The Urbanissta Legal Beagle is on the case! (May’17)
Welcome to the Urbanissta Legal Beagle’s case law reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgments and decisions that might be useful to you, day to day.
We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. This is month three of our updates, so remember to keep any eye out for further iterations, in the weeks to come!
This month, our Guest barrister, Giles Atkinson from 6 Pump Court Chambers has also provided
1. Suffolk Coastal DC v Hopkins Homes and Richborough Estates Partnerships LLP v Cheshire East BC [2017] UKSC 36
The Supreme Court has just decided the much anticipated cases of Suffolk Coastal DC v Hopkins Homes and Richborough Estates Partnerships LLP v Cheshire East BC [2017] UKSC 36, which focused on the interpretation of paragraphs 14 and 49 of the NPPF.
Delivering the leading judgment, Lord Carnwath, JSC (with whom Lord Neuberger PSC and Lords Clarke, Hodge and Gill, JJSC agreed), observed (at [2]) that;
“The appeals provide the opportunity for this court not only to consider the narrow issues of interpretation of para 49, but to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan.”
That observation reflects the fact these appeals were the first time the UKSC was called upon to consider the proper interpretation of government policy in the Framework. The significance of that opportunity was not lost on Lord Gill JSC, one of the two Justices from Scotland, who was also an eminent planning practitioner at the Scottish Bar.
Having agreed with Lord Carnwath’s conclusions on the decision that is appealed against and with his views as to the disposal of these appeals, in a separate judgment, Lord Gill (with whom Lord Neuberger PSC, Lords Clarke JSC and Hodge, JSC agreed), added some comments on the approach that should be taken in the application of the National Planning Policy Framework (the Framework) in planning applications for housing development.
The legal status of the Framework
Lord Carnwath’s judgment first addresses the legal status of the Framework and the source of the Secretary of State’s power to the issue power to issue national policy guidance of this kind. The Court held (at [20]-[21]) that his powers derived, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system.
As for the status of government policy in the Framework, Lord Carnwath said (at [21]):
“It is important, however, in assessing the effect of the Framework, not to overstate the scope of this policy- making role. The Framework itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than “guidance” and as such a “material consideration” for the purposes of section 70(2) of the 1990 Act.”
Interpretation of the Framework
Addressing the correct approach to the interpretation of policy within Framework, the Court acknowledged the importance of the UKSC decision in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; 2012 SLT 739, concerning the correct approach the interpretation of a statutory development plan. However, responding to the concerns expressed from the Bar “about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself …”, Lord Carnwath observed (at [23]) that:
“This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay-reader. Some further comment from this court may therefore be appropriate.”
Law and policy
The Court’s further comment (in [24]-[26]) constitutes crucially important guidance for those engaged in the planning process, especially litigants in the Planning Court:
“24. In the first place, it is important that the role of the court is not overstated. Lord Reed’s application of the principles in the particular case (para 18) needs to be read in the context of the relatively specific policy there under consideration. Policy 45 of the local plan provided that new retail developments outside locations already identified in the plan would only be acceptable in accordance with five defined criteria, one of which depended on the absence of any “suitable site” within or linked to the existing centres (para 5). The short point was the meaning of the word “suitable” (para 13): suitable for the development proposed by the applicant, or for meeting the retail deficiencies in the area? It was that question which Lord Reed identified as one of textual interpretation, “logically prior” to the exercise of planning judgment (para 21). As he recognised (see para 19), some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis.
25. It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may well not be determinative of the outcome. (As will appear, the present can be seen as such a case.) Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the Planning Inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local. As I observed in the Court of Appeal (Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2009] PTSR 19, para 43) their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence (see Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49; [2008] 1 AC 678, para 30 per Lady Hale.)
26. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy; and not to elide the two.”
The clear signal from the UKSC is that judges sitting in the Planning Court should exercise a greater degree of restraint before acceding to a litigant’s invitation to pronounce definitively on the correct meaning of government policy statements in the Framework. On that basis, the decision Tesco Stores Ltd v Dundee CC could be seen as the ‘high water mark’ of judicial activism in the context.
Interpretation of paragraph 14
Although the argument before the UKSC and below had concentrated on the meaning of paragraph 49, the Court approached the correct interpretation of Framework policy relevant to the appeals by addressing first the meaning of paragraph 14 and the interaction between the two paragraphs.
As to the meaning of paragraph 14, Lord Carnwath said (at [54] – [56]):
“54. … since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the “tilted balance” under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are “significantly and demonstrably” outweighed by the adverse effects, or where “specific policies” indicate otherwise.
55. It has to be borne in mind also that paragraph 14 is not concerned solely with housing policy. It needs to work for other forms of development covered by the development plan, for example employment or transport. Thus, for example, there may be a relevant policy for the supply of employment land, but it may become out-of-date, perhaps because of the arrival of a major new source of employment in the area. Whether that is so, and with what consequence, is a matter of planning judgment, unrelated of course to paragraph 49 which deals only with housing supply. This may in turn have an effect on other related policies, for example for transport. The pressure for new land may mean in turn that other competing policies will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgment, not dependent on issues of legal interpretation.
“56. If that is the right reading of paragraph 14 in general, it should also apply to housing policies deemed “out-of-date” under paragraph 49, which must accordingly be read in that light. It also shows why it is not necessary to label other policies as “out-of-date” merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of planning judgment for the decision-maker. Restrictive policies in the development plan (specific or not) are relevant, but their weight will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the “tilted balance”.
Interpretation of paragraph 49
As to the meaning of paragraph 49, the Court held (at [57]) that the phrase “Relevant policies for the supply of housing” should be interpreted simply as indicating that that paragraph is concerned with that category of policies, housing supply policies, as opposed to other categories of policy such as those for the supply of employment land or for the protection of the countryside.
This interpretation is akin to the ‘narrow’ interpretation as described but rejected by the Court of Appeal. However, noting that the primary purpose of paragraph 49 is to act as a trigger for the operation of the ‘tilted balance’ (which phrase now has the highest Judicial approval!) in NPPF paragraph 14, the Court went to on to emphasise (at [59]) that the important question is not to try to define in a legalistic exercise whether or not an individual policy may be defined as one for the supply of housing, rather it is to focus on the policies together and whether they result in a five year supply as is required by NPPF paragraph 47.
Considered in this way the Court found (at [60]) that it would be a ‘non-statutory fiction’ to regard a non-housing policy, such as for example a Green Belt policy, which is in all other senses up-to-date as being notionally out-of-date solely for the purposes of the operation of paragraph 14.
What this means in practice is that, if there is a housing policy that is found to be out-of-date, the paragraph 14 “tilted balance” will apply to it and the weight to be given to that out-of-date policy will be purely a matter of planning judgment for the decision maker. Because paragraph 14 is not concerned solely with housing, a planning judgment will also need to be reached about whether other relevant, non-housing, policies are out-of-date and if so what weight should be given to them in the section 38(6) balance. But as a matter of planning judgment, the weight given to non-housing policies will need to be judged against the needs for development, housing in particular, in light of there being no five year supply.
Sanity restored … at last!
Download the press summary.
Download the judgment.
2. Construction of 500 dwellings refused due to the absence of highway mitigation measures.
Land at Park Mill Farm, Princes Risborough.
Appeal Ref: APP/K0425/W/16/314683
Appeal Decision Date: 21st March 2017
Appellant: Halsbury Homes Limited
Respondent: Wycombe District Council
Appeal made under S78 of the Town and County Planning Act 1990 by Halsbury Homes Limited against failure to give notice within the prescribed period of a decision on an application for planning permission.
Background
The development proposed is the construction of up to 500 dwellings, open space and ancillary development at Park Mill Farm, Princes Risborough.
The inspector considered the main issues to be:
• The quantum of development and the impact on the character and appearance
• The living conditions of future residents
• Provision of affordable housing
• Whether the proposal will maximise sustainable development
• Impact on highways
• Contribution to infrastructure/community facilities
The effect of the proposal on the character and appearance of the area, including its effect on trees:
In respect of the effects on trees, it was held that at a density of 41 dph the development of up to 500 dwellings, would not have an unacceptable effect on the character and appearance of the area or the setting of the Chilterns Area of Outstanding Natural Beauty (AONB). The matter could be dealt with through reserved matters and conditions and careful consideration would need to be given to the layout and landscaping.
The living conditions of future residents
The appellants evidence (Odour Monitoring Assessment) remained unchallenged and subject to a condition relating to no residential development within the 3ouE/m3 odour concentration contour, the Inspector considered that there would be no material impact on the living conditions of future residents from odour.
Provision of affordable housing
The Appellant met the requirement for not less than 40% affordable housing.
Whether the Proposal Will Maximise Sustainable Development
It was noted that the proposals did not include an underpass, and the LPA position that an underpass from PMF to Wades park is necessary for development of the larger expansion of the North-west. The Inspector concluded that although there was long-term adequacy of the proposed bus service and the acceptability of the pedestrian/cycle links via Longwick Road – given that an underpass would significantly improve links to the town centre and provide the integration between the site and the town centre the LP seeks, he considered there to be a conflict with LP Policy H2 and fails to maximise the use of sustainable transport modes.
Impact on highways
“One of the main traffic routes through Princes Risborough is the A4010 which has 2 town centre roundabouts. These are the Longwick Road/Aylesbury Road junction (Tesco roundabout) and the New Road/Bell Street junction (New Road roundabout)”.
The Inspector found that the proposal would result in significant increases in traffic on key parts of the local highway network that are already operating over capacity. The cumulative impact on existing and future residents would be severe and unacceptable. Mitigation was not provided for this issue, however, it was held the potential for mitigation could reasonably be dealt with by imposing a Grampian style condition.
Contribution to infrastructure/community facilities
The scheme made an appropriate provision of infrastructure/community facilities directly related to the development. It was decided that it would not prejudice the delivery of development in the wider area. As such the proposal would not conflict with the objectives of CS Policy 21.
Conclusions
It was concluded that the benefits that arise from the scheme are significant, particularly the provision of affordable market housing. Added to this is the economic benefits which would flow from the development. Other elements such as enhanced walking and cycle routes and provision of open space were given moderate weight. However, in the absence of highway mitigation measures, the Inspector concluded that the residual cumulative impacts of the development on the highway would be severe and unacceptable. As such, the conflict with LP Policy significantly and demonstrably outweighed the benefits of the scheme. In light of this, the appeal was dismissed.
3. SoS disagrees with the inspector and refuses planning for 265 dwellings in the Greenbelt.
Land South of Jotmans Lane, Benfleet.
Appeal Ref: APP/M1520/A/14/2216062
Appeal Decision Date: 21st April 2017
Appellant: Burrows and Dunn Ltd
Respondent: Castle Point Borough Council
The Appeal was recovered for the Secretary of State’s (SoS) determination, pursuant to Section 79 and Paragraph 3 of Schedule 6 of, the Town and Country Planning Act 1990.
Background
The appeal was brought by Burrows and Dunn Ltd against Castle Point Borough Council’s decision to refuse planning permission for the redevelopment of the site to provide up to 265 dwellings and associated access, parking, footpath improvements, ecological enhancements, open space and landscaping.
In dismissing the appeal the SoS gave consideration to one salient issue.
Whether the proposal represented an inappropriate form of development in the Green Belt and if so, whether there are any other considerations sufficient to outweigh the harm by reason of inappropriateness, and any other harm, and thereby justify the proposal on the basis of very special circumstances.
Impact on Green Belt
The initial conclusion made by the Inspector when allowing the appeal was that the proposal would represent inappropriate development in the Green Belt as the scheme for 265 dwellings with associated infrastructure like roads and pavements would harmfully reduce openness permanently. Issues were raised about the visual impacts of the proposal, however, it was noted that if the proposal was carefully designed then there would be no impact on outlook which would significantly harm living conditions of existing residents. The Appellant argued that the Council could not demonstrate a five-year land supply and furthermore, the Council had a persistent under delivery of housing which was considered to attract more weight in the balancing exercise. It was concluded that the proposal would bring forward market and affordable housing in the area with long-standing failure to provide affordable housing and would bring with it ecological, connectivity and economic benefits. To this, significant weight was attached which outweighed the harm to the Green Belt, and any other harm. The Inspector considered that the proposals demonstrated very special circumstances, thus he recommended that planning permission should be granted.
Conclusion
The SoS took a different view on the matter and refused the scheme on the basis that the benefits would not outweigh the harm. The SoS considered that in view of the prevailing housing supply situation in Castle Point, the provision of market and affordable housing attracted very substantial weight, the ecological benefits attracted significant weight, the improvements to on-site connectivity and access attracted moderate weight and the economic benefits attract considerable weight.
It was held that NPPF carried more force than the Inspector attributed to it. Having considered the facts against this policy, the SoS concluded that the considerations did not clearly outweigh the harm to the Green Belt and any other harm and that very special circumstances did not exist.
On the basis of the above, the appeal was dismissed.
4. Public benefits are seen to outweigh the minor harm to the setting of Nascot Conservation Area, even when great weight was attached to that harm.
Caledonian House, 39 St Albans Road, Watford, Hertfordshire WD17 1HQ.
Appeal Ref: APP/Y1945/W/16/3157103
Appeal Decision Date: 13th April 2017
Appellant: Heronsea (Loom) Ltd
Respondent: Watford Borough Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.
Background
An appeal was made by Heronsea (Loom) Ltd against the non-determination of a planning application for the demolition of an existing building (Class B1) and the erection of a new stepped building with 95 self-contained residential units (Class C3) with associated basement parking, servicing/delivery bay and communal garden and private balcony amenity space.
In allowing the appeal and granting permission the Inspector gave consideration to the two main issues:
• Whether the scheme would preserve or enhance the setting of Nascot Conservation Area
• The effect on the character and appearance of the surrounding area
Effects on Conservation Area
The site abuts Nascot Conservation (CA) Area. It was highlighted that there was no statutory duty to pay special attention to the setting of the CA. Policy UD1 and UD2 of the Watford Core Strategy however required any new developments to respond to the historic values and where appropriate, conserve or enhance the CA and the setting. These policies were considered to be consistent with the framework.
Consideration was given to the Council’s Nascot Conservation Area Character Appraisal 2015 (CAA). The CAA excludes the appeal site and properties to the north from the designated area. It indicates that they form a weak edge in views into the CA from St Albans Road. Caledonian House, standing at four storeys is the tallest building in the group and the proposed scheme intends to replace it with a significantly larger (8 storeys) building, however, was considered to be a considerable improvement compared to the existing building. It was concluded that the proposal would not cause harm to the views, however would cause minor harm to the significance of the heritage asset, “as a result of the loss of the transitional role of the existing building on the site and the amplified contrast in scale with the two storey Victorian buildings in this part of the Conservation Area”. As such, the proposal would conflict with CS policies UD1 and OD2, LP Policy U17 and Framework paragraph 137. Although the harm was considered as minor, Framework paragraph 132 required great weight to be attached to the same. The public benefits were seen to outweigh the minor harm to the setting of the conservation, even when great weight was attached to that harm.
Character and appearance
The Inspector noted that the Borough is divided into a series of characters as per the Watford Character of Area Study 2011 (WCAS). The appeal site is located in sub-area 30B which adjoins late nineteenth-century terraced development which has gradually changed due to redevelopment. The appeal site would be the tallest in the area of up to 8 storeys, however, it would be seen in context with buildings opposite the Site which are almost as tall.
The Inspector found that the proposal would not have a harmful effect on the character and appearance of the area and would comply with CS Policy UD1 insofar as it requires new development to respect and enhance local character. Furthermore, “it would accord with the Council’s Residential Design Guide 2016 (RDG) which, among other things, advises that development should respect, but not necessarily replicate, the height and scale of adjoining buildings (paragraph 7.3.4) and ensure an appropriate relationship between street widths and building heights (paragraph 7.2.13). It would also meet the aims of Framework paragraph 56 which attach great weight to the design of the built environment and paragraph 60 which seeks to reinforce local distinctiveness”.
Conclusion
The Inspector highlighted that the proposal would result in minor harm to the setting of the CA and this was awarded significant weight. The Inspector concluded that on balance, the adverse impacts identified did not significantly and demonstrably outweigh the benefits of the proposal. It was also noted that the Council could only demonstrate a 3-year land supply which was considered a considerable shortfall. As such there was a presumption in favour of sustainable development. The scheme not only satisfied paragraph 47 of the Framework, but also satisfied paragraph 50 by providing a wide choice of quality homes which reflects the housing needs identified in the SHMA. As such, the scheme would provide social and economic benefits. The public benefits were seen to outweigh the minor harm to the setting of the conservation, even when great weight was attached to that harm.
On the basis of the above, the appeal was allowed.
5. Appeal allowed for development in the Countryside as 30 dwellings were considered to make a meaningful contribution to the supply of housing despite the Maldon Council meeting the 5 year supply.
Land opposite 34 Hall Road, Great Totham, Essex CM9 8NN.
Appeal Ref: APP/X1545/W/16/3162631
Appeal Decision Date: 14th March 2017
Appellant: J & M Developers
Respondent: Maldon District Council
The appeal made under S78 of the Town and County Planning Act 1990 against failure to give notice within the prescribed period of a decision on an application for planning permission.
Background
The development proposed was for 30 residential dwellings on land opposite 34 Hall Road, Great Totham, Essex CM9 8NN.
The Inspector considered the main issues to be:
The effect of the proposal on the character and appearance of the area.
The effect of the proposal on the character and appearance of the area
The Site falls outside of the settlement boundary defined in the Maldon District Replacement Local Plan 2005 (LP), where Policies S2 and H1 seek to restrain residential development. As the Site fell within the Countryside the relevant policies were BE1 and CC6 which sought to preserve or enhance the character and natural beauty of the countryside. In summary, Policy BE1 required the development to be compatible with its surroundings in terms of layout and visual impact, among other things.
The Inspector considered that there would no doubt be a domestic activity associated with the residential development which would have an urbanising effect. However, given that the Site would be visually contained allowing for two storey development on the higher northern part of the site along with significant screening, the impact, therefore, would not be significant. The issue of noise was also raised by the Council, however, the Inspector was under the impression that the noise levels associated with a domestic activity are to be expected, particularly as the Site adjoins established residential development to the west and south.
In light of the above, the Inspector concluded that the proposal would not be harmful to the character and appearance of the area and would not conflict with LP Policies BE1 or CC6. However, it was noted that the proposal would conflict with LP Policies S2 and H1 which seek to restrain residential development. Having established that the harm would be limited, the degree of conflict was not considered substantial.
Furthermore, the Inspector in the 2015 appeal found that LP Policy S2, which seeks to protect the countryside for its own sake, is inconsistent with the Framework and should be afforded little weight. Policy CC7 was cited in the refusal to protect Special Landscape Areas – this Policy however, was found to be inconsistent with paragraph 113 of the National Planning Policy Framework (the Framework) which requires that policies for development in protected landscape areas be criteria based.
It was concluded that despite the Council being able to demonstrate a five-year supply in the District, the Inspector considered that 30 dwellings, 12 of which are affordable housing would make a meaningful contribution to the housing supply, in accordance with Framework paragraph 47, merits a measure of support for the proposal. As such, the proposal would make a positive contribution to the social role.
Conclusion
The appeal was allowed on the basis that it would bring a meaningful contribution to the area. Therefore, it would amount to sustainable development and so is supported by the presumption in favour of sustainable development set out in Framework paragraph 14. These considerations outweigh the proposal’s limited conflict with LP Policies H1 and S2.
6. Residential dwellings in the open country side given the green light as Tendring Council could not demonstrate a 5-year land supply.
Land to the East of Tye Road, Elmstead Market, Essex.
Appeal Ref: APP/P1560/W/16/3160793
Appeal Decision Date: 13th April 2017
Appellant: Mr J. Hills, Hills Residential Ltd
Respondent: Tendring District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.
Background
An appeal was made by Mr J. Hills, Hills Residential Ltd against the decision of Tendring District Council to refuse planning permission for the development of up to 32 residential dwellings, land for a community facility and associated car parking and infrastructure.
In allowing the appeal and granting permission the Inspector gave consideration to one main issue:
• The effect on the character and appearance of the surrounding area
Character and appearance
The appeal was determined in accordance with the statutory development plan, in this instance, the saved policies of the Tendring District Local Plan 2007 (LP). The appeal site is located outside of the development boundary of Elmstead Market. There was no suggestion that the scheme was consistent with the countryside policies of the LP – the proposal would also fall outside of the settlement boundary in the emerging Tendring District Council Plan 2013-2033, however as it was in the early stages of preparation, limited weight was attached to the same. It was noted that as the Council could not demonstrate a 5 year supply, as such, the housing policies were not considered up to date.
The Inspector concluded that the proposal would result in the loss of pleasant agricultural field of an undeveloped area of the open countryside. Visually, the site would materially change to urban in appearance which would, as a result would be harmful to the intrinsic rural character of the area. In order to ensure adequate footpath links, the scheme would affect the hedgerow, however, the inspector stated that the hedgerow was poorly maintained and made little contribution to the character of the area.
The Inspector did highlight that the site was relatively well contained with a defensible boundary of Tye Road to the west. He stated that, “..whilst the layout is a reserved matter, the indicative plan shows that the appeal site could accommodate a development of 32 dwellings with a relatively low density of around 14 dwellings per hectare. In addition, the development would be viewed in the context of the built-up area to the east. It would, in my view, provide a gentle transition from the urban to the rural. As a result, I find that the degree of harm arising from the failure to protect the landscape and the local character of the area would be limited.”
Conclusion
The Inspector concluded that the scheme would have a harmful effect on the character and appearance of the area and thus conflicts with Policies QL1 and EN1. However, the harm would be limited in its extent as QL1 was considered to be out of date. The proposal would constitute as sustainable development as it would play an environmental role by maximising opportunities for sustainable transport. Furthermore, as the Council is unable to demonstrate a 5-year supply, the scheme would make an important contribution to boosting the supply of housing in the District in line with Paragraph 47 of the Framework and to this, significant weight was applied. The appeal was allowed on the basis that the scheme would constitute as sustainable development set out in Paragraph 14.
On the basis of the above, the appeal was allowed.
7. Site in the open countryside and in Flood zone 3a has been granted permission due to the Council’s failure to demonstrate a 5-year land supply.
Land at Moat Way, Queenborough, Kent.
Appeal Ref: APP/V2255/W/16/3153116
Appeal Decision Date: 27th April 2017
Appellant: Alpha Barlow Ltd
Respondent: Swale Borough Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to give notice within the prescribed period of a decision on an application for outline planning permission.
Background
An appeal was made by Alpha Barlow Ltd against the decision of Sway Borough Council to refuse planning permission for the development of 12 family dwellings together with associated landscaping, parking and public open space.
In allowing the appeal and granting permission the Inspector gave consideration to five main issues:
• Whether the Council could demonstrate a five-year supply
• Whether the principle of development outside of the settlement boundary was acceptable
• Flooding implications
• Living conditions of future occupiers
• Highway safety
Whether the Council could demonstrate a five-year supply
The Inspector noted that the Council could not demonstrate the existence of a 5-year supply of housing.
Whether the principle of development outside of the settlement boundary was acceptable
The Site falls outside of the settlement boundary. Policy H2 makes an allowance for development within the countryside, if it meets the exceptions listed in Policies E6 and RC3. The proposal for 12 open market dwellings fell out of the exempted categories and was considered to conflict with the Policy H2. As it was demonstrated that the Council could not meet the housing supply, the policies restricting development were considered to be out of date, as such, limited weight was attached to them. The Inspector stated that the scheme would make a significant contribution towards the councils housing stock and as the scheme would play a social and economic role, the benefits weighed in favour of the scheme.
Flooding implications
It was highlighted that the Site mostly falls within Flood Zone 3a according to EA and as such were considered to be more vulnerable. A sequential and exception test was required – the Council contended that the appellant failed to undertake these tests and cited Policies E1 and H2 of the LP in the refusal, which were considered to have limited relevance in terms of flooding. The appellant argued that the Sequential Test in the FRA is unnecessary as a comprehensive review has already been conducted by the borough as part of its Strategic Housing and Land Availability Assessment “and if there were more suitable housing sites in Flood Zones 1 and 2 these would already have been identified and brought forward to address the current shortfall in housing land supply”. The Inspector found there to be a manifest failure on the Council’s part to identify sufficient sites which would act as a reasonably available alternative in areas with a lower probability of flooding to dwellings in Flood Zones 1 and 2. Accordingly, the Inspector found that the Sequential Test was satisfied and it was not possible to direct development to an area at lower risk of flooding at this time.
With regards to the exception test, the first criterion was satisfied as the development would deliver 12 dwellings to an area in need. Furthermore, the area is protected by existing defences and as the EA nor the Council’s Floor Risk officer objected to the development, the inspector concluded that the area would be safe from flooding – thereby the second test was satisfied.
Living conditions of future occupiers
The Inspector concluded that due to the Sites open nature, “it is almost inevitable that there will be a degree of visual intrusion and mutual overlooking between neighbouring occupiers”. Garden sizes were considered to be a reasonable size, as such, the development would not cause demonstrable harm to the living conditions of neighbouring and future occupiers with particular regards to privacy and outdoor space provision. There would thus be no conflict with Policy E1 of the LP.
Highway safety
There was in fact no objection to the application by the Highway Authority, however the Council refused the application on the grounds that the access road would be inadequate to accommodate the tracking of a refuge vehicle. The Council conceded this minor point as it could be resolved in a revised plan.
Conclusion
As the Council failed to demonstrate a 5-year land supply, and the scheme proved to be sustainable, the presumption was in favour of the appeal scheme. In terms of flooding, the development was considered to be acceptable and would deliver significant social and economic benefits through the delivery of 12 new homes. Though there would be moderate harm to the character and appearance of the area, the harm would not significantly and demonstrably outweigh the benefits.
On the basis of the above, the appeal was allowed.
8. Greenfield site on the edge of a settlement boundary has been allowed permission despite harm to heritage assets, landscape character and visual amenity.
Land north of Ross Road, Newent GL18 1BE.
Appeal Ref: APP/P1615/A/14/222882
Appeal Decision Date: 10th April 2017
Appellant: Gladman Developments Limited
Respondent: Forest Dean District Council
Appeal made under S78 of the Town and County Planning Act 1990 by Gladman Developments Limited against failure to give notice within the prescribed period of a decision on an application for outline planning permission. Planning permission was refused by Forest Dean District Council.
Background
The development proposed was for the erection of up to 85 dwellings, access, parking, public open space, landscaping and associated infrastructure (all matters reserved other than means of access to the site).
The Inspector considered the main issues to be:
• Whether the proposed housing was in an acceptable location as set out in the development plan and national policies
• The effect on the character and appearance of the landscape
• The effect on the setting of heritage assets
Acceptable location
The appeal site falls outside of the settlement boundary and in the open countryside, and is contrary to policy CSP. However, it was agreed between the parties that the Site is in an accessible location; close to the settlement and with easy access to local amenities. There is no intention to revise the settlement boundary in this location. As Policy CSP.4 restricts development, the weight of the policy was reduced to moderate but less than substantial.
The effect on the character and appearance of the landscape
The Inspector considered that there would be harm to the landscape character due to the loss of land however it was concluded that this would not be visually prominent but would be visible from limited views at close quarters and from occasional and sporadic longer distance views. As a consequence, there would be some visual harm to the landscape contrary to CSP.1 which sets out design and environmental protection objectives for all proposals.
Heritage asset
The development was considered to have a significant public benefit as the development would provide 51 market homes in the context of an undersupply of housing. These will be in a good location with good transport links. The provision of 41 affordable homes would outweigh the harm to the Mantley Farm complex, to which the Inspector attached considerable weight, and the limited harm to Picklenash Court to which he attributed limited weight.
Conclusion
The Inspector concluded that the Council could not demonstrate a 5yr HLS. Paragraph 49 of the Framework confirms that relevant policies for the supply of housing should not be considered up to date. As such, Policy CSP.4 which restricts development outside of the settlement boundary was awarded moderate weight. Furthermore, it was concluded that there would be less than substantial harm to heritage assets, harm to landscape character and the visual amenity of the landscape as well as the limited loss of best and most versatile agricultural land contrary to policy CSP.1. As a result of these findings, it was concluded that the proposal is contrary to the development plan when viewed as a whole. However, as there is a serious and significant shortfall in the housing supply and the scheme has the potential to bring economic activity and other benefits – the adverse impacts of the proposal do not significantly and demonstrably outweigh the benefits. In light of this, the appeal was allowed.
9. Permission granted for 107 dwellings despite harm to heritage assets.
Land off Grange Road, Coventry CV6 6DD.
Appeal Ref: APP/U4610/W/16/3151581
Decision Date: 3rd May 2017
Appellant: Westleigh Partnerships Ltd
Respondent: Coventry City Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
Background
The appeal was made by Westleigh Partnerships Ltd against the decision of Coventry City Council. The development proposed is the demolition of farm buildings and construction of 107 dwellings and associated access road.
The Inspector considered the main issues to be:
• Whether the appeal proposal would preserve the setting of the grade II listed buildings, Grange Farmhouse, 175 and 177 Grange Road
• Whether it would affect locally listed outbuildings
• Whether the appeal proposal would preserve or enhance the character or appearance of the Coventry Canal Conservation Area
• Whether the appeal proposal would result in satisfactory living conditions for future occupiers, with regard to noise and disturbance
Effect on Heritage Assets
The development would remove locally listed outbuildings, however, given the condition and appearance, the Inspector did not consider this to be an issue. The development would be at the rear of 175 and 177 Grange Road and would contribute to a small amount of harm by eroding the spacious setting. It was concluded that the Site would fail to preserve the character and appearance of the setting. As a result of this failure, the scheme does not accord with City of Coventry Unitary Development Plan (2001) (UDP), Policies BE9, BE11 and BE14. Considerable importance was attached to the less than substantial harm identified.
Living Conditions
It was considered that as mitigation was in place, no observed adverse effect level would be achieved in accordance with the Planning Practice Guidance and the Framework. The Inspector concluded that the scheme would result in satisfactory living conditions for future occupiers, with regard to noise and disturbance.
Conclusion
Little harm was identified to the setting of the nearby listed buildings, however as the listed buildings contribute positively to the Coventry Canal Conservation Area, considerable weight was attached to the same. It was further noted that the scheme put forward would provide environmental benefits which would enhance biodiversity which the Inspector attached the same weight. Furthermore, there would be significant social benefits as the scheme would provide additional housing with 75% of which would be affordable despite the Council already possessing a 5-year land supply. With regards to economic benefits, the scheme would provide employment and additional spending during the construction phase, which the inspector accorded to. In light of the above, the inspector concluded that public benefits would outweigh considerable weight and importance attached to the harm to the heritage assets.
10. Ring field development has been allowed permission due to the Council’s lack of five-year housing land supply in the ring fence area
Mather House & Greensands, White Road and Reading Road, East Hendred, Wantage OX12 8JE.
Appeal Ref: APP/V3120/W/16/3145234
Appeal Decision Date: 18th April 2017
Appellant: Mr Leslie Wells
Respondent: Vale of White Horse District Council
The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
Background
The appeal is made by Mr Leslie Wells against the decision of Vale of White Horse District Council. The development proposed is the erection of 75 dwellings (10 of which will be specialist accommodation for older people), communal hub for older persons’ accommodation, retention of the existing Bed & Breakfast and associated open space, with all matters reserved save for that of access.
The Inspector considered the main issues to be:
• Housing Land Supply
• Operation of housing delivery policy in the ring fence area
• The effect of the proposed development on the character and appearance of the area, the appeal site is an appropriate location for the development proposed
Housing Land Supply
The key dispute surrounded the fact about whether or not a five-year supply of deliverable housing sites could be demonstrated for the ring fence area, in which the appeal site lies. It was agreed that the five-year housing requirement figure for the ring fence area was 4,336 dwellings. The Inspector concluded that on the balance of the evidence before him, that the Council could not demonstrate a five-year supply of deliverable housing sites within the ring-fence area.
Operation of housing delivery policy in the ring fence area
It was concluded that it would be for the decision maker to come to the view as the weight attached to the of housing supply in the ring-fenced area when assessing a proposal against the development plan as a whole. The appeal site was seen to be in accordance with the relevant Spatial Strategy policies of LP2031 having regard to the requirements of Core Policy 47 where there is a lack of five-year housing land supply in the ring fence area. It is also located in an area that is identified as suitable for new housing and would meet local needs as there is no five-year supply of housing in the ring-fenced area.
The effect of the proposed development on the character and appearance of the area, the appeal site is an appropriate location for the development proposed.
It was concluded that the proposal would cause limited harm to the character and appearance of the area. As such, the proposal would be contrary to LP2011 policy NE6, insofar as there would be some detraction from views from public vantage points. Furthermore, it would conflict with saved LP2011 policy NE9, in that it would have a minor adverse effect on the landscape of the Lowland Vale. He did not consider there to be conflict with LP2031 Core Policy 44, which seeks to protect ‘key’ landscape features from harmful development. As a result of the above, he found that the development was acceptable in principle in this location.
Conclusion
The Inspector concluded that there would be some harm to the character and appearance of the area and views from the AONB. However, this harm was not considered to be significant given the changing context of the immediate area of the Greensands site and the nature of the views of it. The appeal site was considered to be in accordance with LP2031’s Spatial Strategy, “having regard to the lack of a five-year supply of deliverable housing sites in the ring fence area, and consider that this accord outweighs the limited harm to the character and appearance of the area. This is not to say that this will always be so, and other decision makers may reach a different conclusion having regard to the facts of the proposal before them, but it is in this instance”. In summary, the Inspector considered that the proposal was in accordance with the development plan when taken as a whole and that there is no weight of material considerations that would support a refusal of planning permission.
11. Sustainable location outweighed by negative social and environmental impacts
Land at Forest Hill, Tovil, Maidstone ME15 6FG.
Appeal Decision Date: 30th January 2017
Appeal Ref: APP/U2235/W/16/3157506
Appellant: Landform Developments Ltd
Respondent: Maidstone Borough Council
Appeal made under S78 of the Town and County Planning Act 1990 by Mr M Stylianides, Landform Developments Ltd against failure to give notice within the prescribed period of a decision on an application for planning permission.
Background
The proposal involves two separate elements, two blocks of flats on the Forest Hill frontage together with a group of detached, semi-detached and terraced houses in a new cul-de-sac arrangement on the main part of the site. It comprised the erection of 19 no. detached, semi-detached and
terraced houses and 10 no. flats.
The Inspector considered the main issues to be:
• The effect of the proposal on the character and appearance of the area, including its effect on trees
• Whether the relationship of the proposed dwellings and the adjacent sports court would be acceptable
• Whether the proposal would incorporate suitable sustainable drainage systems
• The effect of the proposal on ecology/biodiversity
• Whether the proposal would make adequate provision in relation to affordable housing, education, libraries and open space
The effect of the proposal on the character and appearance of the area, including its effect on trees
The proposals on the site would lead to the removal of all of the frontage vegetation and replace with hardstanding. The siting of the building would not leave any opportunity for additional planting. The Inspector noted that the three storey element would become more prominent in relation to the existing context of the site. This proposal would create an unduly hard urbanised landscape contrary to Policies ENV6 of the Maidstone Borough Wide Local Plan 2000 (MBWLP) and DM1 of the emerging Maidstone Borough Local Plan (EMBLP).
Whether the relationship of the proposed dwellings and the adjacent sports court would be acceptable
The site is located adjacent to a sports court which is used up to 22.00 hours and is lit by six floodlights and there was no dispute that excessive light spillage would result into the rear facing windows and gardens. The appellants argued that the court would only be floodlit at night when the occupiers would close their curtains and not use their rear gardens. The Inspector criticised this notion and stated that in any event, suitable mitigation should not rely upon the occupier’s own actions each time the floodlights are used.
The close proximity of the court to nearby properties would result in noise disturbance from shouting, cheering, whistles and mitigation measures would not prevent these annoyances. The close proximity of the site and the sports court would result in unacceptable living conditions for future occupiers.
Whether the proposal would incorporate suitable sustainable drainage systems
The Sustainable Drainage Assessment report submitted with the application did not set out a definitive set of proposals which would meet the necessary requirements and it is not, therefore, certain that they can be successfully incorporated into the current scheme design.
The effect of the proposal on ecology/biodiversity
Surveys submitted with the application indicate the presence of reptiles on site and the potential for bat roosting. However, the surveys required updating in order to inform the details of necessary mitigation. The Inspector concluded that without a further survey it was not clear that protected species would be adequately safeguarded by the proposal.
Whether the proposal would make adequate provision in relation to affordable housing, education, libraries and open space
The appellant did not submit a unilateral undertaking by the appeal deadline to secure commitments to affordable housing, education, libraries and open space and accordingly, the proposal would not make adequate provision. The proposals were therefore in conflict with Policy CF1 of the MBWLP together with Policies ID1 and DM13 of the EMBLP.
Conclusions
Whilst the site is identified as sustainable and would meet the needs for additional housing, the environmental and social objections that have been identified under the main issues significantly and demonstrably outweigh these benefits. This means that the proposal cannot be considered as a fully sustainable development and the presumption in favour of such development does not apply.
12. Appeal dismissed in Maidstone as the development was considered to be harmful to the living conditions of the occupiers of nearby properties.
Mulberry House, 16 Northumberland Road, Maidstone, Kent, ME15 7LJ.
Appeal Ref: APP/U2235/W/16/3150714
Appeal Decision Date: 28th February 2017
Appellant: Mr Surrinder Kang
Respondent: Maidstone Borough Council
Appeal made under S78 of the Town and County Planning Act 1990 against failure to give notice within the prescribed period of a decision on an application for planning permission.
Background
The development proposed is a two-storey rear extension and conversion of roof space into 14 self-contained flats comprising 10 x 2 bedrooms, 3 x 1 bedrooms and 1 x 3 bedrooms.
The Inspector considered the main issues to be:
• The effect of the proposed development on the living conditions of surrounding occupiers, particularly in respect of outlook
• Whether the proposal makes adequate provision for any additional need for library, and parks and leisure facilities
Living Conditions of Surrounding Occupiers
The Inspector concluded that the proposed development would be harmful to the living conditions of the occupiers of nearby properties, as the increased scale of the rear element of the proposed scheme, when compared to the existing, would protrude into the direct views from these dwellings’ first-floor, rear-facing windows. Due to this projection, the scheme was considered to be obtrusive. As such, it would conflict with the provisions of the National Planning Policy Framework (the Framework), which states that it is important to plan positively for a high quality of development (paragraph 57) and paragraph 17.
Library, Parks and Leisure Contributions
Contributions were sought to mitigate the effects of any increased demand for services. Section 106 was completed and signed by the Appellant, making a contribution of £672.22 to mitigate the impact of the use of library services by future residents, A sum of £22,050 was also sought as a contribution to park and leisure services. It was agreed that the scheme made an appropriate provision and mitigates adequately for additional library and parks and leisure demand.
Conclusion
The Inspector concluded that there was no harm given the mitigation measures presented in respect of local facilities and services. The improvement of these facilities would, in fact, benefit the wider community. Furthermore, the scheme would contribute to the supply of housing in the area, however, these benefits did not outweigh the harm presented by the living conditions of surrounding occupiers in respect of outlook.
13. Development in Catford, London refused as the harm to Culverley Green Conservation Area was considered to outweigh the public benefits provided by the scheme.
Phoebes Garden Centre, Penerley Road, Catford, London SE6 2LQ.
Appeal Ref: APP/C5690/W/16/3155510
Appeal Decision Date: 3rd March 2017
Appellant: Michael Jordan
Respondent: London Borough of Lewisham
Appeal made under S78 of the Town and County Planning Act 1990 against failure to give notice within the prescribed period of a decision on an application for planning permission.
Background
The development proposed was for the demolition of the existing buildings at Phoebes Garden Centre, Penerley Road, SE6 2LQ, and the construction of a three-storey building incorporating balconies to provide 5 x one bedroom, 15 x two bedroom and 9 x three bedroom self-contained flats, together with the provision of car parking spaces, cycle spaces and landscaped garden areas.
The Inspector considered the main issues to be:
• Whether or not the proposal would preserve or enhance the character or appearance of Culverley Green Conservation Area
• Whether or not the proposal would provide adequate living conditions for future occupiers with particular regard to private outdoor space
The effect of the Proposal on the Character and Appearance of the Conservation Area
The appeal site is a closed garden centre and is located within Curverley Green Conservation Area which is mainly Edwardian residential suburb with wide tree lined streets. It was agreed that a 3-storey building may be acceptable on the Site, however, the footprint and the mass of the proposed building would be considerable and out of keeping with the proportions in the CA. As such, the building would not be consistent with, or sympathetic to, the key characteristics which define the conservation area within which it is located. It was concluded that the scheme would not preserve or enhance the CA. The Inspector considered the harm to be less than substantial and attached great importance to the harm which would be weight against the public benefits.
Living Conditions for Future Occupiers with Particular Regard to Private Outdoor Space
The scheme would provide a communal garden and most of the apartments would be provided with private open space. The Inspector concluded the scheme would provide adequate living conditions to future residents and is compliant with Policy 3.5 of The London Plan (adopted March 2015) and Standards 26 and 27 of the Housing Supplementary Planning Guidance (adopted March 2016).
Conclusion
The Inspector concluded that even though the scheme would provide adequate living conditions for future residents and would not harm the living conditions of nearby residents – the public benefits still do not outweigh the harm caused to the Culverley Green Conservation Area. In light of this, the appeal was dismissed.
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