Jeremy Cahill QC and Nina Pindham successful in attaining two outline planning permissions for William Davis Ltd

Mon, 14 Apr 2014

William Davis Ltd have been successful in attaining two outline planning permissions to build 250 houses and a biodiversity park on an Area of Local Separation between the villages of Mountsorrel and Rothley, Leicestershire. The appeals, led by Jerry Cahill QC and Nina Pindham, were heard at a public local inquiry on 10, 11 and 12 December 2013. The appeals were launched against the failure of Charnwood Borough Council to issue notice of their decisions within the prescribed period in relation to two applications for planning permission:

Appeal A: construction of a maximum of 250 dwellings, replacement primary school, change of use from dwelling to medical facility, change of use from agricultural land to domestic curtilages, green infrastructure, potential garden extensions, construction of a relief road, and demolition of barns in accordance with application ref: P/12/2005/2; and

Appeal B: an area of public open space including water balancing ponds and green infrastructure in accordance with application ref: P/12/2456/2.

Though the Council did not determine the applications in time, it did later consider them at a Planning Committee Meeting. The Council would have refused the application because “the proposal would lead to the loss of an Area of Local Separation resulting in a significantly narrowed and reduced actual and perceived gap of open undeveloped land between the villages of Rothley and Mountsorrel contrary to the saved policy CT/4 in the adopted Borough of Charnwood Local Plan…and would undermine its continuing planning function”.

Appeal B was wholly acceptable as it did not conflict with the development plan.

The Secretary of State, agreeing with the recommendation of his Inspector, Harold Stephens, disagreed with the Council and granted planning permission for both appeals.

The decisions are of interest for the approach taken to housing development in an Area of Local Separation in the context of a development plan in flux and a lack of a five year housing land supply, as well as for the Inspector’s statements regarding conflicting interpretations of the NPPF in the case law.

Development Plan

Policy CT/4 was summarised by the Inspector:

“Policy CT/4 – Development in Areas of Local Separation – states that in Areas of Local Separation development would be acceptable in principle where the predominantly open and undeveloped character of the area is retained and gaps between settlements not reduced.”

Of note is that the emerging Core Strategy envisages the continued use of Areas of Local Separation, but the boundaries are to be reviewed through a Site Allocations and Development Management DPD, which is scheduled to be adopted in June 2015.

Specifically, Policy CS11 of the emerging Core Strategy indicates that the predominantly open and undeveloped character of Areas of Local Separation will be protected unless new development clearly maintains the separation between built-up areas of settlements.

Consideration of Davis and Jelson and Cotswold Decisions

The Inspector was referred to the conflicting approach to paragraph 49 of the NPPF in the High Court decisions of William Davis Limited and Jelson Limited v SSCLG and NW Leicestershire DC [2013] EWHC 3058 (Admin) (per Lang J.) (11 October 2013) and Cotswold DC v SSCLG [2013] EWHC 3719 (Admin) (per Lewis J.) (27 November 2013).

The Inspector expressed his preference with the approach taken in the latter case:

“8.19. If a choice were essential, which it is not, the SoS is invited to prefer the approach in Cotswold because the control mechanism in Policy CT/4 is clearly very relevant to the supply of housing: it represents an absolute ban on open market housing in the ALS. The effect of Policy CT/4 is therefore very relevant to the supply of housing. The approach taken in Coalville is correct to point out that paragraph 49 of the NPPF is within the housing section. However, that section presumes that there will be adequate housing provision in the plan. This is clearly not the case here and paragraph 49 needs to be read with this in mind. Furthermore, the limits to development and ALS (and Green Wedge) boundaries were all drawn in the CBCLP 2004 reflecting housing needs up to 2006 only. Housing needs are obviously greater in 2013 and the emerging CS [Core Strategy] acknowledges that the ALS boundaries will have to be redrawn as part of the Site Allocations and Development Management Policies DPD process. This also serves to demonstrate the direct link between ALS and provision of housing.”

The Secretary of State’s decision does not consider this issue.

Weight to be Attached to Conflict with Policy CT/4

The Inspector determined that provided that development does not undermine the continuing planning function of the Area of Local Separation, which he goes on to define, then a “technical breach” – i.e. development within it – is to be afforded little weight:

“8.20. At first blush the proposals are contrary to Policy CT/4 of the CBCLP. However, if the matter is considered more closely it quickly becomes apparent that the proposal would maintain an adequate area of separation between Mountsorrel and Rothley. The ALS have a strategic role and are intended to act as small, open, rural buffers whose main purpose is to prevent neighbouring settlements from merging or coalescing. If that analysis is correct and there is no breach to the purpose of Policy CT/4 then the technical breach relating to the control mechanism ought to have little weight attached to it.”

The Inspector’s subsequent statements on this issue are worth setting out in their entirety:

8.24…I conclude that the proposal would accord with a very wide range and a large number of development plan policies but it would not be consistent with a strict interpretation of Policy CT/4 of the CBCLP. The saved policies including Policy CT/4 still merit due weight as development plan policies. Although there would be some conflict with this policy, this, for the reasons stated above, would be limited. The proposed development would accord with the 3 dimensions to sustainable development set out in paragraph 7 of the NPPF.”

8.28 In my view, Policy CT/4 is inconsistent with the cost benefit analysis set out in the Colman case. It fails the paragraph 215 test and is therefore ‘out of date’ as far as paragraph 14 is concerned. The saved policies of the CBCLP are ‘silent’ within the meaning of paragraph 14 as to where the admitted housing need should be located: it only says where development cannot go. Moreover, the emerging CS itself acknowledges that Policy CT/4 is ‘out of date’ because it anticipates a review of its boundaries as part of the Site Allocations and Development Management Policies DPD.”

Conclusions

The Inspector concluded on the harm to the Area of Local Separation and on the planning balance as follows:

“8.39. For all those reasons on the third main issue I conclude that the proposed development would not significantly harm the character and appearance of the area or undermine the planning purpose or overall integrity of the wider ALS. The countervailing environmental benefits more than outweigh the loss of ALS and the limited landscape harm caused by the loss of green field land.

8.50. The balancing exercise carried out by the Appellant at page 43 of Mr Stone’s proof is compelling. It demonstrates that the case in favour of granting planning permission is overwhelming. The proposed development would deliver tangible benefits in the form of much needed market and affordable housing (30%) in an accessible location adjacent to both Rothley and Mountsorrel. Both settlements are recognised as service centres in the emerging CS. The site is well related to facilities and would further support the development of economic and social capital in the locality. The proposed relief road and traffic calming would be beneficial and the overall environmental benefits would be significant with enhanced biodiversity and new pedestrian and cycle links. In all circumstances the development represents a suitable and sustainable development where other material considerations clearly outweigh the limited development plan conflict.”

The Secretary of State agreed that, despite the acknowledged conflict with Policy CT/4, the proposed development would not significantly harm the character and appearance of the area or undermine the planning purpose or overall integrity of the wider Area of Local Separation. He also agreed that the countervailing environmental benefits, “including those arising from the landscaping proposals in the appeal scheme master plan and the careful design of the relief road to include significant areas of new planting, more than outweigh the loss of ALS and the limited landscape harm caused by the loss of green field land.”

A link to the Secretary of State’s decision and the Inspector’s recommendation can be found here.

Please click here to view Jeremy Cahill QC and Nina Pindham's profiles.

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