TOWN AND COUNTRY PLANNING ACT 1990
SECTION 78 APPEAL
LAND OFF TEWKESBURY ROAD AND REAR OF COLLEGE ROAD
BREDON WORCESTERSHIRE
GLADMAN DEVELOPMENTS LTD
PINS REF: APP/H1840/A/14/2222679
LPA REF: W/13/02148/OU
_____________________________________________________________________
OPENING ON BEHALF OF WYCHAVON DISTRICT COUNCIL
_____________________________________________________________________
1.
On the 19th June 2014, the Planning Committee of Wychavon District Council
refused permission for an outline application for planning permission on the above
named site. The description and details of the site are set out in the statement of
common ground.
2.
The site is outside the settlement boundary of Bredon, in conflict with the
Development Plan, ( GD1) but this was not a reason for refusal.
3.
The Bredon Conservation Area lies to the north of the appeal site, just beyond
the College Road development, which neighbours the appeal site. The Conservation
Area includes a number of listed buildings, particularly St Giles Church and the Tithe
Barn. Both of these are Grade 1 listed buildings of great significance.
4.
The M5 motorway runs 220 metres to the west and affords very well known
long distance views across to the village. Tewkesbury Road itself runs directly towards
Bredon from the south affording long distance views towards the village.
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5.
Local
The Development Plan comprises the saved policies of the Wychavon District
Plan
2006
and
the
Waste
Core
Strategy.
The emerging South Worcestershire Development Plan is still at a relatively early stage,
and can only be afforded limited weight in this Inquiry.
6.
The Council’s reasons for refusal are set out at CD 5.01. The Council has
withdrawn RfR 2, and an additional statement of common ground has been completed,
dealing with the issues of noise levels and visual impact of noise mitigation measures
that were contained within RfR 2. What has been referred to as RfR 4 is not a separate
reason for refusal containing any different issues, as is perfectly plain from its wording.
It is a conclusion based on the other RfR’s and does not present any separate
controversial issue for this Inquiry.
7.
Reasons for refusal 1 and 3 remain in issue. The policies engaged by RfR 1 are
ENV12 and ENV14, pertaining to heritage assets, and the policies engaged by RfR 3
are GD2, GD3, SR5, and COM 12, relating to appropriate planning obligations. The
Council’s case is that the proposed development is contrary to those policies, and
therefore contrary the Development Plan.
Section 38(6) of the Planning and
Compulsory Purchase Act 2004 states that determinations should be made in
accordance with the Development Plan in decisions of this nature.
8.
The Appellants argue that the Development Plan should be ousted in favour of
the NPPF. The Appellants make a determined effort to invoke Paragraph 14 in
particular, and the presumption in favour of permission. They clearly perceive that they
need the presumption to attempt to counter-balance the powerful protection that Grade
1 listed buildings attract.
9.
The Appellants take, however, a very surprising approach to Paragraph 14 in
this appeal. Rather than focussing on the more standard argument that the Council does
not have a five year housing land supply and therefore Para 49 provides the gateway to
Para 14, the Appellants rather creatively try to set up an argument whereby the DP is
“absent” and doesn’t exist at all. This is a rather extraordinary approach, and a
fundamentally flawed argument that rests upon a misinterpretation of the law. The
Wychavon District Local Plan and the Waste Core Strategy comprising the
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Development Plan are manifestly and obviously not “absent”. No individual policy of
the WDLP is “absent”, and the Appellants has used the wrong categorisation under
Paragraph 14 to advance their case. The only rational argument to be had is as to
whether the DP or any policy within it is “out of date”. The argument that the entire DP
is “out of date” purely because it is time expired is also a flawed and discredited
argument, that has been rejected numerous times now in other appeals and in High
Court caselaw. The Appellants in advancing their arguments have ignored that.
10.
The argument that individual policies in the DP are “out of date” also fails.
Policy GD1 was not a reason for refusal, but has, in most recent relevant appeals in
Wychavon, properly been found to be up to date and in conformity with the NPPF in
directing development to sustainable locations.
11.
There are no housing supply policies engaged by the reasons for refusal, but, in
any event, housing supply policies are not ‘out of date’, because the Council has a five
year housing land supply. This has now been confirmed twice, in very recent times by
other
Inspectors
in
appeal
decisions
on
almost
identical
evidence.
The figure for the OAN is now robust, because supplied by the Plan Inspector, Roger
Clews, after extensive testing of the evidence and consultation. That figure is now
unassailable as the proper OAN. Any other figure, suggested by the Appellant, is
clearly “policy on”, and, according to the principles in Hunston and Solihull v
Gallagher, inappropriate to consider as the OAN. The Appellant has confused “housing
need” with “housing requirement”, as clearly set out in Solihull v Gallagher.
12.
The Council’s approach to calculating its housing supply has been abundantly
cautious and robust, and as a result, it is fully entitled to rely upon its conclusions,
including such calculation issues as windfalls, lapse rates and the appropriate approach
to past undersupply.
13.
The Appellant now bears the additional burden of inviting this Inquiry to go
against those two recent appeal decisions (Cheltenham Road, Bredon; Averill Close,
Broadway). The Council’s case on supply is fully justifiable and there is no reason why
it should not find favour in this Inquiry as it has done twice before, this year. This
relegates previous appeals in Wychavon to history, in manifestly different contexts.
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Heritage Assets - RfR 1.
14.
The Appellants argue that policies ENV12 and ENV 14 should be afforded
little weight in this process because their wording does not conform to NPPF guidance.
This does not provide the Appellants with much advantage or support, given the
stringency of the NPPF guidance on heritage assets itself, and the powerful statutory
protection under the Planning (Listed Buildings and Conservation Areas) Act 1990 Act,
as interpreted and confirmed in caselaw; ( notably, recently Barnwell Manor).
15.
In the words of the Appellant’s heritage witness, Mr Beardmore himself, ( para
4.2):
“The Courts have held that the overarching duty in respect of listed buildings ( section
66 of the 1990 Act) establishes a strong presumption against the granting of planning
permission if any harm ( even less than substantial harm) would be caused to the setting
of listed buildings or to the character or appearance of conservation areas”. [ Emphasis
added].
16.
It hardly matters where the test and protection derive from - whether DP
policy, NPPF, statute or caselaw – the message is the same, and the protection equally
forceful. Any harm will strongly militate against the development, and it certainly
does so in the circumstances of this appeal. It does not help the Appellants even if
they could invoke the Para 14 presumptions – firstly, in favour of sustainable
development generally, because the statutory presumption in favour of listed
buildings and their settings would easily overcome that. Nor, secondly, even where
the special Para 14 presumption is engaged in circumstances where the DP is absent,
silent or out of date. Even then, the presumption shifts so that permission should be
granted unless harm significantly and demonstrably outweighs benefits. With the
kind of ‘special regard’ and additional weight to the harm afforded by the statute, this
balance is tipped decisively against the development as well.
17.
The long list of reasons why Paragraph 14 does not assist the Appellant also
includes the fact that footnote 9 excludes the Paragraph 14 presumption of granting
permission where specific policies in the framework indicate that development should
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be restricted. Policies relating to designated heritage assets are specifically named in
footnote 9. Section 12 of NPPF undoubtedly “indicates” that development should be
“restricted” by virtue of the great weight that should be afforded to the conservation of
heritage assets, and that “any harm” should weigh against any benefits of the proposal.
18.
The Appellants’ only option is to argue that there is no harm to the assets at all,
which they do; resoundingly unpersuasively. With English Heritage adamantly against
the Appellants’ position, firmly supporting the Council’s position, the proposition of
making out a case of “no harm” is a tall order indeed.
Planning Obligations – RfR 3.
19.
The Council seeks planning obligations to ensure that the development
proposals meet the objectives of sustainable development and do not impose
unacceptable impact on the community and environment.
20.
At the time of writing, no s106 agreement had been concluded.
The Appellant’s position appears to be that they are willing in principle to enter into
planning obligations, as referred to in the RfR3, but have yet to do so, and in any event,
they remain unpersuaded as to the CIL compliancy of the required obligations, and are
challenging every element on that basis.
The Council has demonstrated CIL
compliance, and has attempted to answer every challenge that the Appellant has raised,
although, for the most part, the challenges are renewed and ongoing which has made
life very difficult.
21.
The Appellant prefers to offer a condition to secure affordable housing, instead
of a s.106 obligation. The Council acknowledges that it is possible to do so in some
circumstances, but has considerable concern over enforceability issues in this matter,
which will have to be carefully considered. The Council advances its position that
agreement to planning obligations is the most appropriate course in this case.
The Sustainability Balance
22.
The planning balance exercise is undertaken with the ultimate view to
establishing whether the development under consideration is “sustainable”. Only
sustainable development should get planning permission, and that is the correct
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interpretation of the totality of the NPPF. The upshot of the caselaw on the correct
approach, set out in its simplest terms, may be taken from Dartford Borough Council
v Secretary of State for Communities and Local Government [2014] EWHC 2636:
Patterson J:
“49.
It is said in paragraph 6 of the NPPF that the policies set out in paragraphs
18-219, taken as a whole, constitute the Government's view of what sustainable
development means in practice for the planning system. "Sustainability" therefore
inherently requires a balance to be made of the factors that favour any proposed
development and those that favour refusing it in accordance with the relevant
national and local policies. However, policy may give a factor particular weight, or
may require a particular approach to be adopted towards a specific factor; and, where
it does so, that weighting or approach is itself a material consideration that must be
taken into account.”
23.
This is the definitive approach to the “sustainability” question, and the Council
does not seek to put forward any controversial or different approach. To the extent that
Mr Waters in his evidence for the Appellant attempts to deconstruct some more
convoluted and dubious argument, he is doing no more than setting up a straw man,
only to knock it down again. This is a wasted effort. There is nothing controversial
about the approach that the Inquiry should take to these issues.
24.
At the conclusion of all these matters, the Inquiry will be respectfully asked to
uphold the Councils’ reasons, and dismiss this Appeal.
Sarah Clover
Kings Chambers
9th March 2015
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