Ian Dove QC of No 5 Chambers secured a victory, on 19th March 2012, for his client, Swindon Gateway Partnership, in an appeal against the decision of Swindon Borough Council refusing planning permission for the erection of up to 890 residential dwellings on land at Commonhead to the South of Marlborough Road, adjoining Great Western Hospital, Swindon SN3.

In a proposal that impacts the Government’s objective to secure a better balance between housing demand and supply, and create high quality, sustainable, mixed and inclusive communities, the Secretary of State agreed with the Inspector’s opinion, overturned Swindon Borough Council’s refusal and granted outline planning permission. 

Prior to addressing the largely unmeritorious grounds on which planning permission was refused, Mr Dove QC, who was instructed by Pegasus Planning Group, emphasised, in his submissions, the Inspectors’ and Secretary of State’s previous endorsements of proposals on the same site. Earlier proposals for the site, which were endorsed in 2005 and 2009, were materially the same in all but size. Since the parameters in terms of relevant policies were directly comparable, further weight was offered to making a decision in favour of ¬¬granting the appeal. Failure to regard them was proposed to be unlawful. 

Swindon Borough Council had claimed that Swindon Gateway Partnership’s proposal was premature, would lead to increased levels of traffic and significantly impact the North Wessex Downs Area of Outstanding Natural Beauty. 

On appeal, Mr Dove QC submitted, in response to a prematurity objection, that a decision had to be made in line with the acceptability of the site as a whole; that waiting for plans, in line with the Ministerial Statement Planning for Growth of 23 March 2011, was no longer an excuse for refusal with regard to schemes which meet identified needs on their merits. 

The very small increase in traffic was found to be insufficiently serious so as to amount to unacceptable harm to the highway. Traffic-calming measures in Liddington, when introduced, will create a material beneficial behaviour of traffic.

The scheme was amended through discussions with Natural England and the AONB Board, which provided compromise on building height and offered buffer tree planting, so as to secure the visual amenity of North Wessex Downs AONB. 

Arguments were raised, by third parties, that sought to protect the site on the basis of literary associations with writer Richard Jefferies. The Local Plan Inspector, and subsequently Secretary of State, found the links to be insufficiently strong to overturn the long history of the land’s use for development purposes; furthermore, no efforts were made to define or protect the site as heritage land.

Despite inevitable and large opposition, no new material considerations were raised by third parties and the Secretary of State did not feel that local opposition was of sufficient weight to prevent the appeal from succeeding. Sustainability measures were imposed to protect concerns.

There is a very substantial need for affordable housing in the area of proposed development. It was evident that no less than 20.9% of all households in Swindon were, prior to this proposal, unable to purchase a market home. This serious failure to provide all of the community with a home, among other advantages, outweighed considerations forwarded in objection to the proposal. 

It is for these reasons that the Secretary of State accepted the Inspector’s recommendation to grant planning permission.

Appeal Ref: S/10/0842/IH was successfully made under section 78 of the Town and Country Planning Act 1990. 

Ian Dove QC is a member of the Planning Group at No5 Chambers. This set offers a national planning service and is home to “some of the finest barristers in the country”, according to Chambers UK 2011. Chambers explains that No5’s domination of the Midlands’ circuit is founded upon “a specialist team that can act on any planning issue that comes its way” and Ian Dove QC is commended for being “outstanding” (Chambers UK).