Appeal Ref: APP/U1105/A/12/2180060 Land east of Butts Road, Higher Ridgeway, Ottery St. Mary, Devon, EX11 1EP.
Ian Dove QC, instructed by Nathaniel Lichfield and Partners, was successful in appealing the decision of East Devon District Council to refuse Redrow Homes’ proposed development of 130 open-market and affordable houses, public open space, with associated infrastructure and the retention of existing allotments.
The two main issues comprised shortfall in the five-year housing land supply (HLS) and loss of agricultural land of best and most versatile quality.
The Inspector found merit in the Appellant’s argument that the more recent household projections, which formed part of the evidence base to the draft Regional Spatial Strategy (RSS) for the South West (which was independently examined), provide a more reliable basis on which to assess housing land supply. It was agreed, as a result of persistent undersupply, that there too would be a 20% buffer. 
The Council’s calculations produced 5.7 years of HLS, while the Appellant put it at just 3.6 years. 
Housing Land Supply
The Inspector found the rates predicted by the Council in relation to the Cranbrook new development to be exaggerated and the figure in terms of completion to be far nearer that supplied by the Appellant. In terms of large sites with clear acknowledged development potential he again concurred with the Appellant that in the context of Footnote 11 to the Framework most, if not all, are not deliverable and should not be included within the housing supply assessment. The Inspector further found the Appellant’s windfall figure to be more soundly based than the Council’s considerably higher figure. The Appellant argued that the proposed strategic allocations in the emerging LP, which will not be adopted until 2014, should not be included. The Inspector agreed, stating that, “it is by no means certain that the Plan would be adopted in its current form or that the emerging strategy will be found sound… Moreover, many, if not all, of these allocated sites are subject to the same or similar housing/settlement policies as the appeal site.” As a result of constraints the figure for proposed non-strategic small site allocations was also found to be very much lower than that predicted by the Council. 
The Inspector found that on a district-wide basis there was less than a 5 year HLS but even if a disaggregated approach was adopted, which was suggested by the Council on the basis that ‘the rest of East Devon’ (within which this site falls) has greater than a 5 year HLS, there is no cogent evidence to show any harm in allowing the proposal.
In reaching these findings the Inspector made the following general observations:
–    Some permissions for small-scale housing are obtained for valuation purposes only
–    House builders operate in a very competitive market where it could be in their interests to exaggerate sales estimates in order to thwart a rival
–    The use of average annual completion rates are relevant
–    An allowance for windfalls should be made in assessing 5-year HLS
–    There needs to be permission in place for sites to be available to contribute to five-year supply; and
–    There is an overall need to significantly boost the supply of housing
Agricultural Land 
Since the proposal entails the permanent loss of about 4.1 ha of the best and most versatile quality farmland, the Inspector had to grapple with questions of the significance and acceptability. Policy provisioned that in order for non-agricultural development to be permitted, the over-riding need for the development in that location must outweigh the need to protect such land. However, this policy was based upon national planning guidance that is no longer extant.
In line with the NPPF, the Inspector found that there was no cogent evidence put before him to refute the assessment made by the appellant’s agricultural consultant, who submitted that the site has no specific economic or other benefits to justify withholding permission.
Overall the Inspector concluded that in weighing the evidence there was a compelling case for releasing the site and there were no adverse impacts that would significantly and demonstrably outweigh the benefits of the scheme.
Please click here to view the profile for Ian Dove QC