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.

 

Share this on: