Ian Dove QC and Nina Pindham success: Planning Permission and Partial Costs against unreasonable behaviour of Council

Tue, 18 Feb 2014

Marston’s PLC have been successful in attaining outline planning permission to build 300 houses on Forest Road in Branston, Burton-upon Trent. The appeal, led by Ian Dove QC and Nina Pindham was heard at a local inquiry on 23 July, 12 and 17 September 2013. The inquiry was in connection with an appeal against the failure of the Council to issue a notice of their decision within the prescribed period on an application for residential development including means of access, woodland, amenity planting and open spaces for approximately 300 dwellings on 17.16 hectares of land off Forest Road, Burton upon Trent. Following which the inspector produced a report recommending the appeal be allowed and outline planning permission granted. The appeal was also subject to the Secretary of State’s determination, which followed the recommendation and conclusions of the Inspector.

A successful costs application was also made on the basis of the Council’s unreasonable behaviour in producing at a very late stage prior to the opening of the Inquiry on 23 July 2013 an entirely new case in relation to their five-year land supply for housing. The inspector recommended that a partial award of costs should be made, to reflect the additional expense incurred by the appellants in responding to the Council’s late change in its case, between 11 July and 2 September 2013.

Main Issues

Having regard to the Secretary of State’s reasons for recovering the appeal, to the reasons for objection to the proposal by the Council and others, and to the evidence and other submissions to the Inquiry, The inspector considered the main issue in the appeal to be:

Whether, if there is less than a five-year supply of developable housing land, the proposal would amount to a sustainable form of development in accordance with national and local policy, having particular regard to:

- The suitability of the site for residential development, with respect to its location outside identified settlement boundaries;

- The effect on landscape character and appearance.

Housing Land supply

It is common ground between the main parties to the appeal that the Council cannot demonstrate a five-year supply of deliverable housing land. Following the withdrawal of its substitute evidence, and as agreed in the SoCG, the Council tendered no evidence on the matter. The analysis shows that there is an indisputable need for further housing sites to be found and that the Council are unable to show that they have discharged the duty under the Framework to address and meet objectively assessed housing requirements in full. The policy consequence is that the appeal proposal derives very substantial support.

Character and appearance of the area

The appellants argued that the only harm that the Council had in effect identified to be placed in the planning balance against the benefits of the proposal was harm to the landscape. That suggestion needs to be put in its policy context. Structure Plan Policy NC2 has been revoked. There is no other policy upon which the Council can place any particular reliance. The site is not the subject of any landscape designation whether at a local or national level. When the Council was considering the proposals for the emerging Local Plan they clearly did not regard landscape issues as presenting a significant constraint at Burton and did not commission a landscape study to inform their decisions. This was presumably on the basis that landscape issues were unlikely to be determinative.

The main points of the Council’s case were: The appeal proposal, by virtue of its size and location, would cause an adverse major impact on the landscape character of the site and should be dismissed. Located on a greenfield site, covering 17.16ha of agricultural land, the proposed development would be both too large and too stark. It would be outside the development boundary and would represent a divergence from the existing pattern of ribbon development that leads westwards out of Burton. The stark imposition of a new neighbourhood of 300 dwellings would be visible from surrounding viewpoints and would harm their visual amenity. The Council submitted that, although it could not demonstrate a five-year housing land supply, this appeal should be dismissed because the harm to the landscape and to visual amenity outweighs any benefits of the scheme.

Site suitability - The Council’s first notional reason for refusal of the application related to the site’s location outside the identified settlement boundary for Burton upon Trent, and the inappropriateness of development to the rural character of the area. Reference was made to saved LP Policies BE1 and NE1, and also to saved SP Policy H11, which has since been cancelled. The Council no longer sought to defend this potential ground for refusal. It accepted at the Inquiry that LP Policy NE1 is now out-of-date.

The inspector concluded that there were strong material considerations to outweigh the development plan objection to the development of land outside the settlement boundary. The site immediately adjoins the defined boundary. Although somewhat removed from the main built–up area, the established developed character of Forest Road provides a strong link to the town centre. It is not disputed that the location is sustainable in terms of access to local services and employment, including by public transport. The SoCG records that there are no objections to development on grounds of noise, air quality, ecology or ground conditions, and the inspector found no evidence to the contrary. Subject to the resolution of other issues considered below, the site would be suitable in principle for development.

Landscape character and appearance

The Council’s written evidence was based on criticisms of the Landscape and Visual Appraisal submitted with the application. Following the completion by the appellants’ expert of a full Landscape and Visual Impact Assessment (‘LVIA’) the areas of dispute narrowed considerably, and principally related to the longer – term effects of development. There would be a change in character from the existing largely open fields, particularly evident during the construction phase and the early years post- completion, but over time the design measures proposed would successfully mitigate impacts. For that reason the inspector endorsed the appellants’ expert assessment of the medium to long-term effect on landscape character as major but neutral or even moderately beneficial, rather than that of the Council, which has tended to over-state the impacts. There is no evidence to support the Council’s concern that extensive fencing or retaining walls would form persistently harmful landscape features in the medium to long term or that significant loss of trees and hedgerows would occur

The site is not prominent in the wider landscape. The inspector was able to visit the longer- range viewpoints identified in the appellants’ LVIA, which were agreed at the Inquiry as being comprehensive. He found that the site has very limited presence in views from public vantage points to the north of Forest Road. The development would be seen from the public footpath and open access land near Sinai Park to the south, but in the context of the existing Aviation Lane/Henhurst Ridge houses and play area, with which it would align, and well screened by proposed tree planting. Perimeter screening and intervening hedgerows would also be effective in softening views from Aviation Lane itself.

Thus the inspector concluded that any major adverse effects of the proposal would be confined to the short term and that in the long term it would not have significant adverse effects on landscape character or visual amenity. The scheme would be well designed to respond to the characteristics of the site and the surrounding landscape, and in that regard would comply with LP Policy BE1 and with the guidance of the Framework.

Other matters

Flood risk - The potential risk near the proposed western access, where the existing watercourse would pass under the proposed road, could be addressed by the detailed design of the access. The inspector concluded that the proposal would comply in this respect with the guidance of the Framework.

Subject to the measures of a Construction Management Plan and traffic calming measures on Forest Road, the inspector concluded that the proposal would comply with saved LP Policy T1, which requires new development not to harm the safe and efficient use of the highway network, and with the guidance of the Framework, which advises that development should only be prevented on transport grounds where the residual cumulative impacts would be severe88.

Conditions

The list of agreed and disputed conditions was discussed at the Inquiry, where it was further agreed that several of the proposed conditions could be amalgamated to avoid duplication. The inspector agreed that these consolidated agreed conditions, subject to some minor amendments in the interests of greater precision as now set out in Annex 1 to this report, would be reasonable and necessary for the reasons given and would otherwise meet the tests of the Framework and of Circular 11/9589. Obligations enforceable by the Council would relate to affordable housing, open space and tree planting.

Overall Conclusions

For the reasons set out above, the inspector concluded that the proposal would provide a sustainable form of development. The settlement boundaries protected by the development plan must be considered out-of-date. The acknowledged shortfall in housing supply indicates a short-term need to provide additional land in sustainable locations, while the emerging longer-term strategy shows that substantial greenfield releases will be required. Any harm to landscape character and appearance would be mainly confined to the short to medium term. Subject to final resolution at reserved matters stage, the proposal would provide a well-designed solution that respects its landscape context. Subject to the resolution of conditions, other aspects of the scheme would be controlled to ensure satisfactory outcomes, including surface water drainage. The predicted performance of the sustainable drainage solution should in fact result in some modest benefit to flooding issues downstream of the site. Other impacts on infrastructure would be adequately mitigated by the agreed planning obligations. The proposal would produce substantial benefits in the form of additional housing, including much needed affordable housing, and new open space, accessible both to existing and proposed residents of the area. The proposal’s benefits would outweigh the immediate harm to the landscape by the development of currently open land. In accordance with the guidance of paragraph 14 of the Framework, planning permission should be granted.

Please click here to view the profiles of Ian Dove QC and Nina Pindham

Related articles

In her article published today in the New Law Journal, “Duty of care: Inadequate safety nets?"...

Date: Fri, 19 Jul 2019
Top barristers and eminent speakers in the field of immigration are due to address legal experts in Birmingham and London...

Date: Wed, 12 Jun 2019
Visitors to an award-winning Birmingham museum can discover more about the attraction’s artefacts...

Date: Tue, 30 Apr 2019