Ian Dove QC Attains Planning Appeal Success for 116 new dwellings in Nuthall, Nottingham

Thu, 16 Jan 2014

Langham Park Developments have been successful their appeal against Broxtowe Borough Council to construct housing on the land adjacent to Hempshill Hall, Nottingham.

The appeal, led by Ian Dove QC from No5 Chambers, was allowed following an inquiry in November 2013.

The appeal site was a 6.5ha area of land adjacent to Hempshill Vale estate, bordered by the A600 Low Road and A610 dual carriageway. It surrounds three sides of the grounds of ‘the Hempshill Hall Group’ (a group of listed buildings including; the Hall, farmhouse, barn and stable range). It also has trees and woodland areas within and adjacent to the site, part of which is identified as a Site of Importance for Nature Conservation (SINC), and some trees subject to a Tree Preservation Order. 

There were a number of proposed changes to be addressed. In particular; the alignment of the proposed tram route through the site, the use of embankments in place of criblock walling, and full affordable housing provision within the site as opposed to the initial off-site intention.

The inspector, Mrs K Ellison, outlined the main issues of the appeal as follows;

i)       The effect of the proposal on the character and appearance of the site and its surroundings, including the nearby listed buildings of the Hempshill Hall Group;

ii)      Whether the proposal made appropriate provision for the potential extension of the Nottingham Express Transit (NET) system;

iii)     Whether a five year supply of housing land could be demonstrated and its implications;

iv)    Whether any part of the proposal should be regarded as inappropriate development in the Green Belt;

v)     Whether the proposal would accord with national policies for the provision of housing; taking into consideration any adverse impacts and any benefits.

Issue 1: character and appearance

The three fields are predominantly opens areas of grassland within a woodland framework. Their immediate context is dominated by the local road network, particularly the A610 which is the main route into Nottingham and carriers significant volumes of traffic. A number of residential properties within the Hempshill Vale estate have views towards the site but, with the exception of the public footpath, which passes through the site, views from public vantage points are quite limited.

The loss of openness would be particularly obvious to users of the public footpath, most notably in relation to the open views presently available across the northernmost field but also at the point the footpath would cross over the access road. However, the site generally sits at a lower level than surrounding land so that any development within it would not be particularly conspicuous.

The inspector considered that, notwithstanding the severity of the harm in relation to openness, there would be a relatively limited impact on the contribution, which the site makes to the visual amenity of the area as a whole.

It was common ground that there were no objections from the Council in relation to designated heritage assets. Nevertheless, and in apparent contradiction of this position, it was part of the Council’s case that the harm to the POA arose, to some degree, on the basis of its contributions to the setting of listed buildings. In this regard, the Heritage Impact Appraisal submitted in support of the proposal also states that the development would impact on the setting of all the listed buildings, a point confirmed at the Inquiry by the Appellant’s witness.

Hempshill Hall Farmhouse sits immediately to the north of the Hall and faces west, towards Area 1 of the proposed development. There are views towards the farmhouse from the adjacent public right of way. Whilst the modern properties of Barn Close crowd up to the eastern boundary, there is a direct visual relationship between the farmhouse and this field. Its open, agricultural character therefore continues to make an important contribution to the setting of this building. In this respect, the Inspector noted that the POA designation was extended to include Area 1 through the 1994 Local Plan.

The third element of the group, the Barn and Stable Range, sits to the north of the farmhouse. These buildings have been converted to residential use and are separated from the adjacent public footpath by a brick wall with the result that they have very little visual connection with the appeal site. Although the relationship between the barns and the fields is still discernible in longer distance views the field identified as Area 1 makes a limited contribution to their setting.

This part of the site would contain suburban housing developed at a higher density than the other areas, with dwellings and domestic gardens abutting the public footpath. In conjunction with the development along Haise Court, the approach to the farmhouse, barn and stable range would become wholly suburban. Whilst a small area of open space would be provided between plots 14 and 15, which would permit some medium range views of the farmhouse, and stable range, the Inspector considered that the setting of these listed buildings would be much diminished, particularly since the farmhouse would no longer enjoy any visual connection to the countryside.

The A610 where it passes the appeal site is a dual carriageway, which connects Nottingham to the M1 and is clearly the major route into the city, notwithstanding that it may also be possible to approach the city along Low Wood Road. There is a rural quality to that stretch of the A610 from the M1 to the Nuthall roundabout. However, once past the roundabout views towards the tree belt are mainly experienced within the context of high levels of traffic and associated congestion in and around the roundabout. Thus, the locality is already beginning to take on the characteristics of the city outskirts, a location where an acoustic fence would not seem out of place. Moreover, a number of examples have been provided of potential screening to the fence, including planting, which would enable it to be assimilated within the tree belt. For this reason, the Inspector considered that the presence of an acoustic fence along the roadside would not detract unduly from the character or appearance of the locality, provided care was taken as to its visual impact. This could be dealt with through a suitably worded condition.

The Inspector found that the proposal would have a significant adverse effect on the function of the POA with regard to the loss of an effective break within the built–up area. Harm would also occur in relation to the setting of the listed buildings, especially to the Hall and Farmhouse, with a more limited degree of harm to visual amenity generally. The Inspector also found that on some parts of the site the development would be likely to give rise to pressure from occupants for a reduction in tree cover and this may have further adverse implications for the setting of Hempshill Hall and the amenity value of the trees themselves as well as the character and appearance of the area. Although the proposed area of open space would represent an enhancement of the present recreational opportunities, this would be sufficient, in his view, to outweigh the adverse effects identified. On balance therefore, the Inspector concluded on this issue that the proposal would have an adverse effect on character and appearance of the site and its surrounds. It would detract from the character and function of the POA, contrary to Local Plan E12.

Issue 2: The potential extension of the NET system

Local Plan policy T6 supports proposals that facilitate the expansion and operation of the NET system into the Borough and does not permit development which would inhibit its extension. Only the route for phase two is identified on the Policies Map. However, the supporting text discusses the NET system as a whole and makes specific reference to an eventual route towards Kimberley, noting that this could be an extension of the Phoenix Park spur. The policy itself is framed in general terms, which appears to reflect the wider analysis set out in the supporting text. In his mind therefore, the safeguarding provisions of the policy should be taken to be of general application within the Borough, so that the policy is relevant to the appeal proposal.

In such circumstances, the Inspector thought it was necessary to consider both the desirability of the potential extension and the prospects of it coming forward.

The Council were unable to identify any specific reference to the Kimberley extension in the emerging Local Plan. Moreover, it was confirmed at the Inquiry that the only technical assessment of a tram route from Phoenix Park westwards to Kimberley is that prepared in 200111, when it was concluded that the justification for such a route was undermined by the lack of a strong patronage base. However, that study also concluded that infrastructure costs were competitive and recommended that a corridor be safeguarded. The Council points out that the area is currently anticipated to be the focus of substantial residential development, with sites at Eastwood and Kimberley having potential for up to 2000 homes, indicating that the prospects are good for a stronger patronage base in the foreseeable future. Given the conclusions of the 2001 study, the Inspector considered this would add to the desirability of the extension.

Taking all of these factors into account, the Inspector considered that the potential extension to Kimberley should be regarded as both desirable and enjoying reasonable prospects of being brought forward. In his view therefore, it was appropriate to have regard to the question of whether the proposal might prejudice the implementation of the extension.

At the time of its decision, the Council’s view was that the proposal failed to reserve a feasible alignment for the NET system. At the Inquiry, it was confirmed that although the revised layout provided an acceptable alignment in principle, objections remained in relation to the suitability of the safeguarded corridor and the construction and operation of a tramway within the proposed area of residential development.

Issue 3: Whether a five-year supply of housing land can be demonstrated

The Council’s Core Strategy is under examination at present. It has been prepared and is being examined in conjunction with two other authorities, Nottingham City and Gedling Borough. The Aligned Core Strategies identify the overall housing requirement to 2028 and seeks to manage the delivery and distribution of this across three authorities. The Inspector examining the Aligned Core Strategies has stated that she considers the overall requirement of around 30,550 to be sound. At the time of the Inquiry, her findings were not available as to the soundness of those aspects of the policy, which set out the quantum for Broxtowe, and its rate of delivery.

There was some dispute at the Inquiry as to the reliance, which could be placed on some of the sites, which the Council identified as deliverable in the period 2014-2019, as well as its reliance on windfall sites. However, even at best the identified supply of 1,783 indicates the supply stands well short of the five year requirement. As the Appellant states, the shortfall in the five-year housing supply is incapable of remedy without the grant of consents. In that context, it seems to me, the provision of 116 dwellings should be viewed as an important contribution to the supply of housing in the Borough and should carry significant weight.

Issue 4: the Green Belt

Since the most suitable point of access for the site would be from Low Wood Road, the Inspector considered that the access would represent local transport infrastructure, which requires this particular Green Belt location so that it is not inappropriate under the terms of national policy. However, although the fence would reduce noise levels associated with the road network, it would not be required directly for the operation of that network. The requirement would arise from the need to protect the living conditions of future occupants of the proposed residential development. To the Inspectors mind, therefore, the fence could not fairly be described as local transport infrastructure. Consequently, this element of the proposal would constitute inappropriate development in the Green Belt, which, by definition, would be harmful. Although there would be some harm to openness, the Inspector had already noted in relation to the impact on the POA that this would be slight.

Issue 5: Whether the proposal, taken as a whole, would accord with national policies for the provision of housing

The Inspector found that the proposal would be contrary to Local Plan policy E12 due to its impact on the POA and to policy E8 with regard to that part of the site which is within the Green Belt. Whilst some aspects of the development would facilitate the expansion of the NET, in other ways it would be likely to add to the costs and challenges of establishing a route through the site. The Inspector considered that the proposal would have a neutral effect overall in relation to policy T6.

For the Appellant it was contended that in any event the extension of the NET through the POA under policy T6 would substantially destroy the purpose of the POA designation, once account is taken of the built form of the tram corridor, the severance effect and the noise and disturbance from a regular tram service through the site. Although such a development would lead to some reduction in openness, the Inspector considered that this would not be so extensive as to mean that it would no longer fulfil its ability to act as a break in the built-up area. As such, the Inspector considered that the two policies are not in conflict so that the standing of policy E12 is not altered in this regard.

Taking all of these matters into account, The Inspector concluded that the proposal did not accord with the development plan as a whole.

In the Inspectors Judgement, the public benefits in relation to housing and open space would be sufficient to outweigh the harm to the setting of the listed buildings. Although not a piece of local transport infrastructure, the supporting information provides a clear locational justification for the acoustic fence. Together with the other benefits identified, the Inspector considered that this would be sufficient to clearly outweigh the limited nature of the harm to the Green Belt, so as to support a finding that there are very special circumstances to Justify this development. In the round therefore, the adverse impacts of the proposal would not significantly and demonstrably outweigh the benefits when assessed against the Framework taken as a whole. From this, it follows that the proposal would accord with national policy for the provision of housing.

Conclusions

Although the Inspector found that the proposal would be contrary to the Broxtowe Local Plan, the relevant policies are out of date. When the proposal is considered against the policies in the Framework taken as a whole, the adverse impacts would not significantly and demonstrably outweigh the benefits.

For the reasons given above therefore, I conclude that the appeal should succeed.

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