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Legal Beagle November Edition

 

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

We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. We’ll be giving you an updated every other month so remember to keep any eye out for our updates.

Our guest barrister, Giles Atkinson of 6 Pump Court provides a commentary on a recent decision; Catesby Estates Ltd v Peter Steer.

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

1. Reasons for Planning Approvals

Appeal Ref: C1/2017/1840 and C1/2017/1934
Appeal Decision Date: 18th July 2018
Appellant: Catesby Estates Ltd
Council: Amber Valley District Council

The recent decision of the Court of Appeal in Catesby Estates[1] is an interesting and important one about how to determine the extent of the ‘setting’ of a heritage asset.

‘Setting’ is defined in the glossary to the NPPF, July 2018, although the definition is unchanged from the 2012 version:

Setting of a heritage asset:  The surroundings in which a heritage asset is experienced.  Its extent is not fixed and may change as the asset and its surroundings evolve.  Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral.

The development at the heart of the case is a proposed 400 homes in Allestree, Derbyshire.  The application was refused by the LPA (Amber Valley) essentially because of harm to the setting of the nearby Grade 1 listed Kedlestone Hall.  The land on which the housing was proposed had formerly formed part of the estate for the Hall.  Catesby appealed successfully to the Secretary of State, the Inspector deciding that the development was not within the setting of the Hall because there was no visual connection between the development site and the Hall, but the Inspector’s decision granting outline permission for the development was quashed in the High Court following a section 288 challenge.

The Inspector was found by the High Court to have wrongly assessed the impact of the proposal on the setting of Kedlestone Hall as being determined by the absence of physical or visual connection between the Hall and the land on which the housing was proposed to be built, notwithstanding the historic, social and economic connections between them.  The Inspector had found that without a physical or visual connection the appeal site was not within the setting of the Hall; in the Inspector’s judgment it was necessary for there to be a physical or visual connection for the development site to come within the setting of the Hall.

Lang J concluded that the Inspector’s interpretation of setting, requiring there to be a physical or visual connection between heritage asset and development, was too narrow.

The reason why this decision raised so many eyebrows was that it appeared to be at odds with a CA decision in Williams[2] made a few weeks before Lang J’s judgment in which Lindblom LJ (like the Inspector at Kedleston Hall) appeared to rely on the need for there to be a distinct visual relationship between heritage asset and development for the latter to affect the setting of the former.

Catesby appealed to the Court of Appeal against the judgment of Lang J and the case came before LJs McFarlane, Asplin and Lindblom who, not surprisingly, gave the leading judgment with which the others agreed.

Essentially it was argued in the CA on behalf of Catesby and the Secretary of State that the Inspector had not disregarded the other non-visual and physical considerations necessary to consider when identifying the extent of the setting of the Hall.  On behalf of Mr Steer and Heritage England, it was said, on the contrary, that the Inspector had indeed taken too narrow a view, focusing on views and visual impacts alone and that a visual connection is not necessary in every case.

In his judgment, Lindblom LJ reminded us first that ‘setting’ is not statutorily defined and does not lend itself to precise definition but it is implicit in section 66 of the Listed Buildings Act[3] that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside.

Importantly, and in accordance with much of what the CA has been saying recently, he went on to make clear that the identification of the extent of the setting of a heritage asset is always a matter of fact and planning judgment for the decision maker, not the court.

Addressing the apparent conflict with his own decision in Williams Lindblom J followed what he had said in that case to the effect that for a proposed development to affect the setting of a listed building there must be a distinct visual relationship between the two which is more than remote or ephemeral and which bears on one’s experience of the asset in its surroundings.  However, that does not mean that when considering the extent of an asset’s setting the decision maker should ignore the factors other than the visual or physical, such as the economic, social and historical.

Noting that the CA in another case had acknowledged that smell could harm the setting of a listed building, Lindblom drew together three general points.

First, that it is important that the decision maker understand what the setting of a listed building is, otherwise it would be difficult for an assessment to be made of how development affects it.  Second, although this is never a purely subjective exercise there is not, and nor could there be, a single approach which would apply to every case; this must always be a matter of applying planning judgment to the particular facts of a case with relevant policy, guidance and advice in mind.  Third, the effect of a particular development on the setting of a listed building is a matter for the decision maker.

In light of these points Lindblom agreed with the submissions made on behalf of Catesby and the SoS that the Inspector had not taken too narrow a view of setting, and had not concentrated on the visual and physical effect of the development, to the exclusion of all else.  The Inspector, as a matter of planning judgment, was not saying that land could only fall within the setting of the Hall if there was a physical or visual connection, he was saying the extent of the setting in this case could not be determined by the historical, social and economic connections.

The appeal was therefore allowed and the decision of the High Court overturned.

That may not be the end of the matter however.  At the time of writing Mr Steer has applied to the Supreme Court for permission to appeal against Lindblom LJ’s decision, that permission having been refused by the CA itself[4].  The appeal is essentially on the basis that there is confusion still about the correct approach because of the Willia

Download Decision Here.

[1] In fact 2 appeals joined: Catesby Estates Ltd v Peter Steer, Historic England and SoS for CLG v Peter Steer, Historic England [2018] EWCA Civ 1697

[2] R (oao Williams) v Powys CC [2017] EWCA Civ 427

[3] In considering whether to grant planning permission…for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

[4] On the 22nd August 2018

 

2. Benefits of the proposal are insufficient to outweigh the impact on Landscape and Setting of Listed Building.

Appeal ref: APP/X1545/W/17/3185429
Appeal Decision Date: 29 August 2018
Appellant: Endurance Estates Strategic Land Ltd
Council: Maldon District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. The applicant appealed against the refusal of for planning permission for an outline application for the construction of up to 45 dwellings with associated garaging, parking, public open space, landscaping, access, highways drainage and infrastructure works.

Background
An appeal was made by Endurance Estates Strategic Land Ltd against the decision to refuse planning permission for 45 dwellings and associated works by Maldon District Council

 In dismissing the appeal the Inspector gave consideration to the following main issues.

  • Whether the Council demonstrates a suitable supply of housing land;
  • The effects of the proposal on the landscape/visual character of the area; and
  • The effects of the proposal on the setting of the nearby listed building.

 Land Supply
The Inspector decided that the Council can be considered to have a five year supply of housing sites, with an appropriate buffer, for the purposes of this appeal.

Landscape/Visual Character
The Inspector acknowledged that the land is not covered by any specific landscape designation. However its value is derived from the fact that it would form the immediate rural setting at the edge of the Garden Suburb; its intrinsic value is its openness.  As such, the proposed development would undermine the Policy S4 which places emphasis on the protection of open space.

Setting of the Listed Building
Taking account of the low level of contribution to the significance of the historic asset that the appeal site makes, The Inspector considered that it would result in ‘less than substantial harm’ to its significance, as set out in paragraph 196 of the NPPF.  Within this level of harm the Council suggested that it should be seen as ‘moderate’ and the appellant suggests that it would be ‘minor’. The Inspector decided that minor harm that would arise.

 Conclusion
The proposal put forward a number of benefits which is considered to carry significant weight. However, the due to the harm identified in respect of landscape and visual character and the impact on the setting of the listed building, the benefits of the proposal are insufficient to outweigh this conflict and the harm arising.

In light of the above, the Inspector refused planning permission.

Download Decision Here.

3. Proposal for 2,600 units refused permission by SoS due to the less than substantial harm to the significance of a Scheduled Ancient Monument.

Appeal Ref: APP/U3935/W/16/3154437
Appeal Decision Date: 13 June 2018
Appellant: Ainscough Strategic Land Ltd
Council: Swindon Borough Council

The appeal was recommended dismissal by the Inspector. On 19th August 2016 , the appeal was recovered for the Secretary of State’s determination. The applicant appealed against the refusal of for planning permission for an outline application (with all matters reserved save the detailed access off Wanborough Road) for demolition and/or conversion of the existing buildings on the site and redevelopment to provide:

  • “Up to 2,600 residential units (Use Class C3); – Up to 1,765 sq m of community/retail uses (Use Classes D1/D2/A1/A2/A3/A4)
  • Up to 3,000 sq m of business/employment use (Use Class B1);
  • A Primary School (2.2 ha); – Open space, strategic landscaping and other green infrastructure (including SUDs and areas for nature conservation);
  • Other associated road and drainage infrastructure;
  • Indicative primary access road corridors to the A420; and
  • Improvements and widening of existing route off Wanborough Road to provide pedestrian, cycle and bus access. In accordance with application ref: S/OUT/15/0753/KICO dated 30 April 2015 (“the masterplan scheme”)”

Background
An appeal was made by Ainscough Strategic Land Ltd against the decision to refuse planning permission for 2,600 dwellings and associated works by Swindon Borough Council.

In dismissing the appeal the SoS gave consideration to the following main issues.

Heritage;
Open space;
Trees;
Transport; and
Sustainable Development

Heritage
The SoS has carefully analysed the impact on the Schedule Ancient Monument and agreed with the Inspector that to achieve development of the Masterplan Site inevitably, this would involve the permanent loss of much of the remaining rural setting to the SM. The identified harm to the SM has considerable importance and weight. He further agrees that in the terms of the Framework, the proposal would lead to less than substantial harm to the significance of the SM and, as required by paragraph 134, this harm should be weighed against the public benefits of the proposal. The proposal puts forward significant public benefits such as affordable housing, employment and biodiversity gains, however the less than substantial harm to the significance of the SM is not outweighed by the public benefits of the proposal.

Open Space
The SoS agreed with the Inspector that “the proposals do not demonstrate the quantity and quality of open space sought by the open space standards would be achievable within the proposed parameters and environmental constraints of the site. He further agrees that the GI parameter plans are not of a standard to be approved. He further agrees that to leave all matters to be resolved through planning condition(s) and/or a planning obligation would not be reasonable taking into account the inadequacy of the GI parameter plans. As such the masterplan proposals fail to comply with Policy EN3”.

Trees
The scheme proposed the removal of protected trees on the western side of the internal road in order to widen the access route to serve the development Site. The SoS considered that the scheme is not in accordance with a requirement of Policy EN1 criterion (a).

Transport
The SoS agreed with the Inspector in that the proposals would not achieve good connectivity within the development and to the surrounding area and not provide highway infrastructure in accordance with an acceptable strategy. He further agrees that the proposal conflicts with Policies TR1(a), DE1 and NC3(b).

Sustainable development
The SoS agreed with the Inspector that the development of the site is in accordance with the sustainable development strategy of Policy SD2 and would secure a better balance between housing demand and supply. However, the proposals do not meet a range of principles in Policy SD1 to ensure the creation of a high quality and sustainable community. As such, for the reasons given above, the Secretary of State concludes that the scheme is not sustainable development and is not supported by Policy SD3”

Conclusion
It was considered that the proposal conflicts with a number of policies, namely, Policies NC3, EN10, CM1, EN1, TR1, DE1, EN3, EN4, EN6, EN11, SD1 and SD3 of the development plan, and is not in accordance with the development plan overall.

The proposal puts forward a number of benefits including affordable housing, as such this carries significant weight in favour of the proposal. However, the proposal would lead to less than substantial harm to the significance of the SM. He considers that the proposal would not conserve the setting to Lotmead Farmhouse and would adversely affect the significance of this non-designated heritage asset.  Having regard to s66(1) of the LBCA he affords these harms substantial weight.

In light of the above, the SOS refused planning permission.

Download Decision Here

4.SoS disagrees with Inspector and rejects proposal for 120 dwellings due to conflict with Neighbourhood Plan

Appeal Ref: APP/Q3115/W/17/3180400
Appeal Decision Date: 20 July 2018
Appellant: R J & S STYLES
Council: South Oxfordshire District Council

The appeal was recommended approval by the Inspector. On 26th February 2018 , the appeal was recovered for the Secretary of State’s determination. The applicant appealed against the refusal of for planning permission for up to 120 dwellings (40% affordable) with associated access, public open space, landscaping and play space, in accordance with application ref: P16/S3441/O, dated 14 October 2016.

Background
An appeal was made by RJ & S Styles against the decision to refuse planning permission for 120 dwellings and associated works by Oxford District Council

In dismissing the appeal the Inspector gave consideration to the following main issues.

  • Housing land supply;
  • Whether tilted balance applies;
  • Location of housing;
  • Effects on character and appearance;
  • Integration with Benson village
  • Loss of agricultural land

Housing Land Supply
The Council and the Appellant agreed in their Statement of Common Ground that the Council had 4.1 years of deliverable housing, based on the Council’s published assessment dated May 2017. In April 2018 the Council published a revised housing land supply figure of 5.4 years, this figure was disputed by the Appellant and it was argued that there would only be a 4.8 year housing supply based on a recent appeal decision. The SoS accepted the appellants argument and decided the calculation should be based on 2017 and 2018 midpoint figure. As such, it was decided that the Council can demonstrate a 5 year land supply.

Whether tilted balance applies
As the Council could demonstrate a 5-year land supply, it was considered by the the Secretary of State that the relevant policies in the development plan were not silent or absent or out of date on the matter of housing allocations in respect of Benson. A such, the tilted balance did not apply.

Location of housing
The SoS agreed with the Inspector in that the proposals would not protect the countryside. Policy NP1 seeks to resists development where a site is not allocated and outside a built-up area. It was further agreed that SOCS policies CSS1, CSH1 and CSR1 do not rule out allocations being made on sites outside existing villages, nor does it allow development on an ad hoc basis. It was decided that the appeal proposal would not accord with the development plan, considered as a whole. The conflict with Policy NP1 was given significant weight.

 Effects on character and appearance
With regards to the character and appearance of the village, the SoS agreed with the inspector that the proposed development would not cause any significant harm to the character or appearance of the landscape, or to the village setting.

Integration with Benson village
The SoS agreed with the Inspector in that the proposed development would be a natural extension of the village and would be accessible for pedestrians, cyclist and motor vehicles. It was decided that there would be no conflict with any relevant policies, including SOLP Policy T1 or BNhP Policies NP10 and NP11.

Loss of agricultural land
The development proposals do not conflict with the advice in NPPF paragraphs 109 and 112 relating to the protection of agricultural land and soils, or with any other national or local policies.

Conclusion
It was considered that the proposal carries many benefits, particularly the provision of additional housing, including affordable housing, which carries significant weight in favour of the development. Moderate weight was given to the benefits to the local economy that would come from the proposal and limited weight was given to the provision of on-site open space and play areas, and the enhancement to the public transport facilities. The proposal however conflicts with Policies G2, G4 and NP1 of the development plan, and is not in accordance with the development plan overall.

As such, when taking into account the advice in paragraph 198 of the Framework that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted, the SoS gave very significant weight to the conflict with the BNhP.

In light of the above, the SOS refused planning permission.

Download Decision Here.

5. Housing figures in Emerging Local Plan (Regulation 22) given limited weight

Appeal Ref: APP/P0240/W/16/3164961 Appeal Decision Date: 16 August 2018
Appellant: Gladman Developments Limited
Council: Central Bedfordshire

Land between 103 and 27 Langford Road, Henlow, Bedfordshire SG16 6AF
The appeal was mad under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. The Inspector dismissed the appeal on 16 August 2018.

Background
An appeal was made by Gladman Developments against the decision to refuse 135 residential dwellings (including up to 35% 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 points from Langford Road and associated ancillary works.

Preliminary Matters
When refusing permission, the Council originally put forward two reasons for refusal.  One of these reasons related to the absence of a legal agreement which  was later supplied prior to the Inquiry as such, the second refusal had been overcome.  The remaining issue relates to the effect of the proposed development on the character and appearance of the area.

In dismissing the Appeal the Inspector gave consideration to the following main issue:

  • The effect of the proposed development on the character and appearance of the area

Landscape
The Site lies within the Bedfordshire and Cambridge Claylands National Character Area (CCNCA).  The local character the site falls within Landscape Character Type 4C, the Upper Ivel Clay Valley. The characteristics are mixed land use predominately of arable farmland and large and medium scale geometric arable fields bounded by hedgerows. The submitted LVIA concludes that the impact would be negligible which the inspector agreed with. The proposed development would replace an open arable field with built development as such, would be completely different nature to that which currently exists this was considered a major effect.

Visual
The Inspector analysed each view point and stated that views of the site would also be available from several nearby properties.  In terms of views of the Site, the most affected residents would be those living in the dwelling directly to the south of the Site.  At present they have a rural view from the first floor windows over an arable field to the woods to the north.  This would be replaced by a view of a housing estate.  Neighbouring properties would have more oblique views of the Site. The LVA rates the overall effect of this for the properties south of the site at ten years as major adverse to minor adverse and the Inspector agreed with this and considered that residents of the two northernmost properties would

suffer the major adverse effect. The inspector concluded that the development would have a major adverse landscape effect on the Site and its immediate context as well as major adverse effects on several visual receptors as well as moderate adverse on others.

Five year land supply
It was agreed by both parties that the Council have a five-year land supply. However, the Council submitted Draft Local Plan (DLP) for examination and the housing need figure of 1967 dpa is put forward.  If this figure is taken as the housing need then the appellant considers that the Council would be unable to demonstrate a five-year housing land supply. However, as the DLP is yet to be examined and has significant objections it was agreed between the parties that the emerging policies in the DLP should be given limited weight. However, the Appellant argued that the Housing figure of 1967 should be given material weight as the DLP has now been submitted for examination. The Inspector disagreed with this approach as the policies and figures should not be treated differently and states that until the DLP becomes adopted, the figure within the SHMA of 1600 dpa should be taken as the Council’s housing need.  Therefore the Council can demonstrate a five-year land supply.

Conclusion
The inspector concluded that the development would have an adverse impact on the landscape and its immediate context as well as major adverse effects on several visual receptors and moderate adverse on others.  The proposed development could also be seen as a small incremental change that if continued, could result in the blurring of the identities of Henlow, Clifton and Langford. Despite the economic and social benefits of the proposals, they were not individually or in combination enough to outweigh the harm that identified to the character and appearance of the area

In light of the above, the SOS refused planning permission.

Download Decision here

6.140 dwelling allowed in a village of around 700 dwellings.

Appeal Ref: APP/P0240/W/17/3190584 Appeal Decision Date: 22 May 2018
Appellant: Gladman Developments Limited
Council: Central Bedfordshire

The appeal is allowed and outline planning permission is granted for demolition of 59 Shefford Road and associated buildings and the erection of up to 145 dwellings with public open space, landscaping and sustainable drainage system (SuDS) and vehicle access from Shefford Road at 59 Shefford Road, Meppershall, Shefford SG17 5LL.

Background
A
n appeal was made by Gladman Developments against the decision to refuse outline planning permission for 145 dwellings and associated works by Central Bedfordshire Council. All maters except for access were reserved for future consideration.

Preliminary Matters
The application was refused for two reasons including development located outside of the settlement boundary and with the absence of a completed legal agreement securing financial contributions to offset infrastructure impact, including education, recreation and the provision of affordable housing, the development would have an unmitigated and unacceptable impact on existing local infrastructure. The development would therefore not amount to sustainable development

At the inquiry, the appellant questioned the validity of the council’s evidence to suggest a five year supply of land and suggested a 20% buffer should be applied. However recent case law suggested that there was not a persistent under delivery and a 5% buffer should be applied. The Inspector concluded that a 5 year HLS has been demonstrated using an OAN of 32,000 homes over a 20 year period from 2015 and a 5% buffer and that the Luton unmet need should not be included in the supply calculation.

The Inspector also referenced that a new local plan was being prepared and at an early stage of preparation and had limited bearing on his consideration of the appeal.

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

  • The suitability of the site for the development proposed in terms of its relationship with the existing settlement of Meppershall and its accessibility to shops and services; and
  • The effect on the character and appearance of the site and its surroundings.

Suitability of The Site For The Development
The Inspector referred to other decisions including Gladman v Daventry that revolved around Policy DM4 that seeks to protect the countryside for its own sake and this blanket protection applies to all areas outside of settlement envelopes irrespective of their landscape value or sensitivity.

The Inspector identified a conflict between Policy DM4 and the NPPF and identified that policy DM4 would frustrate the Council’s ability to achieve a 5 year HLS and that the policy is, therefore, not consistent with paragraph 47 of the Framework.

The inspector identified that a development of 150 dwellings would result in a material increase in the size of the existing village of around 700 homes. However, other than in respect of the effect on character and appearance, the Council has not identified any harm that would flow from that increase. No substantive evidence was submitted to show an unacceptable impact on local services. Accordingly, the Inspector found find no reason to conclude that the site would be unsuitable for the form or level of development proposed and find no conflict with the development plan in this regard.

Character and Appearance
The Inspector found that there is no risk that the proposal would lead to the village merging with any other settlement. The proposed areas of built development indicated on the Development Framework Plan would be some distance from the unsettled hill slopes and, in this respect, the proposal can be distinguished from new development being built. There were only limited views of the site from a distance and the proposal was identified as in keeping with landscape character guidelines.

The Planning Balance
The inspector concluded that the appeal site was not in an unsustainable location and there would not be a conflict with policies CS16 or SADP Policies DM3 or DM14. A conflict with Policy DM4 was identified but this was only given limited weight. the site does not fall within an designated area and the inspector identified a number of benefits arising from the provision of additional market housing including 51 affordable homes.

Conclusion
The inspector concluded that the adverse impacts of development on the landscape do not significantly and demonstrably outweigh the benefits identified and that the tilted balance in favour of a grant of planning permission therefore applies.

Download Decision her

7. Lack of 5-year land supply has lead to the approval of 123 houses in Longridge.

Appeal Ref: APP/T2350/W/17/3186969 Appeal Decision Date: 22nd May 2018
Appellant: VH Land Partnership
Council: Ribble Valley Borough Council

Background
An appeal was made by VH Land Partnership against the decision to refuse outline permission for up to 123 houses; demolition of an existing house (74 Higher Road) and formation of access to Higher Road at Land at Higher Road, Longridge.

In granting permission, the Inspector gave consideration to the main issue being whether the development proposed would be consistent with the objectives of policies relating to the location and supply of housing.

Housing Land Supply in Ribble Valley
During the course of the Inquiry, it was identified that there were a number of disputed sites within the Council’s land supply, reducing the council’s figures by 136 dwellings. This reduction led to the Council’s supply amounting to 4.5 years including a 20% buffer. The Inspector identified that even if the Council’s predictions relating to some of the sites prove to be more accurate, it would not significantly alter the housing land supply position and would only marginally reduce the shortfall within the range of 4.5 years and a maximum of 4.7 years of deliverable housing land supply. In that respect, to conclude on the compliance of the proposal with the development plan and the Framework as a whole as part of the planning balance, it is necessary to firstly consider any other matters that are relevant to the proposal. The other matters are set out below:

Highway and Pedestrian Safety
The development would not increase the demand for on-street parking or increase traffic flows on Higher Road to an extent that existing highway conditions and parking arrangements would be significantly altered or worsened. The development would not have a detrimental impact upon highway safety or preclude access for emergency vehicles.

Living Conditions
The masterplan and illustrative material submitted with the planning application demonstrate that adequate separation distances to neighbouring properties

The Inspector did not consider that the extent of those effects would result in significant harm or disturbance to their existing living conditions.

Ecology, Trees and Open Space
The Inspector was satisfied that detailed submissions could suitably incorporate existing high and moderate quality trees within the site, together with the trees and hedgerows along the site boundary and those located on neighbouring land with crown overhangs or root protection areas within the site. Public open space within the site, including useable spaces, natural play spaces, pedestrian footpath links and cycle routes, can be secured as part of the reserved matters and conditions in accordance with the illustrative details within the masterplan

Drainage and Flood Risk
The development would not be at unacceptable risk of flooding or increase the risk of flooding to surrounding properties, subject to the suitability of the detailed site layout as part of the reserved matters.

Conclusion
For the reasons given above, the Inspector concluded that the appeal should be allowed and planning permission granted subject to the conditions set out in the attached schedule.

Download Decision here.

8. Compliance with Extant Code for Sustainable Homes Condition Removed

Appeal Ref: APP/E5900/W/18/3199690 Appeal Decision Date: 17 August 2018
A
ppellant: Mr Peter Magri
Council: London Borough of Tower Hamlets

 The appeal was made under Section 78 of the TCPA 1990 against a refusal to grant permission under Section 73.

Background
An appeal was made by Mr Peter Magri against the decision to refuse permission for a variation to the Code for Sustainable Homes condition attached to a permission PA/11/01818 granted on the 5th July 2013 for 57 apartments and 970sqm of commercial space for A1, B1/D1 use as a part 7, part 8 storey development without complying with a condition attached to planning permission Ref PA/11/01818, dated 5 July 2013.

In allowing the appeal, the Inspector gave consideration to:

  • Whether the condition is reasonable and necessary in the interests of addressing climate change and achieving sustainable development.

Changes to the planning practice guidance in 2015 saw the removal of Code for Sustainable Homes(CSH)from national policy with the exception of legacy cases. The Council contended that the withdrawal of the CSH relates to planning conditions for new approvals only and that the development  in this case was a legacy case. Legacy cases are defined as residential development that are legally contracted to apply a code policy such as affordable housing through the National Affordable Housing Programme 2015 to 2018 or earlier programme, or where planning permission has been granted subject to a condition stipulating discharge of a code level which a developer is not appealing or seeking to have removed or varied.

.As the developer is appealing the condition and seeking to have it removed, it cannot be considered a legacy case.

The inspector noted that Based on the PPG, the proposal would not be required to be built to zero carbon. Nonetheless, there would be an element of conflict with development plan policies. However, in the context of Section 38 (6) of the Planning and Compulsory Purchase Act and Section 70 (2) of the Act, the great weight I attribute to the PPG outweighs the weight I afford to the conflict with the above noted development plan policies. The inspector also recognised that owing to Building Regulations Part L (2013) requirements, despite the removal of the condition, the proposal would still address climate change and achieve sustainable development.

Other Matters
The Inspector also noted that the PPG makes it clear that decision notices for the grant of planning permission under section 73 of the Act should also repeat the relevant conditions from the original planning permission, unless they have already been discharged.

It was also cited that Section 73 (5) the Act and the PPG5 are clear that planning permission cannot be granted under this section of the Act to extend the time limit within which a development must be started or an application for approval of reserved matters must be made.

Conclusion
The Inspector concluded that the condition is not reasonable or necessary in the interests of addressing climate change and achieving sustainable development. Condition 11 was subsequently removed and the appeal succeeded.

Download Decision here.

9. 5-year housing supply shortfall lead to successful Appeal for 100 dwellings.

Appeal Ref: APP/U3935/W/17/3192234 Appeal Decision Date: 18th October 2018
Appellant: Ainscough Strategic Land Limited
Council: Swindon Borough Council

Background
An appeal was made by Ainscough Strategic Land Limited against the decision of Swindon Borough Council to refuse “outline planning application (with means of access off Ermin Street/Blunsdon Hill not reserved) for the demolition of the existing Hill Cottage for the development of approximately 100 dwellings (Use Class C3), on-site recreational space, landscaping and associated road and drainage infrastructure.”.

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

  • The relationship of the proposal to the development plan for the area;
  • The effect on the character and appearance of the area;
  • Whether the location of the site is such that the need to travel would be minimised and the use of sustainable transport modes maximised;
  • Whether the proposal makes appropriate provision for affordable housing, infrastructure and similar matters; and
  • Whether there are any other material considerations, including the housing land supply situation and benefits of the proposals, which would indicate that the proposals should be determined otherwise than in accordance with the terms of the development plan

Development plan for the area
In summary, Policy SD2 of the Local Plan notes that development in rural and in countryside locations outside of rural settlement boundaries will be permitted if it is in accordance with the other policies in the Local Plan which permitted specific development in the countryside. No other policies were identified to justify why development outside a settlement boundary should be permitted. Therefore, for the purposes of assessing the proposal against the terms of the development plan, as the proposal lies in the countryside it would be contrary to this part of Policy SD2 of the Local Plan.

It was considered common ground that the Council cannot demonstrate a five-year land supply and that relevant policies were therefore out of date. Although the appeal site lies outside the settlement boundary of Broad Blunsdon the Council conceded that it considered that this, of itself, was not a reason to dismiss the appeal due to the land supply position.

Character and Appearance
The Site lies within Upper Thames Clay Vale National Character Area. The Inspector identified the proposals would result in a landscape harm rather than heritage harm. As the Site has a reasonable separation distance from Lower Blunsdon and the Conservation Area, it would therefore be preserved.

In terms of harm to the landscape and visual qualities of the area, it would be contrary to Policy EN5 of the Local Plan.  It would also be contrary to Policy SD1 of the Local Plan in that it would not respect, conserve or enhance the natural environment and the unavoidable impacts would not be wholly mitigated as such would be contrary to paragraph 170 of the Framework

Overall, it was concluded that the Site would be harmful to the landscape and would have harmful visual effects.  The impacts however would be limited and would be mitigated to some extent, but not wholly, by the additional planting that would form part of this development.

Accessible location
The Site was not considered as being well related for the use of non-car modes, however is not poorly located given the proximity to the main built up area of Swindon.

Due to the location of the Site, the need for travel will not be minimised and the use of sustainable transport modes maximised when compared with sites with better access for non-car modes. This is contrary to Policy TR2 and to paragraph 103 of the Framework as there would not be a genuine choice of transport modes.  This weighs against the development, but as there are alternatives that may be used by residents which gives some choice, although less likely than not, this was given limited weight.

Affordable housing
Policy HA2 of the Local Plan indicates that all developments of 15 homes or more should provide 30% of the dwellings as affordable housing.  The Planning Obligation provides this proportion and would thus complies with development plan policy.  However, the proposal would only provide 9% of the dwellings for affordable home ownership rather than the 10% set out in paragraph 64 of the Framework. Significant weight was attached to the provision of AH.

5YHLS
The appellants and the Council set out various figures as to the land supply that could be demonstrated, given an agreed base date of 1 April 2017.  These varied from between 1.9 years and 2.1 years for the appellants and 2.5 years and 2.7 years for the Council depending on the varying analyses of deliverability and the appropriate buffer. The inspector decided that which ever the figure, the shortfall is significant.

Conclusion
In bringing all the above together in the final balance, the Inspector considered that the adverse impacts of the development would not significantly or demonstrably outweigh the benefits. The Inspector attached significant weight to the fact that the Site fell outside of the development boundary. Furthermore, the proposals would have harmful visual effect on Broad Blunsdon and would result in the loss of a golf course and community facility – these were all given limited weight. The inspector highlighted that there are significant benefits of the proposal from the provision of the additional dwellings both themselves and through the provision of affordable housing.

The 5YHLS was considered a serious matter which resulted in the Policies for the supply of housing in the development plan to be considered to be out-of-date. The factors above provide the material considerations to grant planning permission other than in accordance with the development plan.

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

10. Improvements to affordable housing leads to approval by Secretary of State

Appeal Ref: APPJ2210/W/15/3141444 Appeal Decision Date: 6th August 2018
Appellant: Hollamby Estates Ltd
Respondent: Canterbury City Council

 Background
An appeal was made by Hollamby Estates against the non determination of a hybrid application by Canterbury City Council.

The hybrid application sought in detail the demolition of existing dwelling house in conservation area and two other dwellings, change of use of lagoon to allotments, ecological habitat and footpath link and improvements along Bullockstone Road. The outline elements were related to provision of 800 dwellings commercial and community development with pedestrian and cycle links, drainage sustainable drainage and open space as well as highways infrastructure.

The Council confirmed on 1st March that they would have refused the application for seven reasons comprising severe adverse impact on the highway, inadequate and unsafe works, absence of planning obligations to mitigate the impacts on the local highway network, failure to justify the 4% affordable housing provision, failure to demonstrate an acceptable impact on air quality, conflict with the Habitat Regulations and non-compliance with the development plan.

The appeal was recovered by the secretary of State on the 27th June 2016 on the basis that the appeal involves proposals for residential development of over 150 units or on sites of over 5 hectares.

The inquiry was held in January and April 2017 with the inquiry closed in writing on the 31st July 2017.

The site is subject to EIA with an ES submitted with the application in 2015. In March 2017, three addendums were submitted and in May 2017 the EIA regulations 2017 came into force. Regulation 76 of the EIA regulations allow for transitional arrangements which the inspector considered this site would fall within.

The main areas of concern were affordable housing and highways impacts. In March 2016, the appellants submitted a varied highways improvement scheme which was granted permission in April 2017.

On the matter of affordable housing the application proposed 4% affordable housing, which was contrary to the emerging 30% requirement. At the start of the inquiry, the appellant proposed an increase of affordable housing to 15% with a split of 30% rent and 70% shared ownership. This was contrary to policy which required 70% rent and 30% shared ownership.

The matters as agreed were:

  • The Kent BRIS would provide an appropriate technical solution to the requirement to improve Bullockstone Road
  • Air Quality. The ES Addendum No 2 included further assessment using updated traffic data flow.
  • The appellant agreed that the requested contribution towards strategic access management at the Thanet Coast and Sandwich Bay SPA would be met in full.
  • The appellant agreed to provide obligations to secure additional secondary education capacity
  • All parties agreed that using the Liverpool method of calculating 5 year supply, there is a surplus of land whereas there is a deficit using the Sedgefield approach.
  • There were no outstanding technical highways and transportation issues that would prevent a grant of outline permission. However there was disagreement regarding the timing of completion of the Spine Road which KCC contended should be completed and available for use prior to the completion of the 410th

The main matters in dispute were development viability and affordable housing.

In January 2018, a revised viability assessment was submitted showing that 30% affordable housing could be provided with a 30% rent and 70% shared ownership mix. The tenure remained unacceptable.

In March 2018, the secretary of state wrote to the appellants confirming that the main issue was meeting local housing needs and that the scheme was not in accordance with Policy SP3, that the proposal would not deliver the Herne Relief Road at the appropriate time, the proposed land use content would not meet the primary objective for the SSA, there would be a net gain in biodiversity/nature conservation, the loss of some 15ha of BMV land does not weight significantly against the development, there would be less than substantial harm to the Herne Conservation Area.

The Secretary of State advised that before making his final decision he would give the appellants six weeks to address the concerns on affordable housing and highways via submission of a revised and agreed planning conditions.

The appellants confirmed that a bi-lateral agreement between all parties addresses affordable housing provision and a unilateral undertaking with Kent County council secures developer contributions towards the Kent Bullockstone Road Improvement Scheme.

Based on the above, the appeal was subsequently allowed by the secretary of State.

Download Decision here.

 

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Delivering the Thames Estuary Growth Commission’s 2050 Vision

 

The Thames Estuary 2050 vision was published in June 2018 by the Thames Estuary Growth Commission. It sets out the vision of transforming the estuary into a tapestry of productive places along a global river.

The Vision: To create 1.3 million new jobs, £190 million GVA and 1 million new homes.

Context & Timeline  

The Thames Estuary is located to the east of the City London and stitches north and south of the River Thames from Tower Hamlets and Greenwich out towards Ebbsfleet and Thurrock.

Below is a timeline of the Thames Gateway.

  • 2003 – Formation of the Thurrock Thames Gateway Development Corporation
  • 2005 – Formation of the London Thames Gateway Development Corporation
  • 2009 – More than £9 million was earmarked by the Labour Government for projects on the Estuary
  • 25th Nov 2010 – Under the coalition Government the Minister for Thames Gateway addresses the Thames Gateway Forum giving the reins back to local decision makers through the Thames Gateway Strategic Group
  • 2011- Functions of the London Thames Gateway Development Corporation back to Local Authorities and the new London Legacy Development Corporation
  • April 2012 – Formation of the London Legacy Development Corporation
  • 31st October 2012 – Abolition of the Thurrock Thames Gateway Development Corporation
  • 2013– London Thames Gateway Development Corporation fully scrapped
  • March 2016 – Chancellor George Osborne announces creation of the Thames Gateway Growth commission headed by Lord Heseltine
  • March 2016 – Mayor of London Boris Johnson pushes for the creation of a new airport on the estuary
  • July-September 2016 – Commission runs consultation on call for ideas
  • March 2017– Lord Heseltine removed from post as chair and replaced by John Armitt
  • April 2017– Lower Thames Crossing preferred route announced
  • 19th December 2017– Growth Commission’s priorities announced as:
  • Creating internationally-competitive centres of excellence
  • Making the most of planned investments such as the Lower Thames Crossing, and assessing the case for other investments that have been proposed
  • Ensuring that people right across the corridor benefit from expected growth
  • Working closely with organisations and communities to develop a plan for delivering the vision
  • June 2018 – Publication of the Commission’s 2050 Report

 Thames Gateway Strategic Group

The Thames Gateway Strategic Group was created on 25th November 2010 when the Minister for the Thames Gateway addressed the Thames Gateway Forum giving the reins back to local people. The strategic group is made up of officers and elected members.

The Thames Estuary Growth Commission

The Growth Commission, created in March 2016 has been tasked with developing an ambitious vision and delivery plan for North Kent, South Essex and East London up to 2050.

The Commission is made of architects, academics consultants, housebuilders and economists including:

  • Sir John Armitt (Chair)
  • Sadie Morgan (Deputy Chair)
  • Lord Norman Foster
  • Alice Gast
  • Gregory Hodkinson
  • Sir George Iacobescu
  • Sir Stuart Lipton
  • Sir Edward Lister
  • Tony Pidgley
  • Nick Roberts
  • Geoffrey Spence

Jake Berry MP is responsible for the Growth Commission as the Parliamentary Under Secretary of State, Minister for the Northern Powerhouse and Local Growth.

Spatial Framework

There are 23 separate authorities within the Thames Estuary including the GLA. The London Plan sets a framework for regeneration of the Estuary by identifying the largest concentrations of Opportunity Areas on either side of the estuary.

The London Plan identifies potential to deliver 250,000 new homes and 200,000 new jobs.

The Mayor set his vision to transform the Thames Estuary into a hub for large scale state of the art production facilities with an initial focus on creative and cultural industries and commits to continue to work with the Thames Gateway Strategic Growth Group and the Commission to support and promote investment in the Gateway. The Mayor will support the Thames Gateway Kent Strategic Corridor by assisting Boroughs in seeking a government led project to extend the Elizabeth line through Bexley to north Kent (making that 24 different decision makers).

The 2050 Vision

The vision for the Estuary is to transform the Estuary into a tapestry of ‘Productive Places’. These Productive Places are identified as:

  1. City Ribbon
  2. Inner Estuary
  3. South Essex Foreshore
  4. North Kent Foreshore
  5. River Thames

A summary of each Productive Place is set out below:

City Ribbon

Location: Tower Hamlets, Barking &Dagenham, Havering Lewisham Bexley Greenwich and the LLDC

 Strengths:

  • Growing cultural and creative industries sector
  • Significant projected population growth
  • Major regeneration programmes in areas including Barking Riverside and Thamesmead.

 Weaknesses:

  • Integrating and delivering future connectivity projects
  • Highest levels of deprivation in London
  • High levels of
  • Unemployment and low skills.

Key objectives include:

  • A hub for production
  • Enhanced transport links
  • Implementation of a multi-generational skills strategy, the area will connect the creative and cultural industries to a highly skilled workforce

 The key areas of change within the city Ribbon are:

  1. Canary Wharf
  2. Greenwich
  3. Royal Docks
  4. Rainham Marshes
  5. Barking Riverside

 Two key projects identified include New Thames Crossings and an integrated skills strategy

 

2. Inner Estuary

Location: Thurrock, Dartford Gravesham, Ebbsfleet

Strengths
• Connectivity (which supports a growing higher value logistics and freight sector
• £1 billion investment in the Port of Tilbury
• Planned growth of new town centres
• Innovation in construction through Modern Methods of Construction

Weaknesses:
• Unresolved approach to the Swanscombe Peninsula
• Air quality issues as a result of congested river crossings
• The slow pace of delivery at Ebbsfleet Garden City
• Poor education and skills attainment,

Key objectives include:
• to create higher value ports at Tilbury and London Gateway
• To upskill the aspirational population
• Create healthy town centres
• New medical campus
• Delivery of Ebbsfleet Garden City

The priority areas within the Inner Estuary are:
a) Dartford Crossing
b) Lakeside
c) Bluewater
d) Swanscombe Peninsula
e) Ebbsfleet Garden City
f) Port of Tilbury
g) Lower Thames Crossing
h) London Gateway Port

Significant projects to support the inner estuary objectives are
• Creation of a Medical Campus (delivery by 2022).
• Transport Innovation Zone

3. South Essex Foreshore

Location: Basildon, Castlepoint, Southend on Sea & Rochford

Strengths:
• Established and coordinated voice of Opportunity South Essex
• The unique wetland habitats of the river edge
• Emerging cultural sectors
• Medical and aviation related advanced manufacturing in Southend-on-Sea

Weaknesses:
• Poorly performing town centres
• Slow speeds of delivery linked to limited clarity on priorities across the area
• Skills and jobs mismatch
• Sea level rise

Key objectives:
• Creation of a statutory joint spatial plan
• Town centre transformation
• Unlocking post industrial landscapes to create a thriving and creative economy

Areas of Change for the South Essex Foreshore are:
a) Basildon
b) Canvey Island
c) Rayleigh
d) Southend-on-sea

Significant projects to support the south Essex foreshore objective are:
• Institute for Resilient Infrastructure
• Relocation of South Essex College

4. North Kent Foreshore

Location: Medway, Swale, Canterbury& Thanet

Strengths:
• Universities
• Historic assets
• Pproductive agricultural landscapes

Weaknesses:
• Connection between the skills needs of employers and the education and skills training
• High level of ‘digital deprivation’

Key objectives include:
• A new medical research corridor
• Creation of a joint statutory local plan
• A renewed focus on skills, and high-quality town centres set around world-class heritage and natural assets.

Areas of Change:
a) 1. Rochester
b) 2. The Hoo Peninsula
c) 3. Sittingbourne
d) 4. Canterbury
e) 5. Margate
f) 6. Ramsgate

The two main projects to support the vision for North Kent are:
• Education and Skills strategy Quick win building off existing skills strategies in place.
• Health Supercentre (delivery by 2023).

5. River Thames

Source: Thames Estuary Growth Commission

Location: River Thames

Strengths:
• Strategic role as a gateway to UK trade and industry.
• Unique natural qualities of ecology, habitat and landscape, which have long inspired the area’s cultural and creative industries. The River Thames defines the quality of place surrounding it.

Weaknesses:
• Fragmented governance for the management of the river.
• Mitigation of sea level rise.
• Water quality.

Key objectives include:
• continue to evolve, from freight to fishing
• from beach to boardroom
• emphasise the value of the river to its surrounding places
• ensure that the current level of flood protection is maintained

Priority areas are:
a) River Thames
b) English Channel
c) North Sea
d) River Medway

Key projects identified include:
• Great Thames Park with first section of a new Thames Path in 2020.
• Creation of Thames East Line with Long term delivery with measures in the short and medium term to commence project planning
• Celebrate the Thames festival in 2019

Delivering the 2050 Vision

In order to deliver the 2050 Vision, the Commission calls on the Government to work closely with local partners to determine the governance reform required to deliver the growth in the estuary.

The Commission recommends:
• A robust locally led review of governance arrangements to be concluded within 6 months.
• A single voice for the Thames Estuary through a strengthened and streamlined Thames Gateway Strategic Group.
• Development of statutory joint spatial plans for Kent and Essex.
• Revision of geographical boundaries of the South East Local Enterprise Partnership.
• Development Corporations with planning and CPO powers to drive delivery.
• Strengthened governance arrangements for the River Thames itself.

The Report itself is clearly very aspirational setting out short medium and long term goals to deliver the ultimate goal of more housing and capitalising on projects that have already been identified and in the pipeline. The Commission’s recommendations on delivering the 2050 vision could be considered disappointing in that it revisits ideas that are not new and would not be in place overnight. A statutory Local Plan would take years to prepare and reorganisation of governance structures will never be straight forward.

To place the role of delivery on existing Development Corporations is positive but when we consider that Ebbsfleet and the LLDC are behind delivery and there were existing Development Corporations for Thurrock and delivery vehicle mechanisms for the Medway Towns that delivered very little, can we really be sure that the existing development corps could drive the delivery that the Estuary desperately needs?

Read the report here: https://www.gov.uk/government/news/thames-estuary-2050-growth-commission-priorities-confirmed

 

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Brokenshire’s Warning to the London Mayor

 

Following the publication of the NPPF on the 24th July 2018, James Brokenshire wrote to the Mayor of London giving him a serious talking to on meeting housing need.

Consultation on the Replacement London Plan was undertaken between December 2017 and March 2018. The Replacement Plan proposed to go further than previous iterations of the London Plan, going beyond strategic policies and proposing an increased housing figure of 65,000 dwellings per annum. The increased numbers were proposed to be met through increased densities and more reliance on Brownfield Sites coming forward.

On the 27th July 2018, James Brokenshire wrote to the Mayor of London, stating that the Mayor is responsible for delivering the strategy to significantly increase housing delivery in London and will be held to account for delivering London’s housing targets, suggesting that the proposed figure of 65,000 is not enough. The Governments standard methodology for OAN results in a capped figure of 72,407dpa and an uncapped figure of 95,267dpa.

The HBF also argued that the figure of 65,000 is not enough taking into consideration the standard methodology as proposed by CLG in 2017. The GLA’s approach to calculating OAN differs from the standard methodology as they created their own demographic and households projections which resulted in figures that were lower than the CLG’s projections. The CLG’s approach would also require more adjustment for affordable housing.

Brokenshire writes:

“London faces the most severe housing pressures in the country with median house prices now over 12 times median earnings – comparing to an England wide ratio of below 8 – and far more than what an individual can typically expect to borrow for a mortgage”.

Nobody is denying that London is unaffordable, however, it is of note that the Conservative housing minister is placing blame on the current Labour Mayor. The issue of housing and affordability and it’s resolution in London needs to go beyond politics.

It may well be that the approach that the GLA have taken is suitable for London, however as the HBF have noted, it has more significant wide reaching implications for surrounding South-East authorities, and so the standard methodology should be adopted by the Mayor.

The New London Plan will continue to Examination which is programmed for later this year. But in accordance with the new NPPF, plans that don’t meet the full housing requirements will be subject to early review. This means that the London Plan will be adopted and then the GLA will need to go back to the drawing board with a new evidence base, an updated SHLAA and new models for capacity created (we can’t mention the Green Belt though!).

A newer London Plan can then be expected….

Start Promoting your Sites Now!

There are also a number of other concerns raised in the letter, including inconsistencies with National policies, the extent of details in policies going beyond the requirements of a Strategic Plan, the Plan does not provide enough information on delivery and collaboration and the Secretary of State requires a consistent approach to setting building standards through the framework of Building Regulations.

Examination in Public

On 13 August 2018 the Mayor published a version of the draft Plan that includes minor suggested changes as the GLA prepare for the Exmination in Public. More details can be found here: https://www.london.gov.uk/what-we-do/planning/london-plan/new-london-plan/examination-public-draft-new-london-plan/eip-library

What we think….

The housing industry will surely welcome Brokenshire’s letter to increase housing supply, whereas residents of a certain generation may not welcome it so much with the standard response likely to be destruction of green fields, increased number of cars and there’s already enough houses being built…

However, if they’ve got a grown-up child living at home trying to save their pennies or know a young professional spending most their wages on renting a room, maybe they’ll start the realise the harsh reality that we do need to provide for and build more homes….

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Here’s what you need to know about viability in the revised NPPG

 

Viability is not dealt within the NPPF, it is dealt with separately in the NPPG.
The draft NPPF stated that “where proposals for development accord with all the relevant policies in an up-to-date development plan, no viability assessment should be required to accompany the application”. The revised 2018 Framework removes this measure and states at paragraph 57: “Where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable. It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage”

Viability should be Assessed at Plan Making Stage.
Previously discussions and considerations of viability were undertaken at the decision-making stage which may have led to delays and local authorities not securing the level of affordable housing and infrastructure they required.

The responsibility has now shifted towards local authorities to undertake viability earlier in the process to ensure that they set appropriate levels of infrastructure requirements. This will require greater co-operation between landowners, developers and local authorities to undertake meaningful discussions and agree what is considered viable. At decision making stage, where matters have already been agreed there may be less delays in agreeing matters of viability which wont slow down the determination of applications.

Costs and Requirements for Affordable Housing and Infrastructure Should be Set At A Level That Does Not Require Further Assessment At Decision Making Stage.
There may need to be more negotiation between landowners, developers and local authorities earlier in the plan making process to ensure that requirements for affordable housing and infrastructure are set at a level that does not undermine overall delivery of the site.

The Council may set out within their plans when a viability assessment may be required.
The PPG sets out that viability should be addressed at plan making stage, but states that local authorities can set out when viability assessments may be required to support planning applications.

The Price Paid for Land is not a Justification for Failing to Accord With the Relevant Policies in a Development Plan.
This played out in Parkhurst Road Limited v Secretary of State for Housing Communities and Local Government & London Borough of Islington. Case No: CO/3528/2017. We discuss this below:

Parkhurst Road Limited v Secretary of State for Housing Communities and Local Government & London Borough of Islington
The key consideration within the High Court was the price paid by the developers and the approach taken to assessing viability to justify the minimal amount of affordable housing. The appellants and the Council disagreed on the benchmark land value as the appellants used the purchase price as an acquisition cost leading to profit levels being below normal target values.

Islington disagreed with this using the same methodology excluding the site acquisition cost. The Council carried out a series of residual valuations inputting alternative affordable housing proportions of 50%, 40% and 32% which produced residual land valuations for the site of £4.98m, £7.32m and £9.35m respectively. They contended that the price which Parkhurst Road Ltd had paid for the site was excessive since it did not properly reflect the policy requirement to maximise the affordable housing component.

The viability assessment of the site has never been made public, but it is of direct relevance as its part of the weight applied to the development proposals.

When reading Justice Holgate’s decision, there are criticisms of the wider approach taken to viability:
“where an applicant seeking planning permission for residential development in Islington proposes that the “maximum reasonable amount of affordable housing” is lower than the borough-wide 50% target on viability grounds, it is his responsibility to demonstrate that that is so

Justice Holgate also recognised the inherent tension between decision makers and developers stating that:
“According to the basic principles set out in the NPPF and the NPPG, it is understandable why a decision-maker may, as a matter of judgment, attach little or no weight to a developer’s analysis which claims to show a “market norm” for BLV by doing little more than averaging land values obtained from a large number of transactions within a district…

…On the other hand, it is understandable why developers and landowners may argue against local policy statements that BLV should simply conform to an “EUV plus a percentage” basis of valuation, especially where the document has not been subjected to independent statutory examination prior to adoption. Some adherents appear to be promoting a formulaic application of “EUV plus.”

Justice Holgate suggests that RICS could consider revisiting the 2012 Guidance Note, perhaps in conjunction with MHCLG and the RTPI, to address any misunderstandings about market valuation concepts and techniques to address the “circularity” issue and any other problems encountered in practice over the last 6 years, to help avoid protracted disputes.

The Guidance Removes Flexibility in Considering Policy Requirements
The previous Guidance stated that ‘where the viability of a development is in question, local planning authorities should look to be flexible in applying policy requirements wherever possible.

This hard-line approach allows decision makers to decide an application on whether it achieves the full policy requirements or not.

A Standard Approach to Viability where Previously it was Accepted there was no Standard Answer to Viability
Again the flexible approach to viability has been removed in favour of a standard approach to be taken across all sites. The intention is probably to speed up delivery as all matters will be assessed, although the same approach cannot be used for different site characteristics such as brownfield and greenfield sites. If the standardised approach doesn’t work for a site, the Council may have to look at alternatives until one fits the approach.

Land Value Calculated on Existing Use Value plus a Premium
The Guidance sets out the approach to be taken to Benchmark Land Value, again to give decision makers more support in assessing development viability.

Premium is described in broad terms as the minimum price a rational landowner would be willing to sell their land, although there is likely to be further debate over what a premium should be and this debate is likely to delay the overall Local Plan process. .

A Return of 15-20% of Gross Development Value
The Draft PPG referred to 20 per cent return which has been the accepted level of return.

The PPG states that a lower figure:
may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces the risk

Viability Assessments to be Publicly Available.
A Viability Assessment will only be kept confidential in exceptional circumstances, and it will be down to the applicant to justify the case for confidentiality. Within the Parkhurst case, the decision refers to the Viability Assessment never being provided.

Conclusions
The revised approach to viability whilst potentially aiming to speed up the decision making process, may have the unintended consequences of delaying the plan making process as Local Authorities, developers and landowners grapple with the revised approach to infrastructure costs and negotiate the best scenarios for all parties.

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12 things you need to know about the Revised NPPF

 

As you may be aware, the government published the revised National Planning Policy Framework on 24th July 2018. This means that the NPPF 2018 is a material consideration in determining planning applications. If you have not had a chance to read the document, you can download the NPPF 2018 here. We have analysed the changes made since the draft was consulted upon in Spring and here are 12 things you need to know:

  • Implementation
  • Viability
  • Design standards
  • Green Belt
  • Housing delivery test
  • Standardised method of calculating housing need
  • Inclusion of social rent in definition of affordable housing
  • Small sites
  • Neighbourhood development plans
  • Voluntary PPAs
  • Storage and distribution operations
  • Ancient Woodland and veteran trees

Implementation
NPPF 2018 is now a material consideration which means that the policies come into effect straight away. However, the NPPF 2018 states that, Local Plans submitted before 24 January 2018 will be Examined against the 2012 NPPF. Any Plans submitted after this date will be examined under the new 2018 policies. This could mean that part of a Council’s newly prepared Plan could be immediately out of date which may contribute to penalties/interventions.

Viability
There is a significant shift in the role of viability assessments. The 2018 Framework now requires viability to be dealt with at the plan making stage, thus shifting responsibility on LPAs as opposed to developers. Essentially, LPAs will now be required to set strategic site allocations, infrastructure requirements and a minimum level of affordable housing which they consider viable. The draft NPPF stated  that “where proposals for development accord with all the relevant policies in an up-to-date development plan, no viability assessment should be required to accompany the application”. The revised 2018 Framework removes this measure and states at paragraph 57: “Where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable. It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage”. This provides decision makers more power in deciding whether a viability assessment is required.

Design Standards
The 2018 Framework places emphasis on the importance of design standards and contains requirements that planning policies set out clear design and vision expectations in SPDs and design codes. It states that “being clear about design expectations, and how these will be tested, is essential for achieving this. So too is effective engagement between applicants, communities, local planning authorities and other interests throughout the process…” Councils should try to “ensure that the quality of approved development is not materially diminished between permission and completion, as a result of changes being made to the permitted scheme”. The policies should however be flexible and allow variety, however, as with design there may be an element of subjectivity.

Green Belt
The draft Framework published in March 2018 stated that “once established, green belt boundaries should only be altered in exceptional circumstances, through the preparation or updating of plans.” The 2018 Framework however requires greenbelt reviews to be ‘fully evidenced and justified’. Paragraph 136 of the 2018 Framework states that “Once established, green belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans“. LPA are required to fully examine all reasonable options to meet its identified need for development. However, this amendment appears to tighten the already restrictive Green Belt release policy.

Housing Delivery Test
No significant amendments have been made to the government’s new Housing Delivery Test. Where delivery is below 75% of the housing requirement from 2020, the Government intends to apply the presumption in favour of sustainable development

Standardised Method of Calculating Housing Need
The 2018 Framework implements a standard methodology for assessing housing need. This method is intended to simplify Objectively Assessed Need (OAN) calculations to provide a centrally-based figure. This is done by taking the Government’s household growth projections and applying an affordability ratio, and comparing local house prices with workplace earnings to identify a need figure. The 2018 Framework states that “strategic policies should, as a minimum, provide for objectively assessed needs for housing and other uses, as well as any needs that cannot be met within neighbouring areas , unless the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area… ; or  any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole”. This strengthens the requirement for LPAs to cooperate with each other in meeting unmet housing requirements.

Social Rent in Definition of Affordable Housing
The term which had been omitted from March’s draft version prompting concerns from some sector bodies has now been reinstated.

Small Sites
The policy encouraging the use of small sites has now been altered to include sites of up to 1ha and medium sized sites. Development plans are now required to identify land to accommodate at least 10% of housing requirement on small sites.

Neighbourhood Development Plans
Paragraph 14 of the 2018 Framework states that presumption in favour of sustainable would apply in the absence of an up to date plan – however by allowing housing schemes that conflict with NDP it is likely to “significantly and demonstrably outweigh the benefits“. It is suggested that where a plan has been adopted two years or less before the decision, it contains policies and allocations to meet its identified housing requirement. As such, the LPA would have at least a three-year supply of deliverable housing sites against its five-year requirement.

Voluntary PPAs
Paragraph 46 of the 2018 Framework states that Planning Performance Agreements (PPAs) are likely to be needed for applications which are large or complex to determine. The suggestion of potential of voluntary PPAs were excluded from the March draft NPPF.

Storage and distribution operations
Paragraph 82 of the 2018 Framework refers to the provision for storage and distribution operations “at a variety of scales and in suitably accessible locations“. This provision requires the specific locational requirements of storage operations to be recognised in planning policies and decisions.  This was omitted from the March 2018 draft.

Ancient Woodland and veteran trees
Paragraph 175(c) offers protection to woodland and ancient veteran trees. It states that development which result in the loss or deterioration of irreplaceable habitats such as ancient woodland and veteran trees should be refused unless there are exceptional reasons and mitigation in place. Veteran trees in the ancient woodland were excluded from the definition of ‘irreplaceable habitat’ in the draft Framework published in March 2018.

What do we think about the NPPF?
As highlighted in James Brockenshire’s Written Ministerial Statement, 85 of the proposals set out in the housing white paper and the Budget, are implemented in the new National Planning Policy Framework. The new rules require greater responsibility, transparency and accountability from both LPAs and developers. The amendments to Viability Assessments are ambitious and only time will how successful this approach will be. We are also disappointed to see the amendment to the already restrictive Green Belt Release Policy appears being tightened. The Housing Crisis is multifaceted in nature, exacerbated by other factors such as the shortage of construction workers, reduced LPA powers, a lack of transparency, increased demand brought on by decades of deregulation, and lax policies – the revisions to the NPPF alone cannot solve the Housing Crisis and therefore, other central government reforms will be necessary.

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Local Plan Updates and Progression August 2018

 

Local Plan Updates – Tracking and Progression

We have been tracking and following the progress of Local Plans in the different regions of England.

A Local Plan sets out planning policies and identifies how land is used – determining what will be built where. We’ve developed this Local Plan Schedule which we hope will keep you up to date on what Local Authorities are doing on their Plans and if you have any questions contact us today.

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Greater Birmingham HMA Strategic Growth Study

 

In February 2018, the Greater Birmingham HMA Strategic Growth Study prepared by GL Hearn and Wood Plc was published. We provide a summary of the key findings of the report.

Birmingham’s functional HMA covers more than Birmingham and includes the Black Country and parts of Worcestershire, Warwickshire and Staffordshire. It also covers authorities which are within the Greater Birmigham and Solihull LEP and the Black Country LEP. North Warwickshire and Stratford-on-Avon Districts  are authorities with an area of overlap between the Birmingham and Coventry/Warwickshire HMA.

 

The study’s  four main aims are:

  1. Review of existing identified supply to consider whether, by positively applying policies that are consistent for each type of site across the HMA, more dwellings could be provided through increased densities.
  2. Consider the potential additional supply on other land outside of the Green Belt that has not been previously considered for housing development
  3. If a shortfall remains after aim 1 & 2, to then consider the development potential and suitability of any large previously developed sites within the Green Belt that may lie in sustainable locations.
  4. Should a shortfall remain after undertaking tasks (1) to (3), undertake a full strategic review of the Green Belt within the HMA utilising a consistent Green Belt Review methodology, which assesses Green Belt against its five purposes.

”Whilst a single plan is not being prepared, housing need is a strategic issue which the HMA authorities need to collaborate in addressing through the Duty to Cooperate”.

Objectively Assessed Need

Existing Evidence Base

The report looks at the findings already published by local authorities as follows and also reviews the housing requirements within the adopted plans There is a 38,000 dwelling unmet need arising from the Birmingham Development Plan to 2031. In addition, there is an unmet need from Tamworth (1,825 dwellings to 2031) and Cannock Chase (500 dwellings to 2028).

Local Authority OAN Plan period Housing requirement Shortfall
Birmingham 89,000 2011-2031 51000 -38,00
Bromsgrove 6,648 (2011-2030) 7000 0
Cannock Chase 5300 2006-2028 5300 -500
Lichfield 8600 2008-2029 10,030 0
Redditch 6400 2011-2030 6400 0
Solihull 14,277 2014-2033 15029
Tamworth 6250 2006-2031 4425 -1,825
Warwickshire 3150 2011-2029 9070
Stratford on Avon 14,600 2011-2031 14600
Black Country 78,190 2014-2036 63000
South Staffordshire 5933 2014-2036 3850
HMA total 11,500

Projections

The GL Hearn assessment of OAN has been considered using four projections:

Economic Projections

Economy Plus Scenario

The Economy plus is a scenario modelled in the Strategic Economic Plan for further and faster growth than predicted in the three LEP Strategic Economic Plans. This is an aspirational ‘policy on’ scenario based on a policy aspiration to improve economic performance.

The West Midland Strategic Economic Plan is based on the economy plus scenario( as set out in the West Midlands Combined Authority’s Strategic Economic Plan) up to 2036 this scenario suggests a requirements for 310,188 dwellings.

Baseline Economic Growth

The baseline economic growth projection is based on a continuation of past trends, but takes into account how different economic sectors are expected to perform in the future (relative to the past). It should be regarded as ‘policy neutral’. Up to 2036 this projection suggests a need for 240,012 dwellings

Demographic Projections

There are three demographic projections that the report considers:

2014 Based Subnational Population Projections

These were the latest official, 2014-based, Household Projections, which Government’s Planning Practice Guidance identifies as the ‘starting point’ for quantifying OAN and suggests 255,533 dwellings required to 2036. 

Rebased Sub National Population Projections

The rebased SNPP rebases the 2014-based Population and Household Projections to take account of population growth between 2014-15 shown in ONS Mid-Year Population Estimates. This projection suggests a requirement for  254,873 dwellings to 2036 .

10 year Migration

The 10 year migration projection considers the difference between the trends in migration over the input period to the SNPP (the 5 years to 2014 for domestic and 6 years for international migration) and those over a 10 year period (2005-15), and then adjusts future trends in migration based on the difference between these. This projection shows a requirement for 251, 647 dwellings up to 2036. 

Government Standardised Approach

The report also considers the Governments standardised approach to OAN which is to use latest official projections, with adjustments then applied based on the degree to which the affordability ratio is over 4, with a 1% increase in the ratio of median house prices to earnings over.

The report envisages a cap which is 40% above existing local plan figures where the local plan was adopted in the previous 5 years; or 40% above either the latest local plan or the household projections (whichever is the higher) where there is not an up-to-date local plan.

The uncapped need figures arising from this approach align broadly with the demographic baseline position to 2031, showing a need for 207,000 homes. To 2036 the uncapped need is for 265,000 homes which is around 4% above the demographic need shown by the projections within the report.

 Unmet Needs

North Warwickshire and Stratford-on-Avon have agreed to make provision for Coventry’s unmet housing needs. North Warwickshire is contributing 860 dwellings to meeting Coventry’s unmet needs to 2031 and 2,020 dwellings from Stratford-on-Avon, totalling 2,880 dwellings. If this was rolled forward to 2036 on a pro-rata basis, this would be 3,600 dwellings.

“GL Hearn conclude that on the basis of the current evidence provision of between 205,000 – 246,000 homes is needed across the Birmingham HMA to 2031; and provision of between 256,000 – 310,000 homes to 2036 (from a 2011 baseline) to meet the Birmingham HMA’s housing needs and taking account of Coventry’s unmet need of 208,000 dwellings to 2031 and 258,500 homes to 2036”. 

Land Supply

Shortfall

GL Hearn’s initial information submitted indicated a land supply of around 203,000 dwellings to 2036, of which 200,000 dwellings could be delivered over the period to 2031.

This is made up of

  • Completions –
  • Sites with Planning Permissions (i.e. Commitments) –
  • Extant Allocations without Planning Consent
  • Allocations in Emerging Plans
  • Additional Urban Supply
  • Windfalls

Land supply by Authority

Birmingham (April 2016):A total land supply for 51,458 dwellings is identified to 2031 and 59,858 to 2036.

Bromsgrove (April 2017): A total land supply of 5,099 dwellings is identified to 2031 and 5,299 dwellings to 2036.

Cannock Chase (April 2016): A total land supply of 4,615 dwellings is identified to 2031 and 4,685 dwellings to 2036.

Dudley (April 2016): A total land supply of 17,918 dwellings is identified to 2031 and 18,668 dwellings to 2036.

Lichfield( August 2017): A total land supply of 10,973 dwellings is identified to 2031 and 11,248 dwellings to 2036.

North Warkwickshir(April 2017): A total land supply of 9,060 dwellings is identified to 2031 and 9,360 dwellings to 2036. This includes making specific provision to meet an unmet need for 4,410 dwellings from other parts of the Birmingham HMA, as identified in Section 3 as well as 860 dwellings unmet need from Coventry.

Redditch (April 2017): 7,488 dwellings to 2031 and 7,543 dwellings to 2036.

Sandwell (April 2016): 19,930 dwellings is identified to 2031 and 20,813 dwellings to 2036. The land supply has been assessed to 2036.

Solihull (April 2016): 5,717 dwellings  to 2031 and 16,945 dwellings to 2036 including specific provision for a contribution of 2,000 dwellings to meeting unmet needs of the Birmingham HMA.

South Staffordshire (April 2017): 3,493 dwellings to 2031 and 3,643 dwellings to 2036

Stratford-on-Avon (April 2016):16,713 dwellings to 2031 and 19,358 dwellings to 2036

Tamworth (April 2017): 4,495 dwellings to 2031 and 4,680 dwellings to 2036.

Walsall (April 2017): 10,879 dwellings to 2031 and 11,284 dwellings to 2036.

Wolverhampton (April 2016):13,816 dwellings to 2031 and 16,495 dwellings to 2036.

Following the submission of the initial information, adjustments were made to ensure consistency with the windfall approach and non implementation discounts.

Approaches to Delivery

Existing Sites

The report explores in detail approaches to be taken to providing additional land to be identified within urban areas including brownfield land, disposing of surplus public sector land, estate regeneration, town centre regeneration and disposing of surplus open space.  The report also assesses in detail the potential to increase densities across the HMA and concludes that  it would be reasonable to assume minimum densities of 40 dph are achieved in the conurbation (Birmingham and the Black Country urban area), with minimum densities of 35 dph in other parts of  the HMA. This approach would yield additional supply of 13,000 dwellings, principally over the period to 2031.

Identifying and Allocating Additional Land

Taking into account the potential housing supply which could be achieved by increasing densities, there remains a need to identify capable of supporting delivery of over 15,000 homes to 2031, and a total of over 47,800 homes to 2036. Additional land needs to be identified and allocated to meet this. This provides a clear basis for progressing a strategic review of the Birmingham Green Belt.

Given the scale of unmet need, the report focuses on strategic development options as follows:

  • Urban Extensions (1,500 – 7,500 dwellings);
  • Employment-led Strategic Development (1,500 – 7,500 dwellings); and
  • New Settlements (10,000+ dwellings). –

Potential Areas of Search for Strategic Development beyond the Green Belt

South Staffordshire

  • Urban Extension: North of Penkridge
  • Urban Extension: South of Stafford
  • New Settlement: Around Dunston

Lichfield

The Study initially identifies three potential Areas of Search for Strategic Development:

  • Urban Extension: East of Lichfield
  • Urban Extension: North of Tamworth
  • New Settlement: Around Fradley and Alrewas

North Warwickshire

One potential Area of Search for Strategic Development is identified to be tested:  Urban Extension: East of Polesworth

Within the HMA, the only location which has been identified by Government for new strategic development is Long Marston, which is designated a Garden Village. Consideration has therefore been given to the potential for enhanced strategic development in this broad area.

The potential Areas of Search for strategic development identified to be tested are thus:

  • Urban Extension: South of Stratford-upon-Avon town
  • New Settlement: Around Wellesbourne
  • New Settlement: South-West of Stratford-upon-Avon District

Potential Areas of Search in the Green Belt

The Study undertook a Strategic Green Belt Review, assessing the form and strategic function of the Green Belt against the purposes of Green Belt policy set out in the National Planning Policy Framework (NPPF) (Para 80).

Four spatial development models were created:

  • New settlements
    • Scale attracts greater opportunity for central government investment
  • Urban Extensions
    • Lead in times of typically 5+ years
    • Larger and more costly infrastructure requirements
  • Employment focus
    • Lead in times of 3-5 years
    • Larger infrastructure requirements
  • Proportionate Dispersal
    • These have the shortest lead in times and have typically lower requirements for strategic infrastructure

Six Areas of Search for new settlements and six for urban extensions are identified; together with three Areas of Search for employment-led development.

Recommended Areas of Search for Strategic Development

Employment-Led

  • I54
  • East of Birmingham
  • Birmingham Airport/ NEC

These Areas of Search have the following characteristics:

  • Strategic employment areas with a key employer and/or clustering of employers
  • Likely to be located adjacent to, or in the vicinity of, a Motorway junction.
  • Potential to support some housing provision as part of mixed-use development (1,500 to 7,500 dwellings).

Urban Extensions

The Study concludes that the strongest performing Urban Extension options which should be taken forward for more detailed consideration by the HMA authorities are:

  • South of Dudley
  • North of Tamworth
  • East of Lichfield
  • North of Penkridge.

New Settlements

The report recommends the following areas of search should be taken forward:

  • South of Birmingham
  • Between Birmingham and Bromsgrove/Redditch
  • Around Shenstone
  • Around Balsall Common

Summary

There is a minimum housing need for 205000 up to 2031 and 255,000 up to 2036. Taking into account shortfalls this increases to 208,000 up to 2031 and 258,00 to 2036.

The current evidence suggests provision of between 205,000 – 246,000 homes across the Birmingham HMA to 2031; and 256,000 – 310,000 homes to 2036.

There is a developable land supply of 180,000 to 2031 and 197,000 to 2036. Bringing together the need and currently identified supply, there is an outstanding minimum shortfall of 28,150 dwellings to 2031 and 60,900 dwellings to 2036 across the Birmingham HMA.

New strategic allocations will be required to address this shortfall across the whole HMA.

Next Steps

It is envisaged that further technical and feasibility work will be underway to assess the suitability of the areas of search as identified by the report along with a process of iterative Masterplanning and consultation with local residents.

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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.
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£866 million investment to help unlock potential 200,000 new homes

 

Up to 200,000 new homes are due to get off the ground as the government confirms £866 million investment in local housing projects. 

On the 1st February 2018, the Housing Secretary Sajid Javid and Chancellor Philip Hammond announced that 133 council-led projects across the country will receive funding to support local work that will make housing developments viable and get much-needed homes built more quickly. This £866 million is the first phase of funding from the £5 billion Housing Infrastructure Fund, which was increased by £2.7 billion in the 2017 Autumn Budget. According to the government, this latest investment will help to get work started on up to 200,000 homes.

When the investment was announced, Chancellor of the Exchequer – Philip Hammond, said:

“Today marks the first step of the multi-billion pound investment we announced at the Budget to help build the homes our country needs.This fund finances vital infrastructure such as roads, schools and bridges, which will kick-start housing development in some of Britain’s highest-demand areas. This support will help us meet our ambitious plan of building 300,000 new homes each year and ensure we have enough housing in areas which need it most.”

With the government committed to building 300,000 homes a year by the mid-2020s, this first wave of funding from the £5 billion Housing Infrastructure Fund is part of a comprehensive programme to fix the broken housing market. There will be two funding streams that make up the Housing Infrastructure Fund:

  1. A Marginal Viability Fund:This is available to all single and lower-tier local authorities in England and aims to provide a piece of infrastructure funding to get additional sites allocated or existing sites unblocked quickly. Bids can be up to £10 million.
  2. A Forward Fund:This is available to the uppermost tier of local authorities in England – for a small number of strategic and high-impact infrastructure projects. Bids can be up to £250 million.

This latest investment and will fund key local infrastructure projects including new roads, cycle paths, flood defences and land remediation work, all essential ahead of building the homes. Without this financial support these projects would struggle to go ahead or take years for work to begin, delaying the homes these communities need. Together with the government’s Industrial Strategy, it will provide high-quality infrastructure to support economic growth.

Housing Secretary Sajid Javid said:

“Our priority is building the homes this country desperately needs. This first wave of investment totalling £866 million will help get up to 200,000 homes off the ground, making a huge difference to communities across the country. This is just one of the many ways this government is taking action to get Britain building homes again.”

Projects from County Durham to Cornwall will receive funding including:

  • £10 million for highway infrastructure to unlock further development at the Ashton Green housing site in Leicester, helping to unlock 3,300 homes

Source – Leicester.gov.uk

  • £10 million for construction of a bypass in Botley, Hampshire, a critical strategic road infrastructure project that will help unlock the delivery of 1,000 new homes

Source – Hampshire County Council

http://documents.hants.gov.uk/transport-projects/botley-bypass/BotleyBypassConsultationJune2016.pdf

  • £3.6 million for drainage works, new roads and footpaths at the Manor Cluster, south-east Sheffield to help unlock more than 400 homes by 2025
  • £6.5 million to help build a new primary school as part of the Ilfracombe Southern Extension in North Devon. This will help unlock 750 new homes

Source – Damien Hirst

Can we get images or links to plans/images for these sites?

The £5 billion Housing Infrastructure Fund is a government capital grant programme to help unlock new homes in areas with the greatest housing demand. Funding is awarded to local authorities on a highly competitive basis.

The government will be progressing Forward Funding projects to go through to co-development in the coming weeks, with final funding announced in autumn 2018. The investment announcement forms part of the government’s Industrial Strategy which sets out a long term plan to boost the productivity and earning power of people throughout the UK.

The strategy sets out how we are building a Britain fit for the future – how we will help businesses create better, higher-paying jobs in every part of the UK with investment in skills, industries and infrastructure.

The government hopes the funding will get homes built quicker and help it to achieve its target to build £300,000 homes a year by the mid-2020s.

This £866 million is the first phase of funding from the £5 billion Housing Infrastructure Fund, which was increased by £2.7 billion in the 2017 Autumn Budget. According to the government, this latest investment will help to get work started on up to 200,000 homes.

Things are starting to happen and we will keep you updated.

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A return flight to Heathrow this Christmas

 

Mr and Mrs Bear are back pulling at our heartstrings this year for the Heathrow Christmas advert. The cuddly characters were introduced last year when the two elderly bears were travelling through the airport to be reunited with their families over the festive season.

Watch the heart-warming Christmas story (with a tissue) here.

Thankfully they weren’t caught up last week in the largest snowfall in London for nearly 5 years where passengers found themselves grounded on the runway at Heathrow Airport.

On this return flight to Heathrow, we are going to update you on the latest developments.

At the moment, the long and short haul of it is…

Heathrow’s third runway could be operational by 2026, creating £60 billion of economic benefits over a 60 year period. The plan consists of a 3,500m runway which is said to be the first full-length runway to be built in the south-east of the UK since the Second World War. The costs involved are estimated to be a staggering £18.6 bn. The government have stated that the decision to approve the plan is central to the economic growth of Britain. London is growing and we need to meet the needs now and for the future.

The Heathrow boss, John Holland Kaye, has said he is not ruling out some form of collaboration with the team behind a rival expansion plan for the airport’s third runway. The business magnate, Surinder Arora, who owns 16 hotels, a golf course and his own private airfield, is the largest single landowner on the site marked for expansion. He has revealed a plan alongside US engineering firm Bechtel in August where he claimed, the third runway project could be delivered for £12.4bn. £5bn cheaper than Heathrow’s initial estimate.

Heathrow has since changed its plans so as to bring down the costs of a third runway. However, it has been suggested that there could be a collaboration with Mr Arora’s company in some way.

According to the Telegraph online, Mr Holland Kaye said, “It would not surprise us if we do something with him as we expand the airport. He is an important local stakeholder and it would amaze me if we don’t do something together.” The Heathrow boss also said that he is working with airlines to try to keep charges close to today’s levels.

The comments come shortly after the Department for Transport issued a revised draft airport’s National Policy Statement, a document which forms part of the process of airport expansion and which will be scrutinised by the transport select committee in the House of Commons. The document welcomed competing bids for the work and stated the Government did not have a preference for who constructed the third runway as long as it met the specifications outlined by the Airports Commission.

The plans to add a runway at Heathrow have been criticised by one of the rival proposals, Heathrow Hub, which claims they will not be able to deliver the promised annual 740,000 flights.

Heathrow Hub said rather than building an entirely new runway, the northern one should be extended and used simultaneously for take-offs and landings, a solution it said could be ­delivered for less than £10bn.

The group commissioned engineering consultancy Ebeni to examine the current plan. Ebeni said a taxiway needed to link the new northern runway would reduce the number of flights, because tail fins of large aircraft such as Airbus A380s and Boeing 747s using the taxiway would get in the way of aircraft taking off, creating a possible safety risk.

Ebeni said having to wait for these aircraft to clear the space required for take-off would create delays and reduce capacity from the stated 740,000 flights a year under the current plans to fewer than 700,000.

Read the revised National Policy Statement here.

We can only hope for a happy ending with the expansion of Heathrow Airport.

As we draw near to end of 2017 and look forward to 2018, the team here at Urbanissta would like to wish you a Happy Christmas and prosperous New Year.

If there is anything we can help you with to achieve your goals for 2018, contact us today.

 

 

 

 

 

 

 

 

 

 

 

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