Author Archives: Farhana Hussain

 

Urbanissta’s Legal Beagle is on the Case – April 18

 

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

Our summary of recent decisions is below and via the links you can download more details of the full decision letters should you wish.

As you may be aware, Mid Sussex District Council have now adopted their new Local Plan (28th March 2018) and interestingly, prior to adoption, 5 appeals were decided by the Secretary of State; 4 of which were granted permission.  We provide a summary of these in this month’s edition so it’s a bit of a Mid Sussex special edition, but we have lots of other interesting cases for you to review too, so we hope the following is informative!

Furthermore, our guest barrister, Giles Atkinson of 6 Pump Court provides commentaries on three recent decisions; Dover DC v CPRE (Kent); Braintree DC v SoS for CLG; and Samuel Smith v North Yorkshire CC.

 

 

 

 

Here are 10 recent planning appeals, giving you insights into the latest precedents:

1. Reasons for Planning Approvals

Ref: [2017] UKSC 79
Appeal Decision Date: 06 December 2017
Appellant: Dover DC
Respondent: CPRE Kent

Readers will remember that I have previously summarised the case of Oakley v South Cambs DC[1] in which the circumstances under which an LPA may be expected to give reasons for granting permission were examined.  The matter has now been definitively determined by the Supreme Court, in Dover DC v CPRE (Kent)[2].

The Supreme Court, in a unanimous decision, endorsed the Court of Appeal’s approach in Oakley establishing a common law duty to give reasons in certain circumstances.

The application in the Dover case was for a major development including over 500 houses, a conference centre, hotel and museum, partly on AONB.  The officer recommendation was for approval for an amended, reduced, development of 365 houses, the reduction intended to protect a particularly vulnerable part of the site from landscape harm.  The applicants objected to the reduction essentially arguing that it would render the scheme unviable but the officer recommendation remained to approve the lesser number.

The committee members however, voted to approve the scheme as applied for with over 500 houses.

In due course, following negotiations about the section 106 agreement, the decision notice was issued without any statement of the reasons for grant.

The question of reasons was raised in challenges to the grant of permission, eventually finding its way to the Supreme Court which indicated that it wished to consider generally the sources, nature and extent of an LPA’s duty to give reasons for the grant of planning permission.

The SC considers first the statutory sources of a duty to give reasons, noting that LPAs are no longer required to give reasons for grants of permission as they were for a period under the GPDO[3], although there is still a general duty on local authority officers making a decision involving the ‘grant of a permission or licence’, which includes the grant of planning permission[4] and for EIA development (which the development in the Dover case was) and under the Aarhus Convention.

The standard of reasons was then considered by the SC, finding essentially that what is needed is an adequate explanation of the ultimate decision, the essence of the duty being whether the information provided by the LPA leaves room for genuine doubt as to what it has decided and why.

Importantly the SC found that the remedy for a breach of the duty to give reasons, which in the Dover case it was accepted had occurred there being a breach of the duty imposed by the proposals being EIA development, was the quashing of the decision rather than just, as had been argued, the retrospective provision of reasons.

Although it didn’t need to be determined in the Dover case because it was accepted that reasons should have been provided under the EIA legislation, the SC went on to consider the common law duty to give reasons and this is probably the part of the decision of widest application and therefore of greatest interest.

The SC endorsed the finding of the CA in Oakley, where particular circumstances gave rise to a common law duty to give reasons for the grant of planning permission based, essentially, on fairness, itself a common law principle.

Without wishing to be over-prescriptive the SC helpfully set out the circumstances in which the common law duty to give reasons arises:

 “However, it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements.  Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the ‘specific policies identified in the NPPF…).  Such decision call for public explanation, not just because of their immediate impact, but also because…they are likely to have lasting relevance for the application of policy in future cases.”

 So, for cases where there is a great deal of public opposition and a member overturn, development is a major departure from the DP or contrary to polices of recognised importance, including those specified at FN 9 of NPPF14[5], LPAs may now be expected to provide reasons for the grant of planning permission.  If they are found to have failed in this duty, the remedy is to quash the decision.

This decision amounts to an important new requirement placed upon LPAs which might be expected to arise not infrequently.

[1] [2017] EWCA Civ 71

[2] Dover Dc v CPRE (Kent) CPRE (Kent) v China Gateway International Limited [2017] UKSC 79

[3] Between 2003 and 2013.  GPDO now replaced with the DMPO.

[4] This under the little known Openness of Local Government Bodies Regulations 2014, SI 2014/2095

[5] FN 9 of NPPF14 is now (in the March 2018 consultation draft of the replacement NPPF) FN 7 of paragraph 11.

Download the decision here.

2. New Isolated Homes in Countryside

Case No: CO/1207/2017
Appeal Decision Date: 15 November 2017
Appellant: Braintree DC
Respondent: Secretary of State for Communities and Local Government

The interpretation of this phrase, from NPPF 55, was considered by the CA recently in Braintree DC v SoS for CLG[1].  Paragraph 55 is as follows:

“55. To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as:

  • the essential need for a rural worker to live permanently at or near their place of work in the countryside; or
  • where such development would represent the optimal viable use of a heritage asset or would be appropriate enabling development to secure the future of heritage assets; or
  • where the development would re-use redundant or disused buildings and lead to an enhancement to the immediate setting; or
  • the exceptional quality or innovative nature of the design of the dwelling. Such a design should: be truly outstanding or innovative, helping to raise standards of design more generally in rural areas; reflect the highest standards in architecture; – significantly enhance its immediate setting; and – be sensitive to the defining characteristics of the local area.”

An inspector, in combined section 78 and section 174 appeals on the same site, had granted permission for 2 single storey dwellings and quashed an EN alleging, amongst other things, the partial erection of a single storey building (one of the dwellings).  The site lay close to but outside the settlement boundary of the village of Blackmore End.

The Inspector had noted in respect of the development:

 “It would not accord with the development plan’s approach of concentrating development in towns and in village envelopes.  On the other hand there are a number of dwellings nearby and the development would not result in new isolated homes in the countryside to which Framework paragraph 55 refers.”

The Inspector went on to observe that there was a very limited range of facilities in the village of Blackmore End and that the occupiers of the dwellings were likely to rely heavily on the private car to access facilities further afield.

The Council challenged the Inspector’s decision and argued unsuccessfully in the High Court that paragraph 55 NPPF was concerned not literally with the proximity of a proposed dwelling to other residential dwellings, but rather with proximity to services and facilities so as to maintain or enhance the vitality of the rural community.

In the CA the Council adopted a slightly different argument, that in order to comply with NPPF 55 a development must be neither physically isolated relative to settlements and other developments, nor functionally isolated relative to services and facilities.

This argument was rejected in the CA; ‘isolated’ meant physically isolated from a settlement, not isolated from services and facilities.

Lindblom LJ found that the requirement for LPAs to avoid ‘new isolated homes in the countryside’ was a geographical distinction between places.  In the context of the preceding two sentences of NPPF 55, this meant a distinction between development of housing within a settlement or village, and new dwellings which would be ‘isolated’ in the sense of being separate or remote from a settlement.

In short, it was said by Lindblom LJ, settlements are the preferred location for new housing development in rural areas.  That, in effect, is what the policy says.

He went on to endorse the High Court’s finding that the word ‘isolated’ should be given its ordinary dictionary definition, so that in the context of NPPF 55 it connotes a dwelling that is physically separate or remote from a settlement.  In any particular case, this will be a matter of fact and planning judgment for the decision maker.

Similarly, what is a ‘settlement’ or ‘village’ as referred to by NPPF 55 will also be a matter of fact and planning judgment for the decision maker.  Lindblom LJ found that to qualify as a settlement or village, in the absence of any definition of these phrases, there is no specified minimum number of dwellings or population required; a settlement boundary does not have to have been fixed in the local plan; nor does there have to be any specified services, or indeed any services.

The Judgment of Lindblom concludes that this ‘common sense’, ‘literal and natural construction’ of NPPF 55 is in accordance with the broader context of policies for sustainable development in the Framework as a whole.  By seeking to maintain and enhance the ‘vitality’ of rural communities through the location of housing, as para 55 does, is a policy which embraces the social dimension of sustainable development, and to restrict the concept of ‘isolated homes’ to meaning isolated from services (as was argued by the Council) would be to deny this policy’s support for dwellings which did contribute to social sustainability.

It should be noted finally, that paragraph 55 of the NPPF is currently (in the consultation draft March 2018) proposed to be replaced with paragraphs 80 and 81 which are in substantially, but not exactly, the same terms.

[1] [2018] EWCA Civ 610

Download the decision here.

3. Visual Impact and Openness of the Greenbelt

Case No: C1/2017/0829
Appeal Decision Date: 16 March 2018
Appellant: Samuel Smith Old Brewery
Respondent: North Yorkshire County Council

In Samuel Smith v North Yorkshire CC[1] the CA have confirmed Turner[2], itself quite a recent CA decision, to the effect that visual impact is potentially relevant to the consideration of the effect of a development on the openness of the Green Belt.

The development at issue in Samuel Smith was an extension of a limestone quarry over approximately 6 hectares in the West Yorkshire Green Belt south west of Tadcaster. The LPA (North Yorks) granted permission and a JR challenge was unsuccessful but permission to appeal to the CA was granted.

In her report to committee the officer determined that the proposed development preserves the openness of the GB and did not conflict with the purposes of including land within it. She noted that openness is not defined but is commonly taken to be the absence of built development, and that because the application site immediately abuts the existing quarry, it would not introduce development into the area so as to conflict with the aims of preserving the openness of the Green Belt.

Overall, she recommended approval of the proposals which she found did not materially harm the character and openness of the GB.

The claimants’ challenge was based on a misdirection about para 90 NPPF.  Paragraphs 87-90 are as follows:

“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

 When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

  1. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
  • buildings for agriculture and forestry;
  • provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
  • the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
  • the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
  • limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or
  • limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.
  1. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
  • mineral extraction;
  • engineering operations;
  • local transport infrastructure which can demonstrate a requirement for a Green Belt location;
  • the re-use of buildings provided that the buildings are of permanent and substantial construction; and
  • development brought forward under a Community Right to Build Order.”

Inappropriate development may only be approved if there are VSCs (NPPF 87).  A quarry is capable of not being inappropriate development provided it preserves the openness of the GB (NPPF 90).

It was said by way of challenge, essentially, that by failing to refer specifically to the visual impact of the proposed development on openness, the officer had misdirected the committee so that it approached its decision, wrongly, on the basis that the proposal was not for inappropriate development in the GB and did not have to be justified by VSCs.

Members, guided by the officer advice, assumed that the effect of the development on the visual openness of the GB was not and could not be a relevant consideration in establishing whether the proposal was for inappropriate development; plainly relevant, it was said, in the context of a 6 hectare extension of a quarry.  Had the visual impacts been considered the only conclusion of the committee would have been that the development would not preserve the openness of the GB, would therefore be inappropriate and would therefore have had to be justified by VSCs.

The CA accepted these arguments.  Lindblom LJ giving the leading judgment, notes that NPPF 90 sets out 5 forms of categories, all subject to the proviso that they preserve the openness of the GB and do not conflict with the purposes of including land within it.  Whilst openness is not defined he agreed with the finding of Turner that the word must take its meaning from the specific context in which it falls to be applied and that different factors are capable of being relevant to the concept when applied to the particular facts of a case; visual impact as well as spatial impact is implicitly a part of openness.

He went on:
“38 As a general proposition, however, it seems to me that the policy in paragraph 90 makes it necessary to consider whether the effect of a particular development on the openness of the Green Belt can properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question – the very fact of its being there – without taking into account the effects it will have on the openness of the Green Belt in the eyes of the viewer. To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the openness of the Green Belt would be artificial and unrealistic. The policy in paragraph 90 does not do that. A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.”

This paragraph provides a useful resume of the distinction between the spatial impact (the simple presence of something on land) and its visual impact, and the reality that the two are often closely related.

In the Samuel Smiths case the Court found that the Council had fallen into error by not considering whether it was likely the development proposed would have a visual impact nor how those visual impacts would bear on the question of whether the development would ‘preserve the openness of the GB’.  The officer’s observation that openness is ‘commonly taken to be the absence of built development’ appeared to lead the assessment away from visual impact and narrow it down to consideration of spatial impact alone.

This decision confirms the CA’s finding in Turner which was itself notable for disproving the decision in a case called Timmins[3] which had stated a clear conceptual distinction between openness and visual impact, such that it was wrong in principle to reach a conclusion on openness by reference to visual impact.  As should be clear now that distinction is incorrect and visual impact is potentially relevant and potentially significant in reaching decisions about openness of the GB.

[1] Samuel Smith Old Brewery (Tadcaster) and Oxton Farm v North Yorkshire CC and Darrington Quarries Led [2018] EWCA Civ 489

[2] Turner v SoS for CLG [2017] 2 P.&C.R.1

[3] Timmins and Another v Gedling BC [2014] EWHC 654 (Admin)

Download the decision here

4Under supply of housing leads to two applications being allowed by SoS – Mid Sussex

Appeal Ref: APP/D3830/V/16/3149579 & APP/D3830/W/16//3145499
Appeal Decision Date: 01 March 2018
Appellant: Wates Development Limited
Council: Mid Sussex District Council

Application A (ref: DM/15/3979) was dealt with in pursuance of Section 77 of the Town and Country Planning Act 1990 (Direction). The appeal (DM/15/3614) was recovered by the Secretary of State (SoS) in pursuance of Section 79 of the Town and Country Planning Act 1990.

Background
An appeal was made by Wates Development Limited against the decision to refuse planning permission for:

Application A: Outline consent for 30 dwellings, of which 30% will be affordable, with only access to be determined at this stage, with landscaping, open space and car parking, in accordance with application ref: DM/15/3979, dated 5 October 2015; and

Appeal: Outline consent for 44 dwellings, of which 30% will be affordable, with only access to be determined at this stage, landscaping, open space and car parking, in accordance with application DM/15/3614, dated 7 September 2015

In allowing the appeal and granting permission for both applications the SoS considered the following main issues:

  • Five-year land supply
  • The effect on the character and appearance of the area
  • The effect on the areas of ancient woodland
  • Potential coalescence with nearby settlements
  • Housing mix
  • Safety and convenience of users to adjacent highway network

Five-year Land Supply
Limited weight was given to Mid Sussex Local Plan 2004 (MSLP 2004) Policies C1 and C2 as the Council was unable to demonstrate a 5-year housing land supply. It was considered that the relevant housing policies conflicted with the aims and objectives of the Framework were therefore not up-to-date. The Crawley Down Neighbourhood Plan (CDNP) Policy CDNP05 and CDNP08 were also not considered up to date, as such, they were given moderate weight. The emerging MSDP was only be given limited weight.

Effect on the Character and Appearance of the Area
Both applications lie immediately west of existing residential development on Turners Hill Road with the eastern part of the northern boundary adjoining the new Wychwood residential area. It was considered that although the development would result in adverse changes to the character and appearance of the application site itself, the impacts on the character of the wider landscape would not be significant. There are no public viewpoints from the north and views from the eastern side of Bushy Wood would not harmfully impact on the proposed development especially once the proposed buffer planting on the western boundary has matured.

Effect on the Areas of Ancient Woodland
Both application sites adjoin areas of ancient woodland, with Pescotts Wood to the north and Kiln Wood to the south. A 15m wide buffer zone was proposed. With the proposed buffers and appropriate planning conditions, the Council were satisfied with the proposals. The Parish Council argued that the buffers should be increased to 30m wide, however, provided no evidence to justify this request. It was considered that there would be no conflict with development plan policies and the Framework guidance in terms of impact on the areas of ancient woodland.

Potential Coalescence with Nearby Settlements
It was considered that neither of the schemes under consideration would result in any real or perceived coalescence of Crawley Down with any neighbouring settlement. Policy CDNP08 of the CDNP seeks to prevent coalescence by not permitting development outside of the village boundary unless 3 criteria are met. The first being that the development should not detract from the openness and character of the landscape – neither applications were seen to conflict with this criterion. In respect of criterion b, the applications were not seen to contribute to “ribbon development. In terms of criterion c, the Parish Council argued that the proposals would reduce gaps neighbouring settlements. It was concluded that, none of the application proposals would result in any real or perceived coalescence of Crawley Down with any neighbouring settlement.

 Housing Mix
The affordable housing mix proposed for each scheme is set out within the S106 agreements and fall short of the 80% figure for 2-3 bedroom units, however the Inspector considered it to be acceptably close and the mix was acceptable to the Councils Housing Officer.  It was concluded thatthe mix would perform satisfactorily when assessed against the requirements of paragraph 50 of the Framework, and all would be capable of delivering an appropriate and acceptable mix of market and affordable housing”.

Highways
The Secretary of State agreed with the Inspector that, “subject to the imposition of his proposed conditions and the provisions of the S106 Agreements, neither of the two schemes under consideration would have any unacceptable impacts on the safety or convenience of the user of the adjacent highway network and thus no material conflict with MSLP Policy T4 or CDNP Policy CDNP10”

Conclusion
In the absence of a 5-year supply, 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.

Based on the above, the both the appeal and called in application were granted permission.

Download Decision here.

5. Under Supply of Housing leads to Two Applications Allowed by SoS – Mid Sussex

Appeal Ref: APP/D3830/V/16/3149575 & APP/D3830/V/16/3161086
Appeal Decision Date: 01 March 2018
Appellant: Gleeson Development Limited
Council: Mid Sussex District Council

 In pursuance of Section 77 of the Town and Country Planning Act 1990 application B (ref: DM/15/4094) and application C (ref DM/16/233) were referred to the SoS.

Background
An appeal was made by Gleeson Development Limited against the decision to refuse planning permission for:

Application B: outline consent for up to 60 dwellings, of which up to 30% will be affordable, with only the principle means of access to be determined at this stage, along with associated landscaping, open space and car parking, in accordance with application ref: DM/15/4094, dated 9 October 2015; and

Application C: outline consent for up to 30 dwellings, of which up to 30% will be affordable, with only the principle means of access to be determined at this stage, along with associated landscaping, open space and car parking, in accordance with application DM/16/2330, dated 27 May 2016.

In granting permission for both applications the SoS considered the following main issues:

  • Five-year land supply
  • The effect on the character and appearance of the area
  • The effect on the areas of ancient woodland
  • Potential coalescence with nearby settlements
  • Housing mix
  • Safety and convenience of users to adjacent highway network

Five-year Land Supply
Limited weight was given to Mid Sussex Local Plan 2004 (MSLP 2004) Policies C1 and C2 as the Council was unable to demonstrate a 5-year housing land supply. It was considered that the relevant housing policies conflicted with the aims and objectives of the Framework were therefore not up-to-date. The Crawley Down Neighbourhood Plan (CDNP) Policy CDNP05 and CDNP08 were also not considered up to date, as such, they were given moderate weight. The emerging MSDP was only be given limited weight at this stage.

Effect on the Character and Appearance of the Area
In the Council’s SHLAA the Site was assessed as unsuitable for residential development. The Site was seen to have a distinct rural character with a lack of defensible boundary to the east and south. When assessed against CDNP Policy CDN05, the development was seen to harm the character of the area and would detract from the openness and character of the landscape. It was acknowledged that this was an inevitable consequence of developing any greenfield site and not always unacceptable in the overall planning balance. It was concluded the proposed densities would be acceptable. No firm, specific evidence was put before the Inspector to demonstrate what harm would arise from the Gleeson 60 scheme. In light of this, there was no unacceptable conflict with criteria (a) or (b) of CDNP Policy CDNP05 or the first criterion of CDNP05.

Effect on the areas of Ancient Woodland
Both application sites adjoin areas of ancient woodland, with Burleigh Wood to the west and Rushetts Wood to the east. A 15m wide buffer zone was proposed. With the proposed buffers and appropriate planning conditions, the Council were satisfied with the proposals. The submitted ecology statement confirmed that the proposals would not result in the loss of any ancient woodland habitats, nor the loss of any trees or woodland. It was considered that there would be no conflict with development plan policies and the Framework guidance in terms of impact on the areas of ancient woodland.

Potential Coalescence with Nearby Settlements
It was considered that neither of the schemes under consideration would result in any real or perceived coalescence of Crawley Down with any neighbouring settlement. The broad extent of Rushetts Wood lies generally between the Gleeson site and East Grinstead.  In these circumstances, the Inspector was not persuaded that any of the proposed developments would result in any lessening of the separate identity and amenity of Crawley Down, nor lead to any significant perception of coalescence with nearby built-up areas.  As such, found no conflict with policy C2.

 Housing Mix
The affordable housing mix proposed for each scheme is set out within the S106 agreements and fall short of the 80% figure for 2-3 bedroom units, however the Inspector considered it to be acceptably close and the mix was acceptable to the Councils Housing Officer.

Highways
The Parish Council raised concerns regarding the use of Hazel Close and Hazel Way to serve a major development. The Secretary of State agreed with the Inspector that, subject to the imposition of his proposed conditions and the provisions of the S106 Agreements, the schemes would not have any unacceptable impacts on the safety or convenience of the user of the adjacent highway network and thus no material conflict with MSLP Policy T4 or CDNP Policy CDNP10.

Conclusion
In the absence of a 5-year supply, 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.

Based on the above, both applications were granted permission.
Download Decision here.

6. Site Located within 4.3km from Ashdown Forest granted Permission for up to 200 dwellings – East Grinstead, Mid Sussex

Appeal Ref: APP/D3830/W/16/3142487
Appeal Decision Date: 01 March 2018
Appellant: Linden Limited
Council: Mid Sussex District Council

 This appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
An appeal was made by Linden Limited against the decision to refuse planning permission for “for outline planning permission for up to 200 dwellings, provision of new internal access roads and footpaths, landscaping, open space, sustainable drainage system, earthworks and associated infrastructure and for full permission for the provision of Suitable Alternative Natural Green Spaces (SANGS) in, accordance with application ref: DM/15/0429 dated 2 February 2015”.

In allowing the appeal, the SoS considered the following main issues:

  • Supply and delivery of housing
  • The effect on the character and appearance of the area
  • Effect on transport
  • Effect of biodiversity
  • Effect on historic environment

Supply and Delivery of Housing
The proposals would bring forward 140 market houses with 60 units of affordable housing. The material contribution of the provision of housing in the district was given significant weight. The scheme would also bring substantial economic and environmental benefits.

Effect on the character and appearance of the area
The Site is divided into two parcels. Parcel A lies to the south east of the railway and to the southern western edge of the built-up area of East Grinstead. Parcel B lies north west of Parcel A and is entirely in SANGS land. The Site adjoins the AONB. It was considered that Parcel A has very limited inter-visibility with the AONB and did not pass the threshold of ‘valued’ as used in the NPPF. However, Parcel B was more representative of Landscape of High Weald due to its extensive views of the ancient woodland. The Inspector concluded that the visual impacts would be localised, with the most significant visual impacts experienced by the occupiers of those houses closest to the site. Moderate impacts would be views from Turners Hill Road, Garden Wood Road and the public footpath to the south of the site. Other visual impacts were described as relatively minor.

Effect on Transport
The Council’s refusal based on highways matters was withdrawn before the enquiry. Rule 6 party however maintained their objection on highways grounds and criticised the Council for accepting a Transport Assessment (TA) which did not include an assessment on A22 junctions. The Inspector disagreed and stated that there has been a robust assessment of transport impacts. Furthermore, the appeal Site enhances opportunities for sustainable transport modes and the proposal and highways contributions would enable two key junctions to be improved. He also noted that the traffic generated by the appeal scheme would be minimal in relation to traffic passing through the junction. As such, the appeal scheme accords with paragraph 32 of the Framework.

Effect on Biodiversity
The Site is located approximately 4.3km from Ashdown Forest. The HRA concluded that the appeal scheme is not likely to have a significant effect on the Ashdown Forest SPA/SAC. The Inspector therefore considered that the proposals were unlikely to have a significant effect on Ashdown Forest SPA, SAC or SSSI and there would be no harmful effects on biodiversity in general.

 Effect on Historic Environment
The Inspector considered that there would be no direct impact on either of the Grade II listed buildings; Hill Place Farm House and Imberhorne Viaduct. The setting of Hill Place Farmhouse was seen to make very little contribution to its significance as a designated heritage asset. As the Site has already been diminished by modern agricultural buildings, the appeal scheme would not pose any harm. Furthermore, the harm to Bluebell Railways would be negligible. With respect to Inborne Viaduct, although the impact on views was considered as less than substantial, the inspector felt that the new public footpath passing close to the foot of the viaduct would be an important public benefit as it would provide excellent views – this benefit outweighed the harm.

Conclusion
The appeal scheme was seen to make a meaningful contribution to housing without significant harm to the transport network and biodiversity. Although the appeal scheme would fail to preserve the listed viaduct, the harm would be minor. In light of these material considerations, the Inspector expressed that the benefits of the scheme outweighed the impacts and recommended that the appeal is allowed which the SoS agreed.

Based on the above, the appeal was allowed
Download Decision here.

7. SoS goes against Inspector’s Recommendation to Refuse Planning Permission and Grants Permission for 200- Mid Sussex

Appeal Ref: APP/D3830/W/16/3152641
Appeal Decision Date: 01 March 2018
Appellant: Wates Development Ltd
Council: Mid Sussex District Council

 This appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
An appeal was made by Wates Development Ltd against the decision of Mid Sussex District Council to refuse “outline planning permission for 200 dwellings, a 9.54ha Country Park and land for a ½ Form Entry Primary School, together with associated access road, car parking, landscaping and open space at land south of Scamps Hill/Scaynes Hill Road, Lindfield, West Sussex, in accordance with application ref:  DM/15/4457, dated 4 November 2015.”.

In allowing the appeal, the SoS considered the following main issues:

  • Character and Appearance
  • Sustainable Development
  • Development Plan

Character and Appearance
The SoS agreed with the Inspector that although there would be harm to the landscape due to residential development, this should be overcome at reserved matters stage. Furthermore, the effect of the proposals on the character and appearance of Walstead should not be a bar to development, and as such this was given limited weight.

Sustainable Development
The Secretary of State agreed with the Inspector’s conclusion that the proposed scheme would recognise the intrinsic character and beauty of the countryside, secure high quality and inclusive design and would not harm any valued landscape. The Secretary of State therefore gave moderate weight to these benefits.

Development Plan
As the Council holds less than a 5-year housing land supply, limited weight was given to MSLP Policy C1 and NP Policy 1. Full weight was given to LP Policy B1(a) which supports the scheme.

Conclusion
The SoS concluded that the scheme conflicted with MSLP Policies C1 and NP Policy 1 – however, the policies were seen to be inconsistent with the Framework and therefore considered as out of date. In the absence of a 5-year land supply, para 14 of the Framework indicates that permissions should be granted unless there are adverse impacts that significantly and demonstrably outweigh the benefits. The housing benefits were seen to carry substantial weight and the economic, social and environmental benefits each carry moderate weight. Due to these reasons, the SoS allowed the appeal.

Based on the above, the appeal was allowed.
Download Decision here.

8. Application of up to 130 Dwellings Refused due to Unacceptable Risk to Safety of Future Occupiers from Unmanned Railway Crossing- Hassocks, Mid Sussex

Appeal Ref: APP/D3830/V/17/3166992
Appeal Decision Date: 01 March 2018
Appellant: Roydon Homes Ltd
Respondent: Mid Sussex District Council

 Pursuant to Section 77 of the Town and Country Planning Act 1990, the application was referred to SoS instead of being dealt with by the local planning authority.

Background
The application was made by Roydon Homes Ltd for residential development of up to “130 dwellings, consisting of 12 No. 1 bed apartments, 27 No. 2 bed houses, 47 No. 3 bed houses, and associated access, together with full permission for change of use of part of the land to form country open space in accordance with application ref:  DM/15/0626, dated 13 February 2015”

In refusing the application, the SoS considered the following main issues:

  • The supply and delivery of housing in Mid Sussex
  • Effects on flood risk
  • Effects on air quality
  • Safety of future occupiers in relation to the railway crossing

Supply and Delivery
The Inspector stated that “Hassocks is the most sustainable of the District’s Category 2 settlements, and is therefore a natural location for a large part of the extra houses that will be needed.” As such, the proposed development was seen to boost the local housing supply.

Flood Risk
Part of the Site is located within flood zone 2 and 3. It was contended by the applicant that residential development will only be located in zone 1 and open space will be located in zones 2 and 3. This type of disaggregation is accepted by NPPG.

Air Quality
The proposed development was seen to not give rise to any unacceptable impacts on air quality and therefore conformed with MSLP Policy CS22, which seeks to avoid unacceptable pollution in any form.

Future Occupiers
The Inspector identified potential implications for public safety.  In the absence of any measures to improve the safety of the unmanned railway crossing, permitting the proposed development in such close proximity, it was considered as an unacceptable risk to the safety of future occupiers, contrary to the aims of NPPF paragraph 32. The SoS agreed with the Inspector’s view.

Conclusion
The SoS concluded that, “despite the benefits that would flow from the proposal, the unacceptable risk to the safety of future occupiers from the unmanned railway crossing represents a sufficiently substantial material consideration to outweigh the benefits, so that the application should be refused”.

Based on the above, the application was refused.
Download Decision here.

9. Sainsburys Development Approved for 683 Homes Allowed with 4% Affordable Housing Ilford, Redbridge

 Appeal Ref: APP/W5780/W/16/3164036
Appeal Decision Date: 14 March 2018
Appellant: Sainsburys Supermarket Ltd
Council: London Borough of Redbridge

 The appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
The appeal was made by Sainsburys Supermarket Ltd against the decision of the Council of the London Borough of Redbridge (“Council”) to refuse planning permission for “demolition of existing buildings and structures and development of a replacement Sainsbury’s store (Use Class A1) of 4,745 sqm (net sales area), 951 sqm (GIA) of flexible commercial floorspace (Use Class A1/A2/A3/B1/D1) and 683 residential units (Use Class C3) arranged in 9 blocks including 2 terraces of mews and town houses.  An energy centre and plant is provided at basement and lower ground level, along with 410 retail car parking spaces and 42 residential car parking spaces. Associated highways and landscaping works, in accordance with application ref: 4499/15, dated 13 November 2015.”

In allowing the appeal, the SoS gave consideration to the following main issues:

  • Housing need
  • Density
  • Design
  • Impact on local infrastructure
  • Impact on neighbouring residents
  • Impact on future residents
  • Impact on traffic
  • Effect on the retail function
  • Effect on heritage assets
  • Affordable Housing

Conclusion
“The SoS considered that the public benefits arising from the proposals would significantly outweigh the low level of ‘less than substantial’ harm to the significance of the Grade II* listed Hospital Chapel and its associated buildings. Furthermore the adverse impacts of the proposals do not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Overall he considered that there are therefore material considerations which indicate that the proposal should be determined other than in accordance with the development plan”

Based on the above, the application was allowed.
Download Decision here

 

10.Benefits Outweighed harm to the Green Belt by Reason of Inappropriateness and any Other Harm– Effingham, Guildford

Appeal Ref: APP/Y3615/W/16/3151098
Appeal Decision Date: 21 March 2018
Appellant: Berkley Homes
Council: Guildford Borough Council

The appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
The appeal was made by Berkley Homes against the decision of Guildford Borough Council (“Council”) to refuse planning permission for “hybrid planning application for outline permission (only access to be considered) for the erection of a replacement secondary school for Howard of Effingham and up to 258 residential dwellings with means of access to Howard of Effingham School and Lodge Farm, Lower Road following demolition of all existing buildings; and full permission for the erection of 37 dwellings, with access, parking and landscape works on land at Brown’s Field, Brown’s Lane, Effingham, in accordance with application ref:  14/P/02109, dated 17 October 2014.”

In allowing the appeal, the SoS considered the following main issues:

  • Green Belt
  • Character and appearance of conservation area
  • Heritage assets
  • Ecology
  • Playing pitch
  • Housing supply

Green Belt
The Inspector and SoS agreed that the proposal would represent inappropriate development in the Green Belt as such substantial weight was attached to the harm to the openness of the Green Belt.

Character and appearance of conservation area
It was concluded that the scheme proposes limited extent of erosion of local character and the mitigating effects of the development, the harm is limited in extent, and carried medium weight

Ecology
The Secretary of State agreed with the Inspector that sufficient mitigation can be secured by condition to overcome concerns over ecological matters in relation to the local Site of Nature Conservation Importance and protected species. He further agreed that the legitimate concerns over the efficacy of the wildlife corridor can in good measure be addressed, and that these matters are neutral in terms of weight.

Playing pitch
The SoS agreed with the Inspector that the proposed replacement school’s facilities would result in a change to the functions of the club, the benefits on offer outweigh the loss.

Housing supply
The Council falls significantly below the 5-year housing land supply (2.1years). The Inspector attached substantial weight to the delivery of 295 dwellings with 20% affordable housing.

Conclusion
The SoS considered that the benefits outweighed harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist. The SoS concluded that there are no specific policies in the Framework that indicate that this development should be restricted and that there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

Based on the above, the application was allowed./
Download Decision here

 

Any questions? Ask our Legal Beagle – fetching facts and sitting down to analyse and advise.
Or do you have an industry related topic you would be interested in reading about on our site? If so, contact us today.

Catch up with our latest news and views from the team at Urbanissta.

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Latest GDPO amendments to Agricultural Permitted Development Rights

 

On Monday 5th March 2018, the Housing Minister, Dominic Raab announced changes to Permitted Development Rights which enable flexibility for rural sites to be converted from three to up to five family homes (Class Use C3) to better meet local housing need without the need to apply for Planning Permission.  You can read his statement here.

Amendments to the General Permitted Development Order (GDPO) were approved by Parliament on 12th March 2018 and have come into force today, 6th April 2018.

The amendments allow buildings which currently are/were in ‘active agricultural use’ on or before 20th March 2013 to be redeveloped for up to 5 dwellings. This will allow for the following:

  • Up to 3 larger homes within a maximum of 465 sq. m. (5005.2sqf)
  • Up to 5 smaller homes, each no larger than 100 sq. m. (1076.4sqf)
  • Combination of both above options – no more than 5 homes (no more than 3 being larger homes).

The permitted floor area has marginally increased from 450 sqm (4,843 sqft) to 465sqm (5005.2sqf). As set out above, the provisions can be combined to provide up to 5 dwellings per agricultural unit subject to the floor space limitations, with no more than 3 dwellings as larger dwellings.

Permitted Development Rights are subject to obtaining approval from the LPA first. This means that you must notify the relevant LPA and submit a prior approval application before starting any work. If the Council do not issue a decision within the time frame of 56 days, then development can begin.

Restrictions
It must be noted that permitted development rights are generally more restricted in the following designated areas:

  • Conservation Area
  • National Park
  • Area of Outstanding Natural Beauty or
  • The Norfolk or Suffolk Broads

Criteria
The following criteria will need to be met before a development can be considered as permitted development:

  • Buildings must have been used solely for agricultural use on or before 20 March 2013.
  • The new rights are not afforded to those who have used PD rights to build or extend buildings since 20 March 2013.

Please note that once the new PD rights have been exercised, there will be no opportunity to construct or extend an agricultural building for a period of 10 years.

Urbanissta welcome these amendments to the legislation, though its not a silver bullet, are hopeful that these changes will boost the number of homes created through the conversions of agricultural buildings which will assist in meeting local housing needs across the country.

The explanatory memorandum can be read here.

The amendments to the Legislation can be read here.

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

 

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

So what’s it all about?

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

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


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

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

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

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

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

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

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

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

 

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

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

Farhana’s findings…

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

Context

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

What are Micro Homes?

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

Who would be the target audience?

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

Yes and no.

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

House costs and affordability

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

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

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

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

 

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

 

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

 

 

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

Figure 14. Affordability in England
Source: Savills, 2017

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

Can Micro Housing alleviate the housing crisis?

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

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

Conclusion

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

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

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From London to Brazil

 

Brazil … where the city meets the sea.

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

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

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

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

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

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

Farhana’s notes…

16th May – 3rd June 2017

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

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

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

Recife

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

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

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

History

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

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

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

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

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

  • Governance
  • Movement
  • Social (and economic)

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

Governance:

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

The following key stakeholders and their roles were identified:

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

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

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

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

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

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

The second area of concern surrounded movement.

Transport and Movement:

The following observations were noted during our stay:

The following opportunities and constraints were identified:

Opportunities:

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

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

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

Opportunities:

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

Constraints:

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

Strategy – Public realm

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

Tenure and building typology:

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

Plans: Plan for Novo Recife rejected by popular protest

Redesign to allow connection on the boulevard to Boa viagem.

Malakoff Tower, in Recife Antigo

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

Sao Paolo

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

In a way, it reminded me of London.

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

 

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

 

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

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


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

 

 

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

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

 

Power to the planners!

Download Decision here.

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

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

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

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

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

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

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

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

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

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

Background

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

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

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

Five-year Land Supply

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

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

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

Impact on future occupants

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

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

Material Considerations

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

Conclusion

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

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

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

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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.

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

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

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

Background

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

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

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

Buttville House

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

Design

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

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

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

AONB

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

Conclusion

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

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

Download Decision here.

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

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

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

Background

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

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

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

Character & Appearance

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

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

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

Public right of way

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

Conclusion

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

On the basis of above, the appeal was allowed.

Download Decision here.

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

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

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

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

Background

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

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

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

Character & Appearance

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

Conclusion

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

In light of the above, the appeal was allowed.

Download Decision here.

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

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

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

Background

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

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

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

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

Landscape & Visual Impact

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

Agricultural

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

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

Conclusion

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

In light of the above, the appeal was allowed.

Download Decision here.

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

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

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

Background

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

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

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

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

Affordable Housing

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

Advanced stage viability review

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

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

Conclusion

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

Having regard to the above, the appeal was dismissed.

Download Decision here.

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

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

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

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

Background

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

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

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

Agreement of Housing Mix

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

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

Affordable Housing

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

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

Character & Appearance

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

Conclusion

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

Having regard to the above, the appeal was dismissed.

Download Decision here.

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

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

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

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

Background

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

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

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

5-year Land Supply

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

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

Suitable Location

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

Green Infrastructure

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

Landscape

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

Conclusion

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

Having regard to the above, the appeal was dismissed.

Download Decision here.

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Election results 2017 – where are we now?

 

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

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

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

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

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

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

And so the May and Corbyn battle continues…

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

Repeal Bill 

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

Customs Bill

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

Trade Bill

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

Immigration Bill

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

Fisheries Bill

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

Agriculture Bill

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

Nuclear Safeguards Bill

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

International Sanctions Bill

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

Other Bills:

Automated and Electric Vehicles Bill

Space Industry Bill

HS2 2A Bill

Smart Meter Bill

Draft Domestic Violence and Abuse Bill

Automated and Electric Vehicles Bill

Space Industry Bill

Draft Domestic Violence and Abuse Bill

Draft Tenant’s Fees Bill

Data Protection Bill

Courts Bill

Civil Liability Bill

Armed Forces Bill

National Insurance Contributions Bill

Travel Protection Bill

Financial Guidance and Claims Bill

Good Mortgages Bill

Draft Patient Saftey Bill

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

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

 

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

What does this mean for the housing crisis?

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

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

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

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

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

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

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

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

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

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

What does the election outcome mean for the housing crisis?

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

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

Conservative’s manifesto on housing proposed the following: 

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

Labour’s manifesto on housing proposed the following:

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

The casualties of the Election

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

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

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


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


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

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

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

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

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

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

The legal status of the Framework

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

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

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

Interpretation of the Framework

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

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

Law and policy

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

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

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

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

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

Interpretation of paragraph 14

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

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

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

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

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

Interpretation of paragraph 49

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

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

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

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

Sanity restored … at last!

Download the press summary.
Download the judgment.

 

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

Land at Park Mill Farm, Princes Risborough.

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

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

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

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

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

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

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

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

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

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

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

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

Download decision here.

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

Land South of Jotmans Lane, Benfleet.

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

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

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

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

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

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

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

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

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

Download Decision here.

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

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

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

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

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

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

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

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

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

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

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

Download Decision here.

 

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

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

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

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

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

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

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

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

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

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

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

Download Decision here.

 

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

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

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

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

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

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

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

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

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

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

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

Download Decision here.

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

Land at Moat Way, Queenborough, Kent.

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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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.

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

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

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

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

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

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

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

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

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

Download Decision here.

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

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

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

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

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

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

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

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

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

Download Decision here.

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Planning reform to fix the broken housing market

 

Planning review delayed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the Planning Reform Proposals here.

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

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

 

environmental impact assessment

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

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

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

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

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

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

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

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

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

What legal challenges might arise from the amended regulations?

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

Relevant reading:
The Amending Environmental Impact Assessment

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

Introducing ‘The girl on the Tube’. A Planner’s insight into the changing landscape of London.
I’m the girl on the Tube, no stranger to the fast-paced life of London and I take the underground every day to and from work.
I rise up from the tunnels of bustling business people and enthusiastic tourists and step out into the streets of London. Sensibly putting comfort and practically before fashion, wearing my well-worn trainers instead of 6-inch stilettos.
Read more

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