Category Archives: Legal

 

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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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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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.

Download Decision PDF here

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.

Download Decision PDF here

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.

Download Decision PDF here

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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Heathrow Expansion – The Debate

 

The government has got the ball rolling with the Heathrow Plan by developing a National Policy Statement (NPS) framework to assess applications despite the on-going legal challenge.

Our very own Legal Beagle Farhana Hussain invites you to have your say. Are you for or against a 3rd runway for Heathrow Airport?

  • Should we have a 3rd runway for Heathrow Airport?
  • If in a year’s time, the development of a 3rd runway cannot pass a simple legal test, where will we be? What do you think? We present you with the facts

Source – NPS – additional runway boundary

The Heathrow Expansion – if allowed, it could be completed by 2020.

 Let the debate commence… 

For the development of the third runway:

  • The expansion could potentially create £60 billion of economic benefits
  • We need more capacity! London is growing, we need to meet the requirements now for the future
  • It would give the UK and economic boost. Improving connectivity with the rest of the world. Supporting exports, trade and job opportunities
  • There would be an allocated £700 million for noise insulation. It’s worth noting that there have been 84,000 noise complaints since January 2016…

Have your say!

Against the development of the third runway:

  • The expansion would cost approximately £18.6 Billion
  • It might hamper the UK’s efforts in tackling climate change
  • The GLA suggests that Heathrow Airport would breach the EU regulations on levels of Nitrous Oxide
  • There would be a destruction of communities – potentially the village of Sipson could be destroyed, that would include 700 houses and 10,000 people might need to be re-homed. Richmond Upon Thames and Twickenham noise levels are already over 50 decibels – the level that the world health organisations considers to be problematic. Solutions to which would need to be found.

Have your say!

This isn’t an Urbanissta opinion article. Planning is our business, customers are important to us and we are always interested in your thoughts.

Here’s an interesting question…

Not long after the High Court decision to delay the appeal for a judicial review of the expansion, the government have issued a draft National Policy Statement. The decision to delay the appeal doesn’t halt the development of the scheme – so where will we be in a year’s time? What do you think?

Only time will tell…

The government considered the NPS to be the most appropriate method to put into place the planning framework for the 3rd runway. As the schemes are regarded as nationally significant infrastructure projects pursuant to the Planning Act 1998, the government have decided that a development consent application is the best way forward to deliver the appropriate scheme.

We provide a summary of the NPS below:

Purpose and scope of the Airport NPS

The NPS is an important tool in providing a primary basis for decision making on development consent applications (DCA) and any future airport infrastructure plans going forward. It sets out planning policy which will need to be considered in conjunction with any application made for a significant infrastructure project. The airport NPS sets out the following:

  1. Government policy on the requirement of a third runway
  2. The preferred location and scheme to deliver the development
  3. Considerations given to particular DCA in respect of Airport NPS

Compliance

Compliance with the NPS is crucial – the SoS in making a decision would expect any proposed development to have regard to a number of components including design, implementation and delivery. In some cases, other NPSs may be relevant to the proposal, however, if a conflict arises, significant weight would be given to the recently designated NPS.

Section 104 (Planning Act 2008)

Similarly, to housing and the consideration of local plans, the SoS will give regard to the relevant NPS when assessing an application for significant infrastructure projects unless they decide that doing so would:

  1. Breach international obligations (eg. Kyoto Protocol)
  2. Be unlawful
  3. Lead the SoS into a breach of duty under any legislation
  4. Adverse impacts outweigh the benefits
  5. Contrary to legislations how decisions are to be taken

It must be noted that there is no provision in the Planning Act 2008 for the requirement of an outline application, followed by reserved matters approval unlike the Town Country Planning Act 1990. Despite this, developments can be phased.

Source; NPS Draft Masterplan of Scheme proposals

Brexit

Until exit negotiations are complete, the UK remain a full member of the EU and therefore the EU legislation applies to the development of the policy and decision making in respect of the preferred scheme. This may need to be revised once negotiations are complete.

Establishing the need for additional airport capacity

The Airport Commission, in their report dated December 2013 noted that there was a need for an additional runway in the South East of England by 2030.

The following shortlisted schemes were also considered: Gatwick Second Runway scheme, Heathrow Northwest Runway scheme, and Heathrow Extended Northern Runway scheme as well as the option of a new airport in the inner Thames Estuary (this was later dismissed as… “The proposal of a new airport in the inner Thames Estuary as it was did not perform sufficiently well to warrant consideration alongside the three schemes that it decided to shortlist.”)

The Airport Commission concluded their Final Report in July 2015 that the NW Runway at Heathrow presented the strongest case in respect of expansion and was considered to offer the greatest strategic and economic benefits to the UK.

Assessment Principles

General Principle

The NPS covering NW Heathrow scheme establishes the needs case provided that it adheres to the detailed policies set out in the NPS and the legal constraints posed by the PA 2008. Furthermore, the following must be taken into account by the examining authority and SoS:

  • Potential benefits are economic, job creation and environmental improvement
  • Potential adverse impacts and mitigation measures to compensate for such (national, regional and local levels)

Scheme variation

Although the preferred scheme has been identified – NW Runway – variations can still be made to the scheme. It is noted that the NPS does not prejudice the viability or merits of an application, but rather governs the location and limits and nature of such schemes.

EIA

The examining authority determining the application will assess significant effects at all stages.

Habitats Regulations Assessment

Before granting consent, the SoS must have regard to the Conservations of Habitats and Species Regulations 2010. If the relevant authority conclude, that the development is likely to have a significant effect on a European site and how it is not directly linked to the management of the site, an appropriate assessment must be carried out to assess the implications.

Equalities

An objective identified by the Airport Commissions (AC) was to: “Reduce or avoid disproportionate impacts on any social groups.” At the consultation stage, the AC must carry out an equality impact assessment.

Alternative requirements

The applicant must comply with the following legal requirements:

  • EIA Directive
  • Consideration of alternatives e.g Habitats and Water Framework
  • Flood risk sequential test

Criteria for ‘good design’ for airports infrastructure

Good design is an integral consideration. Visual appearance, costs and sustainability all play a significant part in considering the scheme design.

Good design must meet the principle objectives of mitigating or eliminating any issues that may arise from an adverse impact. The scheme must also be functional and fit for purpose.

Costs

The scheme must be cost efficient and sustainable and seek to minimise costs to airlines passengers and freight owners.

Climate change adaption

The development must plan to avoid increased vulnerability to the impacts rising from climate change. Any risks must be managed through suitable adaptation measures. Green infrastructure is encouraged.

Pollution control

The SoS will assess whether the development is an acceptable use of land and impacts of the use. The Environmental Agency who issue environmental permits (EP) will review the application to check whether the scheme meets the relevant EP requirements. Pre-applications can be conducted prior to making the application.

Common Law Nuisance

When an application is submitted, the examining authority will assess how the sources of nuisance might be mitigated so that appropriate recommendations are put to the SoS before granting permission.

Security considerations

Proportionate and protective security measures must be designed into new infrastructure projects at an early stage in the development.

Health

Measures to avoid, reduce or compensate for adverse health impacts must be considered.

Accessibility

The development must, in accordance with the legal requirements and best practice, satisfy the following:

  • Include clear details on how plans improve access, address accessibility and need
  • Ensure all bus/train fleets comply with legal access standards by 2020
  • Easy access and car parking provisions for the disabled

Specific impacts requirements

Any application put forward would also need to have regard to the following specific impacts requirements:

  • Surface access
  • Air quality
  • Noise
  • Carbon emissions
  • Biodiversity
  • Land use
  • Resource and waste management
  • Flood Risk
  • Water quality and resources
  • Historic environment
  • Landscape and visual impacts
  • Land instability
  • Dust, odour, artificial light
  • Community compensation
  • Community engagement
  • Skills
  • Ruling out a fourth runway

 What happens next?

  • Following consultation and adoption of the NPS, and assuming any legal challenges are unsuccessful, the NPS will form the basis for the application for the DCO which is required to permit the necessary development of the construction of the new runway
  • The critical aspect will be the impact of increased noise and air pollution and whether the government and Heathrow Airport Ltd are able to demonstrate that they can put together, and rely upon, “A comprehensive package of mitigation measures.” to overcome any harmful impacts
  • If it cannot be demonstrated that an effective and legally binding set of restrictions can be put in place, it may jeopardise the whole project as the government have made it clear that it will be a condition of approval, that the air quality legal requirements will be met

 The residents who will be affected by the expansion want to hear your views! (Read more)

The government want to hear your views! (Read more)

Relevant dates for the expansion (read more)

What’s next? 

Read the planning process (here)

Housing and planning act – changes to legislation (read more) 

The town and country planning act 1990, section 215 – Best practice guide (read more)

That’s a lot of information for you to absorb but we are interested in your opinion. What do you think should happen?

Are you for or against The Heathrow Expansion?

Have your say!

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The Urbanissta Legal Beagle is on the case!

 

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. We’ll be giving you an updated review each month so remember to keep any eye out for our updates in the weeks to come!

Housing shortfall leads to approval

Land to the west of Mill Road, Over, Cambridge, Cambridgeshire

Appeal Ref: APP/W0530/W/16/3148949

Appeal Decision Date: 18.01.17 

Appellant: Bloor Homes

Respondent: South Cambridgeshire District Council

The appeal was 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 

Bloor Homes (Eastern) made an application for the development of 55 dwellings with associated access, infrastructure and open space at Land to the west of Mill Road in South Cambridgeshire.

The Council refused the application on the following basis:

  • The scale of development in the group village was not considered to be sustainable. Furthermore, future occupants would need access to a private car in order to access basic social and community facilities, employment and schools
  • Site is located at a gateway to a village in the Countryside. The Council raised concern that the development could not accommodate the quantum of development proposed without materially detracting from the rural character of the setting of the village

Note: The Council also raised issue in respect of the achievement of the minimum separation distances between dwellings sought by the District Design Guide Supplementary Planning Document. However, this concern was later dropped as the master plan demonstrated that this could be achieved.

The main issues raised at the inquiry were:

  • Access to shops, employment, and community facilities for proposed developments
  • The effect on the rural character and village settings

Sustainable development and access to employment, shops and services

It was agreed that as the Council fall short of their 5 year supply of land, the blanket application of the existing settlement hierarchy would significantly restrict the achievement of boosting the supply of housing. Limited weight was attached to Policies DP/1a and DP/7, furthermore, due to the draft status of the emerging policies, these were considered to have little bearing on the matter.

Turning to the access to the school (Swavesey Village College) and shops, it was held that the school was within an accessible distance to the Site on the basis that the school is approximately 4.5km from the site and the average trip in the National Travel Survey is 5.2km – 7.3 km for rural or fringe locations and 12.2 km for rural villages and as such there were available means of transport that could be utilised other than the use of a private car.

In terms of shopping and employment there would be likely to be a need to travel outside the village, however, this would be no different to general population who rely on private vehicles. The inspector was satisfied that there were means of realistic and reasonable opportunities for the use of transport other than the private car (bicycle & bus). It was therefore concluded that there was limited harm arising from the access to facilities, due to the limited access to shops.

Rural Character and village setting

As the application was an outline with only matters of access to be considered, appearance was reserved for future consideration and therefore the detail and assessment of layout was not considered at inquiry and was not considered determinative of a future scheme. The development was found to be acceptable in visual terms and was considered not to conflict with policies DP/2 and DP/3 in the DCP. The Inspector was satisfied that the proposal would not have a detrimental impact and would outweigh the benefits of the scheme when assessed against the relevant policies. On this basis the scheme was considered to be sustainable and decided that it should be allowed.

It was agreed that the Council was unable to demonstrate a 5 year supply of land for housing and the policy restricting housing development outside the village boundary was considered ‘out of date’. The inspector was satisfied that the quantum of development could be acceptably accommodated and details in respect of appearance would be subject of future reserved matters application, allowing for detailed consideration of the “finer grain effects of any development” be reviewed at a later stage.

Conclusion 

South Cambridgeshire was unable to demonstrate a five-year supply of land for housing and policies ST/6, DP/1 and DP/7 were considered out of date. Inspector therefore gave limited weight to them. Moreover, the proposed development was deemed to be acceptable in visual terms, with reasonable access to most services and facilities. Reliance on private cars was considered to give rise.

Considering the above, the Inspector was satisfied that any adverse impacts would not significantly outweigh the benefits of the scheme when assessed against the policies in the Framework taken as a whole.

Based on the above, the appeal was successful.

Download Decision PDF here

2 A significant and a serious shortfall of housing leads to approval

Land west of Shilton Road, Burford

The application Ref 15/00166/OUT

Appeal Decision Date: 17.01.17 

Appellant: Hallam Land Management Ltd

Respondent: West Oxfordshire 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

Hallam Land Management Ltd made an outline application for the development of up to 91 dwellings (50% affordable) and 5.2 acres of care provision comprising of up to 78 assisted/supported living apartments and up to a 90-bed care home; new accesses onto Shilton Road (B4020), local infrastructure improvements including new crossings on the Shilton Road and A40, and open space; landscaping and biodiversity enhancements.

The inspector considered the main issues to be: 

  • The effect on the character and appearance of the area having particular regard to its landscape setting, local distinctiveness and the established settlement pattern
  • Accessibility to services and facilities and choice of modes of transport
  • The effect of the proposed development on local services and facilities
  • The effect of the proposed development on biodiversity
  • Whether the development proposed represents sustainable development which ought to be permitted

Character and appearance

The Inspector noted that harm would be experienced, albeit, temporarily through the visibility of massed building on elevated ground within a vista characterised by a wooded fringe to Burford. This harm however, could be mitigated by reducing the building heights along the southern margin and by implementing a robust planting scheme to completely screen or potentially assimilate the buildings within the perceived woodland environment.

The inspector considered that the harmful conflict with the Development Plan and Framework could be overcome and as such, the proposal would not have a material effect on the character or appearance of the Burford Conservation Area or on the landscape and scenic beauty of the AONB.

Accessibility

It was held that the proposed development would be sufficiently accessible to services and facilities and the inspector was satisfied that the development would allow realistic modes of transport with the less mobile elderly having limited choice as this is the case in many care situations.

Services and facilities

The Council also raised concern in respect of the lack of any agreed mitigation package on its impact on the local community and facilities. It was considered that the conflict with policy BE1 could be resolved as the development could be adequately mitigated, as

evidenced by the Council’s stated contentment with the scope and content of the bi-lateral agreements entered into”.

Biodiversity

The Inspector considered that a revised layout could conserve or retain the species rich area. The Inspector was satisfied that, in principle, the proposed development not have a detrimental effect on biodiversity which would harmfully conflict with the development plan, the Framework, or the relevant protective legislation.

Conclusion 

The Inspector concluded that the policies within the West Oxfordshire District Council Local Plan were not up to date and the Council could not demonstrate a five-year land supply. As the Council could only demonstrate between 2 and 3 years of housing land supply, this was considered significant and a serious shortfall to which significant weight was given.

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

Download Decision PDF here

3 Doubt cast over the status of policies leads to approvals

Land at and to the rear of 9 Church Road, Wickham Bishops, Essex CM8 3LA

Appeal Ref: APP/X1545/W/16/3152640

Appeal Decision Date: 1 February 2017

Appellant: MAZ Dev Ltd

Respondent: Maldon 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

MAZ Dev Ltd made an application for the demolition of an existing dwelling and erection of up to 52 residential dwellings with associated vehicular access at land at and to the rear of 9 Church Road, Wickham Bishops, Essex CM8 3LA.

The Inspector considered the main issues to be:

  • The effect of the proposed development on the character and appearance of the area
  • The accessibility to services and facilities by sustainable means of transport
  • The amount of affordable housing to be provided

Policy Position

The Development Plan for Maldon consists of the Maldon District Replacement Local Plan saved policies (RLP) (2005). It was noted that the housing policies only covered the period up to 2011 and therefore have now expired. However, the Council were making some headway in the development of a new Local Development Plan (LDP) which has been submitted for Examination and is at an advanced stage.

Character of area

Majority of the site falls outside the development boundary however, policies for the provision of housing covered the period up to 2011 and have expired. Furthermore, the site fell within a Special Landscape Area and Policy CC7 presumed against development in Special Landscape Areas, unless the character of the area was conserved. The Council admitted that it had no particular landscape value and therefore, it was agreed that the impact of the proposal on the landscape would be limited.

The Inspector also noted that saved Policy CC7 conflicts with paragraph 113 of the Framework which requires that policies for development on protected landscape areas should be criteria-based. Based on the above, limited weight was given to that policy. In respect of the harm to the character and appearance of the area, moderate to significant weight was given to the harm. Although the development did not comply with Policy CC6 (permits development in the countryside which would not harm landscape character), the development complied with BE1 of the RLP, D1 of the LDP and Policy H4 of the LDP as the proposal would retain existing landscape features and would be in keeping with the adjacent residential areas.

Housing Supply

The Inspector noted that the housing supply policies are out-of date notwithstanding the existence of a 5 year supply. Saved policy H1 of the RLP, Saved policy H1 of the RLP, Policy S2 of the RLP and policy CC6 of the RLP restrict development outside the development boundaries which constrain the supply of new and carry limited weight as they are considered ‘out of date’.

Accessibility

The village was considered to be in a sustainable location for new development given that it has local facilities and good public transport connections. It was established that in principle, further development of the larger village would be sustainable. The Inspector concluded that Policies D1, H4, T1 and T2 require developments to be well connected to local services and facilities and that there are safe and attractive routes for walking and cycling. The proposal would accord with those draft policies.

Affordable Housing

The SHMA indicates a general need in the district for affordable housing. Given the out of date nature of the housing policies, some weight albeit limited was given to the emerging policy H1 as it has not been examined. The Inspector concluded that 40% affordable housing provision as stipulated in emerging policy H1 of the LDP would be justified.

Conclusion

The Inspector found that despite the Council being able to demonstrate a greater than 5 years housing land supply, the NPPF requires local authorities to give  significant boost to the supply of housing, This was given significant weight in favour of the proposals, in addition to the 40% affordable housing proposed. The proposed development was reasonably sustainable. In considering the planning balance the Inspector considered that the benefits of the proposals outweighed the identified harms

In light of the above, the appeal was allowed.

Download Decision PDF here

4 Countryside site has been given approval due to land supply shortfall

Land off Dowbridge Kirkham

Appeal Ref: APP/M2325/W/16/3144925

Appeal Decision Date: 23 January 2017

Appellant: Hollins Strategic Land

Respondent: Fylde 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 Hollins Strategic Land against the non determination of a planning application for an outline development of 170 units in Dowbridge Kirkham. The development involved the loss of 11.3 hectares of grade 3a best and most versatile land (13ha in total).

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

  • The effect of the proposed development on the character and appearance of the surrounding landscape and on the setting of Kirkham
  • Flood risk considerations
  • The effect of the proposal on highway safety

Character and appearance of the surrounding landscape and on the setting of Kirkham

The Inspector was satisfied that the appeal scheme would be viewed as an extension of the existing urban area and that the appeal proposal would result in a modest erosion of the landscape character of this part of the open countryside contrary to LP housing policy HL2. This requires, amongst other things, that housing proposals are in keeping with the character of the locality.

The Council’s own assessment was that the site only has a moderate sensitivity to development. The Appellant provided evidence that other sites of high sensitivity had been granted planning permission.

Whilst it was identified that there would be some moderate harm to the setting of Kirkham, it would still read as a historic settlement on higher land surrounded by lower lying farmland.

The proposal was identified as contrary to LP Policy HL2 and Policies EP10 and EP11. Whilst the Council cited paragraph 109 of the Framework in its reason for refusal, it could not be seen as forming part of a ‘valued landscape’.

Flood Risk

Development would be located in flood zone 1 and The Environment Agency and Council were satisfied with the strategy in the FRA. The FRA set out an approach to the technical solutions which would be used to control the additional surface water run-off so as not to increase the risk of flooding elsewhere. The Inspector concluded that if such measures were adopted the risk of flooding elsewhere would not be materially increased and the flood risk to on-site development would be acceptable provided the dwellings were all located within flood zone 1.

Highway

The proposals have been subject to a road safety audit and two separate traffic speed surveys have been undertaken. Subject to the measures proposed being adopted the appeal scheme would not compromise highway safety in the vicinity of the site. In terms of highway safety, the proposal would not materially compromise the safety of pedestrians and other road users.

The Council has a deliverable supply of 4.8 years. As a result the Council has conceded that it did not have a 5YHLS which means that relevant policies for the supply of housing will not be considered up-to-date.

The proposal would be contrary to LP policies SP1 and SP2 in that it would be in the open countryside and outside a settlement boundary. It would also result in the loss of best and most versatile agricultural land and there would be a modest erosion of landscape character. However, relevant policies for the supply of housing are out of date.

“There is a serious and significant shortfall in the housing supply and more particularly a substantial need for affordable homes. The homes would be located in an accessible location and would bring economic activity and other benefits in terms of construction work…..The balancing exercise to be carried out in the first limb of paragraph 14 is not a straight balance; it is often referred to as a tilted balance because planning permission must be granted unless the adverse impact of the development significantly and demonstrably outweighs the benefits. In this case, I am satisfied that the adverse impacts which I have identified do not significantly and demonstrably outweigh the benefits.”

Conclusion

The Inspector highlighted that the proposal would be contrary to LP policies SP1 and SP2 in that it would be in the open countryside and outside a settlement boundary. There would also be a loss of agricultural land and a modest erosion of landscape character, moderate amount of visual and moderate amount to the setting of Kirkham, all of which are contrary to the development plan when viewed as a whole, however, as the policies related to supply of housing were out of date, and there was a significant shortfall in housing supply and a need for affordable housing, less weight was given to Policies SP1 and SP2.

The Inspector concluded that on balance, the adverse impacts identified did not significantly and demonstrably outweigh the benefits of the proposal.

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

Download Decision PDF here

5 Development of rural site allowed after mitigation to protect rural setting agreed

Land off Sturton Road, Saxilby, Lincoln, Lincolnshire

Appellant: S Myers on behalf of Leverton Farms Ltd

Respondent: West Lindsey District Council

Appeal Ref: APP/N2535/W/16/3142445

Appeal Decision Date: 20 January 2017

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

An appeal was made by Mr S Myers on behalf of Leverton Farms Ltd against the decision of West Lindsey District Council to refuse outline and full planning permission for up to 133 dwellings with all matters reserved and the change of use of agricultural land to a cemetery.

The site occupies approximately 5.75 hectares of agricultural land to the north of Saxilby, and to the west of Sturton Road. The appeal was allowed and Outline/full planning permission was granted.

The main issues for consideration were:

  • The effect of the proposed development on the rural character and appearance of the landscape
  • The effect of the proposed development on the setting of the nearby Grade I listed Church of St. Botolph. The Inspector also took into consideration comments raised during the hearings regarding amenity of future occupiers and the need for a cemetery

Note: Housing land supply was also a consideration in determining the appeal.

Rural character and appearance of the landscape

The Inspector noted that the site, whilst being in the countryside, was well related to the existing settlement. Development of this site would not lead to the loss of rural character to the north of the village. It would be possible to incorporate a layout and design of development which would not result in an overall unacceptable impact on the wider landscape character of the rural area.

Effect on Grade I listed Church of St. Botolph

The appellant incorporated open space within the layout in such a manner as to preserve a clear vista from north of Saxilby towards the tower of the church, and maintain a degree of spatial relationship with the medieval heritage assets to the north. The Inspector concluded that the proposal would lead to less than substantial harm to the significance of a designated heritage asset.

The appellant has sought to address the impact on schools and healthcare within the application as raised during the application process. Contributions proposed towards open space provision on the site, and a MUGA within the village to address the increased demand on existing facilities.

Access

The Inspector expressed satisfaction that the existing footpath network allows good access to the village, with the various services and facilities all within reasonable walking distance and that whilst the final quantum of development was to be agreed, the inspector had not been provided with any compelling evidence which demonstrates that it would not be possible to provide access to the appeal site without an adverse impact on highway safety.

Drainage

On the matter of drainage, the Inspector gave regard to the approval in principle to the use of on SUDS on the site which has been provided by the lead drainage authority, Anglian Water, and the Environment Agency.

Housing supply

On the matter of housing land supply, the Council maintained that they had 5.26 years of supply, but the appellant stated that this figure was based on a low range of OAN and dependant on sites proposed for allocation in an emerging plan which had a number of objections outstanding.  It has conceded that as a consequence of its inability to currently demonstrate sufficient allocations within the spatial strategy of the current Local Plan to meet supply, its housing supply policies should be considered to be out of date.

The proposals were therefore assessed against the presumption in favour of sustainable development including the provision of 133 homes and affordable housing. It was also identified as an accessible and sustainable location for new development as well as limited social provision for Saxilby in the form of the extension to the cemetery and additional footpath links, as well as the economic benefits related to the construction and future occupation.

Conclusion

The inspector noted that the proposal would result in there being less than substantial harm to the setting of the listed church. The public benefit in respect of the provision of additional housing including affordable units, the extension to the cemetery, and the economic benefits attached to the proposals, would outweigh the harm to the setting of the listed building and in allowing the appeal, the Inspector stated that:

“I am satisfied that the benefits of the proposed development would clearly outweigh the identified harm, and that having regard to all other matters raised and the economic, social and environmental dimensions of sustainable development set out in paragraph 7 of the Framework, the scheme does represent sustainable development. For the reasons given above, and subject to the conditions attached, the appeal should be allowed.”

Download Decision PDF here

6 Residential development did not constitute the very special circumstances to justify development in the Green Belt

Land at Harlow Road, Moreton Ongar, Essex CM5 0DL.

Appeal Ref: APP/J1535/W/16/3158086

Appeal Decision Date: 23 January 2017

Appellant: Mr Allen Neville

Respondent: Epping Forest 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 submitted by Mr Allen Neville against the decision of Epping Forest District Council to refuse new housing development at Harlow Road, Moreton Ongar, Essex CM5 0DL. Details of the development were that ‘is a new housing development’.

In dismissing the appeal, the Inspector highlighted the following issues:

  • Whether the proposal would be inappropriate development within the Green Belt and the effect on the openness of the Green Belt
  • The effect on highway safety under Article 5(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015
  • If the development is inappropriate, whether the harm, by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. If so would this amount to the very special circumstances necessary to justify the proposal

In dismissing the appeal, the Inspector made the following comments:

Green Belt

Policy GB2A of the Epping Forest District Local Plan Alterations (‘LP’) adopted in July 2006 does allow for development that is in accordance with another Green Belt policy, Policy GB16. Affordable housing within smaller settlement in the district may be acceptable if there is demonstrable local need.

The proposal would therefore not be inappropriate development in the Green Belt if it can be shown to be limited affordable housing for local needs and in accordance with the policies in the development plan. However, the application was not supported by a proper appraisal of local housing need, nor is it supported by the Parish Council as required by Policy GB16. In 2013, the Parish Council completed a full Housing Needs Survey for the Parish (completed by the Rural Community Council of Essex) but there is no reference to this in the appellant’s evidence. There is no legal agreement or any other mechanism before me to secure affordable housing on the site to meet local needs.

On the evidence before the inspector this application did not fall within a category which would be considered appropriate or defined as a very special circumstance. Substantial weight was attached to paragraph 88 of the Framework in terms of inappropriateness and harm to openness of the green belt from the development. The Inspector also referenced the Government’s Planning Practice Guidance which states that:

‘Unmet housing need is unlikely to outweigh the harm to the Green Belt and other harm to constitute the “very special circumstances” justifying inappropriate development on a site within the Green Belt’.

Highway

The Inspector further noted that the proposals failed to demonstrate that there would not be harm to highway safety and such would conflict with Policies ST4 and GB16 (iii) of the LP:

“which supports new development subject to it not being detrimental to highway safety.”

Land supply

In terms of land supply and paragraph 49, the Council does not have a five-year supply of housing land. Policy GB2 should (not) (Urbanissta included) be regarded as a relevant policy for the supply of housing in this case. However, it was noted that the Government attaches great importance to the Green Belt and because it is broadly consistent with the Framework and the Inspector therefore attached significant weight to it. In light of this, the site was not regarded as a sustainable location and the Appeal was dismissed.

Conclusion

The Inspector only attached moderate weight to the considerations that weighed in favour of the proposal, however, concluded that, the considerations do not outweigh the substantial weight given to the harm to the Green Belt. As such, a very special circumstance could not be established.

Download Decision PDF here

7 Appeal dismissed as the proposal failed to take into consideration the impact on living conditions of existing and future occupiers

Former KSS Factory Site, Off Constable Street, Denton Holme, Carlisle, Cumbria CA2 6AB

Appeal Ref: APP/E0915/W/16/3158612

Appeal Decision Date: 23 January 2017

Appellant: Citadel Estates Ltd

Respondent: Carlisle 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

An appeal was submitted by Citadel Estates Ltd against the decision of Carlisle City Council for the refusal of permission for the demolition of redundant factory buildings and replacement with 50 new terraced dwellings.

The Inspector identified the three main issues for consideration as:

  • Whether the site is appropriate for housing development having regard to local and national policies relating to development in areas at risk of flooding
  • Whether the proposal would represent good, accessible and inclusive design with particular reference to its effect on existing and future occupiers’ living conditions
  • The effect the proposal would have on the habitats and biodiversity of the River Eden

In dismissing the appeal, the Inspector made the following points:

Flood Risk

The appellant had not provided appropriate evidence in the Flood Risk Assessment to show that the Robert Ferguson School catchment area is an appropriate one over which to conclude that there are no sequentially preferable sites, particularly in light of the Council’s evidence to show that there are sites of lower risk of flooding within the district.

Design

The overall design approach of the site would create a more contained arrangement contrary to the arrangement of the adjoining streets. In reviewing separation distances, there were clearly issues of overlooking and loss of outlook and privacy. The Inspector also noted that the orientation of the proposed building would limit opportunities for daylight and the overall development would create an oppressive scheme.

The proposed layout was identified as failing to create an accessible and inclusive development which would be well integrated into its surroundings nor avoid adverse effects on the living conditions of existing and future occupiers.

The cumulative harmful effects arising from the layout of the development would result in poor design that fails to take the opportunities for improving the character and quality of the area and the way it functions, circumstances in which the Framework indicates that permission should be refused.

Habitats and Biodiversity

With regards to the third point for consideration, the Carlisle City Council advised that they no longer wish to pursue an objection. On the basis of their third refusal reason in light of evidence to show that there would be no significant effects subject to mitigation measures during construction and in the design of the surface water drainage scheme, on the River Eden Special Area of Conservation and the River Eden and Tributaries Site of Special Scientific Interest. The inspector stated that in this case the avoidance of harm does not amount to a positive consideration.

The proposal would result in the redevelopment of previously developed land in an accessible location and would deliver a considerable number of new houses.  This is supported in principle by policies in the CDLP and by the Framework’s core planning principle of encouraging the effective use of land and its aim to boost significantly the supply of housing.  These are matters which carry considerable weight in favour of the proposal. The benefits however, are significantly outweighed by the harm of locating housing within an area at risk of flooding unsupported by a Sequential Test. It was therefore held that, the development was not sustainable development and contrary to the environmental role the Framework.

Conclusion

The Inspector noted that although there were benefits to the Scheme proposed, it did not display the high quality of design and layout required by development plan and national policies. The benefits were therefore significantly outweighed by the harm of locating housing within an area at risk of flooding unsupported by a Sequential Test. It was therefore held that, the development was not sustainable development and contrary to the environmental role the Framework.

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8 Appellant failed to provide evidence to demonstrate that the proposal would not impact archaeological assets

Creedwell Orchard, Milverton, Somerset TA4 1PL

Appeal Ref: APP/D3315/W/16/3148085

Appeal Decision Date: 20 January 2017

Appellant: S Notaro Limited

Respondent: Taunton Deane Borough Council.

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

An appeal was made by S. Notaro Limited against the refusal of permission for 70 new homes at Creedwell Orchard, Milverton replacing extant permission for 72 homes.

The appeal was dismissed by the planning inspectorate and in considering the application the issues were:

  • Whether the proposed development would provide a suitable site for housing, having regard to development plan policies
  • The effect of the proposal on the character and appearance of the surrounding area including the setting of the Milverton Conservation Area
  • The effect of the proposed development on potential archaeological interests
  • Whether appropriate provision is made for affordable housing
  • Whether future occupiers of the development proposed would be provided with adequate opportunities to travel by means other than the private car, so contributing to sustainable travel patterns
  • Whether appropriate provision is made for children’s play spaces

In dismissing the appeal, the inspector made the following pertinent comments.

Character and appearance of the surrounding area including the setting of the Milverton Conservation Area

The appeal site was outside of the defined settlement boundary and as such contrary to policies SP1 and SADMP Policy SB1 which seek to prevent residential development outside of settlement boundaries. The appeal site whilst not within the Conservation Area but was closely related to it. Development on the site was considered to conflict with the Conservation Area and the wider countryside.

Archaeological Interest

Taunton Deane Borough Council had asked for additional evaluation to assess the potential for archaeological remains, which was not addressed by the appellant and could not be dealt with through condition, and as such was identified as being the key to the acceptability of the scheme.

Affordable housing

The appellant proposed to provide contributions in lieu of on site affordable housing and indicted that on site provision was not viable. No evidence was provided to support this claim.

Travel Plan

The Travel Plan would not provide appropriate measures to reduce the need to travel by car as reliance on a car park is not a sustainable option.

Children’s Play Space

The open space provision proposed falls below policy requirements would not be in an accessible location. An extant permission exists on the site which the inspector considered in terms of whether a fallback position existed. The inspector took into account the impact of both proposals:

“Consequently, I find that the proposed development would result in very significant conflict with the up to date development plan and that the extant permission as a fallback does not carry such weight as to justify granting planning permission contrary to the development plan.”

Conclusion

Proposals for 70 dwellings at Creedwell Orchard, Somerset were dismissed due to the impact of development on the adjacent Conservation Area. The Appellants did not provide the evidence to show that the development did not impact on remaining archaeological assets. The Inspector indicated that the proposals did not justify a reduction in affordable housing and would not implement measures to reduce the need to travel by car through a Travel Plan.

Download Decision PDF here

9 Through the application of Article 3(4), a condition set out by Epping Forest District Council excludes rights under Class Q of Part 3 of Schedule 2 of the GPDO

Greensted Wood Farm, Greensted Road, Ongar, Essex CM5 9LE

Appeal ref: APP/J1535/W/16/3146745

Appeal Decision Date: 20 January 2017

Appellant: Mr Robert J Cameron

Respondent: Epping Forest District Council

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

Background

An appeal was submitted by Mr Robert J Cameron against the decision of Epping Forest District Council to refuse approval for change of use and conversion of agricultural storage barn and curtilage to single dwelling house and curtilage at Greenstead Wood Farm in Ongar.

This appeal related to an application made under Schedule 2, Part 3, Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO).

In dismissing the appeal, the main issue in this application was whether the proposals met the criterion of the permitted development.

The application form was not specific in detailing the proposed development. The appellant argued that a determination was not made within the statutory time frame. However evidence was produced which showed that the Council advised the appellant that the proposed application falls outside the remit of the prior approval process.

The main issue therefore for the inspector to consider was whether Condition 1 was sufficient to exclude permitted development under Class Q:

  • Whether the proposal would be inappropriate development within the Green Belt and the effect on the openness of the Green Belt
  • The effect on highway safety under Article 5(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015
  • If the development is inappropriate, whether the harm, by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. If so would this amount to the very special circumstances necessary to justify the proposal

This condition was imposed due to the site’s location within the Green Belt.

The building the subject of the appeal being granted planning permission in 2011 was subject to a number of conditions, including No 1 which required the barn building to be used only for agricultural purposes.  The condition also stated that the building shall not be used for ‘any other purpose’ including a dwelling or domestic storage:

The barn building hereby approved shall only be used for agricultural purposes in connection with the agricultural use of the unit at Greensted Wood Farm.  It shall not be used for any other purpose, including as a dwelling or as an annexe to the existing dwelling on this unit or for domestic storage.”

Article 3(4) of the GPDO states:

“Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part 3 of the Act otherwise than by this Order.”

The Appellant’s argument was that because the GDPO post-dates the 2011 permission, the details of the 2011 permission does not exclude any permission granted by the GDPO, therefore the proposals represented permitted development. It was also contended that as Article 3(4) makes no reference to restrictions in respect of planning permissions granted after/before the relevant provision of the GPDO came into force, it could equlisly apply o permissions granted before that date.

The Inspector noted that it was not necessary for the GPDO to be specifically referred to – a condition can prevent something which is not ‘development’, such as landscaping even though it does not necessarily require planning permission. The issue in question was whether, objectively, the condition would restrict the use of the building so that the rights under the GPDO did not apply.

Conclusion

The Inspector concluded that through the application of Article 3(4), the condition excludes the rights under Class Q of Part 3 of Schedule 2 of the GPDO and as a result the development would be contrary to the condition in question and therefore the proposed change of use was not permitted development.

The condition in stating that the building can only be used for agricultural use and “shall not be used for any other purpose” results in the exclusion of the use as a dwelling given the duty to protect the green belt. As such the appeal was dismissed.

Download Decision PDF here

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