Expert Witness – Planning Appeal Dismissal Success

Client: Mid Devon District Council

Application Type: Expert Witness for LPA on Public Inquiry -Planning Appeal

Brief Description:

The Appeal – by Waddeton Park Limited – was against the failure of the LPA to determine within the prescribed period an Outline Planning Application for the proposed extension of an existing business park for up to 3.9ha of employment land and up to 150 residential dwellings with associated open space and infrastructure (with means of access to be determined only) . The Site – which is greenfield and in arable agricultural use – lies in the designated countryside outside, but adjacent to the settlement boundary for Tiverton as defined in the Mid-Devon Local Plan.

The issues at Appeal, as defined by the Inspector, were:

• Whether or not the Council has a 5-year housing land supply and whether or not the ’tilted balance’ was engaged in this case;
• Whether or not the location of the proposed development is acceptable having regard to adopted national and local policies; and’
• Whether or not there is sufficient infrastructure to support the appeal scheme.

The Council’s own Principal Housing Enabling and Forward Planning Officer – Arron Beecham – gave effective and authoritative evidence in relation to housing land supply, which was considered in a round table session at the Inquiry. In the Decision Letter the Inspector stated that he was satisfied that the evidence provided by the Council was robust, being drawn from a range of sources. With some minor deductions, he found that the supply equated to just over five years and, accordingly, that the normal planning balance applied as defined by Section 38(6) of the Planning and Compulsory Purchase Act 2004.

Aspbury’s evidence was concerned principally with the second issue above and with drawing the ‘planning balance’. It focussed primarily on whether demonstrable conflict with the core strategic policies of the Local Plan in itself amounted to harm of sufficient weight to justify withholding planning permission. It was common ground that the Appeal Site (AS lay outside the defined (in the adopted Local Plan 2020 [LP]) settlement boundary at Tiverton and, therefore, in the ‘Countryside’. Thus, he identified that the appeal scheme was contrary to certain strategic policies – S1, S2, S3, S4 and S14 – of the LP.

The Appellant argued, firstly, that this should not be determinative because the AS abutted the settlement boundary and, thus, met the strategic locational objectives of the LP. In this context – and secondly – the Appellant contended that the word ‘at’ in the main strategic policy of the Local Plan (Policy S1) when indicating the main settlements where development was to be located, should be given broad interpretation and not be confined to development lying within the settlement boundary. Thirdly, the Appellant asserted that, in the absence demonstrable ‘site-specific‘ harm to interests of acknowledged importance, the Council’s objection based on conflict with locational strategy of the LP was merely an ‘in principle’ /’technical one and, thus, trivial and should not be afforded weight. Fourthly the Appellant submitted that, because the Appeal proposal did not explicitly conflict with the broad objectives of the relevant strategic countryside policy (Policy S14) in the LP as set out in the first paragraph thereof, there was no material conflict with that Policy. Finally, and notwithstanding the aforementioned arguments, the Appellant argued that, in striking the planning balance, the demonstrable benefits of the proposal, of which it claimed there were a number, should be afforded significant weight and as such outweighed any harm.

In rebuttal Aspbury asserted in evidence that the strategic policies of the LP and the locational/settlement strategy they encompassed were fundamental to the integrity of the Plan and to the delivery of sustainable development and were, both up-to-date and relevant. In formulating the adopted LP, having established the appropriate and deliverable level of planned development for each major settlement, including Tiverton, it was entirely appropriate  to define a settlement boundary containing both existing- and planned/allocated development and to designate land outside those boundaries as countryside where restrictive development policies apply in a manner appropriate to what is clearly understood by such a designation – precisely what the strategic countryside policy (S14) did. Moreover, in this case, the AS possessed all the recognisable qualities of countryside. The settlement boundaries had only recently been set (given that the Plan was only adopted in 2020), and the planning policy implications thereof can reasonably be expected to endure for the life of the plan or at least one statutory review cycle. The settlement boundaries and distinction between land within them and that outside them was demonstrably intended to be clear-cut and determinative and not fluid or permeable. To put the matter in simple terms, a line has to be drawn somewhere and, having drawn that line, it should be adhered to, save in the most exceptional circumstances. In this case the boundary in question also followed well-defined natural and man-made features on the ground. To treat such boundaries as flexible and the policy distinctions they encompass as matters to be casually set aside on an ad hoc basis would undermine and subvert the LP itself and the plan-making process. Moreover, notwithstanding the wording of the preamble to Policy S14, it was clearly never intended to address major development, such as the appeal proposal, and to attempt to disaggregate/cherry pick its provisions and to manipulate them to fit the circumstances of this case is to manifestly misinterpret and misapply those provisions and stretch its application beyond the intended scope of the Policy.

Inspector Wilkinson endorsed Aspbury’s  approach, stating, inter alia, that the inclusion of the word ‘at’ within the wording of the Policy S1a) was indeed consistent with the Council’s intention to locate development within the boundaries of the three main settlements identified within the policy; these include Tiverton. He went on to aver that the Appeal raised an issue of principle as to the harm which arises from the site’s location beyond the settlement boundary.  He continued:

“38.    Policy S14 requires that development outside settlement boundaries and within the countryside should adhere to several requirements. These include the preservation and enhancement of both the character, appearance and biodiversity of the countryside. Subject to these requirements the location of housing in the countryside is predicated on local housing needs being met.”

“39.    Whilst I accept that the requirements included in the opening to Policy S14 would be met by the appeal scheme, the inclusion of 100 market dwellings goes beyond the scope of this policy in that no evidence was presented in support of why a countryside location is preferred.”

He noted that both parties accepted that the employment part of the scheme (the extension of the Business Park) complied with Policy S14b) and he found that there was, accordingly. no conflict with the ‘mirror’ development management policy (Policy DM18) in the LP. However, he then observed  this was a mixed-use scheme and the conflict with this policy (S14) arises from the size and location of the whole scheme in the countryside.

“43      A common sense reading of Policies S1, S2, S3, S4 and S14 is that they have a strategic purpose designed to direct development to within settlement boundaries with only a limited number of exceptions allowed in the countryside. “

He concluded, therefore, that the appeal scheme conflicted with Policies S1, S2 and S14 of the Mid Devon Local Plan (2020). “This conflict is more than a technical matter as the appellant suggests but goes to the heart of the adopted plan’s settlement strategy.”

Inspector Wilkinson then went on to address the material considerations, comprising: housing (including affordable housing); employment; a link from the proposed employment to an adjacent anaerobic digester; BNG; and the opportunity for the appeal proposal to provide alternative vehicular access the sustainable urban extension(SUE)  which adjoined the Appeal Site but within the settlement boundary; noting that both parties differed on the weight to apply to these considerations. He carried out his own weighting exercise. according significant weight to the provision of affordable housing and BNG whilst other matters such as market and custom/self-build housing and the link from the anaerobic digester and employment space are accorded moderate weight. He decided that that there was no conclusive evidence that the potential alternative access to the SUE was necessary or appropriate to assist in the delivery of that extension.

In relation to the third issue – infrastructure – the Inspector heard evidence  from Devon County Council as Local Education Authority and from the NHS Integrated Care Board.

Under the heading “Planning balance and conclusions”, the Inspector stated:

“81. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that planning decisions are made in accordance with the development plan unless material considerations indicate otherwise.

“82. The appeal schemes conflicts with Policies S1, S2 and S14. The breach with Policy S1a) reflects a breach with the whole policy; the criteria included in this policy cannot be cherry picked for convenience. Furthermore, I find conflict with Policy S2 given the site’s location beyond the settlement boundary. The breach with S14 lies in the amount of market housing included in this mixed Appeal scheme which exceeds local needs. No case has been made why this location is to be preferred given its location in the countryside.

“83. I accord significant weight to the provision of affordable housing and BNG whilst other matters such as market and custom/self-build housing and the link from the anaerobic digester and employment space are accorded moderate weight. The obligations included in the Undertaking are neutral in the planning balance.

“84. I acknowledge that the Council’s housing land supply just meets the 5YHL figure target and that housing requirements in both national and local policies are expressed as a minimum with no ceiling. However, the breach with adopted policies is significant and the alleged harm identified by the appellant is more than a technical matter. Given the stage in the plan period major sites have time to be completed.

“85. The appeal scheme would be in breach of three strategic policies which are central to the settlement strategy and the essential purpose of the adopted local plan. This conflict differentiates the appeal scheme from those cases cited by the appellant where the conflict with policy did not result in a conflict with the Development Plan when considered overall. In contrast with this appeal there would be a significant conflict arising from the location of major growth located away from the Cullompton as the preferred centre for growth and outside the settlement boundary of Tiverton. This degree of policy conflict is not outweighed by material considerations despite the degree of weight I accord them. Furthermore, the scheme involves the loss of Grade BMV agricultural land which I accord some weight.

“86. Finally, Paragraph 15 of the Framework identifies the Government’s support for a plan led approach, a point recently re-iterated by the Secretary of State in his letter to local planning authorities.. The appeal scheme would undermine the plan led approach.

“87. For the above reasons the appeal is dismissed.”

Aspbury Planning welcomes this decision as a ringing endorsement of the Local Planning Authority’s decision and case, of Tony Aspbury’s professional evidence, of the plan-led system generally and of the strategic objectives and polies of the MDDC LP in particular.

Full Appeal document can be accessed here