Appellants viability assessment showed that it is possible for affordable housing to be delivered on site. The Inspector stated that “it is preferable to ensure that the opportunity for marketing extends as widely as possible.  Taking into account the appellant’s comments that some marketing of the dwellings will effective occur prior to completion, it is appropriate to require a formal period of marketing to occur after completion of the scheme, should it be necessary.  In these circumstances, the Council’s suggested three-month period is appropriate”.

Advanced stage viability review

The Council relied on the Development Viability Supplementary Planning Document (2016) (SPD). The Appellant contended that the Council was over reliant on SPD guidance, rather than development plan policy, in determining the acceptability of the affordable housing component of the proposed scheme. As the SPD provided technical guidance and was consistent with Core Strategy Policy CS 12, in that it seeks to provide the maximum reasonable amount of affordable housing, in respect of local circumstances, it was decided that the Council’s did not overrely on the SPDs.

The Inspector stated that the “submitted planning obligation sets out two opportunities for a viability review, which would be triggered in the event of a delay to the scheme’s implementation or completion.  The Council’s preferred approach would base the reappraisal on the completed unit price, thereby reflecting up-to-date evidence, prior to disposal of the final units. This is a robust approach that would enable the development to achieve the maximum reasonable provision of affordable housing”.

Conclusion

The appellants proposal for 2 affordable housing units was considered as inadequate. “It would conflict with Core Strategy Policy CS 12, and the Council’s adopted Development Management Policies (2013) Policy DM9.2, which together require the Council to seek appropriate levels of affordable housing delivery, with the inclusion of planning obligations if required.  These policies are consistent with the relevant strategic policies set out in the London Plan”

Having regard to the above, the appeal was dismissed.

Download Decision here.

9. Appeal refused as distribution of the affordable housing within the site, and lack of integration with the market housing considered a material harm

Appeal Ref: APP/X2410/W/16/3163501

Appeal Decision Date: 28th June 2017
Appellant: Bloor Homes Limited
Respondent: Charnwood Borough Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a grant subject to conditions of consent, agreement or approval to details required by a condition of a planning permission

Background

An appeal was made by Cynthia Spence and Nicholas Wells against the decision of Charnwood Borough Council. Application Ref P/16/0302/2, dated 4 February 2016, sought approval of details pursuant to conditions of outline planning permission Ref P/14/0428/2 granted on 9 November 2015. The Council refused the application for the development proposed comprises residential development of up to 160 dwellings, public open space and associated works.  All matters other than access were reserved for future consideration.

In dismissing the appeal the Inspector gave consideration the following issues:

  • If the conditions attached to outline planning permission P/14/0428/2 require the agreement of an appropriate mix of housing at the reserved matters stage; if so
  • whether the proposed development provides an appropriate mix of housing
  • whether the distribution of affordable housing would result in an inclusive and mixed community; and,
  • the effect of the proposal on the character and appearance of the area

Agreement of Housing Mix

The Inspector concluded that the conditions attached to the outline permission did not require the agreement of an appropriate mix of housing at the reserved matter stage – as such the inspector did not go on to address the appropriate housing mix.

In coming to this decision, the Inspector referred to Appeal decision APP/T3725/A/14/2221613 which allowed an outline planning application and applied a condition requiring details of the mix of type and size of market dwellings to be submitted prior to the commencement of development. The Inspector stated that “In accordance with paragraph 206 of the Framework, conditions should only be imposed where they are, amongst other things, necessary.  If the Secretary of State had considered that the mix could be appropriately considered under the reserved matters which, in that instance, included appearance and scale, then it would not have been necessary for him to apply the housing mix condition.   I am aware that I may have been party to information not in front of the Secretary of State at the time of his decision.  However, his decision reinforces my view that housing mix cannot reasonably be considered under the condition requiring, amongst other things, the submission of details of scale and appearance at reserved matters stage”

Affordable Housing

It was concluded that the distribution of affordable housing within the proposal would not result in an inclusive and mixed community.  It would therefore be contrary to the requirements of Policy CS3 of the CS, paragraph 50 of the Framework and advice in the SPD. It was noted that there would be a mix of 48 affordable houses (AHs) on site in accordance with the requirements of the S106 agreement which would be delivered in two clusters of 15 dwellings and one cluster of 18 dwellings within the site. It was decided that there would be a conflict with the guidance within the SPD as the clusters should generally consist of groups of up to 10 dwellings which might lead to a larger number of houses in a cluster include the size of the site and site constraints.

The appellant contended that these clusters were proposed due to design constraints, this reason however did not provide a sufficiently robust reason agree the clusters as proposed.  The Inspector stated that she saw “no reason why AHs could not be located north of the spine road. According to the site layout plan, there is only limited planting proposed on the spine road, and note that some of the market housing in this location is sited close to the road thereby allowing no room for planting.   Furthermore, the scheme approved under (P/17/0314/2) proposes AH on both sides of the spine road”

Character & Appearance

In terms of character and appearance, that the proposal would not be harmful to the character and appearance of the area.  The inspector concluded that the development is of high design quality which respects and enhances the local environment and the character of the area and utilises materials appropriate to the locality.

Conclusion

The fact the site was seen to enhance the environment and character of the area, this did not outweigh the material harm in terms of the distribution of the affordable housing within the site, and lack of integration with the market housing.

Having regard to the above, the appeal was dismissed.

Download Decision here.

10. Application for 147 dwellings in the countryside refused due to the impact on the character of landscape despite offering numerous benefits.

Appeal Ref: APP/L2820/W/16/3149835

Appeal Decision Date: 16th June 2017
Appellant: Gladman Developments Ltd
Respondent: Kettering Borough Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.

Background

An appeal was made by Gladman Developments Ltd against the decision of Kettering Borough Council for the refusal of “outline planning permission for up to 147 residential dwellings (including up to 30% affordable housing), introduction of structural planting and landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation, vehicular access point from Rushton Road, and associated ancillary works.  Demolition of on-site buildings and structures at Willowbrook Stud Farm.  All matters to be reserved with the exception of the main site access’

In dismissing the appeal the Inspector gave consideration the following issues:

  • whether the area has a 5-year supply of deliverable housing sites and the implications for development plan policy;
  • whether the appeal site forms a suitable location for housing with particular regard to its accessibility to local services and facilities;
  • the effect of the development on the integrity of the green infrastructure network;
  • the effect of the development on the character and appearance of the landscape

5-year Land Supply

The parties disagreed on the quantum of housing likely to be delivered over the next 5 years. The Inspector noted that there had not been a persistent under delivery by the Council and applied a 5% buffer. In terms of lapse rate for small sites, the inspector stated “that it is appropriate to apply a lapse rate of 10% on small sites as by their very nature they often have constraints to be overcome and may not be developed.  In respect of this appeal, only 79 dwellings on small sites are included in the five-year supply.  Applying a 10% lapse rate reduces this to 71, a loss of 8 dwellings. This is not significant in terms of the overall supply”.

The Inspector concluded that the council the Council could demonstrate a housing supply in the region of 5.7 years including a 5% buffer. This amounts to an anticipated supply of 3589 dwellings for the period 1 April 2017-31 March 2022 which exceeds the 5 year requirement of 3130 dwellings.

Suitable Location

The Site lies in the open countryside on the edge of Desborough. The key issue which was debated was whether the scheme provides the opportunity to use non car means of transport. The inspector noted that there was a bus top which provides hourly service to Corby and was located 130 m away from the site and another which is 300m meters away providing service to Desborough, Rothwell and Kettering three times an hour. However, there were no cycle lanes leading to town centre which would deter some users. The Inspector considered that the site was in a suitable location for housing provided a sustainable modes of transport.

Green Infrastructure

The Council relied on JCS Policy 19 and contended that development would compromise their integrity, and therefore that of the overall green infrastructure (GI) network, will not be permitted. The Inspector noted that scheme includes the provision of open space to the southern part of the site which would provide the opportunity for biodiversity enhancement and concluded that given the size of the development she did not consider that it would cause harm to the integrity of the corridor as a whole. Taking account of the potential green infrastructure improvements offered by the development, no conflict was found with policy 19.

Landscape

It was concluded that the proposal would have adverse effects on the appearance and landscape, and would not conserve the landscape of the settlement despite the site not being a valued landscape in term of the framework. The site lies on the open valley slopes of the River Ise and the proposal would intrude into the valley landscape and “breach the natural boundary of the settlement provided by the wooded tributary corridor of the River Ise”. Furthermore, the proposal would result in significant negative visual impacts from viewpoints to the south of the site and from Sycamore Drive and moderately adverse impacts on views from the north. As such, this would result in harm to the character and appearance of the landscape.

Conclusion

Whilst there were clear benefits to the scheme, including employment during construction, green infrastructure, affordable housing and improvement of biodiversity – these benefits however did not outweigh the harm presented to the character of the area. As such, the proposal conflicts with the development plan which was given material consideration, thus, the proposal did not form sustainable development

Having regard to the above, the appeal was dismissed.

Download Decision here.

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Election results 2017 – where are we now?

 

It’s nearly a week after the hanging and the UK political landscape is changing day by day.

Theresa May is trying to conclude on-going discussions with the DUP, politicians are urging the government to prioritise Brexit negotiations to create a strong post-Brexit economy, and the Conservative Party are trying to reinvent themselves.

May has yet to finalise a deal with the DUP that would see its 10 MPs support her minority Tory government.

Today, 21st June 2017, Theresa May announced 27 Bills and draft Bills in a Queen’s speech that focused on the challenges of Brexit. The prime minister is under a lot of pressure after losing the Conservative Party its majority at the election, however, she was cheered by her backbenchers as she began to speak.

Unusually, the government proposed a policy agenda that will run for two years rather than just one. Jeremy Corbyn took the opportunity to remind the House of Theresa May’s election disaster. He told MPs that the policy agenda was a threadbare legislative programme from a government that has lost its majority and apparently run out of ideas altogether. The Labour leader said it was he, rather than May, who was ready to offer real strong and stable leadership in the interest of the many, not the few.

“Labour won almost 13 million votes at the election because we offered hope and opportunity for all and real change for our country,” Corbyn said.

And so the May and Corbyn battle continues…

Here are the policy measures, including the eight flagship Brexit Bills that have made it into May’s Queen’s Speech:

Repeal Bill 

This is the headline piece of legislation. It will repeal the European Communities Act 1972 and aims to EU law into UK law after Brexit.

Customs Bill

As a member of the EU, the UK follows EU customs rules. This Bill will create a customs regime for the country after Brexit.

Trade Bill

Similarly, as an EU member state, the UK’s trade negotiations are conducted by Brussels. This Bill will “put in place the framework” to allow Britain to conduct international trade negotiations.

Immigration Bill

Immigration was at the core of the EU referendum debate. And this Bill allows the government to repeal EU free movement law and set its own immigration rules for European Economic Area (EEA) nationals.

Fisheries Bill

This Bill will “enable the UK to exercise responsibility for access to fisheries and management of its waters” outside the EU.

Agriculture Bill

As a member of the EU, British farmers receive payments from Brussels. This Bill, the government says, will “provide stability for farmers as we exit the EU”.

Nuclear Safeguards Bill

Brexit will mean the UK leaving the EU’s nuclear energy agency, Euratom. Powers will be now handed over to the UK Office for Nuclear Regulation.

International Sanctions Bill

This Bill will return decision-making powers on non-UN sanctions from the EU to the UK.

Other Bills:

Automated and Electric Vehicles Bill

Space Industry Bill

HS2 2A Bill

Smart Meter Bill

Draft Domestic Violence and Abuse Bill

Automated and Electric Vehicles Bill

Space Industry Bill

Draft Domestic Violence and Abuse Bill

Draft Tenant’s Fees Bill

Data Protection Bill

Courts Bill

Civil Liability Bill

Armed Forces Bill

National Insurance Contributions Bill

Travel Protection Bill

Financial Guidance and Claims Bill

Good Mortgages Bill

Draft Patient Saftey Bill

There are three more Finance Bills which the government says are needed to implement Budget decisions including a range of tax measures. Another technical Bill is included in the speech which ministers say is needed to ratify several minor EU agreements.

So, that is where we are now… let’s see what the rest of the month brings us.

 

Here’s what we had to say about the election last week…

What does this mean for the housing crisis?

Planning review delayed
It was announced today, Friday 9th June 2017, that Britain has a hung Parliament. This means that no party can reach an overall majority. Faced with the challenges of Brexit and terrorism, what do we do now?

When no single party can get enough MPs to form a majority on its own the Parliament is said to be “hung”. This happened at the 2010 General Election.

In a hung parliament, the Conservative government will remain in office. Theresa May can live in Downing Street, until it is decided who will attempt to form a new government. Theresa May has responded to the election result by promising a ‘period of stability’ despite calls from Jeremy Corbyn for her to step down.

There will be another frantic round of talks between the party leaders and their negotiating teams, as they try to build another coalition government or put either Mrs May or Labour leader Jeremy Corbyn into power as Prime Minister.

Another option is one of the two party leaders could opt to go it alone and try to run a minority government, relying on the support of smaller parties when needed to get their laws passed.

It took five days to put the coalition together in 2010 but it is generally expected to take longer than that. The first deadline is Tuesday 13th June 2017. The expected Queen’s Speech is scheduled for Monday 19th June 2017. The Queen doesn’t get involved in politics so she doesn’t have the power to choose a Prime Minister.

A coalition is when two or more parties join forces to govern as a single unit. For this to happen, it depends on four factors:

  • If the potential coalition partners have enough MPs between them to command a workable majority
  • Whether the biggest party wants to do it or would prefer to try governing alone as a minority government
  • Could the potential partners convince their respective parties that it is a good idea?
  • If they can find enough common ground on policy – the junior partners will inevitably have to ditch some of their policies but they will insist on keeping others

In the past, when minority governments have been formed at Westminster, the Prime Minister has held another election at the earliest opportunity to try and gain a working majority. After Parliament is dissolved there are 25 working days until an election can be held.

46.9 million people registered to vote, the results are in and it’s now out of our hands!

What does the election outcome mean for the housing crisis?

Potentially, if Conservative and Labour are in coalition, it will have to be a joint agreement or no laws can be passed.

For now, we can only go by the manifestos on housing as a guideline, reflecting on both manifestos.

Conservative’s manifesto on housing proposed the following: 

  1. Meet their 2015 commitment to deliver a million new homes by the end of 2022.
  2. Will deliver the reforms proposed in the Housing White Paper 2017.
  3. Continue to maintain strong protections on designated land like the Green Belt, National Parks and areas of outstanding beauty.
  4. Building 160,000 homes on the Government’s own land.
  5. Enter into new council housing deals with ambitious predevelopment Local Authorities to help them build more housing, using low cost capital funding.
  6. Ensure more private capital is invested in more productive investments to help the economy to grown faster and securely.
  7. Build new fixed term social housing sold privately after 10-15yrs with automatic right to buy for tenants.
  8. Reform Compulsory Purchase order to make them easier and less expensive for councils to use and make it easier to determine the true market value of sites.
  9. Continue the £2.5 billion flood defence program put in place for 300,000 existing homes by 2021.
  10. Encourage modern methods of construction and give councils the powers to intervene where developers do not act on their planning permissions.
  11. Not just in the South East, rebalancing housing growth across the country in line with modern industrial strategy.
  12. Work with private and public sector house builders to capture the increase in land value.
  13. Helping housing associations increase their specialist housing stock.

Labour’s manifesto on housing proposed the following:

  1. Promised to invest into building over a million new homes.
  2. Build at least 100,000 council and housing association homes per year by the end of the next parliament.
  3. Set up a new Department for Housing. The Department would have to improve the number, standards and affordability and overhaul the Homes and Communities Agency to be its housing delivery body and give councils new powers to build homes.
  4. Through the National Transformation Fund, it would prioritise the building of new homes, including council homes.
  5. Prioritise brownfield sites, protect the Green Belt and start work on a new generation of new towns to avoid urban sprawl.
  6. Consult on new rules on minimum space standards to prevent rabbit hutch properties and on new standards for building ‘zero carbon homes’.
  7. Ensure local plans addressed the need for older people’s housing, ensuring that choice and downsizing options were readily available.
  8. Land registry would stay in public sector and ownership of land would become more transparent.
  9. Pledged to build thousands more low-cost homes reserved for first-time buyers and guarantee Help to Buy funding until 2027, giving local first time buyers ‘first choice’ for new homes built in their area.
  10. Give leaseholders security from rip-off ground rents and end the routine use of leasehold houses in new developments.
  11. Suspend right-to-buy with councils only able to resume sales if they could prove they had a plan to replace homes sold like of like basis.
  12. For the rental market, it would make new three year tenancies the norm, with an inflation cap on rent increases and look at giving the Mayor the power to give renters in London additional security.
  13. Would legislate to ban letting agency fees for tenants.

The casualties of the Election

What we do know already is that the Housing Minister Mr Gavin Barwell (Croydon) has lost his Croydon seat and we’ll be reviewing who else have been the risers and fallers in the housing and environment arena.

Just like the rest of the world, we will be keeping a close eye on our political situation. We will stay up to date on housing and planning issues, following proposals and changes.

Follow us on Facebook and Twitter so you can be notified of important developments.

Do you have concerns and need to talk to someone about housing and planning? Contact us today.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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The Urbanissta Legal Beagle is on the case! (May’17)

 

Welcome to the Urbanissta Legal Beagle’s case law reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgments and decisions that might be useful to you, day to day.

We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. This is month three of our updates, so remember to keep any eye out for further iterations, in the weeks to come!


This month, our Guest barrister, Giles Atkinson from 6 Pump Court Chambers has also provided


1. Suffolk Coastal DC v Hopkins Homes and Richborough Estates Partnerships LLP v Cheshire East BC [2017] UKSC 36

The Supreme Court has just decided the much anticipated cases of Suffolk Coastal DC v Hopkins Homes and Richborough Estates Partnerships LLP v Cheshire East BC [2017] UKSC 36, which focused on the interpretation of paragraphs 14 and 49 of the NPPF.

Delivering the leading judgment, Lord Carnwath, JSC (with whom Lord Neuberger PSC and Lords Clarke, Hodge and Gill, JJSC agreed), observed (at [2]) that;

“The appeals provide the opportunity for this court not only to consider the narrow issues of interpretation of para 49, but to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan.”

That observation reflects the fact these appeals were the first time the UKSC was called upon to consider the proper interpretation of government policy in the Framework. The significance of that opportunity was not lost on Lord Gill JSC, one of the two Justices from Scotland, who was also an eminent planning practitioner at the Scottish Bar.

Having agreed with Lord Carnwath’s conclusions on the decision that is appealed against and with his views as to the disposal of these appeals, in a separate judgment, Lord Gill (with whom Lord Neuberger PSC, Lords Clarke JSC and Hodge, JSC agreed), added some comments on the approach that should be taken in the application of the National Planning Policy Framework (the Framework) in planning applications for housing development.

The legal status of the Framework

Lord Carnwath’s judgment first addresses the legal status of the Framework and the source of the Secretary of State’s power to the issue power to issue national policy guidance of this kind. The Court held (at [20]-[21]) that his powers derived, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system.

As for the status of government policy in the Framework, Lord Carnwath said (at [21]):

“It is important, however, in assessing the effect of the Framework, not to overstate the scope of this policy- making role. The Framework itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than “guidance” and as such a “material consideration” for the purposes of section 70(2) of the 1990 Act.”

Interpretation of the Framework

Addressing the correct approach to the interpretation of policy within Framework, the Court acknowledged the importance of the UKSC decision in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; 2012 SLT 739, concerning the correct approach the interpretation of a statutory development plan.  However, responding to the concerns expressed from the Bar “about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself …”, Lord Carnwath observed (at [23]) that:

This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay-reader. Some further comment from this court may therefore be appropriate.”

Law and policy

The Court’s further comment (in [24]-[26]) constitutes crucially important guidance for those engaged in the planning process, especially litigants in the Planning Court:

“24.   In the first place, it is important that the role of the court is not overstated. Lord Reed’s application of the principles in the particular case (para 18) needs to be read in the context of the relatively specific policy there under consideration. Policy 45 of the local plan provided that new retail developments outside locations already identified in the plan would only be acceptable in accordance with five defined criteria, one of which depended on the absence of any “suitable site” within or linked to the existing centres (para 5). The short point was the meaning of the word “suitable” (para 13): suitable for the development proposed by the applicant, or for meeting the retail deficiencies in the area? It was that question which Lord Reed identified as one of textual interpretation, “logically prior” to the exercise of planning judgment (para 21). As he recognised (see para 19), some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis.

25. It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may well not be determinative of the outcome. (As will appear, the present can be seen as such a case.) Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the Planning Inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local. As I observed in the Court of Appeal (Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2009] PTSR 19, para 43) their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence (see Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49; [2008] 1 AC 678, para 30 per Lady Hale.)

26. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy; and not to elide the two.”

The clear signal from the UKSC is that judges sitting in the Planning Court should exercise a greater degree of restraint before acceding to a litigant’s invitation to pronounce definitively on the correct meaning of government policy statements in the Framework. On that basis, the decision Tesco Stores Ltd v Dundee CC could be seen as the ‘high water mark’ of judicial activism in the context.

Interpretation of paragraph 14

Although the argument before the UKSC and below had concentrated on the meaning of paragraph 49, the Court approached the correct interpretation of Framework policy relevant to the appeals by addressing first the meaning of paragraph 14 and the interaction between the two paragraphs.

As to the meaning of paragraph 14, Lord Carnwath said (at [54] – [56]):

“54.   … since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the “tilted balance” under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are “significantly and demonstrably” outweighed by the adverse effects, or where “specific policies” indicate otherwise.

55. It has to be borne in mind also that paragraph 14 is not concerned solely with housing policy. It needs to work for other forms of development covered by the development plan, for example employment or transport. Thus, for example, there may be a relevant policy for the supply of employment land, but it may become out-of-date, perhaps because of the arrival of a major new source of employment in the area. Whether that is so, and with what consequence, is a matter of planning judgment, unrelated of course to paragraph 49 which deals only with housing supply. This may in turn have an effect on other related policies, for example for transport. The pressure for new land may mean in turn that other competing policies will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgment, not dependent on issues of legal interpretation.

“56.   If that is the right reading of paragraph 14 in general, it should also apply to housing policies deemed “out-of-date” under paragraph 49, which must accordingly be read in that light. It also shows why it is not necessary to label other policies as “out-of-date” merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of planning judgment for the decision-maker. Restrictive policies in the development plan (specific or not) are relevant, but their weight will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the “tilted balance”.

Interpretation of paragraph 49

As to the meaning of paragraph 49, the Court held (at [57]) that the phrase “Relevant policies for the supply of housing” should be interpreted simply as indicating that that paragraph is concerned with that category of policies, housing supply policies, as opposed to other categories of policy such as those for the supply of employment land or for the protection of the countryside.

This interpretation is akin to the ‘narrow’ interpretation as described but rejected by the Court of Appeal.  However, noting that the primary purpose of paragraph 49 is to act as a trigger for the operation of the ‘tilted balance’ (which phrase now has the highest Judicial approval!) in NPPF paragraph 14, the Court went to on to emphasise (at [59]) that the important question is not to try to define in a legalistic exercise whether or not an individual policy may be defined as one for the supply of housing, rather it is to focus on the policies together and whether they result in a five year supply as is required by NPPF paragraph 47.

Considered in this way the Court found (at [60]) that it would be a ‘non-statutory fiction’ to regard a non-housing policy, such as for example a Green Belt policy, which is in all other senses up-to-date as being notionally out-of-date solely for the purposes of the operation of paragraph 14.

What this means in practice is that, if there is a housing policy that is found to be out-of-date, the paragraph 14 “tilted balance” will apply to it and the weight to be given to that out-of-date policy will be purely a matter of planning judgment for the decision maker.  Because paragraph 14 is not concerned solely with housing, a planning judgment will also need to be reached about whether other relevant, non-housing, policies are out-of-date and if so what weight should be given to them in the section 38(6) balance.  But as a matter of planning judgment, the weight given to non-housing policies will need to be judged against the needs for development, housing in particular, in light of there being no five year supply.

Sanity restored … at last!

Download the press summary.
Download the judgment.

 

2. Construction of 500 dwellings refused due to the absence of highway mitigation measures.

Land at Park Mill Farm, Princes Risborough.

Appeal Ref: APP/K0425/W/16/314683
Appeal Decision Date: 21st March 2017
Appellant: Halsbury Homes Limited
Respondent: Wycombe District Council

Appeal made under S78 of the Town and County Planning Act 1990 by Halsbury Homes Limited against failure to give notice within the prescribed period of a decision on an application for planning permission.

Background
The development proposed is the construction of up to 500 dwellings, open space and ancillary development at Park Mill Farm, Princes Risborough.

The inspector considered the main issues to be:
• The quantum of development and the impact on the character and appearance
• The living conditions of future residents
• Provision of affordable housing
• Whether the proposal will maximise sustainable development
• Impact on highways
• Contribution to infrastructure/community facilities

The effect of the proposal on the character and appearance of the area, including its effect on trees:
In respect of the effects on trees, it was held that at a density of 41 dph the development of up to 500 dwellings, would not have an unacceptable effect on the character and appearance of the area or the setting of the Chilterns Area of Outstanding Natural Beauty (AONB). The matter could be dealt with through reserved matters and conditions and careful consideration would need to be given to the layout and landscaping.

The living conditions of future residents
The appellants evidence (Odour Monitoring Assessment) remained unchallenged and subject to a condition relating to no residential development within the 3ouE/m3 odour concentration contour, the Inspector considered that there would be no material impact on the living conditions of future residents from odour.

Provision of affordable housing
The Appellant met the requirement for not less than 40% affordable housing.

Whether the Proposal Will Maximise Sustainable Development
It was noted that the proposals did not include an underpass, and the LPA position that an underpass from PMF to Wades park is necessary for development of the larger expansion of the North-west. The Inspector concluded that although there was long-term adequacy of the proposed bus service and the acceptability of the pedestrian/cycle links via Longwick Road – given that an underpass would significantly improve links to the town centre and provide the integration between the site and the town centre the LP seeks, he considered there to be a conflict with LP Policy H2 and fails to maximise the use of sustainable transport modes.

Impact on highways
“One of the main traffic routes through Princes Risborough is the A4010 which has 2 town centre roundabouts. These are the Longwick Road/Aylesbury Road junction (Tesco roundabout) and the New Road/Bell Street junction (New Road roundabout)”.

The Inspector found that the proposal would result in significant increases in traffic on key parts of the local highway network that are already operating over capacity. The cumulative impact on existing and future residents would be severe and unacceptable. Mitigation was not provided for this issue, however, it was held the potential for mitigation could reasonably be dealt with by imposing a Grampian style condition.

Contribution to infrastructure/community facilities
The scheme made an appropriate provision of infrastructure/community facilities directly related to the development. It was decided that it would not prejudice the delivery of development in the wider area. As such the proposal would not conflict with the objectives of CS Policy 21.

Conclusions
It was concluded that the benefits that arise from the scheme are significant, particularly the provision of affordable market housing. Added to this is the economic benefits which would flow from the development. Other elements such as enhanced walking and cycle routes and provision of open space were given moderate weight. However, in the absence of highway mitigation measures, the Inspector concluded that the residual cumulative impacts of the development on the highway would be severe and unacceptable. As such, the conflict with LP Policy significantly and demonstrably outweighed the benefits of the scheme. In light of this, the appeal was dismissed.

Download decision here.

3. SoS disagrees with the inspector and refuses planning for 265 dwellings in the Greenbelt.

Land South of Jotmans Lane, Benfleet.

Appeal Ref: APP/M1520/A/14/2216062
Appeal Decision Date: 21st April 2017
Appellant: Burrows and Dunn Ltd
Respondent: Castle Point Borough Council

The Appeal was recovered for the Secretary of State’s (SoS) determination, pursuant to Section 79 and Paragraph 3 of Schedule 6 of, the Town and Country Planning Act 1990.

Background
The appeal was brought by Burrows and Dunn Ltd against Castle Point Borough Council’s decision to refuse planning permission for the redevelopment of the site to provide up to 265 dwellings and associated access, parking, footpath improvements, ecological enhancements, open space and landscaping.

In dismissing the appeal the SoS gave consideration to one salient issue.

Whether the proposal represented an inappropriate form of development in the Green Belt and if so, whether there are any other considerations sufficient to outweigh the harm by reason of inappropriateness, and any other harm, and thereby justify the proposal on the basis of very special circumstances.

Impact on Green Belt
The initial conclusion made by the Inspector when allowing the appeal was that the proposal would represent inappropriate development in the Green Belt as the scheme for 265 dwellings with associated infrastructure like roads and pavements would harmfully reduce openness permanently. Issues were raised about the visual impacts of the proposal, however, it was noted that if the proposal was carefully designed then there would be no impact on outlook which would significantly harm living conditions of existing residents. The Appellant argued that the Council could not demonstrate a five-year land supply and furthermore, the Council had a persistent under delivery of housing which was considered to attract more weight in the balancing exercise. It was concluded that the proposal would bring forward market and affordable housing in the area with long-standing failure to provide affordable housing and would bring with it ecological, connectivity and economic benefits. To this, significant weight was attached which outweighed the harm to the Green Belt, and any other harm. The Inspector considered that the proposals demonstrated very special circumstances, thus he recommended that planning permission should be granted.

Conclusion
The SoS took a different view on the matter and refused the scheme on the basis that the benefits would not outweigh the harm. The SoS considered that in view of the prevailing housing supply situation in Castle Point, the provision of market and affordable housing attracted very substantial weight, the ecological benefits attracted significant weight, the improvements to on-site connectivity and access attracted moderate weight and the economic benefits attract considerable weight.

It was held that NPPF carried more force than the Inspector attributed to it. Having considered the facts against this policy, the SoS concluded that the considerations did not clearly outweigh the harm to the Green Belt and any other harm and that very special circumstances did not exist.

On the basis of the above, the appeal was dismissed.

Download Decision here.

4. Public benefits are seen to outweigh the minor harm to the setting of Nascot Conservation Area, even when great weight was attached to that harm. 

Caledonian House, 39 St Albans Road, Watford, Hertfordshire WD17 1HQ.

Appeal Ref: APP/Y1945/W/16/3157103
Appeal Decision Date: 13th April 2017
Appellant: Heronsea (Loom) Ltd
Respondent: Watford Borough Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.

Background
An appeal was made by Heronsea (Loom) Ltd against the non-determination of a planning application for the demolition of an existing building (Class B1) and the erection of a new stepped building with 95 self-contained residential units (Class C3) with associated basement parking, servicing/delivery bay and communal garden and private balcony amenity space.

In allowing the appeal and granting permission the Inspector gave consideration to the two main issues:
• Whether the scheme would preserve or enhance the setting of Nascot Conservation Area
• The effect on the character and appearance of the surrounding area

Effects on Conservation Area
The site abuts Nascot Conservation (CA) Area. It was highlighted that there was no statutory duty to pay special attention to the setting of the CA. Policy UD1 and UD2 of the Watford Core Strategy however required any new developments to respond to the historic values and where appropriate, conserve or enhance the CA and the setting. These policies were considered to be consistent with the framework.
Consideration was given to the Council’s Nascot Conservation Area Character Appraisal 2015 (CAA). The CAA excludes the appeal site and properties to the north from the designated area. It indicates that they form a weak edge in views into the CA from St Albans Road. Caledonian House, standing at four storeys is the tallest building in the group and the proposed scheme intends to replace it with a significantly larger (8 storeys) building, however, was considered to be a considerable improvement compared to the existing building. It was concluded that the proposal would not cause harm to the views, however would cause minor harm to the significance of the heritage asset, “as a result of the loss of the transitional role of the existing building on the site and the amplified contrast in scale with the two storey Victorian buildings in this part of the Conservation Area”. As such, the proposal would conflict with CS policies UD1 and OD2, LP Policy U17 and Framework paragraph 137. Although the harm was considered as minor, Framework paragraph 132 required great weight to be attached to the same. The public benefits were seen to outweigh the minor harm to the setting of the conservation, even when great weight was attached to that harm.

Character and appearance
The Inspector noted that the Borough is divided into a series of characters as per the Watford Character of Area Study 2011 (WCAS). The appeal site is located in sub-area 30B which adjoins late nineteenth-century terraced development which has gradually changed due to redevelopment. The appeal site would be the tallest in the area of up to 8 storeys, however, it would be seen in context with buildings opposite the Site which are almost as tall.

The Inspector found that the proposal would not have a harmful effect on the character and appearance of the area and would comply with CS Policy UD1 insofar as it requires new development to respect and enhance local character. Furthermore, “it would accord with the Council’s Residential Design Guide 2016 (RDG) which, among other things, advises that development should respect, but not necessarily replicate, the height and scale of adjoining buildings (paragraph 7.3.4) and ensure an appropriate relationship between street widths and building heights (paragraph 7.2.13). It would also meet the aims of Framework paragraph 56 which attach great weight to the design of the built environment and paragraph 60 which seeks to reinforce local distinctiveness”.

Conclusion
The Inspector highlighted that the proposal would result in minor harm to the setting of the CA and this was awarded significant weight. The Inspector concluded that on balance, the adverse impacts identified did not significantly and demonstrably outweigh the benefits of the proposal. It was also noted that the Council could only demonstrate a 3-year land supply which was considered a considerable shortfall. As such there was a presumption in favour of sustainable development. The scheme not only satisfied paragraph 47 of the Framework, but also satisfied paragraph 50 by providing a wide choice of quality homes which reflects the housing needs identified in the SHMA. As such, the scheme would provide social and economic benefits. The public benefits were seen to outweigh the minor harm to the setting of the conservation, even when great weight was attached to that harm.

On the basis of the above, the appeal was allowed.

Download Decision here.

 

5. Appeal allowed for development in the Countryside as 30 dwellings were considered to make a meaningful contribution to the supply of housing despite the Maldon Council meeting the 5 year supply. 

Land opposite 34 Hall Road, Great Totham, Essex CM9 8NN.

Appeal Ref: APP/X1545/W/16/3162631
Appeal Decision Date: 14th March 2017
Appellant: J & M Developers
Respondent: Maldon District Council

The appeal made under S78 of the Town and County Planning Act 1990 against failure to give notice within the prescribed period of a decision on an application for planning permission.

Background
The development proposed was for 30 residential dwellings on land opposite 34 Hall Road, Great Totham, Essex CM9 8NN.

The Inspector considered the main issues to be:
The effect of the proposal on the character and appearance of the area.

The effect of the proposal on the character and appearance of the area
The Site falls outside of the settlement boundary defined in the Maldon District Replacement Local Plan 2005 (LP), where Policies S2 and H1 seek to restrain residential development. As the Site fell within the Countryside the relevant policies were BE1 and CC6 which sought to preserve or enhance the character and natural beauty of the countryside. In summary, Policy BE1 required the development to be compatible with its surroundings in terms of layout and visual impact, among other things.

The Inspector considered that there would no doubt be a domestic activity associated with the residential development which would have an urbanising effect. However, given that the Site would be visually contained allowing for two storey development on the higher northern part of the site along with significant screening, the impact, therefore, would not be significant. The issue of noise was also raised by the Council, however, the Inspector was under the impression that the noise levels associated with a domestic activity are to be expected, particularly as the Site adjoins established residential development to the west and south.

In light of the above, the Inspector concluded that the proposal would not be harmful to the character and appearance of the area and would not conflict with LP Policies BE1 or CC6. However, it was noted that the proposal would conflict with LP Policies S2 and H1 which seek to restrain residential development. Having established that the harm would be limited, the degree of conflict was not considered substantial.
Furthermore, the Inspector in the 2015 appeal found that LP Policy S2, which seeks to protect the countryside for its own sake, is inconsistent with the Framework and should be afforded little weight. Policy CC7 was cited in the refusal to protect Special Landscape Areas – this Policy however, was found to be inconsistent with paragraph 113 of the National Planning Policy Framework (the Framework) which requires that policies for development in protected landscape areas be criteria based.

It was concluded that despite the Council being able to demonstrate a five-year supply in the District, the Inspector considered that 30 dwellings, 12 of which are affordable housing would make a meaningful contribution to the housing supply, in accordance with Framework paragraph 47, merits a measure of support for the proposal. As such, the proposal would make a positive contribution to the social role.

Conclusion
The appeal was allowed on the basis that it would bring a meaningful contribution to the area. Therefore, it would amount to sustainable development and so is supported by the presumption in favour of sustainable development set out in Framework paragraph 14. These considerations outweigh the proposal’s limited conflict with LP Policies H1 and S2.

Download Decision here.

 

6. Residential dwellings in the open country side given the green light as Tendring Council could not demonstrate a 5-year land supply.

Land to the East of Tye Road, Elmstead Market, Essex.

Appeal Ref: APP/P1560/W/16/3160793
Appeal Decision Date: 13th April 2017
Appellant: Mr J. Hills, Hills Residential Ltd
Respondent: Tendring District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.

Background
An appeal was made by Mr J. Hills, Hills Residential Ltd against the decision of Tendring District Council to refuse planning permission for the development of up to 32 residential dwellings, land for a community facility and associated car parking and infrastructure.

In allowing the appeal and granting permission the Inspector gave consideration to one main issue:
• The effect on the character and appearance of the surrounding area

Character and appearance
The appeal was determined in accordance with the statutory development plan, in this instance, the saved policies of the Tendring District Local Plan 2007 (LP). The appeal site is located outside of the development boundary of Elmstead Market. There was no suggestion that the scheme was consistent with the countryside policies of the LP – the proposal would also fall outside of the settlement boundary in the emerging Tendring District Council Plan 2013-2033, however as it was in the early stages of preparation, limited weight was attached to the same. It was noted that as the Council could not demonstrate a 5 year supply, as such, the housing policies were not considered up to date.

The Inspector concluded that the proposal would result in the loss of pleasant agricultural field of an undeveloped area of the open countryside. Visually, the site would materially change to urban in appearance which would, as a result would be harmful to the intrinsic rural character of the area. In order to ensure adequate footpath links, the scheme would affect the hedgerow, however, the inspector stated that the hedgerow was poorly maintained and made little contribution to the character of the area.

The Inspector did highlight that the site was relatively well contained with a defensible boundary of Tye Road to the west. He stated that, “..whilst the layout is a reserved matter, the indicative plan shows that the appeal site could accommodate a development of 32 dwellings with a relatively low density of around 14 dwellings per hectare. In addition, the development would be viewed in the context of the built-up area to the east. It would, in my view, provide a gentle transition from the urban to the rural. As a result, I find that the degree of harm arising from the failure to protect the landscape and the local character of the area would be limited.”

Conclusion
The Inspector concluded that the scheme would have a harmful effect on the character and appearance of the area and thus conflicts with Policies QL1 and EN1. However, the harm would be limited in its extent as QL1 was considered to be out of date. The proposal would constitute as sustainable development as it would play an environmental role by maximising opportunities for sustainable transport. Furthermore, as the Council is unable to demonstrate a 5-year supply, the scheme would make an important contribution to boosting the supply of housing in the District in line with Paragraph 47 of the Framework and to this, significant weight was applied. The appeal was allowed on the basis that the scheme would constitute as sustainable development set out in Paragraph 14.

On the basis of the above, the appeal was allowed.

Download Decision here.

7. Site in the open countryside and in Flood zone 3a has been granted permission due to the Council’s failure to demonstrate a 5-year land supply.

Land at Moat Way, Queenborough, Kent.

Appeal Ref: APP/V2255/W/16/3153116
Appeal Decision Date: 27th April 2017
Appellant: Alpha Barlow Ltd
Respondent: Swale Borough Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.

Background
An appeal was made by Alpha Barlow Ltd against the decision of Sway Borough Council to refuse planning permission for the development of 12 family dwellings together with associated landscaping, parking and public open space.

In allowing the appeal and granting permission the Inspector gave consideration to five main issues:
• Whether the Council could demonstrate a five-year supply
• Whether the principle of development outside of the settlement boundary was acceptable
• Flooding implications
• Living conditions of future occupiers
• Highway safety

Whether the Council could demonstrate a five-year supply
The Inspector noted that the Council could not demonstrate the existence of a 5-year supply of housing.

Whether the principle of development outside of the settlement boundary was acceptable
The Site falls outside of the settlement boundary. Policy H2 makes an allowance for development within the countryside, if it meets the exceptions listed in Policies E6 and RC3. The proposal for 12 open market dwellings fell out of the exempted categories and was considered to conflict with the Policy H2. As it was demonstrated that the Council could not meet the housing supply, the policies restricting development were considered to be out of date, as such, limited weight was attached to them. The Inspector stated that the scheme would make a significant contribution towards the councils housing stock and as the scheme would play a social and economic role, the benefits weighed in favour of the scheme.

Flooding implications
It was highlighted that the Site mostly falls within Flood Zone 3a according to EA and as such were considered to be more vulnerable. A sequential and exception test was required – the Council contended that the appellant failed to undertake these tests and cited Policies E1 and H2 of the LP in the refusal, which were considered to have limited relevance in terms of flooding. The appellant argued that the Sequential Test in the FRA is unnecessary as a comprehensive review has already been conducted by the borough as part of its Strategic Housing and Land Availability Assessment “and if there were more suitable housing sites in Flood Zones 1 and 2 these would already have been identified and brought forward to address the current shortfall in housing land supply”. The Inspector found there to be a manifest failure on the Council’s part to identify sufficient sites which would act as a reasonably available alternative in areas with a lower probability of flooding to dwellings in Flood Zones 1 and 2. Accordingly, the Inspector found that the Sequential Test was satisfied and it was not possible to direct development to an area at lower risk of flooding at this time.

With regards to the exception test, the first criterion was satisfied as the development would deliver 12 dwellings to an area in need. Furthermore, the area is protected by existing defences and as the EA nor the Council’s Floor Risk officer objected to the development, the inspector concluded that the area would be safe from flooding – thereby the second test was satisfied.

Living conditions of future occupiers
The Inspector concluded that due to the Sites open nature, “it is almost inevitable that there will be a degree of visual intrusion and mutual overlooking between neighbouring occupiers”. Garden sizes were considered to be a reasonable size, as such, the development would not cause demonstrable harm to the living conditions of neighbouring and future occupiers with particular regards to privacy and outdoor space provision. There would thus be no conflict with Policy E1 of the LP.

Highway safety
There was in fact no objection to the application by the Highway Authority, however the Council refused the application on the grounds that the access road would be inadequate to accommodate the tracking of a refuge vehicle. The Council conceded this minor point as it could be resolved in a revised plan.

Conclusion
As the Council failed to demonstrate a 5-year land supply, and the scheme proved to be sustainable, the presumption was in favour of the appeal scheme. In terms of flooding, the development was considered to be acceptable and would deliver significant social and economic benefits through the delivery of 12 new homes. Though there would be moderate harm to the character and appearance of the area, the harm would not significantly and demonstrably outweigh the benefits.

On the basis of the above, the appeal was allowed.

Download Decision here.

8. Greenfield site on the edge of a settlement boundary has been allowed permission despite harm to heritage assets, landscape character and visual amenity.

Land north of Ross Road, Newent GL18 1BE.

Appeal Ref: APP/P1615/A/14/222882
Appeal Decision Date: 10th April 2017
Appellant: Gladman Developments Limited
Respondent: Forest Dean District Council

Appeal made under S78 of the Town and County Planning Act 1990 by Gladman Developments Limited against failure to give notice within the prescribed period of a decision on an application for outline planning permission. Planning permission was refused by Forest Dean District Council.

Background
The development proposed was for the erection of up to 85 dwellings, access, parking, public open space, landscaping and associated infrastructure (all matters reserved other than means of access to the site).

The Inspector considered the main issues to be:
• Whether the proposed housing was in an acceptable location as set out in the development plan and national policies
• The effect on the character and appearance of the landscape
• The effect on the setting of heritage assets

Acceptable location
The appeal site falls outside of the settlement boundary and in the open countryside, and is contrary to policy CSP. However, it was agreed between the parties that the Site is in an accessible location; close to the settlement and with easy access to local amenities. There is no intention to revise the settlement boundary in this location. As Policy CSP.4 restricts development, the weight of the policy was reduced to moderate but less than substantial.

The effect on the character and appearance of the landscape
The Inspector considered that there would be harm to the landscape character due to the loss of land however it was concluded that this would not be visually prominent but would be visible from limited views at close quarters and from occasional and sporadic longer distance views. As a consequence, there would be some visual harm to the landscape contrary to CSP.1 which sets out design and environmental protection objectives for all proposals.

Heritage asset
The development was considered to have a significant public benefit as the development would provide 51 market homes in the context of an undersupply of housing. These will be in a good location with good transport links. The provision of 41 affordable homes would outweigh the harm to the Mantley Farm complex, to which the Inspector attached considerable weight, and the limited harm to Picklenash Court to which he attributed limited weight.

Conclusion
The Inspector concluded that the Council could not demonstrate a 5yr HLS. Paragraph 49 of the Framework confirms that relevant policies for the supply of housing should not be considered up to date. As such, Policy CSP.4 which restricts development outside of the settlement boundary was awarded moderate weight. Furthermore, it was concluded that there would be less than substantial harm to heritage assets, harm to landscape character and the visual amenity of the landscape as well as the limited loss of best and most versatile agricultural land contrary to policy CSP.1. As a result of these findings, it was concluded that the proposal is contrary to the development plan when viewed as a whole. However, as there is a serious and significant shortfall in the housing supply and the scheme has the potential to bring economic activity and other benefits – the adverse impacts of the proposal do not significantly and demonstrably outweigh the benefits. In light of this, the appeal was allowed.

Download Decision here.

9. Permission granted for 107 dwellings despite harm to heritage assets.

Land off Grange Road, Coventry CV6 6DD.

Appeal Ref: APP/U4610/W/16/3151581
Decision Date: 3rd May 2017
Appellant: Westleigh Partnerships Ltd
Respondent: Coventry City Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.

Background
The appeal was made by Westleigh Partnerships Ltd against the decision of Coventry City Council. The development proposed is the demolition of farm buildings and construction of 107 dwellings and associated access road.

The Inspector considered the main issues to be:
• Whether the appeal proposal would preserve the setting of the grade II listed buildings, Grange Farmhouse, 175 and 177 Grange Road
• Whether it would affect locally listed outbuildings
• Whether the appeal proposal would preserve or enhance the character or appearance of the Coventry Canal Conservation Area
• Whether the appeal proposal would result in satisfactory living conditions for future occupiers, with regard to noise and disturbance

Effect on Heritage Assets
The development would remove locally listed outbuildings, however, given the condition and appearance, the Inspector did not consider this to be an issue. The development would be at the rear of 175 and 177 Grange Road and would contribute to a small amount of harm by eroding the spacious setting. It was concluded that the Site would fail to preserve the character and appearance of the setting. As a result of this failure, the scheme does not accord with City of Coventry Unitary Development Plan (2001) (UDP), Policies BE9, BE11 and BE14. Considerable importance was attached to the less than substantial harm identified.

Living Conditions
It was considered that as mitigation was in place, no observed adverse effect level would be achieved in accordance with the Planning Practice Guidance and the Framework. The Inspector concluded that the scheme would result in satisfactory living conditions for future occupiers, with regard to noise and disturbance.

Conclusion
Little harm was identified to the setting of the nearby listed buildings, however as the listed buildings contribute positively to the Coventry Canal Conservation Area, considerable weight was attached to the same. It was further noted that the scheme put forward would provide environmental benefits which would enhance biodiversity which the Inspector attached the same weight. Furthermore, there would be significant social benefits as the scheme would provide additional housing with 75% of which would be affordable despite the Council already possessing a 5-year land supply. With regards to economic benefits, the scheme would provide employment and additional spending during the construction phase, which the inspector accorded to. In light of the above, the inspector concluded that public benefits would outweigh considerable weight and importance attached to the harm to the heritage assets.

Download Decision here.

10. Ring field development has been allowed permission due to the Council’s lack of five-year housing land supply in the ring fence area

Mather House & Greensands, White Road and Reading Road, East Hendred, Wantage OX12 8JE.

Appeal Ref: APP/V3120/W/16/3145234
Appeal Decision Date: 18th April 2017
Appellant: Mr Leslie Wells
Respondent: Vale of White Horse District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.

Background
The appeal is made by Mr Leslie Wells against the decision of Vale of White Horse District Council. The development proposed is the erection of 75 dwellings (10 of which will be specialist accommodation for older people), communal hub for older persons’ accommodation, retention of the existing Bed & Breakfast and associated open space, with all matters reserved save for that of access.

The Inspector considered the main issues to be:
• Housing Land Supply
• Operation of housing delivery policy in the ring fence area
• The effect of the proposed development on the character and appearance of the area, the appeal site is an appropriate location for the development proposed

Housing Land Supply
The key dispute surrounded the fact about whether or not a five-year supply of deliverable housing sites could be demonstrated for the ring fence area, in which the appeal site lies. It was agreed that the five-year housing requirement figure for the ring fence area was 4,336 dwellings. The Inspector concluded that on the balance of the evidence before him, that the Council could not demonstrate a five-year supply of deliverable housing sites within the ring-fence area.

Operation of housing delivery policy in the ring fence area
It was concluded that it would be for the decision maker to come to the view as the weight attached to the of housing supply in the ring-fenced area when assessing a proposal against the development plan as a whole. The appeal site was seen to be in accordance with the relevant Spatial Strategy policies of LP2031 having regard to the requirements of Core Policy 47 where there is a lack of five-year housing land supply in the ring fence area. It is also located in an area that is identified as suitable for new housing and would meet local needs as there is no five-year supply of housing in the ring-fenced area.

The effect of the proposed development on the character and appearance of the area, the appeal site is an appropriate location for the development proposed.
It was concluded that the proposal would cause limited harm to the character and appearance of the area. As such, the proposal would be contrary to LP2011 policy NE6, insofar as there would be some detraction from views from public vantage points. Furthermore, it would conflict with saved LP2011 policy NE9, in that it would have a minor adverse effect on the landscape of the Lowland Vale. He did not consider there to be conflict with LP2031 Core Policy 44, which seeks to protect ‘key’ landscape features from harmful development. As a result of the above, he found that the development was acceptable in principle in this location.

Conclusion
The Inspector concluded that there would be some harm to the character and appearance of the area and views from the AONB. However, this harm was not considered to be significant given the changing context of the immediate area of the Greensands site and the nature of the views of it. The appeal site was considered to be in accordance with LP2031’s Spatial Strategy, “having regard to the lack of a five-year supply of deliverable housing sites in the ring fence area, and consider that this accord outweighs the limited harm to the character and appearance of the area. This is not to say that this will always be so, and other decision makers may reach a different conclusion having regard to the facts of the proposal before them, but it is in this instance”. In summary, the Inspector considered that the proposal was in accordance with the development plan when taken as a whole and that there is no weight of material considerations that would support a refusal of planning permission.

Download Decision here.

11. Sustainable location outweighed by negative social and environmental impacts

Land at Forest Hill, Tovil, Maidstone ME15 6FG.

Appeal Decision Date: 30th January 2017
Appeal Ref: APP/U2235/W/16/3157506
Appellant: Landform Developments Ltd
Respondent: Maidstone Borough Council

Appeal made under S78 of the Town and County Planning Act 1990 by Mr M Stylianides, Landform Developments Ltd against failure to give notice within the prescribed period of a decision on an application for planning permission.

Background
The proposal involves two separate elements, two blocks of flats on the Forest Hill frontage together with a group of detached, semi-detached and terraced houses in a new cul-de-sac arrangement on the main part of the site. It comprised the erection of 19 no. detached, semi-detached and 
terraced houses and 10 no. flats.

The Inspector considered the main issues to be:
• The effect of the proposal on the character and appearance of the area, including its effect on trees
• Whether the relationship of the proposed dwellings and the adjacent sports court would be acceptable
• Whether the proposal would incorporate suitable sustainable drainage systems
• The effect of the proposal on ecology/biodiversity
• Whether the proposal would make adequate provision in relation to affordable housing, education, libraries and open space

The effect of the proposal on the character and appearance of the area, including its effect on trees
The proposals on the site would lead to the removal of all of the frontage vegetation and replace with hardstanding. The siting of the building would not leave any opportunity for additional planting. The Inspector noted that the three storey element would become more prominent in relation to the existing context of the site. This proposal would create an unduly hard urbanised landscape contrary to Policies ENV6 of the Maidstone Borough Wide Local Plan 2000 (MBWLP) and DM1 of the emerging Maidstone Borough Local Plan (EMBLP).

Whether the relationship of the proposed dwellings and the adjacent sports court would be acceptable
The site is located adjacent to a sports court which is used up to 22.00 hours and is lit by six floodlights and there was no dispute that excessive light spillage would result into the rear facing windows and gardens. The appellants argued that the court would only be floodlit at night when the occupiers would close their curtains and not use their rear gardens. The Inspector criticised this notion and stated that in any event, suitable mitigation should not rely upon the occupier’s own actions each time the floodlights are used.
The close proximity of the court to nearby properties would result in noise disturbance from shouting, cheering, whistles and mitigation measures would not prevent these annoyances. The close proximity of the site and the sports court would result in unacceptable living conditions for future occupiers.
Whether the proposal would incorporate suitable sustainable drainage systems
The Sustainable Drainage Assessment report submitted with the application did not set out a definitive set of proposals which would meet the necessary requirements and it is not, therefore, certain that they can be successfully incorporated into the current scheme design.

The effect of the proposal on ecology/biodiversity
Surveys submitted with the application indicate the presence of reptiles on site and the potential for bat roosting. However, the surveys required updating in order to inform the details of necessary mitigation. The Inspector concluded that without a further survey it was not clear that protected species would be adequately safeguarded by the proposal.

Whether the proposal would make adequate provision in relation to affordable housing, education, libraries and open space
The appellant did not submit a unilateral undertaking by the appeal deadline to secure commitments to affordable housing, education, libraries and open space and accordingly, the proposal would not make adequate provision. The proposals were therefore in conflict with Policy CF1 of the MBWLP together with Policies ID1 and DM13 of the EMBLP.

Conclusions
Whilst the site is identified as sustainable and would meet the needs for additional housing, the environmental and social objections that have been identified under the main issues significantly and demonstrably outweigh these benefits. This means that the proposal cannot be considered as a fully sustainable development and the presumption in favour of such development does not apply.

Download Decision here.

12. Appeal dismissed in Maidstone as the development was considered to be harmful to the living conditions of the occupiers of nearby properties.

Mulberry House, 16 Northumberland Road, Maidstone, Kent, ME15 7LJ.

Appeal Ref: APP/U2235/W/16/3150714
Appeal Decision Date: 28th February 2017
Appellant: Mr Surrinder Kang
Respondent: Maidstone Borough Council

Appeal made under S78 of the Town and County Planning Act 1990 against failure to give notice within the prescribed period of a decision on an application for planning permission.

Background
The development proposed is a two-storey rear extension and conversion of roof space into 14 self-contained flats comprising 10 x 2 bedrooms, 3 x 1 bedrooms and 1 x 3 bedrooms.

The Inspector considered the main issues to be:
• The effect of the proposed development on the living conditions of surrounding occupiers, particularly in respect of outlook
• Whether the proposal makes adequate provision for any additional need for library, and parks and leisure facilities

Living Conditions of Surrounding Occupiers
The Inspector concluded that the proposed development would be harmful to the living conditions of the occupiers of nearby properties, as the increased scale of the rear element of the proposed scheme, when compared to the existing, would protrude into the direct views from these dwellings’ first-floor, rear-facing windows. Due to this projection, the scheme was considered to be obtrusive. As such, it would conflict with the provisions of the National Planning Policy Framework (the Framework), which states that it is important to plan positively for a high quality of development (paragraph 57) and paragraph 17.

Library, Parks and Leisure Contributions
Contributions were sought to mitigate the effects of any increased demand for services. Section 106 was completed and signed by the Appellant, making a contribution of £672.22 to mitigate the impact of the use of library services by future residents, A sum of £22,050 was also sought as a contribution to park and leisure services. It was agreed that the scheme made an appropriate provision and mitigates adequately for additional library and parks and leisure demand.

Conclusion
The Inspector concluded that there was no harm given the mitigation measures presented in respect of local facilities and services. The improvement of these facilities would, in fact, benefit the wider community. Furthermore, the scheme would contribute to the supply of housing in the area, however, these benefits did not outweigh the harm presented by the living conditions of surrounding occupiers in respect of outlook.

Download Decision here.

13. Development in Catford, London refused as the harm to Culverley Green Conservation Area was considered to outweigh the public benefits provided by the scheme.

Phoebes Garden Centre, Penerley Road, Catford, London SE6 2LQ.

Appeal Ref: APP/C5690/W/16/3155510
Appeal Decision Date: 3rd March 2017
Appellant: Michael Jordan
Respondent: London Borough of Lewisham

Appeal made under S78 of the Town and County Planning Act 1990 against failure to give notice within the prescribed period of a decision on an application for planning permission.

Background
The development proposed was for the demolition of the existing buildings at Phoebes Garden Centre, Penerley Road, SE6 2LQ, and the construction of a three-storey building incorporating balconies to provide 5 x one bedroom, 15 x two bedroom and 9 x three bedroom self-contained flats, together with the provision of car parking spaces, cycle spaces and landscaped garden areas.

The Inspector considered the main issues to be:
• Whether or not the proposal would preserve or enhance the character or appearance of Culverley Green Conservation Area
• Whether or not the proposal would provide adequate living conditions for future occupiers with particular regard to private outdoor space

The effect of the Proposal on the Character and Appearance of the Conservation Area
The appeal site is a closed garden centre and is located within Curverley Green Conservation Area which is mainly Edwardian residential suburb with wide tree lined streets. It was agreed that a 3-storey building may be acceptable on the Site, however, the footprint and the mass of the proposed building would be considerable and out of keeping with the proportions in the CA. As such, the building would not be consistent with, or sympathetic to, the key characteristics which define the conservation area within which it is located. It was concluded that the scheme would not preserve or enhance the CA. The Inspector considered the harm to be less than substantial and attached great importance to the harm which would be weight against the public benefits.

Living Conditions for Future Occupiers with Particular Regard to Private Outdoor Space
The scheme would provide a communal garden and most of the apartments would be provided with private open space. The Inspector concluded the scheme would provide adequate living conditions to future residents and is compliant with Policy 3.5 of The London Plan (adopted March 2015) and Standards 26 and 27 of the Housing Supplementary Planning Guidance (adopted March 2016).

Conclusion
The Inspector concluded that even though the scheme would provide adequate living conditions for future residents and would not harm the living conditions of nearby residents – the public benefits still do not outweigh the harm caused to the Culverley Green Conservation Area. In light of this, the appeal was dismissed.

Download Decision here.

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Planning reform to fix the broken housing market

 

Planning review delayed

Planning reform to fix the broken housing market-delayed by the General Election

In March 2017, the Government set out its intention to reform planning with the publication of the Housing White Paper. It was a mixture of green and white and sets out the Government’s four-point plan to fix the broken housing market.

In trying to understand and explain all of the proposed changes to national planning policy and legislation, we thought we’d got our head around what was potentially happening and when.
However, with the announcement of the General Election of 8th June 2017, we may well be back to square one.

Here is a summary of the changes we were expecting over 2017 prior to the announcement of the General Election.

What’s happened so far?
The Housing and Planning Act received royal assent on the 12th May 2016.
The following sections of the Act on planning came into force from the day the Act received Royal Assent:
• Local planning authority duty to keep a register of particular kinds of land
• The setting of fees for planning applications
• Processing of planning applications by alternative providers
• Urban Development Corporations

A number of the other planning provisions in the Act have since come into force with a commencement date yet to be confirmed:

Sections 158 and 159 on planning obligations
Section 160 on development consent for projects that involve housing
Sections 180 and 181 on compulsory purchase order confirmation and time limits
Sections 192-198 on compulsory purchase compensation

The Neighbourhood Planning Bill had its third reading and will receive Royal Assent in due course. Clause 6-11 of the Bill sets out Local Planning and the powers for intervention.

Starter Homes and Small sites register
The Act put into legislation the Government’s intention to provide a number of Starter Homes. The Government will commence the general duty on local authorities to promote the supply of starter homes and will bring forward regulations to finalise the starter homes definition and monitoring provisions. The Government have previously proposed that local authorities should keep a register of “small sites” in their areas and have since confirmed that it would not go ahead with the requirement for local authorities to keep a small sites register at this time.

Local Plans
The Secretary of State is given powers to intervene where Local Authorities are failing. This is through the Neighbourhood Plan Bill which has had its third reading.
The Government confirmed that following a previous proposal to incentivize preparation of a Local Plan and reduce New Homes Bonus in areas where this is not happening, they will not be taking this forward in 2017/2018.
Press release: Priminister Minister – Councils must deliver local plans for new homes by 2017

Permission in Principle
The Housing and Planning Act 2016 (Permission in Principle etc.) (Miscellaneous Amendments) (England) Regulations 2017 was made on March 6th 2017 which clarifies a number of points on permission in principle in England.
Competition in the system
The act gave the SOS through regulation the power to introduce pilot schemes for competition in processing applications.
Developer Contributions
Clauses have been added into the Act to deal with dispute resolution in order to speed up the process of negotiation.

Further changes are coming!
Here’s a summary of the changes in planning that were being considered before the General Election announcement:
Housing land supply and standardized requirement- Government’s priority 
The Government’s priority is to consult on options for introducing a standard methodology for calculating OAN and housing requirement. There will be criteria for moving away from the standard methodology which would require justification. Options are being explored within this consultation for local authorities have to set a housing requirement for Neighbourhood Plans.
The Government are considering whether local authorities will be able to have land supply agreed on an annual basis and for this figure to be fixed on a one year basis. This figure will undergo independent examination, however there are rumblings of concern from local authorities that the time to undergo local plan examination will impact on the date in which the housing figure is adopted.
We were anticipating the consultation in spring 2017, so any time now. Depending on the general election result the incoming government may continue to progress with this priority.

Local Plans
The Government are consulting on the intention to make changes to the NPPF to introduce a housing delivery test and considering consequences for under delivery (fall below the 95% threshold over a 5 year period).
Changes to the NPPF
We were anticipating a revised NPPF in the summer with the following changes:
Duty to Co-operate to be amended so that authorities will be expected to prepare a statement of Common Ground.

  • CLG and the Government are keen for joint planning and will encourage
    Amendments to paragraph 14 and the presumption in favour of sustainable development
    Paragraph 156 and strategic priorities
  • Principle of upward extensions  to be included
  • Stronger support for rural exception sites
  • Allowance for more brownfield land to be released for development with higher proportion of starter homes
  • Definition of affordable housing to be amended to encompass a wider range of products
  • NPPF to be amended to include support for and increased number of new build to rent homes
  • Introduce presumption that brownfield land within settlements is suitable for housing
  • The government have set out their intention to strengthen planning policy to support higher densities in urban locations with a review of the Nationally Described Space Standard
  • Clarification to be made to Green Belt Policy to make the tests for release more transparent
  • Clarification of flood risk policy to ensure that policies for managing flood risk also address cumulative flood risk
  • Amend policy on noise to take into account existing business and adjacent uses
    It is unclear at the present time whether any incoming Government will continue with preparing a revised NPPF

Developer Contributions
The Government were proposing to review the process for developer contributions following publication of the CIL Experts Group findings. This will be reported in the autumn statement 2017.

Nationally Significant Infrastructure Projects
The act will change so that a development consent order could grant consent for housing that is linked to a NSIP.
Permission in principle
The following statutory instruments were to be made in order to implement the permission in principle policy.

  • The Town and Country Planning (Permission in Principle) Order 2017
  • The Town and Country Planning (Fees for Applications, Deemed Applications Requests and Site Visits) (England) (Amendment) Regulations 2017
  • The Town and Country Planning (Register of Previously Developed Land) Regulations 2017
  • Permitted development rights for state funded schools to be extended

Fees and Capacity
Government were considering increasing planning fees with further allowance for authorities who are delivering to increase fees up to 20%. This additional funding would be ring-fenced and would have to be spent within the Planning Department. Thurrock for example, could gain an additional £200,000 Consideration also being given to setting up fees for submitting planning Appeals.

Better information on Build out and Developer Track record
A September consultation was anticipating to deal with issues surrounding developer’s delivery rates, whether the start date of development should be included in a planning application, changes the legislation for secretary of State Sign off and the use of Compulsory Purchase Orders.
The Government have asked the question as to whether Local Authorities should be able to take into account a developer’s track record and delivery rates in considering applications. We are of the opinion that each site is different and on site constraints as well timely discharge of Conditions impacts on meeting targets. Developers already provide information on delivery rates to local authorities when they are preparing SHLAA documents and calculating supply.

Secretary of State Call in period
A statutory period of 3 months is proposed in which the SOS can call in applications.

Prior to the general Election announcement on April 18th, The Government were proposing a raft of consultations over the spring and summer of 2017 to amend national planning policy to improve delivery of much needed homes. Housing is sure to be top of all parties’ manifestos as in 2015 when all parties pledged to increase housing numbers:

Labour- least 200,000 new homes a year are built by 2020,
Conservatives- 200,000 new Starter Homes exclusively for first-time buyers under 40
Liberal Democrats- 300,000 a year

No matter the outcome of the general election, we all have a role to play in meeting the aims of the Housing White Paper and Urbanissta looks forward to working with the housebuilders in this time of change to secure the houses that Britain needs.

Do you need to speak to a planner? Contact us today.

Read the Planning Reform Proposals here.

The Housing White Paper:
Part: 1
Part: 2
Part: 3
Part: 4

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EIA Regulations are changing – What does this mean for you?

 

environmental impact assessment

The role of the Environmental Impact Assessment Directive (EIA) and how is it changing?

The core role of EIA is to maintain a level of environmental protection established within the current EIA Directive. The main aim is to drive effective EIA across the EU through three themes:

Harmonisation, efficiency and quality.
The EIA directive has been amended and codified a number of times since 1988. Several changes were made before adapting to the current Directive in 2014 which is required to be transposed by Member States on or before 16 May 2017.

Experts
The revised Directive introduces the need for EIAs to be produced by ‘competent experts’. The Directive does not however provide a definition for the term. It is for the LPA to decide whether the expert is competent or not.

Screening
Future screening requests require more specific information. At present, the information required is minimal, only requiring a plan, description of development and any other such information the developer wishes to provide.
Future screening requests now require the following:
• A plan
• Description of development
• Development proposal
• Sensitivities of proposed location
• Aspects of the environment likely to be significantly affected
• Description of likely significant effects from a list of species
• Any other information the developer wishes to include including mitigation
This can be considered as a ‘mini EIA’ at the screening stage as the results from other assessments, mitigation measures and avoidance measures are considered in this process. The 21-day time scale for receiving a screening opinion has been retained – the option to extend up to 90 days may be agreed in writing.

Scoping
The proposal for mandatory scoping was not implemented. A scoping opinion can be requested from the LPA, the EIA will need to be based on the response given. The Directive does not clarify at what stage an EIA is required or how much information should be provided to support the request.
A broader scope of issues to be considered under the new regulations:
• Impacts on biodiversity, climate change, and landscape
• Vulnerability to accidents and disasters
The provision of additional information will require local authorities to have the relevant expertise to assess the information provided and decide if the information is sufficient early on in the process. This imposes an additional burden on the role of the LPA.

Consultation time frame
Increased time frame from 21 to 30 days to consult and comment on any environmental information.
• What will changes to the screening and scoping requirements mean to you?
Developers and LPAs are likely to face practical consequences as there will be an inevitable delay in securing planning permission for an EIA development and furthermore, increased costs. The following will be enshrined in statute and an increased burden is imposed on both the LPA and developer: the need to submit a screening report, mitigation may be considered by the LPA, ES must be based on the scoping opinion and considered during determination. It has been argued that the changes are minimal and the impacts of the new regulations are minor.
• How is mitigation to be viewed in the new process?
There appears to more emphasis placed on mitigation particularly in the early stages. Mitigation will need to be imbedded into the design if to be taken into account in the screening process. Furthermore, the progress of mitigation will be monitored from screening through to ES and implementation to ensure that there are no breaches and no significant adverse effects. Developments which do not comply with the Directives will be subject to enforcement and monitoring action.
• How do planning consultancies need to adapt?
There is also a burden on consultancies to advise clients very early on about engaging an appropriate team who can assist in ‘designing out’ any impacts and appointing a competent expert to provide an ES. Greater input will also be required at the screening stage and someone must be appointed to monitor the commitments to mitigation to avoid breaches and enforcement action. Furthermore, clients must be advised about the transitional arrangements which are as follows:

Screening
Screened prior to 16 May 2017 – existing EIA Regulations apply
Screened on or after 16 May 2017 – New EIA Regulations apply

Scoping
Scoping request and ES pre 16 May 2017 – existing EIA Regulations apply
Scoping request and ES on or after May 2017 – New EIA Regulations apply

What legal challenges might arise from the amended regulations?

• Screening and scoping challenges
• JR of screening opinion and timing of challenge
• Enforcement action for failing to commit to mitigation measures

Relevant reading:
The Amending Environmental Impact Assessment

We have a thorough understanding of the EIA, if you have any questions relating to this or any of our other articles, contact us today.

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The Urbanissta Legal Beagle is on the case! (March 2017)

 

Legal Beagle

Welcome to the Urbanissta Legal Beagle’s case law reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgements and decisions that might be useful to you, day to day.

We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. This is month two of our updates, so remember to keep any eye out for further iterations, in the weeks to come!

Giles AtkinsonThis month, our guest barrister, Giles Atkinson from 6 Pump Court Chambers has also provided a useful commentary on a recent appeal made against South Cambridgeshire District Council. He discusses the main issues raised in the appeal and how the outcome may be helpful to you, so we hope you find this interesting too.

 

1 Housing Shortfall Leads to grant approval for rural site

Land off Hitchin Lane, Clifton, Bedfordshire

Appeal ref: APP/P0240/W/16/3154829
Appeal Decision Date: 17th February 2017
Appellant: Gladman Developments
Respondent: Central Bedfordshire Council

The appeal was made under S78 of the Town and County Planning Act 1990 by Gladman Developments against the decision of Central Bedfordshire Council to refuse outline permission for up to 97 residential dwellings (including up to 35% affordable housing).

Background
The appeal site is located outside but adjoining the development southern edge of the village of Clifton in Bedfordshire. The development proposals comprised of the demolition of existing outbuildings with the redevelopment of the site with 97 dwellings, landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation. All matters were reserved except for the main site accesses.

The Inspector considered the main issues to be:
• Whether the proposed development would provide a deliverable contribution towards the identified housing needs of Central Bedfordshire
• The effect of the proposal on the character and appearance of the area

Housing land supply & planning policy
It was agreed at the hearing that the council did not have a five-year supply of land and whilst there was disagreement about the exact figure for the council’s land supply, the Inspector concluded that the shortfall was significant regardless.

The Council’s policy which sought to restrict development in the countryside (Policy DM4) could not be regarded as ‘up to date’ and as such the proposals were assessed against paragraph 14 of the NPPF. The provision of 97 homes including 35% affordable was a matter that weighed significantly in favour of the proposals in accordance with paragraph 14.

The Council argued that to ensure the delivery of the proposed homes to meet the Council’s housing requirements the appellant should include a clause within their Unilateral Undertaking that obligates the developer to deliver the complete development within 5 years. However, there was no substantive Local or National Policy justification for such a clause. The appellant voluntarily proposed reduced timescales for the submission of a reserved matters application and the commencement of the development as a means of promoting early delivery of the scheme.

Character & appearance
The site is located outside of the development boundary but adjacent to it. The Inspector confirmed through a site visit that it is visible from local roads. He accepted that the site had local aesthetic value and development would have an effect on the open character of the appeal site. Views of the development however, would be largely contained by the existing residential properties on Hitchin Lane and the existing established hedgerows. It would have a minimal impact on the overall visual containment of the site.

Having reached the above conclusions, the Inspector states that the proposed development would result in moderate harm to the character and appearance of the area in conflict with Policies CS14, CS16, DM3, DM4 and DM14 of the CSDPD.

Planning obligations
The appellant at the time of the appeal agreed to provide obligations towards education, leisure, off-site sports contribution, highways and a contribution in relation to the improvement of public transport infrastructure to offset the effect of the proposed development. The Inspector agreed these met the tests of CIL Regulation compliance.

Traffic & noise
Concerns were raised regarding the cumulative effect of development on the local road network, however the Inspector was satisfied that any increase in traffic from the proposed development would not result in severe harm to highway safety. He was also not persuaded that the proposed development or its associated traffic would result in harm to the character or appearance of the Clifton Conservation Area.

Conclusions
Whilst the development was noted as being contrary to Central Bedfordshire’s Local Plan and would result in moderate harm to a rural location, the provision of 97 homes towards the Council’s supply of housing was given significant weight particularly given the Council did not have a five-year supply of land. The adverse impacts of granting planning permission were not considered to significantly and demonstrably outweigh the benefits of the proposed development.

Download Decision PDF here

2  420 Dwellings approved after flaws identified in Councils viability assessment

Land south of Winnycroft Lane and north of the M5 motorway

Appeal ref: APP/U1620/W/16/3149412
Appeal Decision Date: 24th February 2017
Appellant: Barwood Development Securities Ltd
Respondent: Gloucester City Council

The appeal was made under section 78 of the Town and Country Planning Act 1990 against the failure to determine the application within the prescribed period.

Background
The appeal site comprises of 20 hectares of Grade 3B3 pastureland on the south-eastern edge of Gloucester. It is in Flood Zone 1. An application was originally submitted in September 2015. In December 2015 and again in April 2016, the Council resolved to grant planning permission subject to the provision of 20% affordable housing (amongst other matters). Following the lodging of the appeal against non-determination, the Council resolved (July 2016) to present evidence at the Inquiry and seek not less than 10% affordable housing with a review mechanism.

The Inspector considered the main issue to be the level to which the development should include affordable housing and whether there should be a review mechanism, in the light of the viability of the development.

The position of the parties
Both parties agreed that development should be approved. However, there was a disagreement over the affordable housing provision as well as details in the Unilateral agreement on contributions towards police and monitoring.

The Council wanted the Inspector to issue a ‘minded to approve’ letter, requiring the completion of a Unilateral Planning Obligation (UPO) seeking not less than 10% affordable housing. The appellants argued that the development was unviable if any affordable housing was included.

Policy context
The site is not covered by an adopted plan or emerging or adopted Neighbourhood Plan. It was not originally allocated in the Council’s emerging plan. However, it has been included in the main modifications of the Council’s Joint Core Strategy (JCS) as a strategic housing site. Due to affordable housing provision on one site being lower than expected, a 5% uplift within the plan area was applied. The key policy related to the viability is SD13 that seeks 40% affordable housing provision on sites of 10 or more, subject to viability.

Viability
The Inspector went into detail on viability, primarily because the Council’s view was that other developments in the area had provided affordable housing (to varying levels) and as such that a greenfield development of this scale must be able to provide affordable housing. The Inspector was critical of this approach as it did not equate to a proper consideration of the viability of the appeal scheme, given that no evidence about the other developments was provided. There was disagreement between the parties over:
• Revenue values and the issue of incentives
• Site coverage and unit sizes
• Cash flow and finance
• Abnormal costs

Revenue values
There was uncertainty regarding the Council’s per square footage which varied from £221/sq.ft to £212/sq ft to £233/sqft. The appellant’s position was £207/sq.ft and whilst the Council provided conflicting evidence, the appellants supporting material was consistent and evidence based. The Inspector supported the use of ‘comparable’ developments in close proximity and supported the appellant’s revenue figure.

Viability – site coverage & unit sizes
The parties broadly agreed the appropriate unit sizes for two and three bed units, but there was considerable difference in relation to the size of the four bed units. The Council’s error in calculating the coverage of four bed dwellings was significant resulting in a fall in revenue of £2.98m. This single error reduced the affordable housing potential by around 5% and significantly detracted from the Council’s position.

Viability – cash flow & finance
The delivery trajectory was not agreed by the parties. The appellant used a scheme-specific cost plan and cash flow whereas the Council used the default ‘S’ curve in the Argus software package. The Inspector went with the approach of the appellant to use a scheme-specific cash flow.

The Inspector cited several flaws in the Council’s approach including that the Council’s cash flow and lead in times, and too little cost being expended near the start of the development in comparison to the revenue apparently flowing from the sale of the units.

The Inspector was critical of the Council in that the cash flow bore little resemblance to the reality of scheme development. In contrast, the appellant’s appraisal demonstrated that the scheme could not sustain an affordable housing.

Contributions
Affordable housing and police contributions did not meet the policy in paragraph 204 of the NPPF and were removed from the Unilateral planning obligation. The monitoring costs were necessary to make the development acceptable in planning terms.

Conclusions
The viability evidence showed the development could not support affordable housing. The Council’s approach of refusing development even if viability work shows affordable housing was considered contrary to the NPPF as the evidence clearly showed that the proposal should not include affordable housing.

Download Decision PDF here

3 Importance of design emphasised as appeal is dismissed on the basis that the scheme failed to deliver the high-quality design sought by National and Local Planning policies

Land at Gibraltar Farm, Ham Lane, Hempstead, Gillingham, Kent ME7 3JJ

Appeal ref: APP/A2280/W/16/3143600
Inspector’s report to SoS: 5th December 2016
Appeal Decision Date: 6th March 2017
Appellant: Messrs KD, JC & MC Attwood
Respondent: Medway Council

The appeal was made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. It was however recovered by the Secretary of State for determination under Section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
A public local inquiry opened on 4th October 2016 with the appellants appealing against the against the decision of Medway to refuse planning permission for the erection of up to 450 market and affordable dwellings together with provision of access, estate roads and residential open space, in August 2014. On the 4th August 2016, before the inquiry opened, the appeal was recovered by the Secretary of State (SoS).

The reason for the recovery was stated to be because the development involves proposals for residential development of over 150 units or sites of over five hectares…
“which would significantly impact on the Government’s objective to secure a better balance between housing demand and supply and create high quality, sustainable, mixed and inclusive communities.”

The Inspector recommended that the appeal be allowed based on revised plans (subject to conditions) and the SoS agreed with the Inspector’s conclusions. The main issues were:

The Planning Policy position
The SoS agreed with the Inspector’s development plan policy, which seeks to restrict (housing) development in the open countryside. He also agreed that the Council does not have a five-year land supply and as such, given the advice in paragraph 49 of the framework, such restrictive policies should be afforded limited weight.

Housing land supply
The SoS and Inspector noted that the main parties agreed that a 5-year housing land supply cannot be demonstrated and the Council acknowledges a supply in the range of 2.21 to 2.79 years. Whilst the appellant thought this to be optimistic the Inspector indicated that it was sufficiently lacking and as such that greenfield land would need to be developed.
Character and appearance of the countryside which is also designated as part of the Capstone and Horsted Valleys Area of Local Landscape Importance (LLLI)
The SoS and Inspector agreed that the proposed development would harm the character and appearance of the immediate area and, therefore, failed to accord with the provisions of key policies, however such harm was considered insufficient to represent “a critical harm” to the function of the Capstone and Horsted Valleys ALLI taken. Furthermore, it was considered that the development plan policy supported development where the social and economic benefits of proposals outweighed the local priority to conserve the area’s landscape and in this sense the benefits were considered to weigh in the appeal schemes favour.

Whether there were other benefits of the scheme?
Significant weight was attached by the Inspector to the 25% affordable housing provision, as well as the economic benefits, open and children’s play space and biodiversity interests. The Secretary of State however agreed that the proposed landscaping/planting and New Homes Bonus Payments attracted little and no additional weight respectively.

Conclusions:
In concluding, the SoS states that, “The overall positive balance for the economic and social strands of sustainability from the development contrast with the environmental role where there is clear harm to this area of countryside which is locally designated for protection. However, the development would not lead to coalescence between Lordswood and Hempstead or critical harm to the ALLI’s function…” resulting in the he sustainability of the appeal scheme alongside Local Plan polices being out of date due to land supply constraints, meant that this outweighed landscape harm and other harm. The “adverse impacts of the scheme do not significantly and demonstrably outweigh its benefits when assessed against the policies of the framework taken as a whole”.

Download Decision PDF here

4 Environmental harm outweighed by the benefits of the provision of affordable and market housing

Land and Buildings off Watery Lane, Curborough, Lichfield, WS13 8ES

Appeal ref: APP/K3415/A/14/2224354
Inspector’s report to SoS: 21st March 2016
Appeal Decision Date: 13th Feb 2017
Appellant: IM Properties Development Ltd
Respondent: Lichfield District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant Outline & Full planning permission.

Background
Lichfield District Council refused outline planning permission in January 2014 for the removal of buildings and other structures and construction of up to 750 dwellings, primary school, care village, neighbourhood facilities to include retail development, community building, parking, comprehensive green infrastructure comprising formal and informal open space, footpaths, cycle ways, water areas and landscaping. New access points to Watery Lane and Netherstowe Lane and improvements to Netherstowe Lane (14/00057/OUTMEI).

The matter was recovered for the SoS determination on 24th September 2014 due to the size of the development.

The Inspector considered the main issues to be:
• Highways
• Landscape
• Trees and hedgerows
• Views of Lichfield Cathedral
• Housing supply
• Biodiversity
• Special Areas of Conservation (SACs)

The SoS disagreed with the Inspector’s recommendation to refuse planning and the appeal was allowed and permission was granted.

Highway matters
The SoS decided that permission should not be refused on the grounds of transport. It was agreed that the distance for walking and cycling were longer than desired. However, it was noted that the appeal site was better placed than most in the area and as such, appropriate transport provisions could overcome this issue.

Character and appearance
The Inspector agreed that the impact would be negligible given the size of the LCA. Immediate impacts were key to the weight that contributes to the harm of the landscape character. Secondly, the assessment of harm in the LVIA undervalued the impact of the proposal at the more immediate and localized level. The methodology adopted in the LVIA lead to an under-estimation of visual impact. The SoS, however, when allowing the appeal, noted that the landscape and visual harm from development should not weigh heavily against the appeal proposals.

Trees and hedgerows
The SoS agreed with the Inspector that the method adopted to conserve the historic hedgerows during translocation was a poor option. The visual character however, will not be affected but it was noted that veteran trees would be harmfully diminished. The SoS concluded in agreement with the Inspector that there would be harm to the ancient hedgerow along the west side of Netherstowe Lane, albeit, modestly harmful. It was noted that these could only be retained if very limited works to widen the road were carried out.

(Curborough Grange) Grade II listed building
The SoS agreed that ‘harm’ was presented to the setting of the Grade II listed Curborough Grange Farm House. The farmland setting was considered an important aspect to convey the original function of a working farm. However, it was noted that it was no longer used for that purpose and other farmstead buildings have been converted to dwellings. Any harm was ‘less than substantial’.

Views of Lichfield Cathedral
The SoS agreed with the Inspector in that any development which allows views towards the Cathedral would conflict with Policy CP14 however, given the lack of definition as to what ‘important views’ constitutes, significant weight could not be attached to this objection. It was noted that the harm would be so slight that it would barely cause any harm at all to the significance of the Cathedral as a listed building. However, the SoS gave considerable weight to the ‘slight harm’ of the setting due to the desirability of preserving the setting of the Cathedral. As this ‘harm’ was considered ‘less than substantial’, paragraph 134 of the Framework applied.

Housing requirement
The SoS disagreed with the Inspector and concluded that the local planning authority could demonstrate a 5-year supply with ‘a surplus of 307 dwellings’. Paragraph 49 of the Framework was not engaged and it was noted that the relevant policies of the development plan were ‘up to date’.

Biodiversity
It was agreed that as there were no compelling objections on the grounds of biodiversity, this could be subject to suitable conditions.

Special Areas of Conservation (SAC)
The SoS agreed with the Inspector in that the proposal lacked any hydrological connection with the River Mease SAC and the Cannock Extension Canal SAC, as such, the proposal would have no likely significant impact.

In respect of the Cannock Chase SAC, it was considered that an appropriate assessment would be required as the SoS held the view that there would be likely significant effects of the proposal. It was highlighted that mitigation measures would suffice to prevent any adverse effects to Cannock Chase SAC.

In summary, the SoS concluded that the appeal scheme was not in accordance with the development plan and conflicted with Core Policies and Policies NR3, NR4, NR5 and BE1 of the adopted Local Plan Strategy, Policies DC1, DC1 or H3, E3 and E18B, and Core Policies 14 and C1 of the Lichfield District Local Plan 1998. Modest weight was given to landscape and visual harm from development. The SoS gave considerable weight to the setting of Curborough Grange and Lichfield Cathedral, albeit that any harm was considered ‘less than substantial’ for the purposes of paragraph 134 of the Framework. Considerable weight was also given to the loss of veteran trees and ancient hedgerows due to the damage that would be sustained by widening the roads.
The above issues however were weighed against the social and economic benefits of providing affordable and market housing. Despite the Council meeting their 5 year land supply target, significant weight was given to the benefits of the provision of affordable and market housing. The SoS considered that this outweighed any environmental harm and the proposal would represent sustainable development.
In light of the above, the appeal was allowed.

Download Decision PDF here

5  Those seeking to challenge the grant of permission will have a strong ground to argue that the permission is unlawful on the basis of the absence of reasons

High Court
Case No: C1/2016/1456
Date: 15th February 2017

Our guest barrister, Giles Atkinsons takes us through a recent appeal made against South Cambridgeshire District Council (SCDC). The appeal raises the issue of whether SCDC ought to have given reasons for granting planning permission for the development by Cambridge City Football Club, a semi-professional club, of a football stadium capable of seating three thousand people in the outskirts of Sawston in Cambridgeshire, on land which is part of the Green Belt.

Giles highlights that under DMPO 2014, Article 35, not only are LPA required to give reasons for refusing planning permission but also must give reasons for any conditions that it imposes if it grants permission.
“35—written notice of decision or determination relating to a planning application
(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters
(a) Where planning permission is granted subject to conditions, the notice must state clearly and precisely their full reasons
(i) For each condition imposed
(ii) In the case of each pre-commencement condition, for the condition being a pre-commencement condition
(b) Where planning permission is refused, the notice must state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision”

Background
The Council’s Senior Planning Officer produced a detailed report on 4th June 2014 and recommended that the permission be refused for a stadium on Green Belt land. The Planning Committee met to consider the application and rejected the officer’s recommendation. The development was accepted in principle and subsequently permission was granted. The decision notice did not explain why permission had been granted.

The member’s decision was challenged in the High Court on the grounds that the failure to give reasons for the grant of permission in these circumstances was contrary to a common-law obligation to do so. The High Court challenge was unsuccessful so the appellant appealed to the Court of Appeal. The appellant succeeded in the Court of Appeal for the reasons set out below.

The main issues considered were:
• Was there a duty to provide reasons?
• Did the failure constitute as a breach of the common law duty to give reasons

Commentary
There appears to be one glaring omission from the Regulations, which is the duty to give reasons for granting permission. The government did experiment with including this as a requirement between 2003 and 2013, but this was removed. There, it seemed, the matter rested.

In Oakley v South Cambs however, the Court of Appeal considered the circumstances under which an LPA may nevertheless be required to give reasons under common law when granting permission.

The appellant succeeded in the Court of Appeal and it is useful to consider the Court’s reasoning in this case which could have wide implications.
Essentially two arguments were made by the appellant.

First, it was argued that reasons should always be given for planning decisions, including the decision to grant permission, unless it is obvious from publicly available material (primarily the officer report) how the decision has been reached. Clearly, when members reject their officer’s recommendation, as happened in this case, it will be harder to infer their reasoning than in a case where the officer recommendation is followed. So, although the fact of a decision being a ‘member overturn’ is not itself usually likely to give rise to a duty to give reasons, it may be relevant in supporting a conclusion that reasons should be given.

Elias LJ was ‘strongly attracted’ to this first argument and in the Judgment, sets out 6 reasons why. However, in the end he did not determine the case in accordance with the first argument because he found the duty to give reasons arose in accordance with the second argument. He said (at para 55) of the Judgment:
“For these various reasons, I am strongly attracted to the wider submission advanced by Mr Simons (Counsel for the Appellant). It would not mean that any busybody could seek reasons where permission is granted. The rules of standing ensure that only those who have a proper interest in doing so can challenge a decision. However, I would not decide the appeal on this broad principle. The courts develop the common law on a case by case basis, and I do not discount the possibility that there may be particular circumstances, other than where the reasoning is transparent in any event, where there is a justification for not imposing a common-law duty. It is not necessary for me to rely upon the broad argument because in my judgment the duty arises under the alternative argument.”

I turn to the second argument in a moment, but it seems to me that the level of support from the Court for the first argument may well be enough to have opened the door to this area of law. The consequence will be that LPAs may increasingly begin to give reasons when granting planning permission and those seeking to challenge LPAs’ decisions will increasingly ask for them when reasons are not given.

The second argument was that the nature of this particular decision required reasons to be given. This was a decision that was both contrary to the development plan and allowed development in the Green Belt, which enjoys a particular measure of protection in planning policy. Essentially it was argued that because of these conflicts the decision to approve the proposal requires explanation in the shape of reasons. The Court agreed (per Elias LJ at para 60):
“The decision in this case involved development on the Green Belt and was also in breach of the development plan. Public policy requires strong countervailing benefits before such a development can be allowed, and affected member of the public should be told why the committee considers the development to be justified notwithstanding its adverse effect on the countryside. In my judgment these considerations demand that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there is in my judgment an overwhelming case for imposing the duty here.”

Again, in respect of this second argument, the fact of the decision being a ‘member overturn’ does not itself give rise to the requirement to give reasons – but it supports that conclusion. Without them, the member’s reasoning would remain obscure and the fact that the members take a different view on such important matters needs to be explained.

Necessarily the second argument upon which the appeal succeeded is specific to the facts of the Oakley case. Different facts in different cases may lead to a different conclusion. But in general it may be said that when a member overturn amounts to granting permission for development, either contrary to the development plan or in the Green Belt, the LPA must expect to give its reasons for doing so. It may be that LPAs will as a result of this decision of the Court of Appeal issue their reasons as a matter of course. If they do not, those seeking to challenge the grant of permission will have a strong ground to argue that the permission is unlawful on the basis of the absence of reasons.

Download Decision PDF here

6 Javid Approves 350 Dwelling Scheme in Lancashire

Land off Lytham Road, Warton, Lancashire

Appeal ref: APP/M2325/W/15/3004502
Appeal decision date: 23rd January 2017
Appellant: Warton East Developments Ltd
Respondent: Fylde Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to determine an application within the prescribed period. The application was recovered by the Secretary of State on 12th February 2016 as the appeal related to proposals for residential development over 10 units in an area where a qualifying body has submitted a Neighbourhood Plan.

Background
The site lies to the north of Warton and is approximately 12.78 ha in extent. The proposals were for 375 dwellings with access secured, subsequently changed to 350 dwellings. The application was not determined by the Council as they were choosing to wait for a decision on a scheme close to the appeal site. The Council heard a duplicate appeal in July and this application was also refused against the recommendation of the Council officer.

The reporting Inspector considered the main disputed issues to be:
• The effects of development on the character of Warton
• The capacity of the highway network to accommodate the cumulative effects of development in Warton
• The suitability of Warton as a location for residential development in terms of air quality and the effects of the proposals on the demand for and supply of housing

Planning policy
The Development Plan ran up to 2016 and as such was considered out of date. The site is within a designated countryside area and Policy SP 2 would not permit development in countryside areas. This policy was not referred to in the putative reasons for refusal at appeal or in the Statement of Common Ground. The Bryning-with-Warton Neighbourhood Plan (BWNP) was submitted to Fylde Council on 23rd September 2014. It proposed including the entire appeal site within a new settlement boundary, however the Neighbourhood Plan has not progressed further since the publication of the Examiner’s report in April 2016.

Habitats Regulations Assessment
The appeal proposal would be unlikely to have a significant effect on the designated sites either alone or in combination provided the conditions as proposed by Natural England to secure mitigation were imposed.

The character of Warton, its services and facilities
It was accepted that the appeal proposal contravenes Local Plan Policies SP1 and SP2 which set limits to development for Warton, however these policies were considered out of date. The Secretary of State accepted the Inspector’s conclusion that the proposals complied with Local Plan Policy HL2 (1) which requires housing developments to be acceptable in principle.

The highway network
The Secretary of State accepted that with the recommended conditions, the proposed development would not cause the capacity of the highway network to accommodate the cumulative effects of development in Warton to be exceeded.

Air quality
The appeal proposal would accord with Local Plan Policy EP26 which would not permit development which would give rise to unacceptable levels of air pollution.

Housing
All main parties agreed that the Council did not have a five-year supply. The site represented the equivalent of a year or nearly a year’s requirement, and would clearly represent a highly significant contribution to housing land supply in the Borough. The proposal accorded with the Council’s requirement to supply 30% affordable housing.

Sustainable development economic
The Inspector concurred that even though the site is not located in a town centre, it would enhance or maintain the vitality of a rural community. The proposal scored moderately well in terms of accessibility to local services and agreed that development was located in the right place.

Social
Both the Inspector and the SoS agreed that the site made a highly significant contribution to housing land supply in the borough. Whilst the scheme was in outline, there was no suggestion that there was any inherent obstacle to a good result. The site also scored moderately well in terms of their accessibility to local service.

Environmental
The Inspector noted that the development of a greenfield site does not protect the natural environment as presently existing but, because the sites are of lesser environmental value, the harm from their loss is also lesser. The SoS accepted the conclusions that given the mitigations and enhancements which could be achieved through conditions, the development of this appeal site would only be moderately adverse.

Planning balance
Given that policies for the supply of housing are out of date, paragraph 14 of the Framework was engaged and permission should be granted unless the adverse impacts of so doing would significantly and demonstrably outweigh the benefits when assessed against policies in the Framework, taken as a whole, or specific policies in the framework indicate that development should be restricted. This was not the case in this appeal.
Download Decision PDF here

7 Javid approves 115 dwelling scheme in Lancashire

Land at Clifton House Farm, Warton, Lancashire

Appeal ref: APP/M2325/W/15/3141398
Appeal Decision Date: 23rd January 2017
Appellant: Hallam Land Management
Respondent: Fylde Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to determine an application within the prescribed period. The application was recovered by the Secretary of State on 12th February 2016 as the appeal related to proposals for residential development over 10 units in an area where a qualifying body has submitted a Neighbourhood Plan.

Background
The site is 3.74 ha in size and proposes of up to 115 dwellings. The Council heard a duplicate appeal in July and this application was refused. Immediately before the Inquiry commenced, agreement was reached between the Council and the appellant on most outstanding matters.

The reporting Inspector considered the main disputed issues to be:
• The effects of development on the character of Warton
• The capacity of the highway network to accommodate the cumulative effects of development in Warton
• The suitability of Warton as a location for residential development in terms of air quality and the effects of the proposals on the demand for and supply of housing in the local housing market area

Planning policy
Policy SP 2 of the development plan would not permit development in countryside areas, however the Development Plan which ran until 2016 was considered out of date. It was agreed that Policy SP2 was met. The Bryning-with-Warton Neighbourhood Plan (BWNP) proposed defining a new settlement boundary including the entire appeal site but the Plan has not progressed further since the publication of the Examiner’s report in April 2016.

Habitats Regulations Assessment
The Inspector noted the development would not result in a significant increase in recreational disturbance. As a precautionary measure, a visitor’s pack was recommended to be prepared and made available to future homeowners, highlighting the sensitivity of the protected sites to recreation and highlighting alternative recreational opportunities in the vicinity.

The character of Warton, its services and facilities
The submitted conventional Landscape and Visual Impact Assessment concluded that although there would be a loss of greenfield land the impact on the landscape would be minor. The proposal was considered to comply with Local Plan Policy HL2 (1) which requires housing developments to be acceptable in principle.

Highway Network
The Secretary of State accepted that with the recommended conditions, the proposed development would not cause the capacity of the highway network to accommodate the cumulative effects of development in Warton to be exceeded.

Air quality
No issues were raised in respect of air pollution.

Housing
In light of uncertainties regarding delivery, the Inspector noted that the site represented a highly significant contribution to housing land supply in the Borough. The SoS noted that the proposal accords with the Council’s requirement to supply 30% affordable housing.

Sustainable Development- economic
The SoS agreed that the proposal scores moderately well in terms of accessibility to local services with good access to public transport. The Site is located in the right place as it would either enhance or maintain the vitality of a rural community.

Sustainable Development -Social and Environmental
Both the Inspector and SoS agreed that the site makes a significant contribution to housing land supply in the Borough. Environmentally, the SoS considered that mitigation and enhancement could be achieved through conditions and as such, the development of the appeal site would only be moderately adverse.

Planning Balance
The SoS considered that give policies for the supply of housing were out of date, the Council did not have a five-year land supply and as such, paragraph 14 of the Framework was engaged. With planning obligations in place the appeal proposed complied, or could be made to comply by condition, with all other Local Plan Policies. Permission was granted as the adverse impacts of so doing did not significantly and demonstrably outweigh the benefits when assessed against policies in the Framework.

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8 Passivhaus no Longer Justifies Paragraph 55 Development

Land opposite 1-10 Disraeli Road, Rayleigh

Appeal ref: APP/B1550/W/16/3159712
Appeal Decision Date: 3rd March 2017
Appellant: Mr Steve Mitchell and Peter Spicer
Respondent: Rochford District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission for two detached passivhauses.

Background
The appeal site comprises an area of open paddock land on the outskirts of Rayleigh. The site is within the Green Belt. The area is described by Inspector D. M. Young BSc (Hons) MA MRTPI MIHE as ‘unmistakably rural’.

The Inspector considered the main issues to be:
• Whether or not the proposal is inappropriate development in the Green Belt for the purposes of the National Planning Policy framework (the framework). The effect of the development on the openness of the Green Belt
• If the proposal is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development

Green Belt
Paragraph 89 of the Framework states that construction of new buildings in the Green Belt is inappropriate subject to some exceptions. The Inspector considered that the development proposals failed to meet any of the stated exceptions and is inappropriate development and should not be approved except in ‘very special circumstances’.

The effect of the development on the openness of the Green Belt
The land is identified as open land and contributes to the rural setting to the north of Disraeli Road. Whilst there was some screening in the form of woodland areas, the dwellings would have a prominent location and would be visible from Disraeli Road. The introduction of two dwellings was considered to have the potential to completely change the character of the land. The introduction of domestic boundary treatments, hard surfaced driveways with attendant vehicles would all significantly erode the openness of the Green Belt.

If the proposal is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.
The Inspector was not convinced that the development was a Paragraph 55 case as it was not isolated dwellings in the countryside. In terms of innovative design, the principles of the Passivehaus movement were not considered to be truly innovative, as these are becoming commonplace. The contemporary appearance of the dwellings would be aesthetically isolated from the modest traditional dwellings on the south side of Disraeli Road, compounded by the bulk and mass of the dwellings which would be decidedly different to anything else in the vicinity. The Inspector noted that the scheme included sustainable drainage measures as well as ecological and landscape enhancements however, these were afforded only modest weight.

Conclusions
The appeal was dismissed because the development would harm the openness of the Green Belt which carries more weight than the modest benefits arising from the proposed ecological/landscape enhancements. These other considerations clearly do not outweigh the identified harm. No very special circumstances existed to justify the development.

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9 Previously collapsed property undermines development potential on seafront

64-65 Central Parade, Herne Bay Kent CT6 5JQ

Appeal ref: APP/J2210/W/16/3160821
Appeal Decision Date: 3rd March 2017
Appellant: Sarjanda Ltd
Respondent: Canterbury City Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.

Background
The proposed development was to demolish the remaining existing building and erect a block of 14 apartments and commercial unit to ground floor with bin and cycle stores.

Main issue
The effect of the proposal on the character and appearance of the Herne Bay Conservation Area.

Impact upon conservation area
Planning permission was granted in 2007 for the change of use of the ground floor to a restaurant, a new shop front, and the extension of the building to provide nine flats. During subsequent conversion works, the building partially collapsed and the remainder was subsequently demolished for safety reasons. The site remained vacant since. The original building comprised a commercial use on the ground floor with residential accommodation above.

The Site is located within the Herne Bay Conservation Area and so special attention was needed to the preservation and enhancement of such, as established by National and Local Plan Policy. Being in a prominent sea-front location opposite a seating area and close to the Grade II Listed Herne Bay Clock Tower. The rear of the site is clearly visible.

Overall the terrace of properties in which the appeal site is located, was considered to have a “slightly neglected appearance” with the appeal site further detracting from the character and appearance of the conservation area. The existing architectural styles are however quite consistent and uniform. The appeal proposals sought to emulate the sea-front more contemporary, architecture within the conservation area. This was not objected to in principle by either the Council or Inspector. However, the design of the proposed development was not considered to represent good design.

Quoting para 60 of the NPPF the Inspector indicated that, “It is clear that planning policies and decisions should not attempt to impose architectural styles or particular tastes and they should not stifle innovation, originality or initiative through unsubstantiated requirements to conform to certain development forms or styles…. and that whilst design policies should avoid unnecessary prescription or detail, they should concentrate on guiding the overall scale, density, massing, height, landscape, layout, materials and access of new development in relation to neighbouring buildings and the local area more generally. It also confirms that it is proper to seek to promote or reinforce local distinctiveness.”

The contemporary flat road element building levels and relationship between the existing proposed development would introduce “a prominent and discordant feature to the terrace and detract from its appearance as a whole”. The scheme was therefore considered to maintain local distinctiveness.

Conclusion
The proposals failed to deliver the high-quality design sought by National and Local Planning Policies and whilst it was accepted that in its present condition the appeal site detracted from the character of the conservation area, such harm was localised and short term, whilst due to its scale and visual prominence, the appeal proposals were considered to have a, “more enduring and widespread effect on the conservation area.” and should therefore be refused. The appeal was dismissed.

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10 Development in the Green Belt with the potential to bring in social and economic benefits dismissed on the basis that an exceptional circumstance could not be demonstrated

Queens Park Road, Billericay, Essex CM12 0SP

Appeal ref: APP/V1505/W/16/3160138
Appeal Decision Date: 27th February 2017
Appellant: Mr Peachey – Basildon Group Ltd
Respondent: Basildon District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.

Background
The proposal was for residential development comprising 13 market houses and 6 affordable apartments at Stock Brook Manor Golf and Country Club, Queens Park Road, Billericay, Essex CM12 0SP.Mr Peachey (Basildon Group Ltd) appealed against the decision of Basildon District Council to refuse outline permission.

The Inspector considered the main issues to be:
• Whether the harm by reason of inappropriateness to the Green Belt, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development

Conclusion
The Inspector dismissed the appeal as the proposed development could not demonstrate an exceptional circumstance.

Green Belt
It was agreed by the parties that the proposed development did not fall within the examples set out in Paragraphs 89 and 90 of the framework whereby a development is not inappropriate. It was therefore considered that by definition, the proposed development was an inappropriate development in the Green Belt. It was noted that the proposed development would erode the openness of the Green Belt even if the proposed dwellings were adequately and appropriately designed and landscaped.

The Council fell significantly short of the five-year housing supply with only 2.8 years supply however, it was considered that although the proposed development would make a contribution to the shortfall and bring in social and economic benefits including the provision for affordable housing – this however, would not outweigh the harm to the Green Belt.

Considering the above, the appeal was dismissed.

Download Decision PDF here

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