The Urbanissta Legal Beagle is on the case! (March 2017)
Welcome to the Urbanissta Legal Beagle’s case law reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgements and decisions that might be useful to you, day to day.
We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. This is month two of our updates, so remember to keep any eye out for further iterations, in the weeks to come!
This month, our guest barrister, Giles Atkinson from 6 Pump Court Chambers has also provided a useful commentary on a recent appeal made against South Cambridgeshire District Council. He discusses the main issues raised in the appeal and how the outcome may be helpful to you, so we hope you find this interesting too.
1 Housing Shortfall Leads to grant approval for rural site
Land off Hitchin Lane, Clifton, Bedfordshire
Appeal ref: APP/P0240/W/16/3154829
Appeal Decision Date: 17th February 2017
Appellant: Gladman Developments
Respondent: Central Bedfordshire Council
The appeal was made under S78 of the Town and County Planning Act 1990 by Gladman Developments against the decision of Central Bedfordshire Council to refuse outline permission for up to 97 residential dwellings (including up to 35% affordable housing).
Background
The appeal site is located outside but adjoining the development southern edge of the village of Clifton in Bedfordshire. The development proposals comprised of the demolition of existing outbuildings with the redevelopment of the site with 97 dwellings, landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation. All matters were reserved except for the main site accesses.
The Inspector considered the main issues to be:
• Whether the proposed development would provide a deliverable contribution towards the identified housing needs of Central Bedfordshire
• The effect of the proposal on the character and appearance of the area
Housing land supply & planning policy
It was agreed at the hearing that the council did not have a five-year supply of land and whilst there was disagreement about the exact figure for the council’s land supply, the Inspector concluded that the shortfall was significant regardless.
The Council’s policy which sought to restrict development in the countryside (Policy DM4) could not be regarded as ‘up to date’ and as such the proposals were assessed against paragraph 14 of the NPPF. The provision of 97 homes including 35% affordable was a matter that weighed significantly in favour of the proposals in accordance with paragraph 14.
The Council argued that to ensure the delivery of the proposed homes to meet the Council’s housing requirements the appellant should include a clause within their Unilateral Undertaking that obligates the developer to deliver the complete development within 5 years. However, there was no substantive Local or National Policy justification for such a clause. The appellant voluntarily proposed reduced timescales for the submission of a reserved matters application and the commencement of the development as a means of promoting early delivery of the scheme.
Character & appearance
The site is located outside of the development boundary but adjacent to it. The Inspector confirmed through a site visit that it is visible from local roads. He accepted that the site had local aesthetic value and development would have an effect on the open character of the appeal site. Views of the development however, would be largely contained by the existing residential properties on Hitchin Lane and the existing established hedgerows. It would have a minimal impact on the overall visual containment of the site.
Having reached the above conclusions, the Inspector states that the proposed development would result in moderate harm to the character and appearance of the area in conflict with Policies CS14, CS16, DM3, DM4 and DM14 of the CSDPD.
Planning obligations
The appellant at the time of the appeal agreed to provide obligations towards education, leisure, off-site sports contribution, highways and a contribution in relation to the improvement of public transport infrastructure to offset the effect of the proposed development. The Inspector agreed these met the tests of CIL Regulation compliance.
Traffic & noise
Concerns were raised regarding the cumulative effect of development on the local road network, however the Inspector was satisfied that any increase in traffic from the proposed development would not result in severe harm to highway safety. He was also not persuaded that the proposed development or its associated traffic would result in harm to the character or appearance of the Clifton Conservation Area.
Conclusions
Whilst the development was noted as being contrary to Central Bedfordshire’s Local Plan and would result in moderate harm to a rural location, the provision of 97 homes towards the Council’s supply of housing was given significant weight particularly given the Council did not have a five-year supply of land. The adverse impacts of granting planning permission were not considered to significantly and demonstrably outweigh the benefits of the proposed development.
2 420 Dwellings approved after flaws identified in Councils viability assessment
Land south of Winnycroft Lane and north of the M5 motorway
Appeal ref: APP/U1620/W/16/3149412
Appeal Decision Date: 24th February 2017
Appellant: Barwood Development Securities Ltd
Respondent: Gloucester City Council
The appeal was made under section 78 of the Town and Country Planning Act 1990 against the failure to determine the application within the prescribed period.
Background
The appeal site comprises of 20 hectares of Grade 3B3 pastureland on the south-eastern edge of Gloucester. It is in Flood Zone 1. An application was originally submitted in September 2015. In December 2015 and again in April 2016, the Council resolved to grant planning permission subject to the provision of 20% affordable housing (amongst other matters). Following the lodging of the appeal against non-determination, the Council resolved (July 2016) to present evidence at the Inquiry and seek not less than 10% affordable housing with a review mechanism.
The Inspector considered the main issue to be the level to which the development should include affordable housing and whether there should be a review mechanism, in the light of the viability of the development.
The position of the parties
Both parties agreed that development should be approved. However, there was a disagreement over the affordable housing provision as well as details in the Unilateral agreement on contributions towards police and monitoring.
The Council wanted the Inspector to issue a ‘minded to approve’ letter, requiring the completion of a Unilateral Planning Obligation (UPO) seeking not less than 10% affordable housing. The appellants argued that the development was unviable if any affordable housing was included.
Policy context
The site is not covered by an adopted plan or emerging or adopted Neighbourhood Plan. It was not originally allocated in the Council’s emerging plan. However, it has been included in the main modifications of the Council’s Joint Core Strategy (JCS) as a strategic housing site. Due to affordable housing provision on one site being lower than expected, a 5% uplift within the plan area was applied. The key policy related to the viability is SD13 that seeks 40% affordable housing provision on sites of 10 or more, subject to viability.
Viability
The Inspector went into detail on viability, primarily because the Council’s view was that other developments in the area had provided affordable housing (to varying levels) and as such that a greenfield development of this scale must be able to provide affordable housing. The Inspector was critical of this approach as it did not equate to a proper consideration of the viability of the appeal scheme, given that no evidence about the other developments was provided. There was disagreement between the parties over:
• Revenue values and the issue of incentives
• Site coverage and unit sizes
• Cash flow and finance
• Abnormal costs
Revenue values
There was uncertainty regarding the Council’s per square footage which varied from £221/sq.ft to £212/sq ft to £233/sqft. The appellant’s position was £207/sq.ft and whilst the Council provided conflicting evidence, the appellants supporting material was consistent and evidence based. The Inspector supported the use of ‘comparable’ developments in close proximity and supported the appellant’s revenue figure.
Viability – site coverage & unit sizes
The parties broadly agreed the appropriate unit sizes for two and three bed units, but there was considerable difference in relation to the size of the four bed units. The Council’s error in calculating the coverage of four bed dwellings was significant resulting in a fall in revenue of £2.98m. This single error reduced the affordable housing potential by around 5% and significantly detracted from the Council’s position.
Viability – cash flow & finance
The delivery trajectory was not agreed by the parties. The appellant used a scheme-specific cost plan and cash flow whereas the Council used the default ‘S’ curve in the Argus software package. The Inspector went with the approach of the appellant to use a scheme-specific cash flow.
The Inspector cited several flaws in the Council’s approach including that the Council’s cash flow and lead in times, and too little cost being expended near the start of the development in comparison to the revenue apparently flowing from the sale of the units.
The Inspector was critical of the Council in that the cash flow bore little resemblance to the reality of scheme development. In contrast, the appellant’s appraisal demonstrated that the scheme could not sustain an affordable housing.
Contributions
Affordable housing and police contributions did not meet the policy in paragraph 204 of the NPPF and were removed from the Unilateral planning obligation. The monitoring costs were necessary to make the development acceptable in planning terms.
Conclusions
The viability evidence showed the development could not support affordable housing. The Council’s approach of refusing development even if viability work shows affordable housing was considered contrary to the NPPF as the evidence clearly showed that the proposal should not include affordable housing.
3 Importance of design emphasised as appeal is dismissed on the basis that the scheme failed to deliver the high-quality design sought by National and Local Planning policies
Land at Gibraltar Farm, Ham Lane, Hempstead, Gillingham, Kent ME7 3JJ
Appeal ref: APP/A2280/W/16/3143600
Inspector’s report to SoS: 5th December 2016
Appeal Decision Date: 6th March 2017
Appellant: Messrs KD, JC & MC Attwood
Respondent: Medway Council
The appeal was made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. It was however recovered by the Secretary of State for determination under Section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.
Background
A public local inquiry opened on 4th October 2016 with the appellants appealing against the against the decision of Medway to refuse planning permission for the erection of up to 450 market and affordable dwellings together with provision of access, estate roads and residential open space, in August 2014. On the 4th August 2016, before the inquiry opened, the appeal was recovered by the Secretary of State (SoS).
The reason for the recovery was stated to be because the development involves proposals for residential development of over 150 units or sites of over five hectares…
“which would significantly impact on the Government’s objective to secure a better balance between housing demand and supply and create high quality, sustainable, mixed and inclusive communities.”
The Inspector recommended that the appeal be allowed based on revised plans (subject to conditions) and the SoS agreed with the Inspector’s conclusions. The main issues were:
The Planning Policy position
The SoS agreed with the Inspector’s development plan policy, which seeks to restrict (housing) development in the open countryside. He also agreed that the Council does not have a five-year land supply and as such, given the advice in paragraph 49 of the framework, such restrictive policies should be afforded limited weight.
Housing land supply
The SoS and Inspector noted that the main parties agreed that a 5-year housing land supply cannot be demonstrated and the Council acknowledges a supply in the range of 2.21 to 2.79 years. Whilst the appellant thought this to be optimistic the Inspector indicated that it was sufficiently lacking and as such that greenfield land would need to be developed.
Character and appearance of the countryside which is also designated as part of the Capstone and Horsted Valleys Area of Local Landscape Importance (LLLI)
The SoS and Inspector agreed that the proposed development would harm the character and appearance of the immediate area and, therefore, failed to accord with the provisions of key policies, however such harm was considered insufficient to represent “a critical harm” to the function of the Capstone and Horsted Valleys ALLI taken. Furthermore, it was considered that the development plan policy supported development where the social and economic benefits of proposals outweighed the local priority to conserve the area’s landscape and in this sense the benefits were considered to weigh in the appeal schemes favour.
Whether there were other benefits of the scheme?
Significant weight was attached by the Inspector to the 25% affordable housing provision, as well as the economic benefits, open and children’s play space and biodiversity interests. The Secretary of State however agreed that the proposed landscaping/planting and New Homes Bonus Payments attracted little and no additional weight respectively.
Conclusions:
In concluding, the SoS states that, “The overall positive balance for the economic and social strands of sustainability from the development contrast with the environmental role where there is clear harm to this area of countryside which is locally designated for protection. However, the development would not lead to coalescence between Lordswood and Hempstead or critical harm to the ALLI’s function…” resulting in the he sustainability of the appeal scheme alongside Local Plan polices being out of date due to land supply constraints, meant that this outweighed landscape harm and other harm. The “adverse impacts of the scheme do not significantly and demonstrably outweigh its benefits when assessed against the policies of the framework taken as a whole”.
4 Environmental harm outweighed by the benefits of the provision of affordable and market housing
Land and Buildings off Watery Lane, Curborough, Lichfield, WS13 8ES
Appeal ref: APP/K3415/A/14/2224354
Inspector’s report to SoS: 21st March 2016
Appeal Decision Date: 13th Feb 2017
Appellant: IM Properties Development Ltd
Respondent: Lichfield District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant Outline & Full planning permission.
Background
Lichfield District Council refused outline planning permission in January 2014 for the removal of buildings and other structures and construction of up to 750 dwellings, primary school, care village, neighbourhood facilities to include retail development, community building, parking, comprehensive green infrastructure comprising formal and informal open space, footpaths, cycle ways, water areas and landscaping. New access points to Watery Lane and Netherstowe Lane and improvements to Netherstowe Lane (14/00057/OUTMEI).
The matter was recovered for the SoS determination on 24th September 2014 due to the size of the development.
The Inspector considered the main issues to be:
• Highways
• Landscape
• Trees and hedgerows
• Views of Lichfield Cathedral
• Housing supply
• Biodiversity
• Special Areas of Conservation (SACs)
The SoS disagreed with the Inspector’s recommendation to refuse planning and the appeal was allowed and permission was granted.
Highway matters
The SoS decided that permission should not be refused on the grounds of transport. It was agreed that the distance for walking and cycling were longer than desired. However, it was noted that the appeal site was better placed than most in the area and as such, appropriate transport provisions could overcome this issue.
Character and appearance
The Inspector agreed that the impact would be negligible given the size of the LCA. Immediate impacts were key to the weight that contributes to the harm of the landscape character. Secondly, the assessment of harm in the LVIA undervalued the impact of the proposal at the more immediate and localized level. The methodology adopted in the LVIA lead to an under-estimation of visual impact. The SoS, however, when allowing the appeal, noted that the landscape and visual harm from development should not weigh heavily against the appeal proposals.
Trees and hedgerows
The SoS agreed with the Inspector that the method adopted to conserve the historic hedgerows during translocation was a poor option. The visual character however, will not be affected but it was noted that veteran trees would be harmfully diminished. The SoS concluded in agreement with the Inspector that there would be harm to the ancient hedgerow along the west side of Netherstowe Lane, albeit, modestly harmful. It was noted that these could only be retained if very limited works to widen the road were carried out.
(Curborough Grange) Grade II listed building
The SoS agreed that ‘harm’ was presented to the setting of the Grade II listed Curborough Grange Farm House. The farmland setting was considered an important aspect to convey the original function of a working farm. However, it was noted that it was no longer used for that purpose and other farmstead buildings have been converted to dwellings. Any harm was ‘less than substantial’.
Views of Lichfield Cathedral
The SoS agreed with the Inspector in that any development which allows views towards the Cathedral would conflict with Policy CP14 however, given the lack of definition as to what ‘important views’ constitutes, significant weight could not be attached to this objection. It was noted that the harm would be so slight that it would barely cause any harm at all to the significance of the Cathedral as a listed building. However, the SoS gave considerable weight to the ‘slight harm’ of the setting due to the desirability of preserving the setting of the Cathedral. As this ‘harm’ was considered ‘less than substantial’, paragraph 134 of the Framework applied.
Housing requirement
The SoS disagreed with the Inspector and concluded that the local planning authority could demonstrate a 5-year supply with ‘a surplus of 307 dwellings’. Paragraph 49 of the Framework was not engaged and it was noted that the relevant policies of the development plan were ‘up to date’.
Biodiversity
It was agreed that as there were no compelling objections on the grounds of biodiversity, this could be subject to suitable conditions.
Special Areas of Conservation (SAC)
The SoS agreed with the Inspector in that the proposal lacked any hydrological connection with the River Mease SAC and the Cannock Extension Canal SAC, as such, the proposal would have no likely significant impact.
In respect of the Cannock Chase SAC, it was considered that an appropriate assessment would be required as the SoS held the view that there would be likely significant effects of the proposal. It was highlighted that mitigation measures would suffice to prevent any adverse effects to Cannock Chase SAC.
In summary, the SoS concluded that the appeal scheme was not in accordance with the development plan and conflicted with Core Policies and Policies NR3, NR4, NR5 and BE1 of the adopted Local Plan Strategy, Policies DC1, DC1 or H3, E3 and E18B, and Core Policies 14 and C1 of the Lichfield District Local Plan 1998. Modest weight was given to landscape and visual harm from development. The SoS gave considerable weight to the setting of Curborough Grange and Lichfield Cathedral, albeit that any harm was considered ‘less than substantial’ for the purposes of paragraph 134 of the Framework. Considerable weight was also given to the loss of veteran trees and ancient hedgerows due to the damage that would be sustained by widening the roads.
The above issues however were weighed against the social and economic benefits of providing affordable and market housing. Despite the Council meeting their 5 year land supply target, significant weight was given to the benefits of the provision of affordable and market housing. The SoS considered that this outweighed any environmental harm and the proposal would represent sustainable development.
In light of the above, the appeal was allowed.
5 Those seeking to challenge the grant of permission will have a strong ground to argue that the permission is unlawful on the basis of the absence of reasons
High Court
Case No: C1/2016/1456
Date: 15th February 2017
Our guest barrister, Giles Atkinsons takes us through a recent appeal made against South Cambridgeshire District Council (SCDC). The appeal raises the issue of whether SCDC ought to have given reasons for granting planning permission for the development by Cambridge City Football Club, a semi-professional club, of a football stadium capable of seating three thousand people in the outskirts of Sawston in Cambridgeshire, on land which is part of the Green Belt.
Giles highlights that under DMPO 2014, Article 35, not only are LPA required to give reasons for refusing planning permission but also must give reasons for any conditions that it imposes if it grants permission.
“35—written notice of decision or determination relating to a planning application
(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters
(a) Where planning permission is granted subject to conditions, the notice must state clearly and precisely their full reasons
(i) For each condition imposed
(ii) In the case of each pre-commencement condition, for the condition being a pre-commencement condition
(b) Where planning permission is refused, the notice must state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision”
Background
The Council’s Senior Planning Officer produced a detailed report on 4th June 2014 and recommended that the permission be refused for a stadium on Green Belt land. The Planning Committee met to consider the application and rejected the officer’s recommendation. The development was accepted in principle and subsequently permission was granted. The decision notice did not explain why permission had been granted.
The member’s decision was challenged in the High Court on the grounds that the failure to give reasons for the grant of permission in these circumstances was contrary to a common-law obligation to do so. The High Court challenge was unsuccessful so the appellant appealed to the Court of Appeal. The appellant succeeded in the Court of Appeal for the reasons set out below.
The main issues considered were:
• Was there a duty to provide reasons?
• Did the failure constitute as a breach of the common law duty to give reasons
Commentary
There appears to be one glaring omission from the Regulations, which is the duty to give reasons for granting permission. The government did experiment with including this as a requirement between 2003 and 2013, but this was removed. There, it seemed, the matter rested.
In Oakley v South Cambs however, the Court of Appeal considered the circumstances under which an LPA may nevertheless be required to give reasons under common law when granting permission.
The appellant succeeded in the Court of Appeal and it is useful to consider the Court’s reasoning in this case which could have wide implications.
Essentially two arguments were made by the appellant.
First, it was argued that reasons should always be given for planning decisions, including the decision to grant permission, unless it is obvious from publicly available material (primarily the officer report) how the decision has been reached. Clearly, when members reject their officer’s recommendation, as happened in this case, it will be harder to infer their reasoning than in a case where the officer recommendation is followed. So, although the fact of a decision being a ‘member overturn’ is not itself usually likely to give rise to a duty to give reasons, it may be relevant in supporting a conclusion that reasons should be given.
Elias LJ was ‘strongly attracted’ to this first argument and in the Judgment, sets out 6 reasons why. However, in the end he did not determine the case in accordance with the first argument because he found the duty to give reasons arose in accordance with the second argument. He said (at para 55) of the Judgment:
“For these various reasons, I am strongly attracted to the wider submission advanced by Mr Simons (Counsel for the Appellant). It would not mean that any busybody could seek reasons where permission is granted. The rules of standing ensure that only those who have a proper interest in doing so can challenge a decision. However, I would not decide the appeal on this broad principle. The courts develop the common law on a case by case basis, and I do not discount the possibility that there may be particular circumstances, other than where the reasoning is transparent in any event, where there is a justification for not imposing a common-law duty. It is not necessary for me to rely upon the broad argument because in my judgment the duty arises under the alternative argument.”
I turn to the second argument in a moment, but it seems to me that the level of support from the Court for the first argument may well be enough to have opened the door to this area of law. The consequence will be that LPAs may increasingly begin to give reasons when granting planning permission and those seeking to challenge LPAs’ decisions will increasingly ask for them when reasons are not given.
The second argument was that the nature of this particular decision required reasons to be given. This was a decision that was both contrary to the development plan and allowed development in the Green Belt, which enjoys a particular measure of protection in planning policy. Essentially it was argued that because of these conflicts the decision to approve the proposal requires explanation in the shape of reasons. The Court agreed (per Elias LJ at para 60):
“The decision in this case involved development on the Green Belt and was also in breach of the development plan. Public policy requires strong countervailing benefits before such a development can be allowed, and affected member of the public should be told why the committee considers the development to be justified notwithstanding its adverse effect on the countryside. In my judgment these considerations demand that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there is in my judgment an overwhelming case for imposing the duty here.”
Again, in respect of this second argument, the fact of the decision being a ‘member overturn’ does not itself give rise to the requirement to give reasons – but it supports that conclusion. Without them, the member’s reasoning would remain obscure and the fact that the members take a different view on such important matters needs to be explained.
Necessarily the second argument upon which the appeal succeeded is specific to the facts of the Oakley case. Different facts in different cases may lead to a different conclusion. But in general it may be said that when a member overturn amounts to granting permission for development, either contrary to the development plan or in the Green Belt, the LPA must expect to give its reasons for doing so. It may be that LPAs will as a result of this decision of the Court of Appeal issue their reasons as a matter of course. If they do not, those seeking to challenge the grant of permission will have a strong ground to argue that the permission is unlawful on the basis of the absence of reasons.
6 Javid Approves 350 Dwelling Scheme in Lancashire
Land off Lytham Road, Warton, Lancashire
Appeal ref: APP/M2325/W/15/3004502
Appeal decision date: 23rd January 2017
Appellant: Warton East Developments Ltd
Respondent: Fylde Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to determine an application within the prescribed period. The application was recovered by the Secretary of State on 12th February 2016 as the appeal related to proposals for residential development over 10 units in an area where a qualifying body has submitted a Neighbourhood Plan.
Background
The site lies to the north of Warton and is approximately 12.78 ha in extent. The proposals were for 375 dwellings with access secured, subsequently changed to 350 dwellings. The application was not determined by the Council as they were choosing to wait for a decision on a scheme close to the appeal site. The Council heard a duplicate appeal in July and this application was also refused against the recommendation of the Council officer.
The reporting Inspector considered the main disputed issues to be:
• The effects of development on the character of Warton
• The capacity of the highway network to accommodate the cumulative effects of development in Warton
• The suitability of Warton as a location for residential development in terms of air quality and the effects of the proposals on the demand for and supply of housing
Planning policy
The Development Plan ran up to 2016 and as such was considered out of date. The site is within a designated countryside area and Policy SP 2 would not permit development in countryside areas. This policy was not referred to in the putative reasons for refusal at appeal or in the Statement of Common Ground. The Bryning-with-Warton Neighbourhood Plan (BWNP) was submitted to Fylde Council on 23rd September 2014. It proposed including the entire appeal site within a new settlement boundary, however the Neighbourhood Plan has not progressed further since the publication of the Examiner’s report in April 2016.
Habitats Regulations Assessment
The appeal proposal would be unlikely to have a significant effect on the designated sites either alone or in combination provided the conditions as proposed by Natural England to secure mitigation were imposed.
The character of Warton, its services and facilities
It was accepted that the appeal proposal contravenes Local Plan Policies SP1 and SP2 which set limits to development for Warton, however these policies were considered out of date. The Secretary of State accepted the Inspector’s conclusion that the proposals complied with Local Plan Policy HL2 (1) which requires housing developments to be acceptable in principle.
The highway network
The Secretary of State accepted that with the recommended conditions, the proposed development would not cause the capacity of the highway network to accommodate the cumulative effects of development in Warton to be exceeded.
Air quality
The appeal proposal would accord with Local Plan Policy EP26 which would not permit development which would give rise to unacceptable levels of air pollution.
Housing
All main parties agreed that the Council did not have a five-year supply. The site represented the equivalent of a year or nearly a year’s requirement, and would clearly represent a highly significant contribution to housing land supply in the Borough. The proposal accorded with the Council’s requirement to supply 30% affordable housing.
Sustainable development economic
The Inspector concurred that even though the site is not located in a town centre, it would enhance or maintain the vitality of a rural community. The proposal scored moderately well in terms of accessibility to local services and agreed that development was located in the right place.
Social
Both the Inspector and the SoS agreed that the site made a highly significant contribution to housing land supply in the borough. Whilst the scheme was in outline, there was no suggestion that there was any inherent obstacle to a good result. The site also scored moderately well in terms of their accessibility to local service.
Environmental
The Inspector noted that the development of a greenfield site does not protect the natural environment as presently existing but, because the sites are of lesser environmental value, the harm from their loss is also lesser. The SoS accepted the conclusions that given the mitigations and enhancements which could be achieved through conditions, the development of this appeal site would only be moderately adverse.
Planning balance
Given that policies for the supply of housing are out of date, paragraph 14 of the Framework was engaged and permission should be granted unless the adverse impacts of so doing would significantly and demonstrably outweigh the benefits when assessed against policies in the Framework, taken as a whole, or specific policies in the framework indicate that development should be restricted. This was not the case in this appeal.
Download Decision PDF here
7 Javid approves 115 dwelling scheme in Lancashire
Land at Clifton House Farm, Warton, Lancashire
Appeal ref: APP/M2325/W/15/3141398
Appeal Decision Date: 23rd January 2017
Appellant: Hallam Land Management
Respondent: Fylde Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to determine an application within the prescribed period. The application was recovered by the Secretary of State on 12th February 2016 as the appeal related to proposals for residential development over 10 units in an area where a qualifying body has submitted a Neighbourhood Plan.
Background
The site is 3.74 ha in size and proposes of up to 115 dwellings. The Council heard a duplicate appeal in July and this application was refused. Immediately before the Inquiry commenced, agreement was reached between the Council and the appellant on most outstanding matters.
The reporting Inspector considered the main disputed issues to be:
• The effects of development on the character of Warton
• The capacity of the highway network to accommodate the cumulative effects of development in Warton
• The suitability of Warton as a location for residential development in terms of air quality and the effects of the proposals on the demand for and supply of housing in the local housing market area
Planning policy
Policy SP 2 of the development plan would not permit development in countryside areas, however the Development Plan which ran until 2016 was considered out of date. It was agreed that Policy SP2 was met. The Bryning-with-Warton Neighbourhood Plan (BWNP) proposed defining a new settlement boundary including the entire appeal site but the Plan has not progressed further since the publication of the Examiner’s report in April 2016.
Habitats Regulations Assessment
The Inspector noted the development would not result in a significant increase in recreational disturbance. As a precautionary measure, a visitor’s pack was recommended to be prepared and made available to future homeowners, highlighting the sensitivity of the protected sites to recreation and highlighting alternative recreational opportunities in the vicinity.
The character of Warton, its services and facilities
The submitted conventional Landscape and Visual Impact Assessment concluded that although there would be a loss of greenfield land the impact on the landscape would be minor. The proposal was considered to comply with Local Plan Policy HL2 (1) which requires housing developments to be acceptable in principle.
Highway Network
The Secretary of State accepted that with the recommended conditions, the proposed development would not cause the capacity of the highway network to accommodate the cumulative effects of development in Warton to be exceeded.
Air quality
No issues were raised in respect of air pollution.
Housing
In light of uncertainties regarding delivery, the Inspector noted that the site represented a highly significant contribution to housing land supply in the Borough. The SoS noted that the proposal accords with the Council’s requirement to supply 30% affordable housing.
Sustainable Development- economic
The SoS agreed that the proposal scores moderately well in terms of accessibility to local services with good access to public transport. The Site is located in the right place as it would either enhance or maintain the vitality of a rural community.
Sustainable Development -Social and Environmental
Both the Inspector and SoS agreed that the site makes a significant contribution to housing land supply in the Borough. Environmentally, the SoS considered that mitigation and enhancement could be achieved through conditions and as such, the development of the appeal site would only be moderately adverse.
Planning Balance
The SoS considered that give policies for the supply of housing were out of date, the Council did not have a five-year land supply and as such, paragraph 14 of the Framework was engaged. With planning obligations in place the appeal proposed complied, or could be made to comply by condition, with all other Local Plan Policies. Permission was granted as the adverse impacts of so doing did not significantly and demonstrably outweigh the benefits when assessed against policies in the Framework.
8 Passivhaus no Longer Justifies Paragraph 55 Development
Land opposite 1-10 Disraeli Road, Rayleigh
Appeal ref: APP/B1550/W/16/3159712
Appeal Decision Date: 3rd March 2017
Appellant: Mr Steve Mitchell and Peter Spicer
Respondent: Rochford District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission for two detached passivhauses.
Background
The appeal site comprises an area of open paddock land on the outskirts of Rayleigh. The site is within the Green Belt. The area is described by Inspector D. M. Young BSc (Hons) MA MRTPI MIHE as ‘unmistakably rural’.
The Inspector considered the main issues to be:
• Whether or not the proposal is inappropriate development in the Green Belt for the purposes of the National Planning Policy framework (the framework). The effect of the development on the openness of the Green Belt
• If the proposal is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development
Green Belt
Paragraph 89 of the Framework states that construction of new buildings in the Green Belt is inappropriate subject to some exceptions. The Inspector considered that the development proposals failed to meet any of the stated exceptions and is inappropriate development and should not be approved except in ‘very special circumstances’.
The effect of the development on the openness of the Green Belt
The land is identified as open land and contributes to the rural setting to the north of Disraeli Road. Whilst there was some screening in the form of woodland areas, the dwellings would have a prominent location and would be visible from Disraeli Road. The introduction of two dwellings was considered to have the potential to completely change the character of the land. The introduction of domestic boundary treatments, hard surfaced driveways with attendant vehicles would all significantly erode the openness of the Green Belt.
If the proposal is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.
The Inspector was not convinced that the development was a Paragraph 55 case as it was not isolated dwellings in the countryside. In terms of innovative design, the principles of the Passivehaus movement were not considered to be truly innovative, as these are becoming commonplace. The contemporary appearance of the dwellings would be aesthetically isolated from the modest traditional dwellings on the south side of Disraeli Road, compounded by the bulk and mass of the dwellings which would be decidedly different to anything else in the vicinity. The Inspector noted that the scheme included sustainable drainage measures as well as ecological and landscape enhancements however, these were afforded only modest weight.
Conclusions
The appeal was dismissed because the development would harm the openness of the Green Belt which carries more weight than the modest benefits arising from the proposed ecological/landscape enhancements. These other considerations clearly do not outweigh the identified harm. No very special circumstances existed to justify the development.
9 Previously collapsed property undermines development potential on seafront
64-65 Central Parade, Herne Bay Kent CT6 5JQ
Appeal ref: APP/J2210/W/16/3160821
Appeal Decision Date: 3rd March 2017
Appellant: Sarjanda Ltd
Respondent: Canterbury City Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.
Background
The proposed development was to demolish the remaining existing building and erect a block of 14 apartments and commercial unit to ground floor with bin and cycle stores.
Main issue
The effect of the proposal on the character and appearance of the Herne Bay Conservation Area.
Impact upon conservation area
Planning permission was granted in 2007 for the change of use of the ground floor to a restaurant, a new shop front, and the extension of the building to provide nine flats. During subsequent conversion works, the building partially collapsed and the remainder was subsequently demolished for safety reasons. The site remained vacant since. The original building comprised a commercial use on the ground floor with residential accommodation above.
The Site is located within the Herne Bay Conservation Area and so special attention was needed to the preservation and enhancement of such, as established by National and Local Plan Policy. Being in a prominent sea-front location opposite a seating area and close to the Grade II Listed Herne Bay Clock Tower. The rear of the site is clearly visible.
Overall the terrace of properties in which the appeal site is located, was considered to have a “slightly neglected appearance” with the appeal site further detracting from the character and appearance of the conservation area. The existing architectural styles are however quite consistent and uniform. The appeal proposals sought to emulate the sea-front more contemporary, architecture within the conservation area. This was not objected to in principle by either the Council or Inspector. However, the design of the proposed development was not considered to represent good design.
Quoting para 60 of the NPPF the Inspector indicated that, “It is clear that planning policies and decisions should not attempt to impose architectural styles or particular tastes and they should not stifle innovation, originality or initiative through unsubstantiated requirements to conform to certain development forms or styles…. and that whilst design policies should avoid unnecessary prescription or detail, they should concentrate on guiding the overall scale, density, massing, height, landscape, layout, materials and access of new development in relation to neighbouring buildings and the local area more generally. It also confirms that it is proper to seek to promote or reinforce local distinctiveness.”
The contemporary flat road element building levels and relationship between the existing proposed development would introduce “a prominent and discordant feature to the terrace and detract from its appearance as a whole”. The scheme was therefore considered to maintain local distinctiveness.
Conclusion
The proposals failed to deliver the high-quality design sought by National and Local Planning Policies and whilst it was accepted that in its present condition the appeal site detracted from the character of the conservation area, such harm was localised and short term, whilst due to its scale and visual prominence, the appeal proposals were considered to have a, “more enduring and widespread effect on the conservation area.” and should therefore be refused. The appeal was dismissed.
10 Development in the Green Belt with the potential to bring in social and economic benefits dismissed on the basis that an exceptional circumstance could not be demonstrated
Queens Park Road, Billericay, Essex CM12 0SP
Appeal ref: APP/V1505/W/16/3160138
Appeal Decision Date: 27th February 2017
Appellant: Mr Peachey – Basildon Group Ltd
Respondent: Basildon District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
Background
The proposal was for residential development comprising 13 market houses and 6 affordable apartments at Stock Brook Manor Golf and Country Club, Queens Park Road, Billericay, Essex CM12 0SP.Mr Peachey (Basildon Group Ltd) appealed against the decision of Basildon District Council to refuse outline permission.
The Inspector considered the main issues to be:
• Whether the harm by reason of inappropriateness to the Green Belt, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development
Conclusion
The Inspector dismissed the appeal as the proposed development could not demonstrate an exceptional circumstance.
Green Belt
It was agreed by the parties that the proposed development did not fall within the examples set out in Paragraphs 89 and 90 of the framework whereby a development is not inappropriate. It was therefore considered that by definition, the proposed development was an inappropriate development in the Green Belt. It was noted that the proposed development would erode the openness of the Green Belt even if the proposed dwellings were adequately and appropriately designed and landscaped.
The Council fell significantly short of the five-year housing supply with only 2.8 years supply however, it was considered that although the proposed development would make a contribution to the shortfall and bring in social and economic benefits including the provision for affordable housing – this however, would not outweigh the harm to the Green Belt.
Considering the above, the appeal was dismissed.
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