Legal Beagle update – 10 Inspectors Decisions and Court Cases​ allowed or dismissed

By Akeem Iginla and Vincent Wall

Welcome to the Urbanissta Legal Beagle’s casework 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.

Here are 11 recent planning appeals, giving you insights into the latest precedents:

Case 1

Proposed Development of Semi-Detached Dwelling-houses Appeal Dismissed Due to its Effect on the Green Belt

An Inspector have dismissed an appeal for the erection of pair of semi-detached dwelling-houses with associated and soft landscaping on a site in Lower Woodside in Bedfordshire. Central Bedfordshire Council had earlier refused the proposed development by notice dated 13th August 2020 due to its harmful effect openness of the Green Belt and the effect upon the character including the appearance of the area. Hence deemed to be inappropriate development.

The Council adopted Local Plan Policy had stipulated that any proposed development within the infilling boundaries defined for the village will be allowed, however the appeal site is not located within the defined village boundary and only form part of an open field that wraps around some few houses along Woodside Road, creating a gap between these properties.

These group of houses are not contiguous with and are separated from, denser linear development opposite extending along Woodside Road and Manor Road.

The Inspector ruled that the proposed development constitutes inappropriate development as set out in the National Planning Framework (NPPF) and would be contrary to the Council adopted relevant policies. Referring to the NPPF on the effect of openness, she noted that the essential characteristics of the Green Belt is its openness, and that openness is the absence of development notwithstanding the degree of visibility of the land in question from the public realm and as such, openness has both spatial and visual aspects.

Considering the fact that the site is partially screened, the proposed development which included a pair of semi- detached dwellings and associated infrastructure and domestic paraphernalia is said to have a substantial impact on openness in both visual and spatial terms. Consequently, the loss of openness would not be overcome through the introduction of new landscaping.

Thus, the Inspector find that there would be a loss of openness of Green Belt and such harm would be substantial contrary to the aims and objectives of the NPPF.

With regard to the character and appearance, the Inspector acknowledged that the proposed development would have similar set back and plot size and shape as neighbouring properties and its appearance would be sympathetic to the local area. However, the Inspector considered that the development would not blend into the wider landscape and would be very apparent and intrusive appearing as an incongruous form of development that would alter the verdant appearance of the site into urban. Although localised, it would greatly erode its verdant and rural appearance affecting its character and appearance.

Hence, the Inspector concluded that the proposed development would adversely affect the character and appearance of the area contrary to the adopted policies, amongst other things, seeks to ensure that development proposals enhance or reinforce character and local distinctiveness and competent and harmonise with local surroundings.

The Inspector also considered other considerations and balancing exercise by stating that the development plan of the Council consisted of the South Bedfordshire Local Plan Review, however, she gave limited weigh to the policies contained within the emerging plan with regard to the scheme.

On the issue of whether the Council can demonstrate a deliverable five-year supply of housing land, the Inspector pointed to the fact that there was no credible evidence to refute the Council’s position that a strong indication that a deliverable five -ear supply exists. However, she noted that even if there was no evidence of a five-year deliverable housing supply, the NPPF stipulate that Green Belt is a protected area, hence vivid reason for refusing the development in respect of Green Belt impact.

The Inspector also find that the proposed development would only make a small contribution to the Council’s housing supply which should be a factor in the schemes favour, however, the site is not accessible to local services and facilities, thus any contribution to their vitality was found to be limited.

The appellant argues that not developing the site serves no community or viable purpose in Green Belt terms. However, the Inspector find the site to positively contributes to the surrounding area’s verdant and rural appearance and that its redevelopment as proposed would undermine this contribution.

The Inspector concluded that the proposed development does not accord with the NPPF as it would be inappropriate development in the Green Belt and would also result in the loss of openness. Consequently, she attached significant weight to this harm in accordance with the relevant policy provision of the NPPF. She also found harm with regard to the character and appearance of the area.

Read full Inspector’s Appeal Decision ref: APP/P0240/W/20/3260791.

Case 2

Inspector Allow Appeal for Housing Development Despite Undermining the Council’s Housing Strategy

An appeal made by Gladman Development Ltd against the decision of Cherwell District Council has been allowed by the Inspector for the erection of up to 84 dwellings with associated works on land at Merton Road, Ambrosden in Oxfordshire.

The Planning application was refused by the Council notice dated 20 February 2019 due to the proposed development undermining the Council’s housing strategy; on the character and appearance of the surrounding area; including the inadequate provision for necessary infrastructure that will directly arise from the proposed development.

The appeal considered the followings:

  • whether the proposed development would lead to an over-concentration of new housing development in Ambrosden which would undermine the Council’s housing strategy an prejudice a more balanced distribution of housing growth, contrary to the Council’s Local Plan Policy and policies in the NPPF.
  • The effect of the proposed development on the character and appearance of surrounding area particularly that of the Grade II Listed church through change in its setting; and
  • Whether the proposal makes adequate provision for necessary infrastructure that will directly arise from the development.

The Inspector ruled that the proposed development would not materially undermine the Council’s housing strategy or prejudice the achieving of a more balanced housing growth.

Concerning the effect of the proposed development on the character and appearance of the surrounding area, the Inspector concluded that whilst inevitably rendering localised change the proposal, subject to subsequent careful attention to layout, design, external appearance and landscaping, would not have any significant adverse impact on the character and appearance of its surroundings.

As to the impact on the significance of the Church, he noted that Grade II listed church is the only heritage asset that has the potential to be impacted upon the proposed development dating in parts from the 12th, 14th and 15th centuries with restoration in the 19th century. However, concluded that any change that would be wrought would relate more to impact on its landmark significance rather than the heritage significance of the asset. He accepted that the proposed development would result in a very minor impact on the overall heritage significance of the church as a result of its setting.

Having regards to the NPPF, he noted that this will amounts to less than substantial harm and would be at the lowermost end of less than substantial harm. Where there would be less than substantial harm according to the NPPF, this should be weighed against the public benefits of a proposal.

With regard to whether the proposal makes adequate provision for infrastructure that will arise from the development, he concluded that the proposal makes adequate provision for the necessary infrastructure arising from its development.

Overall, the Inspector was satisfied that the proposed development would accord with the Council’s adopted Local Policy and would comply with the economic, social and environmental overarching objectives of sustainable development set out in the National Planning Policy Framework (NPPF). Hence, considered the proposal to be acceptable and allow the appeal with conditions attached.

Read full Inspector’s Appeal Decision ref: APP/C3105/W/19/3228169

Case 3

Appeal dismissed for the Proposal to Construct Poultry Breeder Enterprise Due to Pollution Complaints

An appeal against the decision of East Devon District Council to allow for the construction of poultry broiler breeder enterprise has been dismissed by an Inspector due to the appellant Satin Silk Ltd unable to demonstrate that the proposed development would ensure appropriate living conditions for neighbouring residents in respect of odour, dust and noise.

The proposal is for two ranges of substantial poultry buildings, of modern efficient standards, and associated paraphernalia. They would accommodate 28,000 birds (albeit that a number of 32,182 is given in the EP). Whilst the appeal site is currently part of Tagon Harbour Farm (THF) but operates as a separate concern named Tamarisk Farm. Nevertheless, they both operate under a single Environmental Permit (EP).

The appeal site is within the open countryside accessed via an unnamed road. That road differentiates the undulating patchwork of fields around the appeal site punctuated by occasional properties from the more mixed character of the area on the other side of it adjacent to the A30. A small industrial estate and Willow View Park (WVP), a residential park home site, are directly opposite.

The Willow View Park was originally a caravan site during the 1980”, which has changed greatly since to park homes. WVP is located approximately 30 metres from the boundary of the appeal site. Although there was no complaint of odour from neighbouring residents, however, the Inspector noted that the establishment of WVP and other properties in the wider area, pre-dates the poultry enterprise at THF.

However, the permitted homes at WVP which would be most affected by odour from the proposal are recent additions, and it is inevitable that all properties change hands from time to time. Hence, he concluded that, it was reasonable to presuppose that certain occupants nearby elected to reside there based on an awareness and some acceptance of the existing nature of its environment, which likely to have moderated a propensity to complain about any effects of THF.

More generally the 1AQM Odour Guidance cautions that lack of complaint does not necessarily prove there is presently no annoyance or nuisance, or loss of amenity. The Odour Assessment supported by a sampling report submitted with the application for the site recorded substantial higher concentration levels at the site than would typically be expected compared to the industry benchmark value.

The Inspector conclude that the appellant had not demonstrated that the proposal would ensure appropriate living conditions for those nearby in respect of odour and in conflict with the relevant provisions of the Council’s Development Plan policies and the NPPF.

Concerning dust, the Inspector concluded that the appellant had not demonstrated that the proposed development would ensure appropriate living conditions for nearby residents in respect of dust therefore, rendering it to be in conflict with the Council’s Development Plan policies and the NPPF

With regard to noise, the appellant’s Noise Assessment stated that the proposal would generate noise in three areas namely: during construction, operation including feed deliveries and clean-down phases. Consequently, the Inspector conclude that the proposal would not result in unacceptable effects to the living conditions of those nearby in relation to noise subject to conditions.

The Inspector did not agree with the appellant’s position that ‘the level of environmental nuisance that the proposal would create, will be acceptable to nearby residential occupiers’, as the appellant had not suitably demonstrated this. Consequently, he ruled that due to the shortcomings with the appellant’s evidence, he was unable to consider imposing conditions to mitigate adverse effects that may result (particularly as such may be unreasonable). Accordingly, he noted that neither the benefits of the proposal, nor any other matters, were sufficient to justify a decision, other than in accordance with the relevant provisions of the Development Plan. Hence, concluded that the proposal conflicts with the Council’s Development Plan taken as a whole, with the approach in the NPPF, and dismissed the appeal.

Read full Inspector’s Appeal Decision ref: APP/U1105/W/17/3180771

Case 4

Appeal Allowed for Mixed-use Development of Two Towers of 53 Storeys Due to Material Considerations

The application for the construction of a mixed-use development comprising two towers of 53 storeys containing offices, hotel, retail and associated works in Vauxhall London was called in for the decision of the secretary of State.

The site is one of four development sites in Vauxhall identified in the London Local Plan (LLP) Policy and one of the policy design principles for the site restricts building heights to 150 metres. Under the LLP policy for tall and large buildings, states that proposals for tall buildings will be supported where amongst other things, there is no adverse impact on the significance of strategic and local views or heritage assets.

The Council had resolve to grant conditional planning permission for the proposed development of the site in December 2018. The development includes significant package of s106 obligations and CIL contribution of about £30 million towards off-site affordable housing. The development was seen as an opportunity to assist in the realisation of the regeneration of Vauxhall.

The Secretary of State noted that the application site has the benefit of an extant permission and the Council had certified it as lawfully implemented, which is legally determinative of that issue. The extant scheme is a ‘fallback’ in planning terms because there is a reasonable prospect that it would be implemented in the absence of the present scheme – hence it is agreed to form part of the baseline for assessment of the scheme. However, the extant scheme has been superseded by later planning decisions in several key respects. One of those is that it does not enable the delivery of TfL’s gyratory changes; a committed scheme which TfL believes will bring substantial transport and highways benefits to the area.

He further stated that although, the delivery of the development scheme would enable TfL to deliver its highway remodelling scheme (allied to its bus station replacement scheme) the proposed development does not itself comprise either of those other schemes. The highway and bus station schemes are proposals which were clearly considered to be in the public interest. The application for consideration by the Secretary of State does not therefore have to justify them in addition to itself – they are already both justified and permitted.

He noted that overall, the proposed development accords with policies in the LP, LLP, DLP and DRLLP, other than with the height limitation of 150 metres for tall buildings in policy Q26 of the LLP and the DRLLP. This limitation, he stated has been set aside for several other buildings in the planned cluster of tall buildings at Vauxhall and the two towers that are subjects of the application, in terms of their height, are required to successfully complete the planned cluster. Hence, found the proposed development to accord, as a matter of planning judgement, with the development plan as a whole.

However, he noted that if the proposed development is considered not to accord with LLP policy Q26 and therefore not to accord with the development plan, then the application, in accordance with paragraph 2 of the NPPF, should be determined in accordance with the development plan unless material considerations indicate otherwise. The need for the two towers to be as high as proposed, to complete the planned tall building cluster, is compelling and is the material consideration that indicates that the application be determined other than in accordance with the development plan.

He further stated that the proposals would not only represents a huge investment in Vauxhall town centre, but also satisfy multiple policy priorities at the national, strategic and local levels. Hence, accord with the Council’s Development Plan and unsurprisingly have the support of LBL, TFL and the GLA. He recognised the degree of public opposition to the scheme, whilst genuine and well-articulated, is modest, He considered the scheme to be of importance to London and to the Government’s own planning priorities.

The Secretary of State concluded that the proposed development, in architecture and urban townscape terms, would be of the highest quality and would successfully contribute to the planned cluster of tall buildings in Vauxhall. He therefore agreed with the Inspector’s conclusions, and recommendation that the appeal be allowed and planning permission be granted subject to conditions.

Read full Inspector’s Appeal Decision ref: APP/N5660/V/19/3229531

Case 5

Inspector’s Dismissed 2 Gladman Appeals on the Grounds that Both Did Not Accord with Development Plan

The appeals concern outline applications, with access being for determination and matters relating to appearance, landscaping, layout and scale being reserved for future considerations. The appeals were brought by the developer Gladman Developments Ltd against the decision of Central Bedfordshire Council for refusing the proposed development of up to 130 residential dwellings in each of the appeal sites referred to as Appeal A and Appeal B respectively) with associated works.

The main issues for Appeals A and B are as follows:

  • The effect of the development on the character and appearance of the area;
  • The effect of the development on the supply of best and most versatile agricultural land;
  • Whether the development would make adequate provision for affordable housing; and
  • The effect of the development on local infrastructure

On the issue of the character and appearance of the site, the Inspector concluded that appeal A and B would unacceptably affect the character and appearance of the area. Hence, he considered the development to be contrary to Council’s Development Plan.

On the effect of the proposed development on the supply of versatile agricultural land, he concluded that the loss of best and most versatile agricultural land would not be unacceptable, with the affected land being at the lower end of the quality range for the best and most versatile agricultural land (BMVL). In that regard, he noted that the loss of BMVL would of itself be contrary to any extant Development Plan policies and considered that the scale of loss would be insufficient to adversely affect the development and diversification of agricultural and other land based rural business.

Accordingly, he considered that there would be no significant conflict with the NPPF policies for supporting a prosperous rural economy. Consequently, The Inspector found that very modest weight should be attached to the loss of BMVL in this instance.

Concerning affordable housing, the Inspector noted that there was an agreement between the appellant and the Council that there would be the need to provide 35% affordable housing which accord with the provision of the Council’s Core Strategy, hence, see no reason to take a contrary view to that.

Consequently, the Inspector concluded that the proposed development would make adequate provision for affordable housing and would accord with the Council’s Development Plan.

Concerning Infrastructure, the Inspector noted that he was mindful of residence concerns about the effectiveness of the measures to mitigate various financial contributions towards the provision of off-site infrastructural facilities and to secure the provision of off-site open space. He further noted that the Council was contented with the developer financial contributions that would mitigate the proposed development demands on local infrastructure in accordance with the provision of the adopted Core Strategy. Hence, he was satisfied that the planning obligations agreed by the Council and the appellant is necessary to mitigate the development’s effect on local infrastructure.

However, he was mindful of residence concerns regarding the effectiveness of the measures to mitigate the development’s effects on local infrastructure, therefore conclude that the development would provide adequate mitigation for its effects upon local infrastructure.

The Inspector in his overall conclusion referred to section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires applications for planning permission to be determined in accordance with the development plan unless material considerations indicate otherwise. Paragraph 11d) of the NPPF would be an important material consideration if there were no relevant development plan policies or the policies which are most important for determining the appeals were out-of- date. In such circumstances the tilted balance would be applied.

Consequently, he found the proposed development to be contrary to the relevant provisions of the Council’s Core Strategy, as a result of the unacceptable harm that this would cause to the character and appearance of the area. He however, found some of the provisions of the Core Strategy to be the most important for the purpose of the determination of these appeals and he found that these relevant policies not to be out-of-date. He also found conflict the policy provision of the Core Strategy regarding development location in the countryside not to be consistent with NPPF, nevertheless he found it to be policy that is wholly out-of-date and which attract some weight. He also found that the Council can demonstrate a year Housing Land Supply and consequently found that the development should be judge against the provisions of the Development Plan as a whole and no need to engage the “tilted balance” in favour of sustainable development.

The Inspector therefore considered that there are no material considerations which indicate that the proposed development be determined other than in accordance with the development plan and having found that there would be substantial conflict with the Development Plan, taken as a whole, he ruled that the proposals subject to appeal A and B cannot be viewed as being sustainable forms of development, hence concluded that that appeals A and B be dismissed.

Read full Inspector’s Appeal Decision ref: APP/P0240/W/18/3206495

Case 6

What constitutes a listed building?

This case arose from the decision of a planning inspector under the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”). The site in question is Idlicote House, Warickshire, the case concerns the correct treatment of a pair of early 18th century lead urns (or “finials”), attributed to the Flemish sculptor John van Nost, each resting on a limestone pedestal of a slightly later date. In 1973 Idlicote House was purchased by a new owner. The owner of the house sold the items at a public auction in 2009 for £55,000. On discovering the sale, the council issued a listed building enforcement notice requiring the return of the items. The property’s owner went on to appeal.

There is no doubt as to the urn’s artistic significance, but whether or not they are actually part of the listed building and as to whether they were properly treated as “buildings” under that legislation; but also, a prior question as to whether such a dispute could and should have been addressed by the planning inspector in the proceedings before him. The court did not decide whether the urns were a building, preferring to leave that matter to another inspector to decide as an exercise of planning judgement at a reconvened appeal. However, the judge commented that the council should give “serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further”.

To read Full case see: Dill (Appellant) v Secretary of State for Housing, Communities and Local Government {2020) UKSC 20

Case 7

Unfaithful steed: Appeal on Donkey rides not being an ancillary use

Over the 40 years, a farmer’s the business had grown and diversified to include polytunnels, outbuildings, stables, a shop and a tearoom. The use of an access track on a farm which was for “agricultural land only” was barred when the farmer diversified to run a nursery and tearoom on the property. An appeal that dealt with Commercial donkey rides found that donkey rides were not an ancillary use to donkey keeping. The lawful development certificate for the provision of donkey rides as ancillary to a mixed use for agriculture and the keeping of donkeys at a farm in Devon was refused on the grounds the level of use would result in a material change in the overall character of the existing private use. In court the Defendant farmer maintained that the track’s use of the field and nursery fell within this scope of the agricultural limitation. The court judged that the Defendant did not have the benefit of a right of way over the track and access to the field for the purpose of parking or to access the nursery to visit the tearoom, or for any other non-agricultural purpose.

Ultimately, the use of the field for parking for the sale of non-agricultural stock, such as firewood, was in breach of the restrictive covenant to use the land for agricultural purposes only. According to law firm Charles Russell Speechlys the decision highlights the need to consider any restrictions (in the form of easements or covenants) attached to land or contained within a tenancy agreement or lease carefully prior to expanding or diversifying a business.

To read full case see: Mills V Partridge {2020} WWHC 2171 (Ch)

Case 8

Nuclear Power Station given boost

A high Court judge dismissed a bid for a judicial review against Sizewell C preparatory works. This dismissal demonstrates that Nuclear Power Plants are supported as part of national policy. Much of the case hinged on whether environmental considerations had been appropriately considered. The judge ruled: “On a fair reading of the officer’s report it can be seen that the document addressed ecology topics one by one, referring to concerns which had been raised and relying upon the responses from EDF. Substantial ecological impact studies had been carried out prior to EDF’s application and the council was entitled to conclude that “no further surveys were required” in respect of breeding birds”. The strength of the officer’s report to the members of the Strategic Planning Committee was praised by the Court for the careful and detailed way it summarised the views of consultees and those who made representations. Ultimately it was the strength of the officer’s report to the members of the Strategic Planning Committee and the way it summarised the views of consultees and those who made representations, that bolstered the defense against judicial review.

To read full case see: Girling & East Suffolk Council v EDF Energy & NNB Ltd [2020] EWHC 2579 (Admin)

Case 9

Out of date household growth projections can still justify release of green belt land to meet housing targets.

A court decided that dated household growth projections may still justify release of green belt land to meet housing targets. The High Court has dismissed an application for statutory review of the Wycombe District Local Plan. The challenge to the release of a site in Buckinghamshire for 467 homes on green belt land was dismissed after the High Court concluded that the site’s allocation in a local plan based on higher targets derived from the 2014-based household growth projections could still be justified. The case involved detailed discussion of which ONS figures should be referred to in Local Plans.

To read full case see: Keep Bourne End Green v Buckinghamshire Council; Ref: [2020] EWHC 1984 (Admin)

Case 10

High Court Refuse to Accept Definition of “Development” and “Planning Permission” in the S.106 Agreement to be read as “Any Subsequent S.73 Permissions”

A Section 106 agreement did not bind a subsequent section 73 permission. Norfolk Homes successful challenged North Norfolk District Council’s refusal to issue a certificate of lawfulness for the implementation of a section 73 permission on the basis that it would trigger section 106 obligations under an agreement attached to the original permission.

Two section 73 applications in 2013 and 2015, granted two new permissions through variations of conditions on the original outline permission. These new permissions were not made contingent upon the prior execution of a further section 106 agreement. The court refused to accept the council’s argument that the definitions of “development” and “planning permission” in the section 106 agreement should essentially be read as including “any subsequent section 73 permissions”. In its view, the language of the section 106 agreement was clear and unambiguous in that the obligations it contained were not triggered by the 2015 permission. The court decided that the 2012 agreement had ceased to have effect according to its terms. The case contained detailed discussion of the covenants within the S106 agreement.

To Read full case: Norfolk Homes Ltd v North Norfolk District Council and Norfolk County Council; Date: 20 August 2020; Ref: [2020] EWHC 2265 (QB)

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