Case Reference: 3169314

Timothy Waller Our ref: APP/Y0435/W/17/3169314
Waller Planning Ltd
Suite A, 19-25 Salisbury Square
Old Hatfield
Hertfordshire
AL9 5BT
25 June 2020
Dear Sir
TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 78
APPEAL MADE BY [APPELLANT]
LAND TO THE EAST OF NEWPORT ROAD AND TO THE EAST AND WEST OF
CRANFIELD ROAD, WOBURN SANDS, BUCKINGHAMSHIRE MK17 8UH
APPLICATION REF: 16/00672/OUT
1. I am directed by the Secretary of State to say that consideration has been given to the
report of Tom Gilbert-Wooldridge BA (Hons) MTP MRTPI IHBC, who held a public local
inquiry from 14 - 23 January 2020 into your client’s appeal against the decision of Milton
Keynes Council to refuse your client’s outline application, with all matters except the
means of access reserved for subsequent approval, for residential development of up to
203 dwellings, a doctor’s surgery, open space and landscaping, together with pedestrian,
cycle and vehicular access from Newport Road and Cranfield Road and supporting
infrastructure, in accordance with application ref: 16/00672/OUT, dated 20 July 2016.
2. On 31 October 2017, this appeal was recovered for the Secretary of State's
determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town
and Country Planning Act 1990.
3. The Secretary of State initially issued his decision in respect of the above appeal in his
letter dated 5 December 2018. That decision was challenged by way of an application to
the High Court and was subsequently quashed by order of the Court dated 14 June 2019.
The appeal has therefore been redetermined by the Secretary of State, following a new
inquiry into this matter. Details of the original inquiry are set out in the 5 December 2018
decision letter.
Inspector’s recommendation and summary of the decision
4. The Inspector recommended that the appeal be dismissed.
5. For the reasons given below, the Secretary of State agrees with the Inspector’s
conclusions and agrees with his recommendation. He has decided to dismiss the appeal.
Ministry of Housing, Communities & Local Government Tel: 0303 444 1626
Jean Nowak, Decision Officer Email: PCC@communities.gov.uk
Planning Casework Unit
A copy of the Inspector’s report (IR) is enclosed. All references to paragraph numbers,
unless otherwise stated, are to that report.
Matters arising since the close of the inquiry
6. On 18 May 2020, the Secretary of State wrote to the main parties to afford them an
opportunity to comment on a letter from Milton Keynes Council dated 12 May 2020 which
included a recent appeal decision relating to Rectory Farm, Woburn Sands Road, Bow
Brickhill, Milton Keynes, MK17 9JY. A list of the representations received in response to
this letter is at Annex A. These representations were circulated to the main parties on 27
May 2020 and 3 June 2020. The Secretary of State is satisfied that all representations
received have been given full and due consideration, and no other new issues were
raised in this correspondence to warrant further investigation or necessitate additional
referrals back to parties. Copies may be obtained on written request to the address at the
foot of the first page of this letter.
7. In his letter of 16 August 2019, confirming the reopening of the inquiry, the Secretary of
State explained that one change in circumstance he considered material to the
redetermination was the announcement by Highways England, in September 2018, that
corridor B (central option) had been selected as the preferred corridor for the Oxford-
Cambridge Expressway (IR1.16). The Secretary of State has noted that, in March 2020
Highways England announced that work had paused on the Oxford-Cambridge
Expressway while they undertook further work on other potential road projects that could
support the government ambition on the Oxford-Cambridge Arc
(https://highwaysengland.co.uk/project-update-12-march-2020/). The Secretary of State
has also noted that none of the parties have made representations to him on this
announcement. The Secretary of State does not consider the pausing of the work raises
any matters that would require him to refer back to the parties for further representations
prior to reaching his decision on this appeal.
Policy and statutory considerations
8. In reaching his decision, the Secretary of State has had regard to section 38(6) of the
Planning and Compulsory Purchase Act 2004 which requires that proposals be
determined in accordance with the development plan unless material considerations
indicate otherwise.
9. In this case the development plan consists of Plan:MK 2016-2031 (Plan:MK), Woburn
Sands Neighbourhood Plan 2014 (WSNP) and Site Allocations Plan 2018 (SAP). The
Secretary of State considers that relevant development plan policies include those set out
at IR3.3-3.9.
10. Other material considerations which the Secretary of State has taken into account include
the National Planning Policy Framework (‘the Framework’) and associated planning
guidance (‘the Guidance’).
11. In accordance with section 66(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990 (the LBCA Act), the Secretary of State has paid special regard to the
desirability of preserving those listed buildings potentially affected by the proposals or
their settings, or any features of special architectural or historic interest which they may
possess.
Main issues
Housing Land Supply
12. The Secretary of State has considered the Inspector’s analysis at IR12.4-12.64. For the
reasons given at IR12.8-12.12 the Secretary of State agrees with the Inspector that it is
acceptable that the evidence can post-date the base date provided that it is used to
support sites identified as deliverable as of 1 April 2019 (IR12.11). Like the Inspector, the
Secretary of State does not consider it necessary to apply a 1 October 2019 base date
(IR12.12). For the reasons given at IR12.13-12.15, the Secretary of State agrees with
the Inspector that a proforma can, in principle, provide clear evidence of a site’s
deliverability (IR12.14). The Secretary of State also agrees with the Inspector that it
would not be appropriate to automatically disregard all the sites owned by Homes
England and Milton Keynes Development Partnership (IR12.15). For the reasons given at
IR12.16-12.25 the Secretary of State agrees with the Inspector that there is no reason to
apply a greater discount than the Council’s rate (IR12.19). The Secretary of State agrees
with the approach the Inspector has taken to prior approval sites in this case (IR12.22).
13. The Secretary of State has noted that the Globe and Castlethorpe Road appeal decisions
came to different conclusions on whether the Council could demonstrate a 5-year
housing land supply (HLS) (IR12.23), but he agrees that, as the Inspector’s conclusions
in this case are based on the evidence before him, this should be regarded as being
sufficient to explain any difference from the findings of the Castlethorpe Road or Globe
Inspectors (IR12.25).
14. The Secretary of State has considered the Inspector’s assessment of disputed sites at
IR12.26-12.60. For the reasons given, the Secretary of State agrees with the Inspector
that the Council can demonstrate a HLS of 5.5 years for the base date of 1 April 2019
(IR12.61). The Secretary of State has also noted that the Inspector finds that, for a base
date of 1 October 2019, there would be a 5-year HLS of 5.99 years (IR12.62). However,
as already indicated in paragraph 12 above, the Secretary of State agrees with the
Inspector that it is not necessary to apply a 1 October base date. The Secretary of State
also agrees with the Inspector that the Council’s Scenarios 2 and 3 do not affect his
findings on HLS (IR12.63-64).
15. Overall, the Secretary of State agrees with the Inspector’s conclusion at IR12.65 that the
Council can demonstrate a 5-year supply of deliverable housing sites whichever
approach is taken in terms of the base date, and even with the application of the
Council’s lapse rate.
16. The Secretary of State has noted that, in their correspondence of 26 May 2020 and 12
June 2020, the appellant has referred to the potential impact of the current Covid-19
pandemic on house building. He has also noted that the appellant submitted a document
with their correspondence of 26 May 2020 issued by the Council entitled ‘Rectory Farm
decision and the Implications for Five-Year Housing Land Supply’, published on 29 April
2020. The Secretary of State considers that, as the quantification in that document is
based on the appellant’s modelling using a past event and they have not put forward
specific evidence about the deliverability of individual sites, it does not affect his
judgement in this case.
The location of the development
17. For the reasons given at IR12.66-12.71 and IR12.74, the Secretary of State agrees with
the Inspector that the location and type of the appeal development does not comply with
Policies DS1, DS2 and DS5 of Plan:MK and WSNP policies WS5 and WS6. He further
agrees that there is no inconsistency with the Framework in terms of how WSNP Policies
WS5 and WS6 seek to safeguard the countryside and direct developments to specific
locations, and that these policies can be given significant weight (IR12.71). The
Secretary of State agrees with the Inspector that the housing would not be in an
appropriate location having regard to the development plan and national policies
(IR12.74). He further agrees that the conflict with the development plan in terms of the
location of the proposal carries substantial weight (IR12.101).
18. For the reasons given at IR12.72 the Secretary of State agrees with the Inspector that the
proposal does not conflict with the development plan insofar as the proposed Oxford to
Cambridge Expressway is concerned. He also agrees with the Inspector that there is no
conflict with the development plan or other reason to refuse the proposal in relation to the
East-West rail project (IR12.73).
Housing Density
19. For the reasons given at IR12.75-12.82, the Secretary of State agrees with the Inspector
that the final density figure cannot be established at this point (IR12.78). Like the
Inspector the Secretary of State considers that, while the final layout and density of the
development has yet to be fixed, a scheme based on the illustrative layout with a density
of 16-20dph would be relatively low but would be acceptable in this instance for this
location. It would balance an efficient use of land with respecting the surrounding
character and setting and so would accord with Plan:MK Policy HN1 and NPPF
paragraph 122 (IR12.81).
Other matters
Best and most versatile agricultural land
20. For the reasons given at IR12.83 the Secretary of State agrees with the Inspector that the
loss of Grade 3a agricultural land within the site would conflict with Plan:MK Policy NE7.
However, the Secretary of State also agrees with the Inspector that this would not, in
itself, be a reason for refusal and carries only moderate weight (IR12.99).
Ecology and drainage
21. For the reasons given at IR12.84-12.87 the Secretary of State agrees with the Inspector
that the development would not have an unacceptable effect on ecology or protected
species (IR12.86). The Secretary of State further agrees that the development offers the
means to alleviate current drainage problems through additional attenuation and the use
of a suitable maintenance regime (IR12.87). The Secretary of State considers that the
environmental enhancement of ecology and the provision of drainage measures to try to
address existing problems are benefits which should be afforded moderate weight
(IR12.97).
Highways and parking
22. The Secretary of State notes that the appellant’s updated Transport Assessment
development (IR12.88 and IR12.96). For the reasons given the Secretary of State
agrees with the Inspector that only limited weight can be afforded to any highway benefits
(IR12.96).
Facilities and services in Woburn Sands
23. For the reasons given at IR12.89, the Secretary of State agrees with the Inspector that
there is little evidence to indicate that the development would have an unacceptable
impact on services and facilities in Woburn Sands.
Heritage assets
24. For the reasons given at IR12.90-12.91 the Secretary of State agrees with the Inspector
that the development would result in less than substantial harm to the significance of the
Grade II listed Deethe Farmhouse. He also agrees with the Inspector that the level of
harm would be low due to the existing setting and the proposed mitigation measures.
Nevertheless, paragraphs 193 and 194 of the Framework state that great weight should
be given to the conservation of listed buildings and any harm weighed against the public
benefits (IR12.91).
25. The Secretary of State also agrees with the Inspector that, given the existing screening
and distances involved, there would be no harm caused to either the Grade II listed park
and garden at Wavendon House or the Grade II* Wavendon House itself (IR12.92).
Character and appearance of the landscape
26. For the reasons at IR12.93 the Secretary of State agrees with the Inspector that the
development would have a very limited effect on the character and appearance of the
landscape. Therefore, the Secretary of State affords little weight to any harm.
Other benefits
27. For the reasons given in IR12.94 the Secretary of State agrees with the Inspector that the
provision of affordable housing beyond the minimum policy requirement should carry
significant weight. The Secretary of State also agrees with the Inspector that the
provision of market housing should be afforded significant weight given the potential
number of dwellings that could be delivered and the eagerness of the appellant as a
small to medium sized developer to deliver housing as swiftly as possible.
28. The Secretary of State agrees with Inspector that there are a range of economic benefits
(IR12.95) and affords these moderate weight. For the reasons given in IR12.97 the
Secretary of State agrees with the Inspector that little weight can be afforded to the
appellant’s claim of a high-quality living environment given the limited information at
outline stage and the policy requirement that all development should be high quality.
Planning conditions
29. The Secretary of State has given consideration to the Inspector’s analysis at IR11.1-11.2,
the recommended conditions set out at the end of the IR and the reasons for them, and
to national policy in paragraph 55 of the Framework and the relevant Guidance. He is
satisfied that the conditions recommended by the Inspector comply with the policy test
set out at paragraph 55 of the Framework. However, he does not consider that the
imposition of these conditions would overcome his reasons for dismissing this appeal and
Planning obligations
30. Having had regard to the Inspector’s analysis at IR11.3-11.5, the planning obligation
dated 27 February 2020, paragraph 56 of the Framework, the Guidance and the
Community Infrastructure Levy Regulations 2010, as amended, the Secretary of State
agrees with the Inspector’s conclusion for the reasons given in IR11.6 that the obligation
complies with Regulation 122 of the CIL Regulations and the tests at paragraph 56 of the
Framework. However, the Secretary of State does not consider that the obligation
overcomes his reasons for dismissing this appeal and refusing planning permission.
Planning balance and overall conclusion
31. For the reasons given above, the Secretary of State considers that the appeal scheme is
not in accordance with Plan:MK Policies DS1, DS2, DS5 and NE7 and WSNP policies
WS5 and WS6, and is not in accordance with the development plan overall. He has gone
on to consider whether there are material considerations which indicate that the proposal
should be determined other than in accordance with the development plan.
32. Weighing in favour of the proposal, the Secretary of State affords the provision of
affordable housing significant weight and also affords the provision of market housing
significant weight. The economic benefits are given moderate weight, and the Secretary
of State also gives moderate weight to ecology and drainage benefits. The Secretary of
State affords limited weight to any highway benefits; and little weight to the appellant’s
claim of a high quality living environment..
33. Weighing against the proposal, the Secretary of State considers the housing would not
be in an appropriate location having regard to the development plan and national policies.
He further considers that the conflict with the development plan in terms of the location of
the housing carries substantial weight as it would not accord with the spatial strategy in
Plan:MK. The Secretary of State affords moderate weight to the loss of BMV agricultural
land. The Secretary of State gives little weight to any harm to the landscape or character
of the area.
34. The Secretary of State has considered whether the identified ‘less than substantial’ harm
to the significance of the Grade II listed Deethe Farmhouse is outweighed by the public
benefits of the proposal. In accordance with the s.66 duty, he attributes considerable
weight to the harm. The public benefits have been summarised in paragraph 32 of this
letter.
35. Overall the Secretary of State agrees with the Inspector at IR12.98 that the benefits of
the appeal scheme are collectively sufficient to outbalance the identified ‘less than
substantial’ harm to the significance of the Grade II listed Deethe Farmhouse. He
considers that the balancing exercise under paragraph 196 of the Framework is therefore
favourable to the proposal
36. The Secretary of State considers that other matters covered in this decision letter are
neutral in the planning balance.
37. Overall the Secretary of State considers that the material considerations in this case
indicate a decision in line with the development plan – i.e. a refusal of permission.
38. The Secretary of State therefore concludes that the appeal should be dismissed and
planning permission refused.
Formal decision
39. Accordingly, for the reasons given above, the Secretary of State agrees with the
Inspector’s recommendation. He hereby dismisses your client’s appeal and refuses
outline planning permission, with all matters except the means of access reserved for
subsequent approval, for residential development of up to 203 dwellings, a doctor’s
surgery, open space and landscaping, together with pedestrian, cycle and vehicular
access from Newport Road and Cranfield Road and supporting infrastructure, in
accordance with application ref: 16/00672/OUT, dated 20 July 2016
Right to challenge the decision
40. A separate note is attached setting out the circumstances in which the validity of the
Secretary of State’s decision may be challenged. This must be done by making an
application to the High Court within 6 weeks from the day after the date of this letter for
leave to bring a statutory review under section 288 of the Town and Country Planning Act
1990.
41. A copy of this letter has been sent to Milton Keynes Council and Woburn Sands Town
Council.
Yours faithfully
Jean Nowak
Authorised by the Secretary of State to sign in that behalf
Annex A Schedule of representations
Party Date
Milton Keynes Council 12 May 2020
Representations received in response to circulation of the Milton Keynes Council
correspondence dated 12 May 2020
Party
Waller Planning Ltd on behalf of [APPELLANT] 26 May 2020
Woburn Sands Town Council 26 May 2020
Milton Keynes Council 2 June 2020
Waller Planning Ltd 12 June 2020
Report to the Secretary of State for
Housing, Communities and Local
Government
by Tom Gilbert-Wooldridge BA (Hons) MTP MRTPI IHBC
an Inspector appointed by the Secretary of State
Date 27 March 2020
Town and Country Planning Act 1990
Milton Keynes Council
Appeal by Wavendon Properties Limited
Inquiry Held on 14-17 and 21-23 January 2020
An accompanied site visit was undertaken on 20 January 2020
Land to the east of Newport Road and to the east and west of Cranfield Road, Woburn Sands,
Buckinghamshire MK17 8UH
File Ref: APP/Y0435/W/17/3169314
https://www.gov.uk/planning-inspectorate
CONTENTS Page
1. Procedural Matters 4
2. The Site and Surroundings 9
3. Planning Policy 9
4. Planning History 13
5. The Proposal 13
6. Other Agreed Facts 15
7. The Case for the Appellant 17
8. The Case for Milton Keynes Council 36
9. The Case for Interested Parties 53
10. Written Representations 55
11. Conditions and Obligations 56
12. Inspector’s Conclusions 58
13. Inspector’s Recommendation 77
Annex 1: Suggested Conditions 78
Annex 2: Appearances 85
Annex 3: Documents 86
https://www.gov.uk/planning-inspectorate Page 2
GLOSSARY
APPxx Appellant’s proofs of evidence for redetermined inquiry
APS Annual Position Statement
BMV Best and most versatile agricultural land
CD Core Document
CIL Community Infrastructure Levy
DL Secretary of State’s first decision letter
dpa Dwellings per annum
dph Dwellings per hectare
EIA Environmental Impact Assessment
GPDO The Town and Country Planning (General Permitted Development)
(England) Order 2015
ha Hectare
HLS Housing land supply
ID Inquiry Document
IR The first Inspector’s report
LPAxx Council’s proofs of evidence for redetermined inquiry
LVA Landscape and Visual Assessment
MKDP Milton Keynes Development Partnership
MOU Memoranda of Understanding
NLP Nathanial Lichfield & Partners
NPPF National Planning Policy Framework
OB Optimism bias
PINS The Planning Inspectorate
Plan:MK Plan:MK 2016-2031, adopted March 2019 as a development plan
document for Milton Keynes
PPG Planning Practice Guidance
RID Redetermined Inquiry Document
S106 A legal agreement made under Section 106 of the Town and Country
Planning Act 1990
SAP Site Allocations Plan 2018
SEMK South East Milton Keynes site
SME Small and medium-sized enterprises
SOCG Statement of Common Ground
SoS Secretary of State
SPD Supplementary Planning Document
SPG Supplementary Planning Guidance
TA Transport Assessment
TCPA 1990 The Town and Country Planning Act 1990
TPO Tree Preservation Order
WSNP Woburn Sands Neighbourhood Plan
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File Ref: APP/Y0435/W/17/3169314
Land to the east of Newport Road and to the east and west of Cranfield
Road, Woburn Sands, Buckinghamshire MK17 8UH
• The appeal is made under section 78 of the Town and Country Planning Act 1990 against
a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Milton Keynes
Council.
• The application Ref 16/00672/OUT, dated 20 July 2016, was refused by notice dated
5 December 2016.
• The development proposed is an outline planning application with all matters except the
means of access reserved for subsequent approval described as ‘residential development
of up to 203 dwellings, a doctor’s surgery, open space and landscaping, together with
pedestrian, cycle and vehicular access from Newport Road and Cranfield Road and
supporting infrastructure’.
• This report supersedes that issued on 2 February 2018. The original decision on the
appeal was quashed by order of the High Court.
Summary of Recommendation: That the appeal be dismissed.
1. Procedural Matters
1.1. This section is based on the first Inspector’s report and has been updated as
necessary.
Summary of appeal chronology
1.2. The original inquiry into this appeal opened on 11 July 2017 and closed on 19
July 2017. Although requests that the appeal be determined by the Secretary
of State (SoS) were refused in August 20171, the SoS subsequently directed
that he should determine this appeal himself in letters dated 31 October
20172. The original Inspector’s report was submitted on 2 February 2018 with
a recommendation to allow the appeal and grant planning permission subject
to conditions. The SoS disagreed and dismissed the appeal3. The appellant
challenged the decision in the High Court. The decision was quashed by order
of the High Court on 14 June 20194 and sent back to the SoS for
redetermination. The SoS decided to re-open the inquiry, which opened on 14
January 2020 and ran for 7 days. The inquiry was closed in writing on 28
February 2020 once outstanding documents were received, including a
completed and executed Section 106 (S106) agreement.
The proposal in outline
1.3. The appeal site extends across almost 15.2ha. It consists of about half a dozen
fields, often enclosed behind mature hedges and trees, that wrap around the
assorted residential streets and cul-de-sacs that project behind Newport Road
and either side of Cranfield Road at the northern end of Woburn Sands. The
main part of the town lies to the south beyond the Bletchley to Bedford railway
line and a level crossing. The proposal is made in outline with all matters
except the means of access reserved for subsequent approval. An illustrative
1 ID26
2 ID27
3 CD10.33
4 CD10.34
https://www.gov.uk/planning-inspectorate Page 4
layout plan and a parameters plan5 show how up to 203 dwellings and a
doctor’s surgery could be laid out across the site along with associated
landscaping and open space.
The application and the Council’s decision
1.4. The original planning application was reported to the Council’s development
control committee on 1 December 20166. In the absence of sufficient housing
land being identified as available to meet requirements over the next 5 years,
the scheme was recommended for approval, subject to conditions and the
execution of a S106 Agreement securing contributions towards the provision of
health and education facilities, parks, play and community facilities, together
with the maintenance of open space. The reasons for the recommendation
were as follows:
“With the lack of a five year housing land supply, the strategic policies of the
Development Plan are out of date, as outlined by the National Planning Policy
Framework. Having weighed all other matters, the proposed development is
considered to represent a sustainable form of development in terms of its
social, environmental and economic functions and the proposed development is
therefore acceptable in principle. Access to the site is considered appropriate
and would not put undue pressure on the local road network and there are no
other fundamental issues that would warrant a refusal of the application. All
other detailed matters would be considered under reserved matters applications
at a later date. In the light of these comments and the report above, approval
is recommended.”
1.5. However, the committee decided to refuse the application contrary to the
recommendation. The reasons for refusal were7:
1. The Committee resolved to refuse planning permission on the basis that any such
development of this site would result in the loss of future development and
infrastructure options, causing significant and demonstrable harm and is therefore
not sustainable development in accordance with Resolution 24/187 of the United
Nations General Assembly definition of sustainable development and the National
Planning Policy Framework (NPPF) in respect of future generations. The
development would also therefore be contrary to paragraphs 14 and 19 of the
National Planning Policy Framework, Saved Policy D1 of the adopted Milton Keynes
Local Plan 2001-2011 (adopted 2005) and policy WS5 of the Woburn Sands
Neighbourhood Plan 2014-2026 (adopted 2014). This does not constitute
sustainable development in terms of paragraph 14 of the National Planning Policy
Framework.
2. Furthermore the low density of this proposed development would not be considered
sustainable given the current objectives of central government and this Council to
both optimise use of land and to build both quickly and strategically.
1.6. In the Council’s Statement of Case for the first inquiry, the first reason for
refusal was effectively amended to read:
1. The development would be contrary to policy WS5 of the Woburn Sands
Neighbourhood Plan 2014-2016 ([sic] adopted 2014). This does not constitute
5 CDs1.4, 1.5 and 1.7
6 CD3.2
7 CD3.4
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sustainable development in terms of paragraph 14 of the National Planning Policy
Framework.
The reasons for recovery
1.7. An initial request to recover this appeal for determination by the SoS was
made on the basis that the development exceeded the threshold of 150
dwellings and on whether the Liverpool or Sedgefield method of calculating the
available provision for housing was the ‘correct’ approach to adopt in this case;
that request was refused on 30 August 20178. However, the SoS subsequently
directed that he should determine this appeal himself in letters dated 31
October 20179. The reason for recovery was that:
… the appeal involves proposals for residential development of over 150 units or on
sites of over 5 hectares, which would significantly impact on the Government’s
objective to secure a better balance between housing demand and supply and create
high quality, sustainable, mixed and inclusive communities.
The need for Environmental Impact Assessment (EIA)
1.8. Although this ‘urban development project’ falls within the descriptions set out
at paragraph 10b of Schedule 2 and exceeds the thresholds in column 2 of the
Town and Country Planning (Environmental Impact Assessment) (England and
Wales) Regulations 2015, the Screening Opinion issued by the Council on 7
December 2016 indicated that the effects were likely to be mainly local and,
given that the site was not in a specially sensitive location, that an
Environmental Statement was not necessary, bearing in mind the advice in
Schedule 3 to the Regulations. Accordingly, the scheme is not EIA
development and an Environmental Statement is not required. Nevertheless,
the application was accompanied by the following documents10:
• Planning Statement
• Design and Access Statement
• Transport Assessment (TA)
• Flood Risk Assessment
• Archaeology Report
• Tree Survey
• Landscape and Visual Assessment (LVA)
• Ecology Assessment
• Protected Species Report
• Noise Survey and supplementary report
• Statement of Community Involvement
• Sustainability Statement
• Geo-environmental Audit
1.9. The appellant’s evidence to the second Inquiry included updates to the
Ecological Assessment, the TA, and the Sustainability Statement, as well as
updates to the Heritage Assessment and Economic Benefits Statement that
had been presented to the first Inquiry11.
8 ID26
9 ID27
10 CD1.10-CD1.29
11 APP9
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Public consultation12
1.10. Pre-application discussion with Council officers together with statutory and
non-statutory consultees preceded the application; meetings were held in
December 2015 and February 2016. As a result, the intention to pursue a low
density scheme, creating a ‘soft edge’ to the settlement, was endorsed. In
addition, the link road through the site between Newport Road and Cranfield
Road was considered to help relieve congestion at the junction beside the level
crossing. Technical evidence was requested, relating to noise emissions from
the Deethe Farm Industrial Estate, surface water drainage, ecological
assessments and the setting of the Grade II listed Deethe Farmhouse.
1.11. A public consultation event (publicised in advance) was held in the Summerlin
Centre, Woburn Sands on Friday 22 January 2016. This attracted 218 people.
Concerns were raised about the existing junction between Cranfield Road and
Newport Road, considered unsafe and subject to congestion, particularly when
the level crossing was closed, and the need for traffic calming on Newport
Road and Cranfield Road. There was support for the low density and the large
gardens proposed and for the possibility of an additional doctor’s surgery to
ease perceived capacity problems at the existing facility.
1.12. Discussions with officers continued after the submission of the scheme and a
revised illustrative site layout responded to specific points made at a meeting
in June 2016. In addition, an LVAwas undertaken, surveys of protected
speciescarried out and the TA updated.
The first Inspector’s report13
1.13. The first Inspector’s report (IR) dated 2 February 2018 recommended that the
appeal be allowed and planning permission granted subject to conditions. The
Inspector concluded that a 5 year housing land supply (HLS) could not be
demonstrated and the development plan policies pulled in both ways at a
location he considered to be sustainable (IR9.48). He concluded on matters
relating to the character of the landscape and surrounding area, the setting of
the listed farmhouse, the traffic, car parking and facilities in Woburn Sands,
housing density, ecology, and drainage (IR9.49), and considered that these
matters were not sufficient to prevent a sustainable housing development from
proceeding especially in the absence of a 5 year HLS (IR9.50). Weighing up
the harms against the benefits, he concluded that the planning balance was
firmly in favour of the proposed development (IR9.51-IR9.55).
The SoS’s decision14
1.14. The SoS’s decision letter (DL) dated 5 December 2018 agreed with the
Inspector on matters such as the effect of the development on the character of
the area (DL27), heritage assets (DL28), traffic, parking and facilities in
Woburn Sands, ecology, and drainage (DL30). He disagreed regarding the 5
year HLS and concluded that the supply was approximately 5.9-6.2 years
(DL15-18). He also disagreed regarding housing density and concluded that
there was conflict with the relevant development plan policy (DL24-26).
12 Document 11 and CD1.28
13 CD10.33
14 CD10.33
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Weighing up the benefits of the scheme against the adverse impacts including
the conflicts with the development plan (DL34-37), he disagreed with the
Inspector’s recommendation and concluded that the appeal should be
dismissed.
High Court challenge
1.15. The appellant appealed to the High Court on 6 grounds. It succeeded in the
case of 2 which related to the SoS’s findings in relation to the estimated
deliverable supply of housing. The Court found that the SoS had failed to
provide adequate reasons in relation to the HLS figure adopted in his decision.
As a consequence, the decision was quashed in a judgment15 dated 14 June
2019 and the appeal returned to the SoS for redetermination.
Re-opening of the Inquiry
1.16. The SoS wrote to parties on 16 August 201916 confirming that the inquiry
would be re-opened. He considered that there had been significant changes in
circumstances since the first Inquiry which were material to the
redetermination of the appeal. These included:
• The adoption of a new local plan (Plan:MK) with the associated
identification of housing expansion areas;
• The announcement by Highways England, in September 2018, that
corridor B (central option) had been selected as the preferred corridor
for the Oxford-Cambridge Expressway; and
• Changes to national policy and guidance.
1.17. A Pre-Inquiry meeting was held on 1 November 2019 which was followed by a
note17 setting out the likely main issues and how they would be addressed. At
the meeting, the Council provided a note18 updating the reasons for refusal to
reflect changes in national and local policy. The updated reasons are as
follows:
(1) The development by virtue of its location would be contrary to spatial policies DS1
(Settlement Hierarchy), DS2 (Housing Strategy) and DS5 (Open Countryside) of
Plan:MK 2016 – 2031 (adopted March 2019) and to policy WS5 of the Woburn Sands
Neighbourhood Plan 2014-2026 (adopted 2014). This does not constitute sustainable
development in terms of paragraph 11 of the National Planning Policy Framework
(2019).
(2) Furthermore, the low density of this proposed development would not be
considered sustainable given the current objectives of central government and this
Council to both optimise use of land and to build both quickly and strategically,
contrary to policy HN1 (Housing Mix and Density) of Plan:MK 2016 – 2031 and
paragraph 122 of the National Planning Policy Framework (2019)
1.18. The second Inquiry was held on 14-17 and 21-23 January 2020. I carried out
an accompanied site visit on 20 January 2020. On the same day, I also carried
out unaccompanied visits to locations in the surrounding area including within
15 CD10.34
16 CD10.42
17 CD10.44
18 CD12.3
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Woburn Sands as highlighted on the site visit itinerary19. The Inquiry closed in
writing on 28 February 2020 once all outstanding documents, including the
completed and executed Section 106 agreement, had been received.
2. The Site and Surroundings
2.1. The following summary of the site and its surroundings is based on Section 2
of the first Inspector’s report and the Statement of Common Ground (SOCG)20
submitted to the second Inquiry which provides a number of updates.
2.2. The appeal site is almost 15.2ha. It consists of about half a dozen arable and
pasture fields to the east of Newport Road and to the east and west of
Cranfield Road. Part of the site is designated as Grade 3a agricultural land21 in
the Agricultural Land Classification. To the north is the former Wavendon Golf
Academy which closed in 2018 and is laid out as a golf course with a formal
parkland character. Further to the north of the former academy is the Grade
II* listed Wavendon House and a Grade II registered park and garden of the
same name which was designated on 1 November 2019. To the east is
agricultural land and to the south and west are residential properties at
Parkway, Hillway, Tavistock Close and Ridgeway as well as the car park of the
Wyevale Garden Centre. The site wraps around the Deethe Farm Industrial
Estate. Deethe Farmhouse is listed Grade II and sits in the southern corner of
the estate with commercial shed-type buildings to the north.
2.3. Internal boundary features include hedgerow and scrub. Mature trees and
hedgerows bound the Newport Road and Cranfield Road frontages and the
northern boundary with the former golf academy. A hedgerow also marks the
boundary with a public footpath which runs through the site between the
former golf course and the industrial estate. A Group Tree Preservation Order
(TPO) protects trees at the proposed access point with Newport Road. A wider
Area TPO22 was designated on 8 January 2020 on land which includes the
appeal site.
2.4. The site lies on the northern edge of Woburn Sands and beyond the
development boundary for that settlement. The site is split between the
parishes of Woburn Sands and Wavendon. There are neighbourhood plan areas
covering both parishes although only Woburn Sands has a made
neighbourhood plan. Woburn Sands is a small town with a range of shops and
services including schools and a medical centre. There are bus links to Milton
Keynes and a railway station on the line between Bedford and Bletchley. There
are plans to upgrade the railway line as part of the east-west rail link between
Cambridge and Oxford, while the area surrounding Woburn Sands is within the
preferred corridor for the Oxford to Cambridge Expressway road proposal.
3. Planning Policy
3.1. The relevant development plan documents for this appeal now comprise
Plan:MK 2016-2031 (which has replaced the Milton Keynes Local Plan 2001-
2011 and the Milton Keynes Core Strategy 2013) and the Woburn Sands
19 RID14
20 RID06
21 RID24 and LPA4
22 TPO1
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Neighbourhood Plan 2014 (WSNP). There is also the Site Allocations Plan 2018
(SAP) which is of relevance for some of the disputed HLS sites (see subsequent
sections of this report).
3.2. The National Planning Policy Framework (NPPF) was updated in February 2019
and a new section on housing supply and delivery in the Planning Practice
Guidance (PPG) was published in July 2019.
Plan:MK23
3.3. The appeal site lies adjacent to one of only 3 key settlements (Woburn Sands,
Newport Pagnell and Olney) in the rural area of Milton Keynes as identified by
Plan:MK. They comprise the second tier of the settlement hierarchy in Policy
DS1 and are considered to be the most sustainable rural settlements taking
into account their population, constraints, transport links and the capacity of
services within each town. Policy DS1 states that most new development
within the rural area will be concentrated within these 3 settlements.
3.4. Policy DS2 sets out Plan:MK’s housing strategy and seeks to deliver a
minimum of 26,500 dwellings across the Borough of Milton Keynes over the
plan period. The policy states that new housing development will be focused
on, and adjacent to, the existing urban area of Milton Keynes as well as the 3
key settlements. There are 13 criteria within the policy setting out how this
development will be delivered.
3.5. Policy DS5 defines open countryside as all land outside the development
boundaries defined on the Policies Map. Planning permission in the open
countryside will only be granted for development which is essential for
agriculture, forestry, countryside recreation, highway infrastructure or other
development, which is wholly appropriate to a rural area and cannot be located
within a settlement, or where other policies within this plan indicate
development would be appropriate.
3.6. Policy HN1 covers housing mix and density. Part C states that net densities of
proposals for 11 or more new dwellings should balance making efficient use of
land with respecting the surrounding character and context, and that higher
density development will be encouraged in locations with good accessibility to
facilities, that are well served by public transport, and where it can be
accommodated by existing or improved infrastructure.
3.7. Although not mentioned in the updated reasons for refusal, Policy NE7 is
referenced in the Council’s planning proof of evidence which seeks to protect
the best and most versatile agricultural land (land in grades 1, 2 and 3a meet
this definition in the NPPF). In assessing proposals for greenfield sites, the
policy states that the Council will take into account the economic and other
benefits of such land. Development involving the loss of agricultural land
should seek to use areas of poorer quality land (grades 3b, 4 and 5) in
preference to that of a higher quality unless other sustainability considerations
suggest otherwise.
Woburn Sands Neighbourhood Plan24
23 CD5.31
24 CD5.3
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3.8. A small part of the site between Hillway and Ridgway falls within the boundary
of the WSNP area25. Policy WS5 states that the preservation of the countryside
setting, existing woodland and footpath links into the countryside is key to the
future of Woburn Sands. The policy goes onto to state that accordingly no
extension to the current Woburn Sands Development Boundary will be
permitted other than in the following exceptional circumstances:
• Plan:MK identifies a specific need for an amendment to the Development
Boundary, and
• Any proposed amendment is brought forward following full consultation
with, and agreement by, Woburn Sands Town Council, and
• The implications of any revised Development Boundary has been
assessed in terms of the need to protect and maintain the character and
countryside setting of Woburn Sands.
3.9. Although not mentioned in the original, amended or updated reasons for
refusal, Policy WS6 was referenced at the second Inquiry. It states that
existing housing developments in Parklands and on the Greens’ site are
expected to meet the needs for large scale housing development in Woburn
Sands during the plan period. It goes on to state that additional housing in the
plan area will be limited to small scale infilling between existing properties or
redevelopment of existing properties other than in the following
circumstances:
• The review of the MK Core Strategy [Plan:MK] identifies a specific
housing need in Woburn Sands, and
• Land proposed for development is brought forward after consultation,
and agreement, with Woburn Sands Town Council, and
• Development is of a scale and in a location that complies with the Vision
and policies of the Neighbourhood Plan, and
• Any such development is phased to take place in the latter part of the
plan period in order to allow the assimilation of the increased population
created by the already approved substantial developments.
National policies and guidance
3.10. NPPF paragraph 11 sets out a presumption in favour of sustainable
development. For decision-taking this means either approving development
that accords with an up to date plan without delay or where there are no
relevant development plan policies or the policies which are most important for
determining the application are out of date, granting permission unless one of
two exceptions apply. The first is whether the application of policies in the
NPPF that protect areas or assets of particular importance provides a clear
reason for refusing the development. The second is whether any adverse
impacts of granting permission would significantly and demonstrably outweigh
the benefits when assessed against the policies in the NPPF taken as a whole.
25 CD12.4
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3.11. Footnote 7 to paragraph 11 clarifies that out of date includes, for applications
involving the provision of housing, situations where the local planning
authority cannot demonstrate a five year supply of deliverable housing sites
(with the appropriate buffer set out in paragraph 73).
3.12. NPPF paragraph 73 states that local planning authorities should identify and
update annually a supply of specific deliverable sites sufficient to provide a
minimum of five years’ worth of housing against their housing requirement set
out in adopted strategic policies that are less than five years old. The supply of
such sites should in addition include a buffer of 5%, 10% or 20% depending
on the circumstances.
3.13. The NPPF glossary defines deliverable as sites for housing that should be
available now, offer a suitable location for development now, and be
achievable with a realistic prospect that housing will be delivered on the site
within five years. The definition goes on to state that, in particular:
(a) sites which do not involve major development and have planning
permission, and all sites with detailed planning permission, should be
considered deliverable until permission expires, unless there is clear
evidence that homes will not be delivered within five years (for example
because they are no longer viable, there is no longer a demand for the
type of units or sites have long term phasing plans).
(b) where a site has outline planning permission for major development,
has been allocated in a development plan, has a grant of permission in
principle, or is identified on a brownfield register, it should only be
considered deliverable where there is clear evidence that housing
completions will begin on site within five years.
3.14. NPPF paragraphs 122 and 123 seek to achieve appropriate densities for
development within the context of making effective and efficient use of land.
Paragraph 122 sets out 5 criteria that need to be taken into account including
(d) the desirability of maintaining an area’s prevailing character and setting
(including residential gardens), or of promoting regeneration and change.
3.15. Paragraph 123 states that where there in an existing or anticipated shortage of
land for meeting identified housing needs, it is especially important that
planning policies and decisions avoid homes being built at low densities and
ensure that developments make optimal use of the potential of each site. It
then sets out three considerations of which the first two are relevant to plan-
making. The third sets out the following:
(c) local planning authorities should refuse applications which they consider
fail to make efficient use of land, taking into account the policies in this
Framework. In this context, when considering applications for housing,
authorities should take a flexible approach in applying policies or
guidance relating to daylight and sunlight, where they would otherwise
inhibit making efficient use of a site (as long as the resulting scheme
would provide acceptable living standards).
3.16. Paragraph 170(b) recognises the intrinsic character and beauty of the
countryside and the wider benefits from natural capital and ecosystem services
including the economic and other benefits of the best and most versatile
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agricultural land. Paragraphs 193-196 deal with the impact of development on
designated heritage assets.
3.17. The Housing Supply and Delivery section of the PPG sets out a number of
paragraphs relating to demonstrating a 5 year HLS. This includes a
paragraph26 on what constitutes a ‘deliverable’ housing site in the context of
plan-making and decision-taking. It states that robust and up to date evidence
needs to be available. Sites in category (a) of the NPPF definition are
considered deliverable in principle. Sites in category (b) require further
evidence to be considered deliverable. The paragraph states that such
evidence may include:
• current planning status – for example, on larger scale sites with outline
or hybrid permission how much progress has been made towards
approving reserved matters, or whether these link to a planning
performance agreement that sets out the timescale for approval of
reserved matters applications and discharge of conditions;
• firm progress being made towards the submission of an application – for
example, a written agreement between the local planning authority and
the site developer(s) which confirms the developers’ delivery intentions
and anticipated start and build-out rates;
• firm progress with site assessment work; or
• clear relevant information about site viability, ownership constraints or
infrastructure provision, such as successful participation in bids for
large-scale infrastructure funding or other similar projects.
4. Planning History
4.1. Two outline planning applications were previously submitted on land forming
part of the appeal site. The first (11/00936/OUT) was for the erection of 102
dwellings and associated garages/parking, creation of two new accesses and
provision of open space and associated works, which was refused in July 2011.
The second (12/01502/OUT) was a resubmission of the first application and
was refused in October 2012. Neither refusal was appealed. Two planning
applications similar to the one at appeal were submitted in January and
February 2017, but were withdrawn prior to determination.
5. The Proposal27
5.1. The proposal is made in outline with all matters except the means of access
reserved for subsequent approval. The access arrangements are shown on
drawing nos.WO1188-101 rev.PO5 and WO1188-1021 rev.PO3 indicating
junction geometries with, respectively, vehicle tracking and visibility splays.
Each access is shown as a simple T-junction with 2.4m x 70m visibility splays.
There are 4. Two are designed to serve a new ‘spine road’ running through the
proposed development from Newport Road (at a position north of Frosts
landscape business and the Wyevale Garden Centre) to Cranfield Road (at a
point beyond the Deethe Farm Industrial Estate and Spinney Lodge); those
26 PPG reference ID: 68-007-20190722
27 Based on section 3 of the first Inspector’s report and section 3 of RID06
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access points are shown with 9m radii and are intended to serve a road some
6.2m wide suitable to accommodate buses. The access onto Newport Road
entails the removal of 2 category A trees and 2 category B trees protected by
the Group TPO. It also necessitates the relocation of a badger sett. Other trees
protected by the Area TPO may be affected depending on details at the
reserved matters stage.
5.2. The 2 other access points are shown on Cranfield Road, one on the outside of
the bend beyond Ridgeway and the other opposite the Deethe Farm Industrial
Estate; they are also shown with 9m radii, but with carriageways only 5.5m
wide, as they are mainly intended to serve discrete parts of the scheme.
5.3. All other matters are reserved for subsequent approval, although an illustrative
layout plan and a parameters plan show how the new road between Newport
Road and Cranfield Road could serve a series of residential streets created
partly around cul-de-sacs taken from that new road and partly around the 2
additional junctions on to Cranfield Road. Open space would be provided along
with additional boundary screening, landscape buffers, play areas and surface
water attenuation ponds.
5.4. The Design and Access Statement indicates that the dwellings would range in
type and size and include both houses and some flats. 33% of the housing
would be affordable dwellings equating to 67 units out of the proposed
maximum of 203 units (25% would be affordable rented and 8% shared
ownership).
5.5. The illustrative plans show the potential site for a doctor’s surgery which would
be provided if NHS England or the local Clinical Commissioning Group indicate
that they would be willing to take advantage of such provision. It would either
be a standalone facility or a satellite building for the existing surgery in
Woburn Sands which has limited room to expand. Should the provision not be
taken up, then 3 homes would be provided instead up to the maximum 203.
This matter is addressed in the S106 agreement28 and includes a financial
contribution either towards the provision of the on-site surgery or expanding
capacity at the nearest surgery serving the development. The S106 agreement
also makes a range of financial contributions towards matters including
education, open space, transport, community assets and social infrastructure.
It also secures the provision of affordable housing on site.
5.6. Suggested conditions29 are intended to ensure that the scheme would be
implemented as intended and that the reserved matters and other details
(including hard and soft landscaping and boundary treatments) would be
submitted to the local planning authority for approval. In addition, foul and
surface water drainage systems would be installed and controlled: a
Construction Management Plan (including hours of operation) would be devised
and implemented: a Landscape and Ecological Management Plan, including
measures to safeguard protected species, would be prepared: a Travel Plan
would be instigated: further archaeological investigations would be
undertaken: the provision of ‘green infrastructure’, the retention of trees and
the creation of new pedestrian and cycle facilities would be secured.
28 RID37
29 Section A2 of RID06
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6. Other Agreed Facts
6.1. The main SOCG30 sets out a number of agreed matters including:
• The proposal would not have an adverse effect of facilities and services
within Woburn Sands;
• The proposed highway junctions onto Newport Road and Cranfield Road
would have sufficient capacity to serve the development and additional
through traffic and there are no objections to the junctions in highway
terms;
• The junctions will remain well within capacity and will not create any
queuing or congestion issues on the existing highway network;
• The effect on the listed Deethe Farmhouse would result in a low level of
less than substantial harm;
• There are no national landscape designations that require consideration,
effects on the locally designated area of attractive landscape will be
negligible and the site and adjacent areas are not ‘valued landscapes’ in
the context of NPPF paragraph 170;
• The landscape impacts would be limited to the site and immediately
adjacent fields and would carry limited weight against the proposal. It is
agreed that the same approach should apply at the current Inquiry;
• The proposal should not be refused because of the Oxford-Cambridge
Expressway or on the grounds of prematurity;
• The proposal is acceptable with regard to surface water drainage and
matters of detailed design can be addressed via planning conditions;
• Matters relating to noise from the adjacent industrial estate can be
addressed via planning condition; and
• Matters relating to biodiversity and protected species are not an issue
for this appeal and can be addressed via planning conditions and
reserved matters applications.
6.2. An addendum to the SOCG31 was received after the inquiry addressing the
recently designated Area TPO. It confirms that:
• The TPO covers a wide area including the appeal site. It is directed to a
wide area rather than in relation to individual trees or groups of trees.
• It is subject to a 28 day legal challenge period up to 5 February 2020
and will remain in effect for 6 months up to 8 July 2020 and thereafter if
it is confirmed or replaced in the meantime.
• It is agreed that this new TPO does not materially alter the planning
evidence or planning balance as presented by each party
30 RID06
31 RID35
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• Should outline permission be granted, this would allow for the removal
of trees within the area covered by the TPO once details have been fully
agreed at the reserved matters stage.
• The TPO protects trees on site until the implementation of the planning
permission.
6.3. There is also a SOCG relating to housing land supply32, which sets out the
following agreed matters:
• Plan:MK provides the basis for the calculation of the five-year housing
land requirement. This states that there is a minimum requirement of
1,767 dwellings a year in the period April 2016 to March 2031;
• There have been 4,529 net completions in the Plan:MK plan period to 31
March 2019;
• There is a backlog of 772 dwellings as at 1 April 2019;
• All of this backlog should be met in the next 5 years (the Sedgefield
method); and
• A 5% buffer should be applied to both the annual requirement and the
backlog based on the published 2018 Housing Delivery Test results
(February 2019).
6.4. The areas of disagreement relating to housing land supply are as follows:
• Whether or not a 5 year supply of deliverable housing sites can be
demonstrated
• The timescale of the assessment (1 April or 1 October 2019)
• The timing of meeting the definition of deliverable
• The definition of deliverable
• Forecast completions
• The “optimism bias” (discounting dwellings from the supply)
32 SOCG1
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7. The Case for the Appellant33
The previous decision letter and the first Inspector’s report
7.1. The Council asserted that the previous SoS decision letter (DL) remained a
material consideration relying on Davison v Elmbridge BC [2019] EWHC
140934. That judgment is on appeal to the Court of Appeal and relates to a
planning committee’s decision not an appeal decision which is an important
distinction. The most recent judgment in relation to a challenge against an
appeal decision held that the quashed decision is of no legal effect and should
not be sub-divided in respect of those matters on which it was quashed: R
(West Lancashire BC) v Secretary of State for Communities and Local
Government [2017] EWHC 3451 (Admin), [27]-[38].
7.2. The Council in opening accepted that the SoS DL was not material in terms of
HLS and conflict with expired Policies S10 and H8 (location and density
respectively) due to the court order and change in circumstances including the
adoption of Plan:MK. The Council identified the DL’s finding of failure to accord
with WSNP Policy WS5 was relevant but made clear that the weight to be
accorded to that policy would need to be considered afresh. The appellant
accepts there is policy conflict but there remains dispute about datedness.
7.3. The Council confirmed that the DL findings on landscape and character,
heritage, traffic, ecology and drainage remained relevant where the DL simply
endorses the conclusions of the first Inspector’s report.
7.4. The only basis upon which the Council maintains the SoS is bound by
consistency as to both policy conflict and weight is DL paragraph 26 (and the
finding that the proposals were contrary to NPPF paragraph 122 and 123)35.
That is contentious and fundamentally incorrect. The approach does not
correctly reflect the position that a quashed DL is of no legal effect. It ignores
important changes in circumstances in the evidence before the Inquiry
including:
(a) the Appellant’s updated evidence at this inquiry as to the actual net
density of the scheme and the changes in housing mix;
(b) the changes to the development plan following adoption of Plan:MK; and
(c) the Council’s concession through the evidence of its planning witness36
that density is a matter to be addressed at the reserved matters stage
in the context of layout and does not provide a basis for refusal.
The Development Plan
Plan:MK
7.5. The Appellant acknowledges that the development is in conflict with Policies
DS1, DS2 and DS5 of Plan:MK37. However, it is important to examine the
extent of the conflict and how precisely it arises. The development is contrary
33 Largely taken from the appellant’s closing submissions RID33
34 RID03
35 RID02, paragraph 8(d)(iii)
36 Cross-examination and re-examination of Niko Grigoropoulos on Day 5
37 APP8 page 7 para 3.1
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to the terminology of the policies, given their reference to Policy DS5. DS5 is a
counterpart policy. Where a proposal conflicts with DS5, it will be contrary to
DS1 and DS2. However, it accords with the strategy underlying DS1 and DS2
insofar as directing development to the three key settlements in the rural area
as locations that the Council has “chosen for development”38.
7.6. Woburn Sands is the only key settlement to have its own train station. Plan:MK
does not identify any constraint on housing delivery or place any cap on the
number of dwellings to be located at Woburn Sands. The first Inspector found
Woburn Sands to be a sustainable location for growth (see IR9.48). The WSNP
was adopted more than 5 years ago and 3 years prior to Plan:MK. It does not
make any allocations and has not been reviewed.
7.7. The settlement boundary is tightly constrained. The application of and weight
accorded to Policies DS1, DS2 and DS5 must yield to the assessment of HLS.
The Council accepted39 that it was to Woburn Sands as a key settlement that
development should go in the absence of a 5 year HLS.
7.8. The Council has identified conflict with Policies HN1 and NE7 of Plan:MK but
confirmed that all other policies weighed in support (including Policy HN2 in
respect of affordable housing and Policy EH5 in respect of health facilities) or
could be addressed through reserved matters.
Woburn Sands Neighbourhood Plan
7.9. It is accepted that the development conflicts with Policy WS5 as none of the
named exceptional circumstances are presently met. The weight to be
accorded to the policy must however reflect the extent to which the policy
remains in accordance with the NPPF and up-to-date, for the purposes of NPPF
paragraph 213.
7.10. The WSNP was adopted comparatively early in July 2014 and was assessed for
general conformity against a now expired Local Plan backdrop and the 2012
version of the NPPF. Policy WS5 was identified at appeal as creating an
unacceptable constraint on growth in circumstances where there was no 5 year
HLS. It was accorded very little weight in the Frost appeal40 and the first
Inspector for this appeal stated it was contrary to the advice in the NPPF (see
IR9.20).
7.11. The policy is not consistent with the NPPF including the second test which
requires the agreement of the Town Council. This was added after the
examination without the recommendation of the examiner or any further
assessment41. The policy also seeks to protect the countryside for its own sake
which is at odds with the more balanced approach in NPPF paragraph 170(b).
7.12. The WSNP makes no provision for an up to date housing requirement in line
with NPPF paragraph 65 and 66 and contains no allocations or policies to
provide for housing. The lack of WSNP review means that the obvious defects
of Policy WS5 have not been scrutinised. The Council is incorrect to say that
38 CD5.31 Glossary on page 286
39 Cross-examination of Niko Grigoropoulos on Day 5
40 CD6.6
41 CD5.17 paragraph 7.6.12 and recommendation 2B
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the policy has been given a new lease of life by Plan:MK as the Plan Inspector
could not and did not make any finding on the soundness of this policy.
7.13. The Council’s planning witness accepted no conflict with Policy WS6 in cross-
examination but the Council’s advocate seemed to withdraw that concession in
cross-examination of the appellant’s planning witness. The policy is parasitic
on WS5 and equally inconsistent with the NPPF, requiring the agreement of the
Town Council and seeking to delay development to the end of the plan period.
This reduces the weight to be accorded to it.
7.14. Irrespective of the 5 year HLS position, Policies WS5 and WS6 are out of date
for at least two reasons: (1) their wording is highly restrictive and fails to
accord with the NPPF and (2) the WSNP was not prepared using an up to date
housing requirement and makes no housing allocations.
Housing Land Supply
Overview
7.15. The SOCG on HLS sets out a number of agreed matters in terms of housing
requirement, net completions, the backlog, the use of Sedgefield, the buffer
and the resulting requirement.
7.16. Plan:MK was assessed under the tests contained in the old 2012 NPPF and the
Plan Inspector made no findings as to deliverability under paragraph 73 and
glossary definition of the 2019 NPPF. The Council’s HLS witness accepted that
the Plan Inspector’s Report does not help in determining whether the Council
can demonstrate a 5 year HLS now.
7.17. The appellant has identified that the deliverable HLS at the base date of 1 April
2019 would be 3.55 years (7,161 dwellings) and at the base date of 1 October
2019 would be 3.76 years (7,579 dwellings).
7.18. In comparison, the Council’s respective figures are understood to be 6.41
years (12,931 dwellings) for the 1 April 2019 base date and 6.91 years
(13,949 dwellings) for the 1 October 2019 base date
7.19. Deductions of 2,844 dwellings against the 1 April base date and 3,858
dwellings against the 1 October base date would result in the Council having
less than a 5 year HLS.
7.20. The appellant submits that a deduction of that scale is justified on three site-
specific bases. Firstly, that sites with detailed permission (category (a) in the
NPPF definition) require deductions to reflect unrealistic build-out rates.
Secondly that sites with outline permissions or allocations (category (b) in the
definition) require deductions or removal to reflect the absence of clear
evidence to demonstrate deliverability at the base date. Thirdly, other sites
which do not fall within either category (principally prior notification sites
under Class O) require removal to reflect the absence of clear evidence to
demonstrate deliverability at the base date.
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Deliverability
7.21. The Council refer to the judgments in St Modwen42 as to the distinction
between certainty and a realistic prospect. That latter judgment was
considered further and qualified in Babergh43. The revised NPPF in 2018 and
2019 altered the definition of deliverable in two key respects. Firstly, the
requirement to demonstrate clear evidence and secondly the use of closed
categories in the definition with the burden of proof distributed accordingly.
These changes have been described as ensuring a stricter approach by
Inspectors44. Babergh is more recent than St Modwen.
7.22. A site specific approach must be applied to an assessment of deliverability to
comply with the NPPF. The SoS DL on this case was quashed based on the
failure to provide site specific analysis on any reasons for the final HLS figure.
It is permissible to consider the broader context of HLS in terms of the size
and type of sites included, historic rates of delivery and the accuracy of past
forecasts, but this cannot replace site specific analysis. In this respect, the
Council states that their historic use of a generic “optimism bias” no longer
meets the requirements of the NPPF nor the PPG45. That said, the Council
continue to use it and adopt that position in the context of this appeal.
The base date
7.23. The appellant’s HLS witness explained why it is essential that the evidential
position (‘clear evidence’) is assessed by looking to what existed at the base
date. A ‘backfilled’ approach whereby a site was simply deemed to be
deliverable and evidence then adduced and accumulated over the course of the
year was not methodically sound and not compliant with the NPPF or PPG.
There is Inspectorial authority on this point from the Woolpit decision46. It is
possible to take into account information that has arisen after the base date,
but only where the site passed the test of deliverability at the base date47. This
was the approach of the last decision within the Milton Keynes area at
Castlethorpe Road48. The earlier Globe decision cited Woolpit but appeared not
to apply it, notably omitting to set out the state of the evidence at the base
date for respective sites.
7.24. The Council has further cited the Colchester Road decision49, but the example
cited by the Inspector of a separate full permission being excluded, is not
replicated in the instant case. Moreover, that Inspector in disagreeing with
Woolpit in respect of new permissions again did not address the specific
problem of completions.
7.25. In assessing the intention of the NPPF, it is instructive to consider the position
of Annual Position Statements requiring research to be complete prior to the
necessary consultation with stakeholders which must take place between
notification on 1 April and submission on 31 July of the given year. It is
42 CD7.1 [2016] EWHC 968 (Admin) and CD7.6 [2017] EWCA Civ 1643
43 RID09 [2019] EWCA Civ 2200 paragraphs 45-50
44 CD6.18 for example
45 LPA1 page 22 para 4.54
46 CD6.16 paragraphs 67 and 70-79
47 CD6.13, CD6.14 and CD6.15
48 CD6.18 paragraphs 58-61 and 65
49 CD6.22, paragraph 63
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therefore entirely practical and consistent with the intention of national policy
to ensure that the evidence base is assembled prior to a 1 April base date,
including the draft written agreements. The appellant referred to two examples
from Mid Suffolk50 and Babergh51 District Councils which respectively itemise
the extent of prior consultation and evidence collection, resulting in the
production of Memoranda of Understanding (MOU).
7.26. The fundamental principle at stake is that of robustness in the evidence base
to give effect to the policy imperative of boosting the supply of housing. This
can only be ensured by looking to the full 5 year period (not a shortened 4 ¼
period) and by ensuring full transparency on the part of the Council when
drawing up its Annual Monitoring Report. The Council’s HLS witness accepted
that none of the evidence provided in its June 2019 HLS Statement contained
documentary evidence at the base date of 1 April 2019. They either
substantially pre-dated 1 April 2019 (based on Plan:MK information) or
substantially post-dated it (such as the proformas). No amount of chasing of
proformas or sense checking could repair the fundamental deficit of evidence
at the base date. The appellant disputes the Council’s claim that the appellant
promotes an artificial two stage approach as one stage should suffice.
7.27. It is for this reason that the appellant advances an updated base date to 1
October 2019 to allow the most up to date evidence to be adduced, but only in
a manner that reflects the level of completions that have occurred since 1 April
2019.
Proformas
7.28. The Council’s proformas are not written agreements in line with the PPG ID68-
007. They present the trajectory with a simple box to check without identifying
the extent of the evidence of progress or testing the build out rate. Supporting
information by way of covering emails was often sparse. As such, the Council
has had to rely on variety of updates from its witness’ proof to oral additions in
the roundtable session. This is wholly inconsistent with national policy and
does not reflect clear evidence to reflect the position as at the base date.
Build-out rates
7.29. The evidence of the appellant’s HLS witness sets out the national perspective52
which identified the highest build-out rates of 268dpa averaged over 5 years at
the Eastern Expansion Area in Milton Keynes (Broughton Gate and
Brooklands). Based on the local experience of the appellant’s HLS witness, any
rates significantly in excess of this figure should be treated with scepticism.
Public ownership of land
7.30. Another key obstacle for the Council has been the extent to which it relies on
sites in public ownership including the Milton Keynes Development Partnership
(MKDP), the Milton Keynes Community Foundation and Homes England. The
reason for delays in releasing sites are myriad. The proformas submitted by
the Council were subject to assessment by a body that included officers of the
50 RID10
51 RID08
52 CD11.1 and APP3 appendix 1 paragraphs A1.18-A1.22
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Council and MKDP. Contrary to the Council’s advocate’s suggestion that this
impugned their professional judgment, there was an inevitable circularity in
the proforma assessments submitted by these bodies, unjustifiably reinforcing
misplaced optimism as to delivery rates.
Past forecasts
7.31. The Council has had historic difficulties in the accuracy of its forecasting. When
tabulating actual completions against forecasts53, there is an under-delivery
against forecasts of 28-30%. Current and past trajectories have failed to be
met. Historic rates are instructive in identifying persistent trends and providing
a sense check with long-range date.
7.32. Inspectors have commented on the way the Council’s supply assumes very
sharp increases in delivery beyond those experienced either locally or
nationally54. In response to this, the Council have sought to rely on recent
short-term uplifts in completion rates to suggest that there has been a change
of direction. Such data is too short-term and too limited in any supporting
analysis to justify any conclusion that there has been improvement in their
forecasting exercise. There is no evidence that Plan:MK is responsible for
recent uplift in delivery. Peaks in development activity have historically been
attributable to apartment blocks. This provides limited assistance in respect of
how sharp and continuing increases can occur on strategic sites.
Consistency with previous decisions in Milton Keynes
7.33. The Castlethorpe Road decision, being the most recent and having taken into
account the earlier Globe decision remains the most helpful reference point for
the Inspector and SoS. The legal challenge to the Castlethorpe Road decision
was unsuccessful. The decision sets out robust approach to individual sites at
paragraphs 58-60 identifying longstanding delays to delivery and an overall
absence of strong evidence. The Inspector in paragraph 63 made clear that he
stopped halfway through looking at sites as it was already evident that the
Council did not have a 5 year HLS.
Individual site analysis55
7.34. The appellant’s analysis is based on the evidence of its HLS witness in his proof
(Appendix 3) and rebuttal (Appendices 3 and 3a)56. The errata document57
updates the evidence in several respects following the roundtable session.
Site 1: Brooklands (deduct 232 units for 1 April or 267 units for 1 October)
7.35. Sites with detailed permission but Council’s rate of delivery is excessive,
assuming a sharp uplift in delivery from 182 dwellings in 2019/20 to 347
dwellings in the following year with only 2 developers on site across 7 parcels.
This would be substantially higher than the highest figures hitherto achieved
(268dpa across 12 parcels). Reduce delivery from 222dpa to 175dpa (April) or
168dpa (October).
53 APP3 appendix 2, table 2 and table 3
54 CD5.32 paragraph 145 and CD10.33 paragraph 9.9
55 The appellant’s closing submissions sets out its case for each site in more detail
56 APP3, 4 and 6
57 RID20
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7.36. For Phases 1B and 5B-6B, the Council’s evidence comprised in proforma
responses compiled as late as June 2019. These both assume rates of 60dpa,
which are at odds with an average annual rate of 45dpa across Brooklands.
7.37. For Land south west of Fen Street, the Council have confirmed that no
proforma was submitted for this site and accordingly, the Council have
essentially relied on data from other developers on other sites. The appellant’s
figures reflect the commencement of completions on the site, but deduct the
completions on this strategic site as the forecast rates are unrealistic.
Site 2: Tattenhoe Park (deduct 447 units for 1 April or 530 for 1 October)
7.38. Sites with outline permission with the Council relying on proformas from
Homes England submitted in June 2019. Tender documents for Phases 2 and 3
dated July 2018 do not declare extent of progress at 1 April 2019 base date.
Council sought to add extra 83 dwellings as a result of potential delivery
agreement. No developer commitment for Phases 4 and 5.
7.39. Detailed permissions for Phases 2 and 3 granted on 15 November 2019 and 24
October 2019 respectively after the 1 April. Sites have had outline permission
for over 10 years and failed to deliver any units. Proformas insufficient for
either 1 April or 1 October base date. Castlethorpe Road Inspector agreed that
sites were not deliverable.
Site 3: Western Expansion Area (deduct 1,503 units for 1 April or 1,084 for 1 Oct)
7.40. Outline permissions only for Area 10 and Area 11 Remainders at 1 April.
Council rely on proformas. Detailed permission for 152 dwellings granted 24
September 2019. Following advice from developer, the Council has removed
306 units from Area 10 and 229 units from Area 11.
7.41. No evidence of deliverability at 1 April for either area and no evidence for why
delivery rate of 300dpa for Area 10 would be realistic. Very large strategic
sites and Council’s expectations need reducing. Castlethorpe Road Inspector
agreed the site was not deliverable.
Site 4: Strategic Land Allocation (deduct 864 units for 1 April or 743 for 1 Oct)
7.42. The disputed sites within this allocation all had outline permission at 1 April.
No lead developer. Proformas not supplied for all sites. Belated evidence at
roundtable session. Council’s average delivery rate of 399dpa should be
adjusted to 274dpa based on local and national evidence.
7.43. No proforma for Ripper Land site, only an email about access issues, so
remove all units from supply for either base date. No proforma for Land West
of Eagle Farm South although reserved matters application awaiting legal
agreement at 1 April, so reduce supply by 64 units for either base date. No
proforma for Eagle Farm site and the information from October 2019 on
developer’s intentions is not clear evidence and so remove all units from
supply for either base date.
7.44. For Glebe Farm site, the Council rely on updated proformas and 2 detailed
permissions granted in September and October 2019. Appellant taken into
account September permission if 1 October base date used. Supply reduced by
either 310 units (April) or 142 (October). For the Golf Course Land, the Council
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rely on detailed permission for 180 units granted on 1 November 2019 which
the appellant accepts could be included in 1 October base date but not April.
For the Church Farm site, the Council rely on a proforma where only one
condition has been discharged from outline permission so remove all units
from supply for either base date.
Site 5: Newton Leys (deduct 80 units for 1 April and 0 for 1 October)
7.45. Outline permission at 1 April with reliance on proforma means removal of all
units from supply at this base date. Reference to pre-application discussions at
roundtable session not sufficient evidence of progress to reserved matters.
Detailed permission granted in September so can include 80 units at October
base date.
Site 6: Campbell Park Remainder (deduct 300 units for either 1 April or 1 October)
7.46. Proforma from MKDP limited and does not even confirm agreement to Council’s
forecast. Council referred to development brief and ambitions for a mixed use
development at roundtable and an email from December 2019 refers to a joint
strategy between MKDP and two named developers, but forecasts no planning
application until latter half of 2020 and no start on site until 2021. The
Castlethorpe Road Inspector agreed that the site was not deliverable.
Site 7: SEMK Strategic Growth Area (deduct 50 units for either 1 April or 1 Oct)
7.47. Allocated site in Plan:MK with no outline permission. No evidence of pre-
application activity and SOCG from June 2018 is relatively high level and does
not provide up to date evidence.
Site 8: Berwick Drive (deduct 16 units for 1 April or 11 units for 1 October)
7.48. Allocated site in Plan:MK and Council owned. Council rely on proforma from
June 2019 and November update that refers to pre-application discussions and
reduces number of units from 16 to 11. Delete site from supply.
Site 9: Wyevale Garden Centre (deduct 328 units for 1 April or 142 for 1 October)
7.49. Proforma from June 2019 limited. Permission not granted until July 2019.
Delete site from April base date. Can include with October base date but with a
deduction to reflect likely delivery rates over 5 years as the Council’s rates of
150 and 130 in years 4 and 5 are unrealistic. 62dpa is more realistic.
Site 10: Food Centre (deduct 298 units for 1 April or 200 for 1 October)
7.50. Allocated site with no planning application as of 1 April and no proforma until
November 2019. No detail of pre-application discussions. Hybrid planning
application not submitted until 23 October. Delete site from supply.
Site 11: Redbridge (deduct 19 units for 1 April or 48 units for 1 October)
Site 12: Rowle Close (deduct 18 units for either 1 April or 1 October)
7.51. These sites are adjacent and have been considered as one. They are covered
by an allocation but no planning application or permission. Reliance on a
proforma only. Delete both sites from supply.
Site 13: Agora Redevelopment (deduct 104 units for either 1 April or 1 October)
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7.52. Allocated site with no extant permission and no application pending. Council
rely on amended trajectory in June 2019 proforma. Castlethorpe Road
Inspector considered site was not deliverable as at 1 April.
Site 14: Galleon Wharf (deduct 14 units for either 1 April or 1 October)
7.53. The main parties agree this site can be deleted from the supply.
Site 15: Railcare Maintenance Depot (deduct 175 units for either 1 Apr or 1 Oct)
7.54. Outline application for mixed use development with activity focussed on non-
residential uses at both base dates. June 2019 proforma limited and no new
information to indicate progress towards implementing the residential
elements. Delete site from the supply.
Site 16: Eaton Leys (deduct 308 units for 1 April or 182 units for 1 October)
7.55. Outline permission only at 1 April with no proforma until December 2019.
Submission of reserved matters application means appellant accepts site is
deliverable but with a consequent reduction in completions to reflect local and
national data: 52dpa from 2021/22 to reflect that the site competes with other
Barrett David Wilson sites locally.
Site 17: Lakes Estate Neighbourhood Plan Sites (deduct 130 units for 1 April or 279
units for 1 October)
Site 18: Phelps Road (deduct 11 units for either 1 April or 1 October)
Site 27: Southern Windermere Drive (deduct 11 units for either 1 April or 1 October)
7.56. These sites form part of a phased Council regeneration proposal. June 2019
proforma from Housing and Regeneration Manager reveals complexity of works
commencing with demolition and re-housing of Council tenants. Hybrid
application mentioned in proforma not submitted in late 2019. Considerable
discussion at roundtable on the correct way of assessing impact of demolition
and replacement dwellings. Appellant’s approach is that the completion of
dwellings to replace those that are due to be demolished does not meet
housing need and therefore should not be permitted to address the housing
requirement. The maximum number of units that can be taken into account is
therefore 110, although there is no clear evidence for even this number.
Site 19: Land off Hampstead Gate (deduct 16 units for 1 April or 34 units for 1 Oct)
7.57. MKDP site with proforma submitted 13 November after both base dates. The
accompanying email sets out project dates but nothing else provided. Delete
site from supply.
Site 20: Land off Harrowden (deduct 25 units for either 1 April or 1 October)
7.58. Council owned site with June 2019 proforma. Uncertainty of delivery and
Council accept trajectory should be pushed back to 2022/23. Delete site from
supply.
Site 21: Broughton Atterbury Self Build Plots (deduct 6 units for either 1 April or 1
October)
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7.59. MKDP site with June 2019 proforma and no further evidence. While Council
referred to wider planning permission for wider site, no clear evidence of
deliverability for the specific site. Assertion of demand for custom-built plots.
Delete site from supply.
Site 22: Hendrix Drive (deduct 10 units for either 1 April or 1 October)
7.60. MKDP site with June 2019 proforma limited. No clear evidence of deliverability.
Site 23: Kellan Drive 1 (deduct 10 units for 1 April or 12 units for 1 October)
7.61. Council owned site with June 2019 proforma limited. Application submitted by
1 October but not determined and no identified developer. No clear evidence of
deliverability.
Site 24: Singleton Drive (deduct 22 units for either 1 April or 1 October)
7.62. MKDP site with June 2019 proforma limited. Reference to pre-application
advice and development brief not documented by Council. No clear evidence of
deliverability.
Site 25: Former MK Rugby Club (deduct 100 units for either 1 April or 1 October)
7.63. Council owned site and Plan:MK allocation with land on long leasehold to the
Parks Trust. No application submitted. May 2019 proforma from Bellway
Homes but not yet the site owner and text of accompanying email states they
are not under contract. Council rely on December 2019 email from Property
team recording a putative land disposal agreement in an advanced state but
no clear evidence of deliverability. Castlethorpe Road Inspector found site was
not deliverable.
Site 26: Timbold Drive (deduct 130 units for 1 April or 118 units for 1 October)
7.64. MKDP site and SAP allocation. June 2019 proforma limited. New outline
permission being sought but no reported progress on any reserved matters
applications. No clear evidence of deliverability.
Site 27 (see above)
Site 28: Land north of Vernier Crescent (deduct 14 units for either 1 Apr or 1 Oct)
7.65. MKDP site and SAP allocation. June 2019 proforma limited. Pre-application
work not documented and disposal plan pushed back. No clear evidence of
deliverability.
Site 29: Manifold Lane (deduct 18 units for 1 April or 33 units for 1 October)
7.66. MKDP site and SAP allocation. June 2019 proforma limited and simply refers to
application for permission. Council latterly referred to email correspondence
but site still in MKDP ownership and sale dependent on permission. In
roundtable Council only able to say application anticipated in January 2020. No
clear evidence of deliverability.
Site 30: Daubeney Gate (deduct 90 units for 1 April or 73 units for 1 October)
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7.67. MKDP site and SAP allocation. June 2019 proforma limited and simply refers to
site being marketed. Council latterly referred to email correspondence with
Taylor Wimpey but site still in MKDP ownership and purchase dependent on
board approval and site investigation. Site capacity already reduced to 73
units. In roundtable, Council only able to say application forecast for March
2020. No clear evidence of deliverability.
Site 31: Springfield Boulevard (deduct 12 units for 1 April or 13 units for 1 October)
7.68. Council owned site and neighbourhood plan allocation. June 2019 proforma
limited. Application submitted and then withdrawn. Application submitted in
November but not registered until 2 December. No clear evidence of
deliverability.
Site 32: Hindhead Knoll (deduct 30 units for either 1 April or 1 October)
7.69. MKDP site and neighbourhood plan application. June 2019 proforma limited.
Application submitted October 2019 but not yet determined. No clear evidence
of deliverability.
Site 33: Land at Walton Manor (deduct 115 units for either 1 April or 1 October)
7.70. MKDP site and SAP allocation. June 2019 proforma limited. Council rely on
outline application submitted January 2019 and approved in November. Site
remains in MKDP control and further sale to development dependent on
progress with site disposal. No clear evidence of deliverability.
Site 34: Land at Towergate (deduct 150 units for either 1 April or 1 October)
7.71. Homes England site with outline permission and SAP allocation. June 2019
proforma merely looks ahead to future marketing activity. Landowner sought
to discharge part 1 and 2 of condition 6 in September 2019. Later application
to discharge ecological mitigation was withdrawn in August 2019. Indicates
marketing activity has been inhibited. No clear evidence of deliverability.
Site 35: Reserve Site 3 (deduct 22 units for either 1 April or 1 October)
7.72. MKDP site and SAP allocation. June 2019 proforma limited. No further progress
with an allocation. No clear evidence of deliverability.
Site 36: High Park Drive (deduct 74 units for either 1 April or 1 October)
7.73. Site with outline planning permission. No proforma. Work to discharge
condition post-dates both base dates. No clear evidence of deliverability.
Site 37: Maybrook House (deduct 25 units for either 1 April or 1 October)
7.74. Prior notification site. Appellant explained that such a site does not fall within
category (a) or (b) in the NPPF definition of deliverable. The PPG reference to
“conversions” in 68-029 only refers to completions, it does not designate such
units as part of a supply. If sites are to be included, there is still a requirement
to assess the extent to which the sites are available in light of ongoing activity
in existing use and whether there is clear evidence they will deliver
completions at the rate forecast. No proforma for this site and no further
evidence from Council. Site is still not fully vacated and so should not be
https://www.gov.uk/planning-inspectorate Page 27
considered for residential use. Clear evidence that the site could not be
delivered at either base date.
Site 38: Mercury House (deduct 113 units for either 1 April or 1 October)
7.75. Prior notification site. No proforma and no further evidence from Council. Grant
of approval for demolition as at 9 January 2020 but no evidence of any
timescale for further works. Clear evidence that the site could not be delivered
at either base date.
Site 39: Bowback House (deduct 107 units for either 1 April or 1 October)
7.76. Prior notification site. No proforma and no further evidence from Council. Site
is still not fully vacated and still be marketed for office use. Should not be
considered available for residential use. Clear evidence that the site could not
be delivered at either base date.
Site 40: Land east of Tillbrook Farm (deduct 36 units for either 1 April or 1 October)
7.77. Site with outline planning permission. June 2019 proforma and follow-up email
from November 2019 refer to delays of further 3 months for submission of
reserved matters. No clear evidence of deliverability.
Site 41: Tickford Fields (deduct 220 units for either 1 April or 1 October)
7.78. Council owned site with no outline permission. June 2019 proforma records
start date as unknown. December 2019 email refers to future application but
no further progress towards securing developer partner. No clear evidence of
deliverability.
Site 42: Land west of Yardley Road (deduct 210 units for either 1 April or 1 October)
7.79. Site with outline permission and allocated in Olney Neighbourhood Plan.
Council rely on June 2019 proforma. Reserved matters application submitted
November 2019. No clear evidence of deliverability.
Site 43: Omega Mansions (deduct 10 units for 1 October)
7.80. Prior notification site for purposes of 1 October base date. No progress of
further works. No clear evidence that the site was deliverable at base date.
Site 44: Cable House – duplication with Site 38 (Mercury House)
Site 45: Chancery House {deduct 40 units for 1 October)
7.81. Prior notification site for purposes of 1 October base date. No progress of
further works. No clear evidence that the site was deliverable at base date.
Site 46: Land south of Cresswell Lane – Central MK C3.2 (deduct 294 units for either
1 April or 1 October)
7.82. The Council did not consider that this site was deliverable as at the 1 April
2019 base date. Full planning permission was only granted on 31 July 2019.
There was therefore no clear evidence that the site was deliverable as at April
base date. This application did not result in an amendment to the MK Housing
Statistics and as such it was considered that the site remains undeliverable.
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Site 47: Castlethorpe Road (deduct 50 units for 1 October)
7.83. Outline permission granted at appeal after 1 April. No clear evidence from
Council as to why it should be included in the supply.
Site 48: Station Road Elder Gate
7.84. [Not covered in closing submission or in detail elsewhere by appellant]
Sites 49-52: Council’s “Year 6” sites
7.85. The Council sought to add 4 sites predicted to deliver in first half of 2024/25
year (if the base date is 1 October). The appellant’s overall position is that the
timescales for delivery are extremely uncertain given that completions are only
anticipated at the end of the period. None have outline permission and no
recorded developers.
Site 49: Rear of Saxon Court (deduct 20 units for 1 October)
7.86. Council referred to development brief consultation in summer 2019. MKDP
acting for Council and does not provide sufficient evidence of progress.
Council’s most recent assessment in December 2019 was that there was no
clear evidence of delivery in 5 years.
Site 50: Rear of Westminster Court (deduct 15 units from 1 October)
7.87. MKDP acting for Council and does not provide sufficient evidence of progress.
Council’s most recent assessment in December 2019 was that there was no
clear evidence of delivery in 5 years.
Site 51: C4.2 (deduct 22 units from 1 October)
7.88. MKDP acting for Council and does not provide sufficient evidence of progress.
Council’s most recent assessment in December 2019 was that there was no
clear evidence of delivery in 5 years.
Site 52: Cavendish House (deduct 9 units from 1 October)
7.89. Part of Fullers Slade regeneration proposals now approved at referendum with
a development option selected. Proforma from MKDP states ‘strong possibility’
site will come forward, but still not clear evidence of delivery.
Summary on housing land supply
7.90. The Council does not have a robust, deliverable five-year supply of housing
land. This has been the case for some considerable time. The appeal site if
released would be delivered within 5 years as a small site under the control of
a SME developer which the Council’s Housing Delivery Action Plan seeks to
promote. Further, there has been a significant shortfall in the provision of
affordable housing over the years which this site would help to address. The
shortfall in housing for a new town is beyond problematic and the imbalance
between jobs and housing increases in-commuting and frustrates sustainable
growth.
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Location of the development
7.91. The first Inspector found site to be in a sustainable location due to accessibility
of public transport and local facilities and the absence of any unacceptable
environmental effects.
Development plan and national policy
7.92. The adoption of Plan:MK has not altered this but recognised and reinforced it.
Policies DS1 and DS2 identify Woburn Sands as a sustainable location with no
cap on development. There is very limited space within the settlement
boundary for development. Changes to the boundary in Plan:MK have reflected
existing commitments, the Frosts appeal, the Nampak permission and the
Frosts retail permission.
7.93. The revised NPPF in 2018 and 2019 has not altered sustainability. It continues
to boost HLS (para 59), direct housing to sustainable locations (para 103) and
ensure development is located within locations including rural locations where
it can contribute to the vitality of the community (para 78). Majority of recent
development at the Nampak site and of a density and general form that takes
little account of town’s existing character.
7.94. Housing would support public transport, shops and services. The existing
doctor’s surgery has capacity for new patients and financial contributions can
be made for school places. Woburn Sands and the appeal site are appropriate
locations for future growth. The fact that the Plan:MK Inspector did not require
further allocations and the Town Council are declining to review WSNP does
not alter this.
Oxford-Cambridge Expressway
7.95. The Council did not cite this as any basis for refusal of scheme and this
remains their position in the SOCG and at the inquiry. The appellant has set
out that plans are at the very earliest stages of consultation with the Secretary
of State for Transport indicating that he will review whether there is a
continuing justification for the proposal having described its benefits as finely
balanced and the need to demonstrate a strong case that it will boost jobs,
prosperity and has local support58.
7.96. Examining the site and locality there is no realistic prospect of substantial road
construction at the appeal site or vicinity. The appellant has explained the
extent of constraints preventing road construction, most notably the registered
park and garden and residential development including the Strategic Land
Allocation. Further, the suggestion made by Highways England that
development on the site would be contrary to the adopted development plan
and potentially result in conflict with the expressway is wrong. Plan:MK only
deals with the expressway in the context of the SEMK Strategic Growth Area.
Therefore, the expressway does not constitute a reason to withhold consent.
58 APP8 paragraph 4.6
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Housing density
7.97. At this Inquiry, the appellant has made clear that the density figure should be
assessed at 20.3 dwellings per hectare (dph) applying a net density approach
that subtracts the area’s listed in the planning witness’ proof59. That approach
reflects the absence of any statutory definition or any extant policy or
guidance. Changes to the housing mix would increase density in respect of
habitable rooms per hectare60.
7.98. The Council’s case at the first Inquiry sought to prolong the initial objection on
the basis of Policy H8 of the Local Plan 2005 which looked for a density of
35dph for locations like Woburn Sands. The first Inspector found no substance
in this point in his paragraphs IR9.43 and IR9.45. The SoS DL paragraphs 24-
26 referred consistently to conflict with Policy H8. The SoS referred only in DL
paragraph 24 to NPPF paragraphs 122-123 in assessing the accordance of the
policy with NPPF, notably identifying its use of a range of average net
densities.
7.99. The development plan position and national policy position have both moved
on markedly since the original Inquiry with the expiry of Policy H8. The policy
framework for density is now Policy HN1(c) with contextual support from Policy
SD1 and D1. Policy HN1 conforms with NPPF paragraph 122 and was found
sound by the Plan:MK Inspector albeit in the contest of NPPF 2012.
7.100. The correct approach to assessing acceptability of density is to assess
those areas immediately adjacent to the development, not an arbitrary wider
area comprising the whole settlement. The appellant’s evidence carries out a
systematic calculation61 of density of area surrounding the site with regard to
Policy HN1(c) and NPPF paragraph 122(d) in particular. The Council’s planning
witness accepted in cross-examination that he had undertaken no calculation
of density of his own, had relied on the Nampak Inspector’s finding of density,
and had not identified any minimum density. His 27dph represented one
variant of an acceptable scheme and he considered the acceptable number of
dwellings on the site may be higher or lower than 203. He also accepted that
NPPF paragraph 123(a) is a plan-making provision and 123(c) is to be read in
the broader context of paragraph 122.
7.101. The Council’s planning witness conceded that the layout of the
development was a reserved matter and one the Council could control in due
course. Article 2 of the Town and Country Planning (Development Management
Procedure) Order 2015 defines “layout”: “means the way in which buildings,
routes and open spaces within the development are provided, situated and
orientated in relation to each other and to buildings and spaces outside the
development”.
7.102. The Council’s suggestion that a Council cannot control density at the
reserved matters stage relies on the solitary basis of a single paragraph of the
Planning Encyclopedia’s section 3B-2200.5 citing R v Newbury DC Ex p
Chieveley Parish Council [1998] PLCR 5162. The Council has not explained
59 APP8 paragraph 5.5
60 APP8 paragraph 5.6-5.8
61 APP10 appendices 2-6, especially appendix 2 which focuses on the built up area of Woburn Sands only
62 RID23
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which part of the judgment is relied upon. However, on its face the judgment
is not authority for the Council’s proposition and it focuses on the issue of floor
area, not density. The same section of the Encyclopedia reveals another
authority which confirms that density is indeed capable of forming a reserved
matter: Inverclyde DC v Inverkip Building Co. Ltd 1983 SLT 81, 90.63
7.103. On a correct understanding of the development plan, national planning
policy and the legal powers available to the Council at the reserved matters
stage, there is simply no basis to refuse permission on grounds of density. The
Council’s attempts to retract their witness’ clear concessions in evidence
should be rejected.
Landscape and impact on character of settlement
7.104. The issue was considered in detail at the first Inquiry. The first Inspector
found the effects would be limited and give rise to no unacceptable harm
(IR9.26 and 9.27). The SoS concurred in the DL at paragraph 27. The Council
agrees with this position as set out in the SOCG and that any adverse effects
would carry limited weight against the proposals. The appellant has explained
that such harm would be significantly and demonstrably outweighed by the
benefits.
Heritage
7.105. The appellant’s heritage consultant64 has considered the effect on the
listed farmhouse and Wavendon House and the registered park and garden.
The first Inspector found less than substantial harm to the listed farmhouse
(IR9.41) and the SoS agreed in his DL at paragraph 28. The appellant’s
heritage consultant has found the scheme would cause no harm to the
significance of Wavendon House and the registered park and garden. The
Council in the SOCG agrees that the proposal would result in a low level of less
than substantial harm to the listed farmhouse and that there is no basis to
refuse the scheme on heritage grounds subject to a satisfactory detailed
scheme/design at reserved matters stage. The Council’s planning witness
confirmed that the public benefits would outweigh the low level of harm for the
purposes of NPPF paragraph 196.
7.106. In summary, whilst considerable weight and importance should be
attached to the desirability of protecting and enhancing the character and
appearance of designated heritage assets for the purposes of s66(1) of the
Planning (Listed Buildings and Conservation Areas) Act 1990, there is no basis
for refusal on this ground in relation to the Appeal Scheme. For the purposes
of NPPF 11d(i) there is no basis for refusal on heritage grounds.
Highways
7.107. Third parties raised traffic and transport concerns at the first inquiry and
these have been raised to a more limited extent at the present inquiry. The
first Inspector addressed these issues at IR9.35-9.38 and the SoS endorsed
63 RID26
64 APP9 appendix 4
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these findings that the proposal would not give rise to unacceptable effects in
his DL at paragraph 30. The TA has been updated65.
7.108. The Council has confirmed in the SOCG that the proposal is acceptable
in all respects, that the access is appropriate and would not put undue
pressure on local road network. All other detailed matters can be considered
under reserved matters applications. The TA remains robust and justifies the
conclusions of the appellant and the Council’s highway officers.
Best and Most Versatile Agricultural Land
7.109. The Council’s planning witness raised this issue for the first time in his
proof of evidence66. While identifying a conflict with Policy NE7, he made clear
in cross-examination that this did not amount to a freestanding basis for
refusing the proposal. It is accepted that there would be a loss of Grade 3a
agricultural land and that this gives rise to a conflict with NE7. However, both
Policy NE7 and NPPF paragraph 170(b) make clear that this is an economic
factor to be weighed against the economic benefits that would arise from the
development, listed in the Economic Benefits Statement67 and set out further
below. The Council has allocated land on sites around the Borough which are of
equal or greater agricultural value as the site68.
Planning Balance
Affordable housing
7.110. The appellant’s witnesses have identified a substantial need for
affordable housing within Milton Keynes borough in their respective proofs69.
The Council has already seen a shortfall of 640 dwellings in the first 3 years of
the plan period70 with a chronic failure to deliver a sufficient amount from 2007
to 201871. As set out above, there is a clear recognition in Plan:MK that
additional weight should be accorded to the provision of affordable housing in
excess of the policy minimum. The Council’s planning witness confirmed in
cross-examination that this was a benefit to which significant weight (the
highest weight) should be attached.
Market housing
7.111. Significant weight should be attached to the benefits of providing
market housing irrespective of the precise HLS position. The Government is
committed to boosting significantly the supply of housing to meet the chronic
and continuing shortfall both nationally and where it arises locally, but also to
diversify the base of house builders to meet that need. One of the difficulties
identified by the Government in its White Paper was the excessive
concentration and dominance of the major national house builders which is
seen to have a distorting and negative effect upon the continuous supply of
housing up and down the country.
65 APP9 appendix 7
66 LPA4 paragraph 10.31-10.32
67 APP9 appendix 6
68 RID24
69 APP2 chapter 7 and APP8 paragraphs 6.34-6.36
70 APP2 table 13
71 APP2 table 17
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7.112. The house builder in this case, Storey Homes, is a small to medium
sized developer whom the Government wishes to encourage to provide
housing, not only as a matter of choice but in order to meet a diversity of
suppliers. The appellant’s note72 has provided evidence both upon that, the
track record of the company and the anticipation that it will be able to deliver
all of the proposed housing within 5 years of the date of its permission. The
proposal would deliver at least 150 dwellings within the current 5 year period
up to March 2024, allowing for a year to clear reserved matters and conditions.
The Council’s suggestion that there should be any diminution in the weight to
be accorded the proposal by reason that not all of the 203 dwellings might be
delivered within the 5 year period (principally due to the suggested significant
delay on the part of the SoS in issuing his decision letter on this appeal) is not
credible.
7.113. The proposal will provide much-needed housing in an important growth
location both regionally and nationally and where the provision of each type of
housing has materially lagged over a prolonged period of time.
Economic benefits
7.114. There are substantial economic benefits as set out in the Economic
Benefits Statement and accepted by the Council’s planning witness at cross-
examination. These comprise temporary construction employment of 180
workers per annum, or 630 workers over the course of a 3.5 year construction
period, both on and off-site; demographic and labour market benefits,
including a high proportion of working-age residents (75% in employment),
and a cross-section of working people due to the range of accommodation
offered; secondary employment generated by increased spending in the local
area by new residents (£5 million total per annum), directly supporting around
40 gross full-time equivalent jobs; and New Homes Bonus paid to the Council
of c.£1.4 million over 4 years.
Social benefits
7.115. The development will provide social benefits through housing (including
much needed affordable housing) to meet future need and is accessible to the
local services provided within the wider area including education facilities. The
site would also provide a social benefit in the form of the doctor’s surgery to be
provided on site and the site would be within reasonable walking distance of
existing local services and facilities.
Environmental benefits
7.116. There will be the opportunity to provide a net environmental benefit by
the site having the potential to enhance the habitats within it, given that the
appeal site has little value for wildlife at present. These are set out in an
update report from CSA Environmental73.
7.117. Clearly the site is outside the present settlement boundary of Woburn
Sands but so would any site which is presently not allocated. Much of the
Council’s HLS is and will be located on green field sites. In that context, there
72 APP9 appendix 13
73 APP appendix 5 paragraph 5.20
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would have to be something distinct and material about this site in order to
suggest that its green field location would render it unsustainable. That was
certainly not the view of officers in their report recommending approval and it
is freely recognised by the Council that there is no landscape or similar
argument to support objection to the appeal site here.
Highways/Traffic benefits
7.118. There are highways and transportation benefits, by providing additional
flexibility in the local network and an alternative to the existing Newport Rd /
Cranfield Rd junction. These can be classified as both environmental and social
benefits. The proposal would also help to contribute towards sustainable
patterns of development and help to counteract the increasing levels of
commuting which can be created by an imbalance of homes and jobs.
Summary on benefits
7.119. The proposed development is one which, by reason of its location and
accessibility to a range of services, facilities and transport links, and having
regard to the three dimensions set out in the NPPF, is sustainable development
which properly benefits from the presumption in its favour. Even in
circumstances (though not here) where an Inspector were to conclude that the
Council was able to demonstrate a 5 year HLS, the sustainability and other
advantages constituting material considerations in this case would be sufficient
to justify the grant of consent.
Conclusions
7.120. The appeal proposal represents sustainable development adjacent to a
settlement which is identified in Plan:MK as being a key settlement and which
contains not only a wide range of service and facilities but also a railway
station. The Council does not have a 5 year HLS and that the shortfall in both
market and affordable housing is longstanding, acute and continuing.
7.121. The proposed development gives rise to substantial benefits which are
not outweighed by any of the alleged detrimental impacts and is consistent
with the presumption in favour of sustainable development. It is therefore
respectfully submitted that the appeal should be upheld and planning
permission ought to be granted.
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8. The Case for Milton Keynes Council74
Introduction
8.1. The Council submits that this appeal should be dismissed. In its evidence to
this inquiry and questions in cross-examination, the appellant has
demonstrated an obsession with process, an interpretative approach which is
contrary to the plain words of local and national policy, and a selective
approach to the evidence which ignores that which does not support its case.
By contrast, the Council’s approach has been straightforward, consistent with
national policy, and should be preferred
Previous Decision Letter (DL)
8.2. The DL is a material consideration in the redetermination of this appeal,
notwithstanding the fact that it was quashed by the High Court: see R.
(Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin)75. This is
to give effect to the well-established principle of consistency in decision
making. In Davison, the judge gave specific guidance on the application of
consistency to a quashed decision as follows:
(a) The principle of consistency is not limited to the formal decision but
extends to the reasoning underlying the decision.
(b) Of itself, a decision quashed by the Courts is incapable of having any
legal effect on the rights and duties of the parties. In the planning
context, the subsequent decision maker is not bound by the quashed
decision and starts afresh taking into account the development plan and
other material considerations.
(c) However, the previously quashed decision is capable in law of being a
material consideration. Whether, and to what extent, the decision
maker is required to take the previously quashed decision into account
is a matter of judgment of the decision maker reviewable on public law
grounds. A failure to take into account a previously quashed decision
will be unlawful if no reasonable decision maker could have failed to
take it into account.
(d) The decision maker may need to analyse the basis on which the
previous decision was quashed and take into account the parts of the
decision unaffected by the quashing.
(e) The greater the apparent inconsistency between decisions the more the
need for an explanation of the position
8.3. Applying these principles, the Council submits:
(a) The DL is a material consideration in the present case. No reasonable
decision maker could fail to take the DL into account given the obvious
relevance to the issues in dispute. However, the DL does not bind the
decision maker who must start afresh, taking into account the
74 Largely taken from the Council’s closing submissions RID34
75 Insofar as the Appellant may seek to rely on West Lancashire v SSCLG [2017] EWHC 3451 as establishing a
different approach, Davison is to be preferred given that it expressly considered West Lancashire.
https://www.gov.uk/planning-inspectorate Page 36
development plan and other material considerations, of which the DL is
one.
(b) The DL was quashed because the Secretary of State failed to give
adequate reasons for concluding that the Council could demonstrate a 5
year HLS. Accordingly, the Secretary of State’s conclusions (and
reasoning) on all matters unrelated to 5 year HLS were not impugned by
the High Court.
(c) Notwithstanding the fact that the SoS’s conclusions on these matters
was not impugned, it is necessary to consider whether those conclusions
remain relevant, and if so, whether they hold good, taking into account
any changes in circumstances that may have arisen since the SoS’s
decision
8.4. In respect of the Secretary of State’s principal conclusions, the Council’s
position is that:
(a) 5 year HLS: The conclusion at DL paragraph 18 that the Council could
demonstrate a 5 year HLS formed the basis on which the DL was
quashed. Accordingly, no weight can be given to this conclusion and the
issue must be considered afresh by reference to the new evidence now
presented at this Inquiry.
(b) Location of site: The conclusion at DL paragraph 19 that the
development fails to accord with Policy WS5 of the WSNP is relevant and
unaffected by the quashing of the DL. However, given the changes to
the development plan since the DL was issued, the conclusion that the
development was contrary to saved local plan policy S10 is no longer
relevant. Further, given the changes to the development plan, it is
necessary to consider afresh the weight to be afforded to the conflict
with Policy WS5.
(c) Housing density: The conclusion at DL paragraph 26 that the
development fails to accord with NPPF 2018 paragraphs 122–123 is
relevant and holds good given the similarity with the relevant
paragraphs in the NPPF 2019. However, given the changes to the
development plan since the DL was issued, the conclusion that the
development was contrary to Policy H8 is no longer relevant.
(d) Character of the area: The conclusion at DL paragraph 27 that “the
significant visual and landscape effects of the scheme would be very
local, while beyond those immediate surroundings, the effects would be
very limited” is relevant and holds good as there has been no material
change of circumstances.
(e) Heritage: The conclusion at DL paragraph 28 that there would be less
than substantial harm to Deethe Farmhouse is relevant and holds good
as there has been no material change of circumstances.
(f) Benefits of the scheme: The conclusion at DL paragraph 29 that the
benefits of the scheme comprise affordable housing, temporary
construction employment and secondary employment is relevant and
holds good. However, it is necessary to consider afresh the weight to be
https://www.gov.uk/planning-inspectorate Page 37
afforded to these benefits given the changed housing and economic
environments.
(g) Other matters: The conclusion at DL paragraph 30 that matters relating
to traffic and parking, the impact of the development on the facilities of
the town, and ecology and drainage, do not weigh against the proposal
is relevant and holds good as there has been no material change of
circumstances.
8.5. It is necessary to consider afresh the conclusions in respect of planning
conditions and obligations and the planning balance given changes to the
development plan and amendments to both conditions and obligations.
Housing Land Supply
The general approach to the assessment of HLS at this appeal
8.6. There is a need to adopt a proportionate and realistic approach to the
assessment of evidence at an appeal compared to local plan examination as
acknowledged by the Inspector at the Castlethorpe Road appeal76. The policy
imperative of demonstrating a 5 year HLS in NPPF paragraph 73 and the
consequences of not being able to in terms of NPPF paragraph 11 is to ensure
that there is an adequate supply of housing land. This is clear from NPPF
paragraph 59. Contrary to the approach of the appellant, the assessment of 5
year HLS is concerned with the endpoint and a sufficient supply of deliverable
land, not with the assessment process. There is a need for good planning
judgment.
8.7. The appellant’s approach to the assessment of deliverability invites the
decision-maker to ignore evidence which is obviously material to the
assessment of realistic prospects. It is well established that policy cannot
lawfully make immaterial that which is material77. The Appellant ignores this,
and this is one of many reasons why its approach is wrong in law.
8.8. The Council’s 5 year HLS must be viewed in the context of the recently
adopted Plan:MK, which has brought about a robust supply and resulted in
dramatic improvements in housing delivery. Since adoption in March 2019, the
Council has achieved its annual delivery requirement in 2018/19 for the first
time since 2007/08 consistent with the continual year on year improvement
over the first 3 years of Plan:MK. In quarters 1-3 of 2019/20, the Council has
delivered 92% of its annual requirement such that it is near certain that it will
meet its annual delivery requirement again for the second consecutive year78.
The number of units under construction at the end of quarter 2 of 2019/20 was
the highest number since June 2008 and quarter 3 only marginally lower. The
first 3 quarters of 2019/20 is the first time since at least 2007/08 that the
Council has recorded over 2000 units under construction for 3 consecutive
quarters.
76 CD6.18 paragraph 51 [the Council’s closing submission refer to this appeal as ‘Hanslope’, but for consistency this
report has used the same address used by the appellant]
77 See Gransden & Co. Ltd. and Another v Secretary of State for the Environment (1987) 54 P. & C.R. 86 per Woolf J
(as he then was) at 94.
78 LPA1 table 5.1 and RID07
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8.9. The Plan:MK Inspector confirmed the Council has a clear and robust roadmap
to delivering housing and was satisfied with its housing trajectory, with special
circumstances for significantly higher delivery over next few years, significant
number of small and medium sites and the risk of non-delivery minimal79. The
Council submits that the change in the NPPF definition of deliverable does not
affect these conclusions as they go to the underlying approach of the Council
and the underlying circumstances of the local area.
Other recent appeal decisions dealing with 5 year HLS
8.10. Both the Castlethorpe Road and the Globe appeal decisions80 are material
considerations, but neither is binding on the decision maker. Given the
conflicting conclusions on HLS, the decision maker will need to disagree with at
least one and give reasons. Neither decision is more lawful than the other and
their planning judgments have not been challenged. The differences between
the appeals relate to the different evidence presented to each appeal and the
different manner in which the evidence was presented. The fact that more time
was spent on site by site analysis at the hearing for the Castlethorpe Road
appeal does not make it a more considered decision. The evidence was
presented in advance for the Globe hearing and there was only one appellant.
The HLS evidence at the Globe hearing was more up to date and was
presented earlier on. While this might mean the Globe decision should be
preferred on this basis, there is still a need to reach a fresh judgment for this
appeal based on the evidence before this Inquiry.
8.11. Both appeal decisions considered the most up to date evidence like this appeal.
Both decisions noted the improving housing completions. The Castlethorpe
decision dismissed criticism of the Council’s proformas. This Inquiry has the
benefit of the Council’s note81 explaining the proforma process and that
respondents did amend build out rates where necessary. A statement from a
developer would provide no greater certainty of delivery. The evidence
presented by the appellant from Mid Suffolk District Council82 accepts an email
confirmation to support build out rates.
8.12. The Castlethorpe Road decision applies an optimism bias (OB) using a
midpoint between the Council and appellants (paragraph 62). It is important to
note that the Council and appellants were referring to two different things
when using the term OB: the Council was referring to a lapse rate while the
appellants were referring to an adjustment for alleged inaccuracies in the 5
year HLS assessment. The alleged inaccuracy was the discrepancy between the
Council’s previous assessments of HLS and the number of homes delivered.
The midpoint applied by the Inspector was not 17.5% but a broader approach
and the Council would have been able to demonstrate a 5 year HLS otherwise.
8.13. The Castlethorpe Road conclusion that it was not particularly apparent that the
Council had reduced its calculations of housing land supply to reflect the
revised definition of deliverable in the NPPF no longer holds good as the
Council has given clear evidence83 to this Inquiry of the approach and
79 CD5.32 paragraphs 136, 145 and 152
80 CD6.18 and CD6.17 respectively
81 RID13
82 RID15
83 LPA2 appendix 2, section 2
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methodology followed. Moreover, the Council has discounted sites from the
Plan:MK 5 year HLS due to the new definition of deliverable84.
Timescale of the evidence
8.14. There is dispute between the parties as to the use of evidence which post-
dates the base date of 1 April 2019 to assess deliverability. This is a matter of
principle which falls to be determined by interpreting national policy and is not
an issue specific to the facts of the case. The Council’s position is that the
calculation of 5 year HLS should not introduce new sites granted permission
after 1 April 2019 which were not identified as part of the supply at 1 April in
Council’s June 2019 HLS assessment. Moreover, regard should be had to all of
the evidence presented to this inquiry even it was created after 1 April or
relates to events which postdate 1 April. The assessment needs to ask a simple
question in respect of each site – does the evidence presented to this inquiry
demonstrate that the site is deliverable in the five-year period 1 April 2019 –
31 March 2024.
8.15. The appellant advocated an artificial two stage approach. Firstly, to consider,
by reference only to evidence which predates 1 April (either because it was
created before that date or because it was created after that date but referable
back to matters known before that date), whether the site was deliverable as
at 1 April. Secondly, to consider whether the conclusion reached at the first
stage holds good today by reference to other matters since 1 April. The Council
submits this is wrong and should be rejected for the following reasons.
8.16. Firstly, it is an approach that has no basis in the NPPF or PPG. Reference in
paragraph 73 to a minimum of 5 years’ worth of housing is simply an
expression of the need for the supply to cover at least a 5 year period.
Reliance on the PPG paragraph 68-001-20190722 is misplaced as ‘next five
years’ operates as a contrast to ‘last 3 years’ to illustrate difference between
retrospective Housing Delivery Test and prospective calculation of 5 year HLS.
It does not impose an evidential cut-off date. The appellant accepts that the
base date for assessment may be a date which has passed such that ‘next’ is
not imbued with any special meaning. There is no basis for only considering
evidence prior to the base date and no basis for a two stage approach.
8.17. Secondly, the PPG approach accords with the Council when considering the
provisions relating to preparation of an Annual Position Statement (APS)85
where the base date is 1 April and a local planning authority has until 31 July
to prepare and consult on its APS before submission to PINS and PINS issues
its recommendation by October. This allows for stakeholders to agree or
disagree with evidence to allow robust challenge and reasoned conclusion on
deliverability which is then assessed by PINS.
8.18. Thirdly, neither Woolpit nor Darnall School Lane decisions86 support the
appellant’s approach. The former discounts sites not identified at the base date
from the assessment which the Council follows in its approach. The latter
considered information after the base date where it was relevant to identified
sites with no artificial cut-off date for evidence.
84 RID19
85 PPG ID: 68-012-20190722, ID: 68-013-20190722, ID: 68-015-20190722
86 CD6.16 and CD6.14/6.15 respectively
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8.19. Fourthly, the appellant’s approach is impractical and seeks to create an
artificial process. An HLS assessment requires understanding of actual
completions which cannot be known until after the base date. The Mid Suffolk
and Babergh HLS assessments illustrate this reality87. Both refer to
MOUs/SOCGs agreed after base date; these may support evidence but can
only mean there was sufficient clear evidence without them. The MOUs
contained matters post-dating the base date that were taken into account in
calculating 5 year HLS such as build out rates88. The assessment of
deliverability requires consideration of how many homes are deliverable and
not simply that the site is deliverable89. There is no basis in policy or logic to
impose artificial time restrictions on the assessment of deliverability but not
the other elements of the 5 year HLS assessment.
8.20. Fifthly, where an APS is not used, the PPG is clear that HLS should be
demonstrated using the latest available evidence and up to date evidence90.
The Council’s approach is consistent with this. The appellant seeks to
disaggregate evidence so that there is a threshold test at first stage which
omits the most recent evidence as it is limited only to evidence which predates
the base date. The consequence is to invite the decision maker to disregard
obviously material evidence in the assessment of whether there is a realistic
prospect that a particular site is deliverable.
8.21. Sixthly, the Council’s approach is consistent with the Colchester Road
decision91 regarding evidence after the base date, the Globe decision92
regarding the use of proformas after 1 April base date, and the Castlethorpe
Road decision regarding the use of proformas93.
8.22. The appellant’s approach seeks to create an obstacle course for local planning
authorities to negotiate every time there is an appeal. It bears no resemblance
to national policy and departs from clear purpose of HLS mechanism to ensure
that there is a pool of sites of sufficient capability to create a realistic prospect
that local housing need will be met in a timely fashion in the relevant 5 year
period. The appellant places process above good, sound and sensible planning.
Deliverability, not delivery
8.23. There is a clear distinction in NPPF paragraph 73 between delivery and
deliverable. The appellant conflates the two and the error manifests itself in
two principal ways: it forms the basis for the application of an inflated OB to
the Council’s deliverable sites; and it forms the basis for the appellant’s
erroneous discounting of deliverable sites.
8.24. The St Modwen judgment94 in paragraphs 35-39 highlights the essential
distinction between the two concepts. Deliverability is a less demanding test
than delivery. The fact that a particular site is capable of being delivered within
five years and thus deliverable, does not mean that it necessarily will be
87 RID15 paragraphs 10, 11, 23 and 29
88 RID15 paragraphs 24 and 25
89 See Colchester Road decision at CD6.22 paragraph 65
90 PPG ID: 68-004-20190722 and 68-007-20190722
91 CD6.22 paragraph 62
92 CD6.17 paragraphs 23 and 24
93 CD6.18 paragraph 55
94 CD7.6
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delivered. The judgment also highlights that the likelihood of housing being
delivered within 5 year period is no greater than a realistic prospect, not
certain or probable. The revisions to the NPPF does not affect this judgment
including the definition of deliverable which is materially unchanged in the first
part of that definition in the 2012 and 2019 versions.
8.25. St Modwen does not create new law but explains the correct interpretation of
national policy. This is confirmed in the more recent East Bergholt judgment95
at paragraphs 47-51, which highlights that ‘realistic prospect’ is a matter of
planning judgment
Adjusting the assessment of deliverable sites
8.26. This issue relates to whether the assessment of deliverable sites should be
adjusting by applying an OB and if so, what method of discount for OB should
be applied. The Council uses OB to refer to lapse rates while the appellant uses
it to refer to a discount to apply to the Council’s HLS to address alleged
inaccuracies in the assessment. The Council applies a lapse rate to all sites
with forecast delivery in the 5th year of supply by discounting delivery of the
site in each year by 10%. The appellant advocates a blanket discount of 28-
30% to the supply but applies no such discount in its own assessment.
8.27. The Council’s position is that it no longer considers it appropriate to apply a
lapse rate due to the site by site assessment it undertakes. However, to be
consistent with the approach for Plan:MK, a lapse rate was included in the HLS
assessment in June 2019 and in the evidence to this appeal. This is to ensure
robustness. The appellant’s HLS witness has also carried out a site by site
assessment and so there appears to be little difference that a lapse rate or OB
is not required. It is open to the decision-maker to conclude that it is not
required as the detailed assessment of sites reduces uncertainty.
8.28. The appellant’s OB should not be applied as its HLS witness has compared the
assessment of deliverable supply with actual delivery. This is erroneous and
an unrelated comparison contrary to St Modwen. Just because a deliverable
site was not delivered does not undermine the assessment of deliverability. It
would also be inconsistent with national policy. For the purposes of NPPF
paragraph 73, it is agreed that only a 5% buffer is necessary rather than 20%
which is intended to make up for the significant under delivery of housing over
previous three years. This achieves the same purpose as the appellant’s OB.
To impose the OB would be inconsistent with the NPPF which has decided it is
not appropriate to apply a 20% buffer. Lapse rates were not applied in Mid
Suffolk or Babergh’s HLS assessments and the appellant has confirmed that it
does not support a lapse rate96.
8.29. If a discount is to be applied to this appeal, then it should be the lapse rate in
accordance with the Council’s methodology and not the appellant’s OB.
Permitted development prior approval notifications
8.30. This relates to the grant of prior approval pursuant to Class O of Schedule 2 to
the Town and Country Planning (General Permitted Development) (England)
95 RID09
96 RID17 paragraph 1.16
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Order 2015 (GPDO) and the calculation of 5 year HLS. The Council’s position is
that it results in detailed planning permission which falls within category (a) of
the NPPF definition of deliverable. This is a matter of law not planning
judgment.
8.31. The NPPF should be interpreted consistently with the planning acts as
judgments have found97. Section 336(1) of the Town and Country Planning Act
1990 (TCPA 1990) defines “planning permission” as a permission under Part III
TCPA 1990. The GPDO is made pursuant to Section 58 TCPA 1990, which falls
within Part III TCPA 1990. Accordingly, where article 3 of the GPDO grants
planning permission for development in Schedule 2 to the GPDO (including
Class O), that planning permission is a permission under Part III TCPA 1990
and thus within the definition of “planning permission” in s. 336(1) TCPA 1990.
On this basis, the reference to “detailed planning permission” must include
planning permission granted pursuant to Class O.
8.32. The appellant’s argument that the government was aware of Class O permitted
development rights when drafting the NPPF definition of deliverable and the
express omission of Class O is deliberate fails because the definition of
deliverable includes such permissions under Class O.
8.33. A development with prior approval is indistinguishable from other types of
permission in category (a). No further consent is required other than discharge
of conditions like a site with full planning permission. This contrasts with the
sites in category (b) where further consent is required. This approach is
consistent with the SoS in the Hanging Lane decision98 at paragraph 21 where
he agreed with the Inspector’s analysis regarding the inclusion of prior
approval sites.
8.34. If the appellant is correct, then homes created under Class O would fall outside
the 5 year HLS entirely. The PPG99 states for the purposes of calculating 5 year
supply housing completions can include conversions and changes of use.
Furthermore, it is inconsistent with the rationale for Class O which is to boost
housing delivery. The appellant has not referred to any appeal decisions or
case law to support its approach and offered no cogent reason why homes
created under Class O should be excluded from the definition of deliverable.
Under category (a), the burden of proof is on the appellant to show clear
evidence that a site will not be delivered.
Site by site assessment – general points100
8.35. At the roundtable session, the appellant’s approach was based on a number of
common and erroneous themes. Firstly, the criticism of the proformas which
has been dealt with above. Secondly, the discounting of proformas from MKDP
for no reason other than assertion that they would be inaccurate for the
purposes of the Council preparing its assessment. MKDP is an arms-length
organisation with the remit of bringing land forward for housing, it has detailed
local knowledge and no reason to doubt its responses. A similar approach was
taken to responses from Homes England, who are a non-departmental public
97 CD7.4 paragraphs 19 and 20
98 CD6.20
99 PPG ID: 068-029-20190722
100 Appendix 1 to the Council’s closing submissions sets out a summary on strategic sites
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body and statutory corporation to improve the supply and quality of housing
and the regeneration or development of land or infrastructure in England.
8.36. The proformas make clear that the information is being sought on the basis of
a year running from 1 April to 31 March, with forecasts being sought from the
year 2019/20 onwards, i.e. from 1 April 2019 onwards. Accordingly, the
suggested completions of the Council (and any confirmation or amendment by
the respondent) can only be on the basis of starting from the base date. As
such, it is evidence which can be taken into account even on the appellant’s
artificial basis because it refers to matters as they were at the base date.
8.37. The appellant’s distinction between sites in the control of land promoters or
landowners and developers is without consequence as there is clear evidence
that the former are no more likely than the latter to landbank sites as set out
in the NLP report101.
8.38. The appellant’s suggestion that the evidence gathered for the Plan:MK
preparation was of no assistance as it had been prepared with the NPPF 2012
definition of deliverable erroneously conflates the collection of evidence with
the judgment made on the basis of that evidence. There is no reason why
Plan:MK evidence could not be taken into account and reappraised under the
revised definition of deliverable.
8.39. The Council’s approach to build out rates is robust, as the Plan:MK Inspector
found, because it has adopted an individualised approach to each site, sense
checked against build out rates derived from local context and subject to
further checking by the Joint Housing Delivery Team.
Brooklands (Site 1)
8.40. Appellant’s criticism of build out rates is misplaced as the Council’s projected
completions are consistent with local evidence and increasing pattern of
completions. Over the last 4 years, the average delivery has been 247dpa
which is above the 222dpa average rate for the next 5 years which the
appellant criticises. Recent monitoring data illustrates that the site has already
delivered well over Council projections of 182 completions for 2019/20, with
267 homes completed by the end of quarter 3. The evidence supports that the
Council’s figures are realistic and robust since delivery is already in advance of
the Council’s projections. This is also confirmed by the proformas provided by
the Council from the housebuilders involved and who are already building out
some parts of the strategic site.
Tattenhoe Park (Site 2)
8.41. Criticism of Homes England’s involvement is misplaced for the reasons above.
Homes England provided further information as part of Plan:MK process
supported by continuing dialogue. Two parcels are in the hands of developers
and Homes England is engaged in a clearly documented marketing exercise to
secure developer involvement on remaining parcels via tender process. This
documentation contains a clear timeline for this to happen (including the build
out rates and lead in times which the developers must adhere to) and supports
the proforma responses from Homes England (including the most recent
101 CD11.1 page 12, second column, first paragraph
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updated proformas). All of this progress is consistent with the two recent
grants of detailed planning permission, both of which were for more homes
than expected.
Western Expansion Area (Site 3)
8.42. There have been completions on Area 10 for 4 years (5 including current
year). Up to 1 April 2019 there have been 712 completions since the site
started delivering and 300 delivered in this year alone. This area has delivered
1000 homes and is only 32 short of meeting this year’s projected figure. For
Area 11, there has been 834 completions over last 4 years and over the last 2
years the completions have been 267 and 268 homes. There have been 133
completions for this year, more than projected. Combined, the two areas are
delivering in the same manner (high 200dpa almost 300dpa each). The
Council’s assessment is consistent with the proformas and supported by a
documented disposal strategy. There has been a sense check of developer
information with a more conservative approach adopted by the Council.
Strategic Land Allocation (Site 4)
8.43. The Council’s careful parcel by parcel analysis is to be preferred as it is clearly
grounded in the evidence of ongoing completions. For example, taking the
area as a whole, 181 completions were projected across the whole site for
2019/20 and as the Q3 monitoring data demonstrates, 187 have been
completed.
The Council’s final 5 year HLS position
8.44. Scenario 1: removal of conceded site – Land at Galleon Wharf (Site 14) for 14
units.
1 April 2019 No. of Units
Annual requirement 1,767
Requirement to 1 April 2019 5,301
Completions to 1 April 4,529
Shortfall 772
5 year requirement 9,607
5 year requirement including 5% buffer 10,087
Supply as at 1 April 2019 13,610
MKC Lapse Rate 678
Supply as at 1 April 2019 12,932
5 year 6.41
Surplus 2,845
8.45. Scenario 2: removal of conceded site – Land at Galleon Wharf for 14 units and
inclusion of all adjustments in paragraph 4.62 of Council’s HLS proof of
evidence with the exception of paragraph 4.6.11 (Site C3.2 Central Milton
Keynes) as this was deemed undeliverable as of 1 April 2019.
1 April 2019 No. of Units
Annual requirement 1,767
Requirement to 1 April 2019 5,301
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Completions to 1 April 4,529
Shortfall 772
5 year requirement 9,607
5 year requirement including 5% buffer 10,087
Supply as at 1 April 2019 13,252
MKC Lapse Rate 650
Supply as at 1 April 2019 12,602
5 year 6.25
Surplus 2,515
8.46. Scenario 3: as per Scenario 2 but with Council lapse rate not applied.
1 April 2019 No. of Units
Annual requirement 1,767
Requirement to 1 April 2019 5,301
Completions to 1 April 4,529
Shortfall 772
5 year requirement 9,607
5 year requirement including 5% buffer 10,087
Supply as at 1 April 2019 13,252
MKC Lapse Rate 0
Supply as at 1 April 2019 13,252
5 year 6.57
Surplus 3,165
Conclusions on 5 year HLS
8.47. For the reasons above the Council submits that its approach should be
preferred and that it has demonstrated a 5 year HLS. The Council’s approach is
robust, sensible and consistent with national policy. By contrast the appellant’s
approach is artificial, focussed on process not good planning and inconsistent
with national policy.
The Development Plan
Plan:MK
8.48. The appellant’s planning witness accepted at cross-examination that the
development is contrary to Policies DS1 and DS2 of Plan:MK. He suggested
that it was nevertheless in general conformity with the approach that
underlines the spatial strategy, but the spatial strategy is DS1 and DS2 and so
this must be rejected. Policy DS1 draws a distinction between the urban area
of Milton Keynes where development should be within and adjacent to that
area, and the rural area where new development should be within the key
settlements, villages and other rural settlements. The appellant’s planning
witness accepted that Policy DS2 is to be read in combination with Policy DS1.
Thus, it only contemplates housing within the defined boundary of the key
settlements. He also accepted that the appeal site does not fall within any of
the 13 criteria in Policy DS2.
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8.49. The Plan:MK Inspector as recently as February 2019 found Policies DS1 and
DS2 were consistent with NPPF 2012 subject to modifications102. The Inspector
considered the overall strategy for Woburn Sands and found no need to modify
the settlement boundary to make a specific allowance for additional
development103. The appellant’s witness accepted that the spatial strategy of
Plan:MK is that there is no requirement for Woburn Sands to meet. Thus, there
is no inconsistency between Policies DS1 and DS2 and NPPF paragraph 65
(which requires plans to set out housing requirements for neighbourhood
areas) given the findings of the Plan:MK Inspector. The policies therefore carry
full weight for this appeal.
8.50. The objective of Policy DS5 is, amongst other things, to recognise and
safeguard the character of the areas within the Borough beyond the settlement
boundary. The appellant’s witness accepted conflict with this policy and that it
is consistent with the NPPF 2019 and up to date. As such, it carries full weight.
The Plan:MK Inspector found the policy was sound. The NPPF allows plans to
include policies that conserve and enhance the natural environment, not just
protect valued landscapes.
The Neighbourhood Plan
8.51. The policies in the WSNP remain the same as the first Inquiry but
circumstances have moved on not least with the adoption of Plan:MK.
Paragraph 19 of the SoS’s decision only gave moderate weight to Policy WS5
since it defined boundaries by reference to a Local Plan only intended to guide
development to 2011. However, the role of the WSNP and its boundaries have
been considered afresh within Plan:MK and particularly Policy DS2. As above,
the Plan:MK Inspector concluded that no modification was required in terms of
the settlement boundary. Further, he concluded that Plan:MK was the first
opportunity to systematically review settlement boundaries in the Borough and
he found them to be robust. Therefore, the WSNP boundary is robust and up to
date.
8.52. Policy WS5 is not purely a countryside protection policy, it is a settlement
boundary policy indicating the approach to development within the boundary.
This is not contrary to the NPPF, which also allows neighbourhood plans to
include policies to conserve and enhance the natural environment. The
appellant cannot assert that Policy WS5 is inconsistent and out of date but
agree that Policy DS5 is consistent and up to date. The two policies reflect the
same policy approach. The arguments concerning the bullet points in WS5 go
nowhere since they are all contingent on Plan:MK identifying a need for a
boundary change which it did not. As such they do not apply. Accordingly,
Policy WS5 is to be given full weight for this appeal
8.53. The same is true in respect of Policy WS6. The appellant only raised points
regarding the consistency of bullet points in that policy, none of which are
engaged as Plan:MK did not identify any need for boundary changes. Thus,
Policy WS6 is consistent with the NPPF and up to date and should be given full
weight.
102 CD3.32 paragraphs 31-45
103 CD3.32 paragraph 34
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Density
8.54. As a matter of law, the grant of outline planning permission will establish that
the density of the development, however it is distributed across the appeal site
and, however many units will come forward, will be acceptable in principle.
Accordingly, if outline permission were granted as sought and a developer
were to apply at the reserved matters stage for 203 units distributed across
the appeal site, the Council would not lawfully be able to refuse planning
permission on the basis that the density of what is proposed is too low and
makes an inefficient use of land contrary to Policy HN1 and/or paragraphs
122/123 of the NPPF. The Planning Encyclopedia states that density is not a
reserved matter referred to the court judgment in Chieveley104. The appellant
has not suggested the use of a condition to reserve density for later approval
and this has not been addressed at the Inquiry. Thus, there is no evidence for
the SoS to consider such a condition.
8.55. The Council’s planning witness was confused in cross-examination on the
matter of whether reserved matters approval could be refused on the grounds
of density. That suggestion cannot be found in the written evidence of either
party since it is wrong as a matter of law. The decision-maker has to
determine now whether a proposal which would allow up to 203 units across
the whole of the redline area would be acceptable in density terms. This is a
planning judgment as to whether the development would make efficient use of
land.
8.56. NPPF paragraph 122 sets out a number of factors to consider as to whether a
development makes efficient use of land. This approach is echoed in Plan:MK
via Policy HN1(c) which is consistent with NPPF paragraphs 122 and 123 and
so is up to date and given full weight. The policy adopts a flexible approach to
ensure appropriate densities on a case by case basis. Any judgment needs to
be sensitive to the extent to which land is being released to meet a housing
need. The appellant’s planning witness accepted the greater the need and/or
shortfall in HLS the greater this will pull towards a higher density level.
8.57. Local market conditions and viability in this case do not pull towards a higher
or lower density. There is no constraint in the availability and capacity of
infrastructure and services which would prevent additional housing above 203
units. This site is in a sustainable location and no evidence that any increase in
units would give rise to severe consequences for the local highway network.
8.58. In terms of maintaining the area’s prevailing character and setting, the SoS’s
decision considered this matter in relation to the then extant Policy H8 which
sought a density of 35dph. The SoS must have considered that such a density
was acceptable in terms of character and appearance. He noted that the
scheme was a significant departure from policy in paragraph 26 of his DL.
8.59. Since the SoS decision, the only material change in terms of the character of
the area is that Policy H8 has been replaced with Policy HN1. While the latter
does not contain a requirement for 35dph, the objection of bringing forward
the highest density that can be delivered while ensuring that the development
would still relate well to character and appearance has not.
104 RID23
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8.60. It is evident from paragraph 26 of the DL that the SoS must have concluded
conflict with NPPF paragraph 122 since in paragraph 24 he had found that
Policy H8 was consistent with this paragraph. The SoS had previously found
only limited effects of the scheme on visual and landscape considerations
implying that the site has strong visual containment. As such, there is scope
for the density to increase while maintaining an appropriate buffer and
landscape boundary without unduly affecting character and appearance. There
is no reason to reach a different conclusion now as the scope for additional
development to be accommodated. Thus, the only reasonable conclusion is
that the development does not make efficient use of land contrary to NPPF
paragraph 122 and Policy HN1.
8.61. The appellant argues the site should be released due to a lack of 5 year HLS.
NPPF paragraph 123 is highly relevant here. Where there is shortage of
housing land, it is especially important to avoid low densities and to optimise
the use of each site. Paragraph 123(a) relates to plan making, but the policy
response of a significant uplift in the average density applies in a decision-
taking context. Paragraph 123(c) is clear that proposals which fail to make
efficient use of land they should be refused planning permission, even in the
context that includes circumstances where there is a shortage of housing land.
If sites are to be released to meet housing needs, they must be utilised
efficiently to reduce the overall amount of land that has to be released.
8.62. Where a development comes forward that does not make efficient use of land
it must be refused even in the context of additional housing need. Any conflict
with NPPF paragraphs 122/123 must be given significant weight against the
grant of permission. Any less weight would not achieve the policy objective of
optimising densities in situations of housing need.
8.63. The appellant cannot argue for a site to be released due to a shortfall of sites
but propose a scheme which reflects the low density of adjacent development
that is below the average density for Woburn Sands (26-27dph). There is no
evidence that even with 203 units the amount of development is optimal. The
appellant has not produced evidence that shows a higher density would be
unacceptable in planning terms105. The appellant has reduced the planning
judgment to a series of comparisons of density calculations.
8.64. The appellant’s recalculation of density was flawed in that it omitted access
roads and other elements. This excluded roads initially described as estate
roads which should have been included in the net developable area as without
them access to houses could not be achieved. The Council’s Urban Capacity
Study which supported Plan:MK makes it clear this approach was
inconsistent106. The appellant revised density figure is thus flawed and
overstates the density. The reliance placed by the appellant on the 50% net
developable area approach adopted in the Strategic Housing Land Availability
Assessment107 is also misplaced since that documents predates the revisions to
the NPPF on density.
105 In response before its closing submissions, the appellant noted that at the first Inquiry, an illustrative proposal by
the appellant for 303 dwellings (Document 11.13) did not find favour with the Inspector at paragraph IR9.46
106 CD5.12 paragraphs 1.1.3 and 1.2.2
107 CD5.15 paragraph 7.7 and table 7.2
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8.65. The comparative exercises in the appellant’s planning witness’ rebuttal108 is
flawed as it does not compare like with like. The areas examined include larger
areas of open countryside rather than focusing on the built-up area and so
does not help with whether the development makes efficient use of land. None
of the above gives rise to any reason to reach a different view from that
concluded previously by the SoS. It is submitted that the simple fact here is
that the proposed development would not make efficient use of land and is
unacceptable in policy terms as a result. Regardless of the HLS position, the
conflict with the NPPF is so significant it justifies refusal in its own right.
Best and most versatile land (BMV)
8.66. The appellant accepted that the development will result in the loss of some
BMV and that this gives rise to a conflict with Policy NE7. He accepted that
Policy NE7 is consistent with the NPPF and up to date and is to be given full
weight in the determination of this appeal.
Benefits of the proposed development
8.67. Regardless of the HLS position, it is accepted that the provision of affordable
housing should be given significant weight. If there is a 5 year HLS, the
benefits of extra market housing are moderate at best. The weight to ascribe
should take into account that the actual amount of housing that may come
forward is uncertain (up to 203). If there is no 5 year HLS then the benefits of
extra market housing could be significant, depending on the number and how
many units are likely to be delivered in the 5 year period.
8.68. It will take time for decision on this appeal. It took 18 months last time. If it is
assumed that a decision to allow is reached in 6 months (July 2020) there
would be a period of time to secure reserved matter approvals and discharge
pre-commencement conditions before works start on site. Based on the
evidence of the appellant’s HLS witness, the average time from grant of outline
permission to commencement on site is 5 years. If that were applied here, the
development would make no contribution to the 5 year HLS. If commencement
began at a rate 5 times faster i.e. July 2021 there would be delivery in the 5
year period. At 50dpa, this would be 150 units at most, so the weight to be
given to the contribution to 5 year HLS must be reduced.
8.69. There have been no material changes in circumstances in terms of economic
benefits, which should be ascribed moderate weight.
8.70. The appellant cites the provision of an alternative route to the existing
Cranfield Road / Newport Road junction as a highway benefit, but the updated
TA presents modelling that shows increases in queue lengths and traffic flows
at both the Newport Road and Cranfield Road junctions. While a very modest
impact, this does not suggest improvement. There is no appraisal of the
benefit to safety and so anything suggested is just assertion. Thus, while the
development is acceptable in highway terms, there are no material benefits to
be weighed in favour.
8.71. It is unclear the extent to which the offer relating to medical facilities is
justified as necessary to make the development acceptable in planning terms
108 APP10
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or the extent to which that offer goes beyond the mitigation of what is
proposed. To the extent that it mitigates the effect of the development it is not
a benefit but rather what is required to render the scheme policy compliant. To
the extent that it goes beyond that position then it cannot be given weight as a
benefit since to do so would be contrary to regulation 122 of the Community
Infrastructure Levy (CIL) Regulations 2010.
8.72. No details have been provided to show that the development would provide
potential to mitigate the risk of surface water flooding. Since this alleged
benefit would involve drainage proposals which seek to address a pre-existing
issue it cannot be required by condition or by a planning obligation since it
goes beyond that which is related to the development proposed. To give this
factor weight would thus be contrary to the requirements of NPPF paragraphs
55 and 56 and to regulation 122 of the CIL Regulations 2010
8.73. A high quality living environment is unknown at this stage given the outline
nature of the proposal. Further, such a requirement is required to be delivered
by all development in Milton Keynes as a result of Policies D1 and SD1 of
Plan:MK. This is not a benefit but a policy requirement and so carries no
weight.
The proper approach to the determination of this appeal
8.74. Policies DS1, DS2, DS5, HN1 and NE7 of Plan:MK and Policies WS5 and WS6 of
the NP are all relevant development plan policies. They are also the policies
which are the most important to determining the application109. Further, as has
been established above, they are all consistent with the NPPF and are up to
date. The Council has a 5 year HLS. Thus, NPPF paragraph 11(d) is not
engaged and rather it is NPPF paragraph 11(c) that should be used.
8.75. Plan:MK is up to date. The development does not accord with it overall since it
conflicts with the spatial strategy, its policy approach to making efficient use of
land and to avoiding the loss of BMV. Section 38(6) of the 2004 Act requires
the application to be determined in accordance with the development plan
unless material considerations indicate otherwise. The development conflicts
with the above policies and so is not in accordance with the development plan.
8.76. The development’s benefits are not of such a nature or scale to justify
departure from the constraint policies of a recently adopted plan. All of the
benefits could be claimed by any housing development on greenfield land on
the edge of any settlement in Milton Keynes. The weight to these benefits
cannot be such as to outweigh the conflict with the development plan. Thus,
the development conflicts with NPPF paragraph 11(c) and is not sustainable
development. It does not accord with the development plan with insufficient
material considerations to outweigh the conflict.
8.77. If, contrary to the Council’s case, NPPF paragraph 11(d) is engaged, it is
accepted that the application of policies in the NPPF that protect areas or
assets of particular importance do not provide a clear reason for refusing the
proposed development. As such, NPPF paragraph 11(d)(i) does not provide a
109 Based on the cross-examination of appellant’s planning witness and the evidence in chief of the Council’s planning
witness
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reason for refusing planning permission. Accordingly, the tilted balance in
paragraph 11(d)(ii) would be engaged.
8.78. There would be adverse impacts in a development of inappropriate density and
the loss of BMV. These impacts would conflict with NPPF paragraphs 122,
123(c) and 170(b). In circumstances where greenfield land is to be released to
meet housing needs due to inadequacies in the 5 year HLS it is all the more
important that efficient use is made of that greenfield resource to meet as
much of the unmet need as is possible (NPPF paragraph 123). The
development does not optimise the use of the site but promotes a sub-optimal
density and continues the inefficient low density development of the past. This
clear breach of NPPF paragraph 123 should result in refusal given the
important of the issue and the clear words of paragraph 123(c). This is an
adverse impact contemplated by the NPPF as justifying refusal.
8.79. Even if NPPF paragraph 11(d) is applied, the Council submits that the adverse
impacts of granting planning permission would significantly and demonstrably
outweigh the benefits. Accordingly, the proposed development does not
represent sustainable development even on this basis. This means that the
NPPF weighs heavily in favour of refusal of planning permission. Applying
section 38(6), even in circumstances where there is no 5 year HLS, the breach
of the development plan together with the breaches of the NPPF weigh heavily
in favour of refusal. It is submitted that the other material considerations
which weigh in favour of the grant of planning permission are not sufficient to
outweigh these factors. Thus, even if there is no 5 year HLS, planning
permission should be refused for the proposed development.
Conclusion
8.80. The planning system should not be an obstacle course for local planning
authorities. It should be about delivering homes that are needed at the right
time and in the right place. That is best achieved via the plan-led system and
not ad hoc at appeal, making judgments on the capability of housing supply
with regard to all material evidence.
8.81. Plan:MK is not even 12 months old since adoption and yet is faced with
submissions that there is no 5 year HLS. All relevant evidence should be
considered for the 5 year HLS position. All that a decision maker has to guard
against is skewing the 5 year period by not including schemes in the
assessment that were not there at the outset. The obstacle course promoted
by the appellant has no place in policy or guidance and is wholly impracticable.
8.82. The proposed development is contrary to a development plan which is less
than a year old and up to date. It is contrary to the NPPF. The application of
section 38(6) points firmly in favour of refusal.
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9. The Case for Interested Parties
9.1. A number of interested parties made representations to the first Inquiry.
Paragraphs IR7.1 to IR7.49 of the first Inspector’s report110 provide an
overview of their comments. In summary, the representations focused on
traffic and parking impacts, ecology, flooding, development plan compliance,
and the effect on existing services and facilities. The following parties made
representations to the second Inquiry:
Councillor Jacky Jeffries – Woburn Sands Town Council111
9.2. Woburn Sands was still a small town at the start of the 21st century with a
population of about 2,500 in 950 dwellings. New housing since 2006 have
added 622 homes, a 65% increase and an even bigger population increase.
Yet, the infrastructure remains virtually unchanged and restricted by available
land. Milton Keynes has always sought to preserve the character of existing
settlements and the WSNP seeks to preserve green space around town to
create small separation from Milton Keynes. Hence, the site is designated open
countryside.
9.3. Education and medical services in Woburn Sands are at capacity and the
proffered doctor’s site will not be taken up as it will not be viable. The town
has lost shops and the bus service to central Milton Keynes is once an hour.
The library remains open thanks to volunteers. The future of East-West rail is
uncertain and the line separates the development from the town. There is also
the threat of the Oxford to Cambridge Expressway with the preferred corridor
almost certain to go through part of this development.
Councillor David Hopkins – Milton Keynes Council and Wavendon Parish Council112
9.4. Plan:MK is recently adopted and should be afforded full weight for applications
and appeals. The Plan:MK Inspector did not support the representations of the
appellant made at the examination. Plan:MK sets out where development
should and should not take place. The site is open countryside. The appellant
can make representations to the Plan:MK Review should they wish.
9.5. The Council can demonstrate a 5 year HLS with enough land in excess of the
Plan:MK housing requirement including the shortfall and a 5% buffer. There is
clear evidence of deliverability for each site in the 5 year supply.
9.6. The WSNP makes it clear that the site is not included directly or as a reserve
site for development. Wavendon does not have a neighbourhood plan but does
have 4000 dwellings underway within the parish boundary as part of the
Strategic Land Allocation first identified in the Local Plan 2001-2011.
9.7. The land is close to the East-West rail link and the preferred option for the
Oxford to Cambridge Expressway. The Plan:MK Inspector while allowing the
South East Milton Keynes allocation restricted development before 2023 to
allow for full consultation and approval of the Expressway. If the Expressway
does not come forward or the route goes elsewhere, then this site could be
considered against other sites.
110 CD10.33
111 RID04
112 RID05
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9.8. There are issues regarding density. There are issues regarding the capacity of
the local highway network now and in the future with East-West rail seeing
additional trains and the level crossing closed more often. The neighbouring
land at Wavendon House is now a registered park and garden. There needs to
be a masterplan when this site does come forward to take account of the park
and garden, the need for highways infrastructure and other improvements and
the provision of local services.
Judith Barker – local resident113
9.9. Plan:MK has been adopted and does not designate the land for development.
Policy WS5 of the WSNP protects the field behind Tavistock Close from
development. Woburn Sands’ character and identity needs protecting. New
flats at the Greens development remain unsold. The town’s infrastructure
cannot cope and the railway is due to be upgraded. When there is a problem
on the M1, traffic re-routes through Woburn Sands.
9.10. The appellant has control over land to the east of the site and permission
would set precedent for more rural development. Land along the A421 is
already being developed for 4000-6000 dwellings with extra cars on local
roads. New housing is not being bought by local people. Milton Keynes has a
20 year land supply in pipeline. Highways England has recommended no
permission on land within the preferred route corridor until further consultation
on route options in 2020.
9.11. If applications get turned down and the developer appeals and wins the
Council has to recompensate the development with council tax money. The
appellant has prejudiced the appeal outcome by giving a story to The Times
complaining that smaller building companies are not getting permissions for
political reasons when the reality is based on planning grounds. The
importance of open countryside for nature and wildlife cannot be ignored in
light of climate change issues and sustainability. There is a shortage of Council
housing rather than housing in general. Firms are getting approvals and then
not building to raise the land value for speculation purposes. Finally, Milton
Keynes has 4 times more urban land than UK average and over 10 times less
natural areas, all the more important to protect open countryside.
Jenny Brook – local resident114
9.12. We will need farmland even more in the context of Brexit. Curveballs are being
thrown at the local planning authority. Milton Keynes was intended as a city for
250,000 people and is now planning for 500,000 people. There are national
infrastructure issues with East-West Rail and the Expressway. Network Rail has
said the level crossing is not their issue. Plans need to be put in place to deal
with the through traffic issue.
113 RID16
114 Oral comments only
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10. Written Representations
10.1. In terms of the original application and appeal, paragraphs IR8.1 to IR8.6 of
the first Inspector’s report set out the comments that were made. They
covered many of the points raised by interested parties above.
10.2. In terms of the redetermined appeal, there have been 11 letters of objection115
from local people and statutory bodies, and a further written objection
received at the Inquiry highlighting concerns with surface water flooding from
the site to adjoining properties116. The concerns raised in all of the other letters
highlighted similar issues to those raised above. They included the loss of open
countryside, ecological and flooding impacts, the capacity for Woburn Sands to
take more development, increased strain on local services including the
doctors and the police, traffic effects including delays at the level crossing, and
the route of the potential Expressway.
10.3. One of the letters was from Highways England dated 13 December 2019 noting
that the site lies within the preferred corridor of the Expressway. The letter
registered concerns that development of the site could affect or be affected by
a potential route option either directly or indirectly. The letter noted that
environmental and planning constraints in the Woburn Sands area effectively
limit the potential availability of route options in this area. As such, there are
risks of conflict with the Expressway particularly in relation to proposals for
major development which lie outside defined settlement boundaries. Highways
England supports Plan:MK which seeks to accommodate necessary growth in
the form of sustainable development whilst facilitating the Expressway as a
key national infrastructure project with the potential to increase connectivity in
Milton Keynes. The letter concludes that the development would be contrary to
the adopted development plan and as such would potentially result in conflict
with the Expressway.
115 See bundle of representations in REP1
116 RID11
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11. Conditions and Obligations
11.1. Suggested conditions are included in Section A2 of the agreed SOCG between
the parties117. They are based on the conditions recommended by the first
Inspector with an additional condition relating to housing mix. The list of
recommended conditions (28) in the attached annex are broadly the same of
those in the SOCG with some small drafting changes to reflect discussions at
the Inquiry. The main change is to Condition 3 which only requires compliance
with those parts of the plans not reserved for later approval; the previous
wording required the development to be along the lines of the illustrative
layout and parameters plans which would prejudice the reserved matter
applications.
11.2. Should the Secretary of State decide to allow the appeal, I consider all of the
conditions to be necessary and meet the tests in NPPF paragraph 55. The
reasons for each condition, including why some need to be pre-
commencement, are set out in the annex.
11.3. The main thrust of the S106 agreement is set out above in Section 3 of this
report. The justification for each obligation was set out by the Council before
the Inquiry opened with further clarification provided during the Inquiry118. The
affordable housing obligation meets the requirements of Policy HN2 of
Plan:MK. The carbon neutrality obligation meets the requirements of Policy
SC1 to help offset the carbon impact of the development. The obligations
relating to education facilities are in accordance with Policy INF1 of Plan:MK
and the Planning Obligations for Education Facilities SPG119 to address the
impact of the development on school places. The leisure, recreation and sports
obligations120 are in accordance with Plan:MK Policies INF1 and L4 and the
Planning Obligations for Leisure Recreation and Sports Facilities SPG121 to
address the on-site and off-site impact of the development on such facilities.
This includes an obligation to agree the specification of public open space
within the development.
11.4. The social infrastructure obligations122 are in accordance with Policies INF1 and
CC1 of Plan:MK and the Social Infrastructure Planning Obligations SPD123 and
address various social requirements arising from the development. They
include a financial contribution either towards the provision of the on-site
surgery or expanding capacity at the nearest surgery serving the development.
There is also an obligation relating to reserving a site within the development
for a potential health facility should this be required to address capacity issues
in the local area that have been identified by the Council and relevant parties.
11.5. There is an obligation relating to the provision of bus vouchers and the
distribution of travel information packs to promote more sustainable mode of
transport in accordance with Policy CT5 of Plan:MK on public transport. There
117 Section A2 of RID06
118 RID12
119 RID32
120 Relating to playing fields, local play, neighbourhood play, community hall, local park, district park, allotments, and
sports hall
121 CD5.9
122 Relating to public art, libraries, burial grounds, heritage, health facilities, waste management, social care-day
care, emergency services, voluntary sector, skills and training, and inward investment
123 CD5.10
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is also an obligation to secure the highway works necessary to form the
highway accesses and connecting footpaths to the site.
11.6. All of the above obligations are necessary to make the development acceptable
in planning terms. They are also directly related to the development, and fairly
and reasonably related in scale and kind to the development. Therefore, they
meet the 3 tests set out in NPPF paragraph 56 and regulation 122 of the CIL
Regulations 2010.
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12. Conclusions
12.1. The numbers in square brackets refer back to earlier paragraphs which are
relevant to my conclusions.
Main Considerations
12.2. The main considerations for the reopened Inquiry were informed by the
previous decision letter, notwithstanding submissions by both main parties on
the extent to which specific sections of that letter remain a material
consideration. Nevertheless, it was broadly accepted that those sections which
did not form part of the High Court judgment to quash the first decision, or
have not been overtaken by circumstances such as the adoption of Plan:MK,
remain relevant to this redetermination. [7.1-7.4 and 8.2-8.4]
12.3. The main considerations were narrowed down at the pre-Inquiry meeting124. At
the start of the Inquiry the main parties confirmed that the effect on the
character and appearance of the landscape was no longer a main
consideration. It was agreed that the main considerations now are as
follows125:
(a) whether or not the Council can demonstrate a 5 year supply of deliverable
housing sites;
(b) whether the proposed housing would be in an appropriate location having
regard to the development plan and national policies, as well as routes of
potential new transport infrastructure;
(c) the acceptability of the proposed housing density; and
(d) the overall planning balance in relation to the economic, social and
environmental dimensions of sustainable development.
Housing Land Supply
12.4. A number of overarching themes were debated at the Inquiry which are
discussed below before turning to an assessment of specific sites and whether
the Council can demonstrate a 5 year HLS.
The definition of deliverability
12.5. The 2019 revision to the NPPF definition of deliverable retains reference to “a
realistic prospect that housing will be delivered on the site within five years” as
it did in the original 2012 version of the NPPF. The Court of Appeal judgment in
St Modwen found that realistic prospect did not mean a site’s deliverability
must necessarily be certain or probable. It also noted the distinction between
deliverability and delivery in that a deliverable site does not necessarily have
to be delivered. [8.23-8.24]
12.6. The more recent Court of Appeal judgment in East Bergholt noted that a
decision maker could adopt a more cautious view when assessing a “realistic
prospect”. It went onto say that the assessment of realistic prospect falls
124 CD10.44
125 It was agreed by the main parties at the start of the inquiry that the effect of the development on the character
and appearance of the landscape and surrounding area was no longer a main consideration
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within the realms of policy and planning judgment rather than a legal concept.
The judgment did not seek to take a different view on the distinction between
deliverability and delivery. Therefore, I consider that the St Modwen and East
Bergholt approaches are broadly compatible and there is no need to favour one
over the other when assessing deliverability. [7.21, 8.25]
12.7. Nevertheless, the 2019 revision to the NPPF resulted in a more precise
approach to the assessment of deliverability, with two specific categories (a)
and (b) and the need to provide clear evidence in both. This necessitates a site
specific assessment to determine whether a site is deliverable.
The base date and timescale of the evidence
12.8. The Council uses a base date of 1 April 2019 for the purposes of calculating its
5 year HLS position. It published its assessment in June 2019 with the housing
trajectory in Appendix 1 containing notes on deliverability. Proformas were
sent out by email on 20 May 2019 asking for a reply by 7 June 2019. Where no
response was received, this was followed up. It was accepted by the Council
that the amount of evidence predating 1 April 2019 that informed the
assessment was limited. [7.26]
12.9. However, there is nothing in the NPPF or PPG that stipulates that all of the
documentary evidence for a 5 year HLS has to be available at the base date
itself. Instead, the PPG advocates the use of the latest available evidence. A
local planning authority can prepare and consult on an APS after the 1 April
base date before submission to the Planning Inspectorate by 31 July. While not
directly applicable here, this indicates that evidence can be produced and
tested after the base date. The HLS position statements in Babergh and Mid
Suffolk for the 2019-2024 period were published in September 2019 and
included data to justify supply that was only known about after 1 April. [7.25,
8.16, 8.17, 8.19, 8.20]
12.10. The Council has avoided adding new sites after the base date to prevent
the skewing of supply in line with the Woolpit decision. While the Woolpit
Inspector criticised the retrospective justification of sites after the publication
of the Annual Monitoring Report, the Inspector at Darnall School Lane
permitted additional evidence to support sites identified as deliverable at the
base date which was a position accepted by the SoS in that case. The
Longdene and Colchester Road Inspectors took a similar approach. In terms of
Milton Keynes appeals, the Castlethorpe Road and the Globe Inspectors took
into account the proformas used by the Council to inform its June assessment
of 5 year HLS. [7.23, 7.24, 8.18, 8.21]
12.11. Therefore, I consider it acceptable that the evidence can post-date the
base date provided that it is used to support sites identified as deliverable as
of 1 April 2019.
12.12. The appellant argues for a 1 October 2019 base date in order to take
into account the Council’s June assessment and quarterly monitoring data. This
would result in a necessary adjustment of the 5 year supply period to 30
September 2024. There is little in national policy or guidance that advocates
such an approach and it would appear to go against efforts to create greater
certainty in the planning process. I concur with the Council that such an
approach would mean having to argue HLS at every appeal, rather than having
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a fixed base date. Moreover, the quarterly monitoring data is not intended to
be an updated assessment of supply126. Thus, I do not consider it necessary to
apply a 1 October base date. Nevertheless, if the SoS disagrees on this point,
my assessment of specific sites below includes an assessment of the 5 year
HLS supply position using a 1 October base date. [7.27, 8.22]
The proformas
12.13. The appellant’s criticisms of the Council’s use of proformas focused on
whether they provided sufficient written evidence in line with the guidance in
the PPG 68-007 and, in some cases, whether the reliance on information
provided by bodies such as Homes England and the MKDP on sites in public
ownership was appropriate. [7.28, 7.30]
12.14. Dealing with the former, the Council clarified at the Inquiry that the
proformas included a covering letter explaining their purposes for assessing 5
year HLS. Representatives of each site were asked to confirm or amend the
Council’s trajectory for each site. Although relevant boxes were not always
ticked, the proformas were signed and returned with a covering email in many
cases. While a SOCG or MOU could provide more information, they offer no
more of a commitment to the deliverability of homes than a proforma.
Therefore, I consider that a proforma can, in principle, provide clear evidence
of a site’s deliverability. Additional evidence to support a proforma can also be
taken into account subject to its specific content and timing. [8.11, 8.21,
8.36]
12.15. Turning to the latter, it is apparent that some publicly owned sites have
not come forward as quickly as anticipated such as Tattenhoe Park. However,
the evidence linking slow delivery to unreliable forecasting from the bodies
responsible for managing the disposal of these sites is not conclusive. Although
representatives of Homes England and MKDP form part of the group that
assesses the proformas, there is little to suggest that their responses to their
own proformas is misleading or inaccurate in principle. Therefore, it would not
be appropriate to automatically disregard all of their sites. [8.35]
Past forecasts and the application of discount rates
12.16. The first Inspector for this appeal noted the uncertainty, slippage and
failure in the Council’s forecasts of housing delivery and that reasonable
adjustments would clearly reduce the HLS to less than 5 years. Evidence
presented to this Inquiry has noted the historic under-delivery of housing
against forecasts of around 28-30%. While delivery is not the same as
deliverability, it is apparent that past forecasting has not been particularly
accurate. However, recent evidence in terms of housing delivery has shown
that the Council met its annual delivery requirement from Plan:MK for 2018/19
and is set to do so again for 2019/20. The number of units under construction
is at a high rate. [7.31, 7.32, 8.8].
12.17. The Plan:MK Inspector found the plan sound in terms of housing
delivery rates and considered the higher delivery to be realistic with minimal
risk of non-delivery. I accept that the Inspector examined the plan under the
126 LPA3 paragraph 2.9
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2012 NPPF definition of deliverable and it should not be assumed that because
the plan was found sound that a 5 year HLS can be demonstrated now. There
is a need to review sites on the basis of the 2019 NPPF definition. Indeed, the
Council has removed sites in the Plan:MK supply for completion by 31 March
2024 where it no long considers they meet the new definition. [7.16, 8.9,
8.13]
12.18. Nevertheless, the appellant has not applied a discount of 28-30% to
their assessment of the Council’s 5 year HLS as they have carried out a site by
site assessment. Moreover, the appellant accepted that for the purposes of
establishing whether a 5 year HLS exists, it is only necessary to apply a 5%
rather than a 20% buffer in Milton Keynes due to rates of delivery. [8.26,
8.28]
12.19. The Council has historically applied a lapse rate to its forecasting of HLS
for sites with delivery in Year 5, where a 10% discount is applied across the 5
years for those sites. Given that the Council has moved to a site by site
assessment, it considers that such a discount is no longer necessary. However,
for robustness and consistency with the Plan:MK trajectory, the discount has
been applied to this appeal by the Council. Therefore, I have taken into
account the Council’s lapse rate as part of my HLS assessment. Based on
recent delivery rates and Plan:MK, I see no reason to apply a greater discount
than the Council’s rate [8.27, 8.29]
Build-out rates
12.20. National reports127 are helpful in identifying previous maximum average
built-out rates over 5 years for large strategic sites like Brooklands (268
dwellings per annum). However, they can only be a guide and consideration
should be given to evidence relating to specific sites as set out below. [7.29,
8.37, 8.39]
Prior approval sites
12.21. Prior approval sites are not mentioned in categories (a) or (b) of the
NPPF definition of deliverable. However, I am persuaded by the Council’s
argument that where Article 3 of the GPDO grants planning permission for
development in Schedule 2, that is within the definition of planning permission
in the TCPA 1990. Such approvals are designed to provide a boost to new
housing and are required to be implemented within 3 years. The PPG at 68-
029 only refers what can count as a completion for the purposes of calculating
HLS. It refers to new build, conversions and changes of use, but only in the
context of where housing has been completed. Nevertheless, the PPG and
NPPF do not explicitly exclude prior approval sites from housing supply. The
Inspector and SoS at the Hanging Lane decision found that such sites can be
taken into account as part of a 5 year HLS assessment. [7.74, 8.30-8.34]
12.22. Thus, I consider that prior approval sites can be regarded as having
detailed planning permission and can form part of the supply of deliverable
sites within category (a). The onus is on the appellant to demonstrate clear
127 Such as CD11.1
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evidence that such sites do not have a realistic prospect of being delivered
within 5 years.
Consistency with previous appeal decisions in Milton Keynes
12.23. The Globe and the Castlethorpe Road appeal decisions dated 5 and 26
September respectively came to different conclusions on whether the Council
could demonstrate a 5 year HLS. The former said it could and dismissed the
appeal whereas the latter said it could not and allowed both appeals. Both had
regard to the most up to date evidence including the proformas and both noted
the recent improvement in housing delivery. The Castlethorpe Road decision
found that reliance on past rates of delivery to be inappropriate, but
nevertheless applied an optimism bias to the supply at a point midway
between the appellants and the Council. The decision also considered that
clear evidence for at least 2,717 houses had not been shown.
12.24. The Castlethorpe Road decision was challenged by the Council, but
permission to apply for statutory review was refused by the High Court.
Nevertheless, it would be wrong to afford Castlethorpe Road more weight than
the Globe on the premise that it was more legally robust as the Globe has not
been tested in the same way. Likewise, while the Castlethorpe Road Inspector
explains in paragraph 65 why he has come to a different view on HLS to the
Globe Inspector, this is largely on the basis of the nature and manner in which
evidence was presented to him rather than any criticism of the Globe decision.
[7.33, 8.10-8.13]
12.25. Therefore, it is not possible to say that one decision should be preferred
over the other. There is a need for consistency in appeal decisions along with
clear explanations of any divergence in views from another Inspector. This
report is based on the evidence before me, and where necessary, it will explain
any difference in findings to the Castlethorpe Road or Globe Inspectors.
Assessment of disputed sites
12.26. The following assessment is based on the disputed sites set out in the
appellant’s proof of evidence for HLS (APP2/3), specifically in Table 23 and
Appendix 3, along with the HLS SOCG (SOCG1), specifically Table 3. The
appellant’s rebuttal proof updated Appendix 3 and included at Appendix 3a
summarising the main parties’ positions on each site (APP4/5/6). Following the
roundtable session, the appellant produced an errata document (RID20/RID36)
that updates Table 23 in the proof of evidence and Table 3 in the SOCG. The
errata document also contains updates to Tables 21 and 22 in the appellant’s
proof setting out the contended land supply positions at 1 April and 1 October
2019. Appendix 6 of the Council’s proof of evidence on HLS (LPA2) contains
the primary source of evidence for each site.
Strategic sites - Brooklands (Site 1) [7.35-7.37, 8.40]
12.27. Brooklands has detailed planning permission for all of its remaining
parcels. While the projected completions are high, the rate of delivery over the
past 4 years has been high at an average of 247dpa. There have been 267
completions in 2019/20 up to 1 January 2020 against a projection of 182.
While one parcel did not submit a proforma response, the Council’s projections
are based on delivery across the wider site and the phasing methodology. The
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appellant’s criticisms in terms of the limited number of developers, local
experience, past rates of delivery and national reports do not match the
current build out rates since 2015/16. Therefore, there is a realistic prospect
that the projected housing will be delivered in the 5 year period with no clear
evidence to the contrary. This applies to the April and October base dates.
Strategic sites – Tattenhoe Park (Site 2) [7.38-7.39, 8.41]
12.28. The projected completions on Phases 2-5 at Tattenhoe Park were
considered deliverable by the Council in the June HLS assessment, based on
proformas returned that month. The completions were taken into account by
the Globe Inspector and rejected by the Castlethorpe Road Inspector, both
based on the above proformas. The 2018 tender documents for Phases 2 and
3, which were provided to the Council in November 2019, are an indication
that Homes England is actively seeking to facilitate delivery of housing
including lead-in times and build out rates). Both phases now have detailed
permission via reserved matter applications granted in October and November
2019. While the Castlethorpe Road Inspector found the evidence to be lacking,
the additional information provides clear evidence that there is a realistic
prospect of housing delivery in the 5 year period for Phases 2 and 3. This
applies to both the April and October base dates. Conversely, no additional
information has been put forward for Phases 4 and 5 and so there is an
absence of clear evidence of their delivery. Thus, these phases are removed
from both the April and October base dates (delete 195 units from Site 2)
Strategic sites – Western Expansion Area (Site 3) [7.40-7.41, 8.42]
12.29. The Western Expansion Area in terms of disputed elements consists of
Area 10 Remainder and Area 11 Remainder. Both areas are covered by outline
planning permission apart from one parcel that now has reserved matters
approval for 152 units. The Council highlights the rate of completions for Area
10 since delivery began in 2015/16 which are now up to 300dpa. For Area 11,
completions are up to 288dpa and have exceeded projections already for
2019/20. Site wide infrastructure is in place for the plots expected to deliver in
the 5 year period. The Globe decision took the Council’s projections into
account whereas the Castlethorpe Road decisions did not. However, it is not
evident that the latter had the benefit of the proformas dated 10 July 2019
given this was the same date as the hearing. A disposal strategy from the
landowners dated December 2019 has been added to the evidence for both
areas which sets out further evidence of projected completions. Based on the
lack of land disposals since March 2019, this has led to the Council revising
down its 5 year trajectory by 306 units for Area 10 and 229 units for Area 11
as a worst case scenario. Nevertheless, apart from these reductions, I consider
that there is clear evidence of a realistic prospect of housing delivery for the
remaining units in the 5 year period for either April or October (delete 535
units from Site 3).
Strategic sites – Strategic Land Allocation (Site 4) [7.42-7.44, 8.43]
12.30. The Strategic Land Allocation is divided into a number of large outline
sites with several developers. There are 5 parcels that only had outline
permission as of 1 April 2019. No proforma was submitted for the Ripper Land
parcel and the only evidence is an email from the landowner who highlights
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access issues. In line with the Castlethorpe Road Inspector, there is a lack of
clear evidence regarding the deliverability of this site (delete 85 units).
12.31. No proforma has been submitted for the Land West of Eagle Farm South
parcel but this has reserved matter approval. The appellant has queried the
build-out rate alongside the other two Eagle Farm parcels with reserved matter
approvals, but all 3 parcels have started delivering in line with or ahead of
projections. As such, there is no clear evidence to indicate that Land West of
Eagle Farm South will not deliver the projected housing in the 5 year period.
12.32. The remaining Eagle Farm parcel for 125 units has outline permission
only with no proforma returned. An email from October indicates a reserved
matter application in the summer of 2020, but it provides little else in the way
of clear evidence that the projected number of units will be delivered within
the 5 years (delete 125 units).
12.33. The proforma for the remaining outline permission at Glebe Farm was
submitted after the June HLS assessment but indicates a strong rate of
delivery of units. Two parts of the remaining outline permission now have
reserved matters approvals from September and October 2019 for a total of
366 units. This surpasses the 310 projection in the 5 year supply and with two
developers operating the build-out rates appear realistic. A proforma from one
of the developers in November supports these rates. Although this evidence
post-dates 1 April 2019, it clearly demonstrates there is a realistic prospect of
delivering the projected amount of housing within the 5 year period.
12.34. The Council’s projection of 180 units for the Golf Course Land was based
on the proforma dated May 2019. Since then, reserved matters approval was
granted on 1 November 2019. This additional information provides clear
evidence of deliverability within the 5 year period.
12.35. The proforma for Church Farm indicates a reserved matters application
by late 2019. The Globe decision found this to be sufficient information
whereas the Castlethorpe Road decision considered it fell short. Further
information indicates that the application submission has now slipped to Easter
2020 with issues regarding road to be agreed. This continues to fall short of
the clear evidence to demonstrate a realistic prospect of delivery (delete 90
units).
Outline or pending permissions as at 1 April 2019
12.36. The June 2019 proforma for Newton Leys (Site 5) indicates the delivery
of 80 units, which has been reinforced by reserved matters approval in
September 2019. The Globe decision considered the site was deliverable and I
consider there is clear evidence and a realistic prospect of delivery at either
base date.
12.37. The June 2019 proforma for Campbell Park Remainder (Site 6) indicates
the delivery of 300 units in the 5 year period. The Globe and Castlethorpe
Road decisions came to opposite conclusions on the deliverability of this site.
There is now further information in the form of email correspondence from
December 2019 that outlines progress towards starting on site in 2021. This
represents clear evidence of deliverability and as such there is a realistic
prospect of the projected numbers coming forward for either base date.
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12.38. The June 2019 proforma for Wyevale Garden Centre (Site 9) noted a
resolution to grant planning permission. This was granted in July 2019. This
supports clear evidence of the site being deliverable, while the build-out rates
of 150 and 130 units in 2021/22 and 2022/23 appear achievable given that the
development relates to apartments that can be delivered in larger numbers at
one time. Therefore, there is a realistic prospect of the projected numbers
coming forward for either base date.
12.39. Planning permission for the Agora redevelopment (Site 13) has lapsed
and the June 2019 proforma noted viability issues and a pending decision on
whether to list the existing building. The Castlethorpe Road decision found
clear evidence to be lacking. Further information from November 2019 notes
that the listing request was turned down and there has been progress towards
planning permission and building demolition in 2020. While viability issues
remain over S106 contributions, this does not appear to be a significant
constraint. Based on the above, clear evidence of deliverability has been
demonstrated and as such there is a realistic prospect of the projected
numbers coming forward for either base date.
12.40. At the inquiry, the Council accepted that Galleon Wharf (Site 14) is not
deliverable. I have no reason to disagree (delete 14 units).
12.41. The Railcare Maintenance Depot (Site 15) has outline permission, but
the June 2019 proforma provides no information on progression towards
approving reserved matters. The appellant also notes that part of the site has
now been developed for a supermarket. Based on the lack of clear evidence, it
has not been demonstrated that a realistic prospect of delivery exists for either
base date (delete 175 units).
12.42. Eaton Leys (Site 16) has outline permission but no proforma was
submitted in June 2019. However, a reserved matter application was pending
and due to be determined by January 2020. A proforma was provided by the
developer in December 2019 updating projections which appear achievable for
the size of development and a major housebuilder. Thus, there is clear
evidence of deliverability and as such a realistic prospect of the projected
numbers coming forward for either base date.
12.43. The June 2019 proforma for Timbold Drive (Site 26) provides limited
information on the delivery of the site notwithstanding an existing outline
permission. The Council notes in its proof that a new outline permission is
being sought. There is a lack of clear evidence of progress towards a reserved
matters approval and a realistic prospect of delivery within 5 years has not
been demonstrated (delete 130 units).
12.44. The June 2019 proforma for Land at Walton Manor (Site 33) provides
little information on delivery. The site had an application for outline permission
as at 1 April 2019 which was granted in November 2019. However, there is
little information on start times and build out rates. Thus, clear evidence is
lacking and a realistic prospect of delivery in 5 years has not been
demonstrated (delete 115 units).
12.45. The June 2019 proforma for Land at Towergate (Site 34) notes
marketing in the summer of 2019 and a start date of January 2021. Progress
has been made in terms of discharging conditions, but there is limited
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information on progress towards approving reserved matters. Thus, clear
evidence is lacking and a realistic prospect of delivery in 5 years has not been
demonstrated (delete 150 units).
12.46. For High Park Drive (Site 36), no proforma was submitted in June 2019.
However, a reserved matters application was submitted in November 2019
along with applications to discharge conditions. A proforma from November
2019 indicates a start date of autumn 2020. Thus, there is clear evidence of
deliverability and as such a realistic prospect of the projected numbers coming
forward for either base date.
12.47. For Land East of Tillbrook Farm (Site 40), the anticipated reserved
matters application in the summer of 2019 did not materialise but a
January/February 2020 application was indicated in further information. Thus,
there is clear evidence of deliverability and as such a realistic prospect of the
projected numbers coming forward for either base date.
12.48. The June 2019 proforma for Land West of Yardley Road (Site 42)
indicated the submission of a reserved matters application in July. The Globe
decision found the site was deliverable. The application was delayed until
November 2019, but this still demonstrates progress towards securing detailed
permission. Thus, there is clear evidence of deliverability and a realistic
prospect of the projected numbers coming forward for either base date.
Sites with prior notification approval as at 1 April 2019
12.49. Based on the above reasoning, Maybrook House (Site 37), Mercury
House (Site 38) and Bowback House (Site 39) can be considered as having
detailed planning permission based on their prior notification approval to
convert from officers to residential. No proformas have been submitted for
these sites, but the assumption should be that there is a realistic prospect of
delivery unless clear evidence indicates otherwise. All 3 sites had prior
notification granted in 2018 and so as of 1 April 2019 there was still ample
time to implement. While the sites may not be fully vacated now and being
marketed for office use, there was a realistic prospect of delivery as of 1 April
2019 with no clear evidence to the contrary. Therefore, all 3 sites can be
included within the 5 year supply.
Allocated sites as at 1 April 2019
12.50. No evidence for the South East Milton Keynes Strategic Growth Area
(Site 7) was presented to the Castlethorpe Road Inspector and so it was
discounted. However, the Council note that the projection is based on the
Plan:MK trajectory and the SOCG to the plan examination. There is the
uncertainty of whether the route of the Oxford to Cambridge Expressway will
go through the site, delaying progress with delivering housing. However, the
Plan:MK Inspector referred to a modest output by 2023/24. Although there
have been delays to announcements on the preferred route of the Expressway,
progress is being made towards a planning application for a smaller part of the
site and a wider Development Framework is being prepared. Therefore, clear
evidence of a realistic prospect of delivering 50 units on the site has been
demonstrated.
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12.51. Berwick Drive (Site 8), Food Centre (Site 10), Redbridge and Rowle
Close (Sites 11 and 12), Land off Hampstead Gate (Site 19), Land off
Harrowden (Site 20), Hendrix Drive (Site 22), Kellan Drive (Site 23), Singleton
Drive (Site 24), the former Milton Keynes Rugby Club (Site 25), Land north of
Vernier Crescent (Site 28), Manifold Lane (Site 29), Daubney Gate (Site 30),
Springfield Boulevard (Site 31), Reserve Site Hindhead Knoll (Site 32),
Reserve Site 3 (Site 35) and Tickford Fields (Site 41) are all allocated sites
where the June 2019 proformas gave little information on the delivery of these
sites and the Castlethorpe Road decision found clear evidence to be lacking.
12.52. For Site 8, Site 23 and Site 31 there is further information from the
Council’s property team dated November 2019 setting out a specific timetable
for delivery by 2021, albeit with a revised number of dwellings. For Site 10,
there is now a planning performance agreement for the site, and hybrid
planning applications have been submitted following positive public
consultation events for a significantly larger number of units overall. The
Council’s June assessment projected 298 units delivered in the 5 years,
although this has been revised down to 200 units based on the further
information. For Site 19, Site 29, Site 30, Site 32 and Site 41 there is further
information in the form of emails setting out the timetable for an application
and construction. For Site 25, land disposal has been agreed and plans
prepared. Based on the above, clear evidence of deliverability has been
demonstrated and as such there is a realistic prospect of the projected
numbers coming forward for either base date.
12.53. For Sites 11 and 12, an updated proforma and letter from November
2019 confirms that the sites have passed through a neighbourhood plan
examination with increased unit numbers. However, there is no clear evidence
of a timetable for submitting planning applications and starting on site (delete
19 + 18 units). For Sites 20, 22, 24, 28 and 35 there is no further information
provided meaning that there is still a lack of clear evidence to demonstrate a
realistic prospect of delivery for either base date (delete 25 + 10 + 22 + 14 +
22 units).
12.54. The Lakes Estate Neighbourhood Plan site allocations (Site 17 as well as
Site 18 Phelps Road and Site 27 Southern Windermere Drive) gave limited
information on firm progress towards the submission of an application and the
Castlethorpe Road decision found clear evidence to be lacking. Further
information and timings have been submitted in November 2019 providing
greater detail on progress towards submitting the application and starting on
site. The development would deliver a net total of 398 dwellings allowing for
the demolition of existing Council homes. Phase A will involve the construction
of 110 new homes, with further new homes in Phase B only once demolition
has taken place in early 2022. Therefore, there is a realistic prospect of
delivering the 130 units projected by the Council over the 5 year period, with
clear evidence to support this for either base date.
12.55. The self-build plots at Broughton Atterbury (Site 21) form part of an
allocated site with the wider site subject to detailed planning permission.
However, the June 2019 proforma provides little information on the delivery of
this site and no further information has been provided on this matter or
evidence of demand for such plots. Thus, there is a lack of clear evidence to
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demonstrate a realistic prospect of delivery for either base date (delete 6
units).
New sites between 1 April and 1 October 2019
12.56. In the event that a 1 October 2019 base date is preferred, there are a
few sites that could be included in the 5 year supply, although the appellant
disputes their inclusion. Omega Mansions (Site 43) and Chancery House (Site
45) are prior notification approvals for office to residential granted in July and
August 2019 respectively. There is no clear evidence to indicate these sites
with detailed permission will not deliver within the 3 years of their approval.
Therefore, they can be included for an October base date. Cable House (Site
44) is a duplication with Mercury House and so has not been included. The
appellant has also referred to a prior notification site at Station Road Elder
Gate (Site 48) although I have little information on this site including any
projected numbers. As such, it makes no difference to the supply either way.
12.57. Land south of Cresswell Lane (Site 46) was an allocated site as of 1 April
2019 but gained detailed permission for 294 flats in July 2019. A proforma
from November 2019 indicates delivery within the 5 years which is achievable
for two blocks of flats. There is no clear evidence to suggest there is not a
realistic prospect of delivery and so the site can be included for an October
base date.
12.58. The Castlethorpe Road decisions (Site 47a/b) granted outline permission
for 50 units on one site (a) and detailed permission for 51 units on the other
site (b). For the latter, there is no clear evidence to indicate non-delivery in
the next 5 years. For the former, there is no clear evidence to demonstrate
progress towards reserved matters approval. Therefore, I can include Site
47(b) for an October base date but exclude Site 47(a) (delete 50 units).
Sites potentially delivering between 1 April and 30 September 2024
12.59. If the base date is shifted to 1 October 2019, this would necessitate
moving the end date to 30 September 2024 in terms of the 5 year period.
Based on the June 2019 assessment, there are 13 sites currently in Year 6
(2024/25) that are shown as starting to deliver in that year. At the Inquiry,
the Council only sought to argue that 4 of them have a realistic prospect of
delivery. The amount for each site would be half of that shown in Appendix 1
of the June assessment for 2024/25 given that 1 April to 30 September is 6
months.
12.60. The sites at the rear of Saxon Court (Site 49), the rear of Westminster
House (Site 50), Site C4.2 (Site 51) and the Cavendish site (Site 52) within
the Fullers Slade regeneration project are all allocations in Plan:MK. There is
little evidence of progress towards applications for any of these sites. Site 49
has had a development brief prepared but there is no other information. The
regeneration project has been through a referendum and a development
programme agreed. While an application could be submitted in late 2020 and
delivery commence in the 5 year period for Site 52, there is little evidence to
support this position. Therefore, it has not been shown that there is a realistic
prospect of delivery for these 4 sites and they should not form part of the 5
year supply for a 1 October 2019 base date (delete 20 + 15 + 22 + 9 units).
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Conclusion on housing land supply
12.61. For the 1 April 2019 base date, the Council considers it has a surplus of
2,845 units with a lapse rate applied to the supply (removing 678 units) in
Scenario 1 above [8.44]. The appellant’s closing statement reports the
Council’s contended surplus to be 2,844 which is one unit lower [7.19]. The
discrepancy is not clear, but I have used the lower surplus figure just in case.
The above assessment deletes a number of units from specific sites coming to
a total of 1,750 units deleted for a 1 April base date. This would reduce the
surplus to 1,094 units and result in a supply of 11,181 units (12,931 – 1,750).
Set against an agreed 5 year requirement of 10,087 units this would result in a
HLS of 5.5 years. Bearing in mind that the lapse rate has only been applied to
ensure robustness, I am satisfied that the Council can realistically demonstrate
a 5 year HLS for this base date.
12.62. For a 1 October 2019 base date position, the Council’s surplus based on
its monitoring data and its approach to assessing deliverability is 3,859. The
reduction in units set out above, including those sites purported to be in a 5
year supply between 1 October 2019 and 30 September 2024, comes to a total
of 1,866 units deleted. The effect on the surplus would reduce it to 1,993 units
and result in a supply of 12,083 units (13,949 – 1,866). Set against a 5 year
requirement of 10,091 units, this would result in a 5 year HLS of 5.99 years for
this base date.
12.63. I have had regard to the Council’s Scenario 2 [8.45] which includes all
of the adjustments in paragraph 4.62 of the Council’s proof (LPA1) except
paragraph 4.62.11 along with the removal of Site 14 at Galleon Wharf. This
scenario sees an overall reduction in supply by 330 units from Scenario 1 but
still provides a 5 year HLS of 6.25 years. My assessment above has already
applied the adjustments to the sites in paragraphs 4.62.1 and 4.62.2 and
deleted all or part of the sites in paragraphs 4.62.6, 4.62.12 and 4.6.13. It has
not applied the adjustments in the remaining paragraphs, but even if it did,
this would result in a minor overall addition of 95 units to the supply for the
April base date. Thus, Scenario 2 does not affect my findings on HLS.
12.64. Scenario 3 is the same as Scenario 2 [8.46] but without the Council’s
lapse rate applied. I have decided that it would be prudent to apply the lapse
rate and so this scenario also does not affect my findings on HLS.
12.65. In conclusion and based on the evidence before me, I find that the
Council can demonstrate a 5 year supply of deliverable housing sites whichever
approach is taken in terms of the base date, and even with the application of
the Council’s lapse rate. In the event that the SoS finds that a 5 year supply
cannot be demonstrated, I deal with this scenario and its implications below.
The Location of the Development
The Development Plan – Plan:MK
12.66. The appellant accepts that the proposal conflicts with Policies DS1, DS2
and DS5 of Plan:MK due its location in the open countryside outside of the
development boundary for Woburn Sands. While adjacent to this key
settlement, the proposal does not meet any of the 13 criteria set out in Policy
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DS2 and neither does it meet any of the exceptions in Policy DS5. [7.5, 8.48,
8.50]
12.67. The appellant argues that the proposal is in accordance with the
approach that underpins the Plan:MK spatial strategy given that it adjoins a
key settlement that Plan:MK defines as ‘chosen for development’. There is
general agreement between the main parties that the site is in a sustainable
location with regards to its proximity to a range of services and facilities in
Woburn Sands. The NPPF supports housing in such locations and where it can
enhance or maintain the vitality of rural communities. However, I consider that
the location and type of development does not comply with Policies DS1, DS2
and DS5 which sets out the spatial strategy for residential schemes. The
presence of a 5 year HLS means the weight to any conflict with these policies
is not diminished. [7.5, 7.93, 7.94, 8.49]
12.68. While Plan:MK does not set out housing requirements for the Woburn
Sands neighbourhood area as advocated in NPPF paragraph 65, the Plan:MK
Inspector considered that no specific allowance for additional development was
necessary for this settlement. The development boundary is tightly drawn
around the settlement but it has been reviewed as part of the Plan:MK
examination with amendments made to accommodate recent planning
approvals. This is not to say that there is a cap on development in Woburn
Sands, but there is no policy requirement to deliver additional housing in this
settlement. Moreover, it has not been demonstrated that Policies DS1, DS2
and DS5 are inconsistent with the NPPF in terms of their approach to the
spatial strategy and the location of housing and the objective to safeguard the
countryside from inappropriate development. [7.6, 7.7, 7.92, 8.49, 8.50]
The Development Plan - Woburn Sands Neighbourhood Plan
12.69. The appellant accepts that the proposal conflicts with WSNP Policy WS5
as none of the exceptional circumstances currently apply to allow for an
extension of the current development boundary. The appellant stressed that
WSNP Policy WS6 is parasitic on Policy WS5 and only allows for a limited
amount of additional housing in the plan area and none of the listed
circumstances apply. [7.9, 7.13]
12.70. The WSNP has not been reviewed within 5 years of it being made and it
makes no allocations for housing. The previous Inspector’s report and SoS
decision only gave moderate weight to Policy WS5 as it was based on tightly
drawn boundaries and the old Milton Keynes Local Plan 2001-2011. The
requirement in the policy for any boundary amendment through Plan:MK to be
agreed by the Town Council was not recommended by the examiner. Such a
requirement is at odds with the NPPF which clarifies the hierarchy of local
plans over neighbourhood plans. [7.10-7.12]
12.71. However, as noted above, the development boundary has been
reviewed and updated as part of the Plan:MK process and no specific allowance
for additional development was necessary. There is no inconsistency with the
NPPF in terms of how Policies WS5 and WS6 seek to safeguard the countryside
and direct development to specific locations. Therefore, significant weight can
be afforded to both policies and any conflict with them, particularly in light of a
demonstrable 5 year HLS. Neither policy should be regarded as being out of
date. [7.14, 8.51-8.53]
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Proposed new transport infrastructure
12.72. It is conceivable that the route of the Oxford to Cambridge Expressway
could travel through or near to the appeal site based on the preferred option of
Highways England and the various constraints within the Woburn Sands area.
However, there has yet to be a formal announcement on the next stage of this
road project or further public consultation on specific options or routes.
Plan:MK addresses the Expressway in relation to the South East Milton Keynes
extension in terms of the timing of any planning permission but does not
preclude development in specific locations as the details and future of the
project are still yet unclear. The main parties agree that the proposal does not
conflict with the development plan insofar as the Expressway is concerned and
so does not warrant refusal of the proposal on this matter. [6.1, 7.95, 7.96,
9.3, 9.7, 9.10, 10.3]
12.73. The East-West rail project would see greater use of the line through
Woburn Sands and interested parties have expressed concerns regarding the
potential increased frequency of the level crossing being closed. However,
there is little evidence that the appeal proposal would hamper the delivery of
the rail project or result in unacceptable traffic conditions insofar as the level
crossing is concerned. Again, there is no conflict with the development plan or
reason to refuse the proposal on this matter. [9.3, 9.7, 9.8, 9.12]
Conclusion on the location of the development
12.74. While there are no reasons to withhold permission having regard to
routes of potential new transport infrastructure, the proposed housing would
not be in an appropriate location having regard to the development plan and
national policies. As noted above, it would conflict with Plan:MK Policies DS1,
DS2 and DS5 and WSNP Policies WS5 and WS6.
Housing Density
12.75. At the time of the first SoS decision, Policy H8 of the Local Plan 2001-
2011 sought a density of 35dph. The SoS found that the density of the
proposed development, which was generally considered to be 16dph at the
time, was a very significant departure from this policy with significant weight
given to the conflict. Policy H8 has since been replaced with Policy HN1 of
Plan:MK which sets no density limit but seeks a balance between making
efficient use of land with respecting the surrounding character and context.
[7.99, 8.58]
12.76. Paragraphs 122 and 123 of the NPPF have not changed between the
2018 version considered by the SoS and the current 2019 version. Paragraph
122 seeks efficient use of land taking into account various factors including the
desirability of maintaining an area’s prevailing character and setting.
Paragraph 123 seeks to avoid low densities, but only in the context of an
existing or anticipated shortage of land. Given my findings above, this
paragraph is not applicable. Policy H8 was considered by the SoS to be
consistent with the NPPF, but it is clear that he found conflict with the policy
only. This is because he said that the various factors in paragraph 122 did not
justify the departure from policy (DL26). [7.98, 8.60]
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12.77. At the first Inquiry, the appellant demonstrated128 how 16dph was
broadly comparable to the densities of immediately adjoining residential
streets. The first Inspector found the proposed density to be acceptable. At the
second Inquiry, the appellant contended that the net density based on the
illustrative layout would actually be 20.3dph. The parties disagreed on the
extent of land within the site that would be developed for housing and directly
associated uses including the access roads. Around 50% of the site would be
developed for housing, but there is no agreement on the overall density.
[7.97, 8.64]
12.78. The fact that there is disagreement over an illustrative layout for a
proposal where all matters are reserved apart from access indicates that the
final density figure cannot be established at this point. As part of any reserved
matter application relating to layout, the provision and situation of buildings,
routes and open spaces across the site area is to be assessed and determined.
Thus, while density is not a specific reserved matter, the eventual layout could
affect the density figure. If the layout was unacceptable to the Council in terms
of how it related to the development and buildings and spaces beyond, it could
refuse the reserved matters application. Thus, I am persuaded more by the
judgment in Inverclyde which found density could be considered as part of a
reserved matter than the judgment in Chieveley which focused on gross floor
space. [7.101, 7.102, 8.54, 8.55]
12.79. No condition has been put forward to fix a specific density or
developable area. The development is for up to 203 dwellings. Thus, it is not
possible to be certain of the final density figure. There is no detailed analysis
from the Council on a specific density figure or range of figures. Its planning
witness stated that the development should reflect the overall average density
of Woburn Sands which is 27dph. However, this is based on an unverified
figure in the appeal decision for the Nampak site. The appellant’s analysis
indicates that the built-up area of Woburn Sands has a density of 23.7dph. Its
density figures for the individual parishes are lower but less helpful as they
include large area of countryside. [7.100, 8.63, 8.65]
12.80. Notwithstanding the disagreement over density figures and the scope of
reserved matters, even if the original figure of 16dph is preferred, this would
be in keeping with the surrounding character and context of the adjoining
streets. The illustrative layout would reflect the spaciousness of these existing
streets with the use of open space buffers to safeguard the living conditions of
neighbouring properties and the setting of the listed farmhouse. Little evidence
has been presented to suggest that a density beyond 16 or 20dph would be
acceptable in terms of character and appearance. The first Inspector found
that an indicative layout for 303 dwellings would not be desirable in terms of
landscaping, amenity and context. Although the site’s location has good access
to facilities including public transport, it has not been demonstrated that higher
density development would be acceptable. In the event that a 5 year HLS
could not be demonstrated, there would need to be adequate justification that
a higher density could work in this location. [7.100, 8.63]
128 CD2.6 appendix 13
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12.81. While the final layout and density of the development has yet to be
fixed, I consider that a scheme based on the illustrative layout with a density
of 16-20dph would be relatively low but would be acceptable in this instance
for this location. It would balance an efficient use of land with respecting the
surrounding character and setting, and so would accord with Plan:MK Policy
HN1 and NPPF paragraph 122. While I have reached a different conclusion to
the SoS in his first decision, this is based on the changed development plan
context, the ability to finalise density at reserved matters, and having regard
to the context and character of nearby residential streets. [7.4, 7.103, 8.65]
12.82. If the SoS concludes differently and finds that the proposed density
would not represent an efficient use of land, then there would be conflict with
Plan:MK Policy HN1 and NPPF paragraph 122. This would increase the amount
of weight against the proposal.
Other Matters
Best and most versatile agricultural land
12.83. The loss of Grade 3a agricultural land within the site would conflict with
Plan:MK Policy NE7. However, site allocations such as the South East Milton
Keynes Strategic Growth Area encompass larger areas of best and most
versatile agricultural land. The Council has not sought to argue that this matter
on its own would justify refusing the development and so the policy conflict
only carries moderate weight. A balance needs to be struck between the
economic and other benefits of such land versus the benefits of the
development. [7.109, 8.66, 9.12]
Ecology and drainage
12.84. The first Inspector noted that the ecological value of the site was
limited due to its agricultural use with most of the existing habitats contained
within the trees, hedgerows and ponds on the field margins. These habitats
would be mostly retained and enhanced by the development with measures
secured by condition. An updated desktop study and site assessment was
undertaken in September 2019 with no major changes since the original 2016
ecology reports. [6.1, 7.116, 9.11]
12.85. The existing badger sett would be removed to allow for the new access
from Newport Road. This would require a derogation licence to avoid an
offence under the Conservation of Species and Habitats Regulations 2010.
There is no requirement for a derogation licence to be provided prior to grant
of planning permission, but the decision-maker must be assured that there
would be a reasonable prospect of the licence being granted by Natural
England.
12.86. The provision of housing is in the public interest, while there is no
alternative but to move the badger sett given its location. The creation of an
artificial sett as close as possible to the original location would provide
temporary refuge and would have to be in use before the licence application.
Other mitigation measures during construction would also seek to limit risks to
badgers. These measures should maintain the species at a favourable
conservation status. Based on these considerations, there is reasonable
prospect of Natural England granting a licence. As a consequence, the
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development would not have an unacceptable effect on ecology or protected
species.
12.87. As noted by the first Inspector, the development offers the means to
alleviate current drainage problems through additional attenuation and the use
of a suitable maintenance regime. There should be sufficient space to allow for
the drains set out in the hydrology assessment. The site is within Flood Zone 1
which has the lowest risk of flooding and the development would provide
sufficient ponds, swales and ditches to address surface water run-off. The
measures and maintenance plan can be secured by conditions and so the
development would not have an unacceptable effect on drainage. [6.1, 10.2]
Highways and parking
12.88. The development would provide a new route between Newport Road and
Cranfield Road to alleviate some of the problems associated with the junction
next to the level crossing. The first Inspector noted that all of the junctions
would achieve suitable visibility splays and that there would no unacceptable
highway safety impacts. The updated TA for the second Inquiry provides new
trip generation and distribution estimates taking into account more recent data
and reviews existing and proposed junction modelling. It concludes that there
would be very modest impact on all junctions and routes with no adverse
effect on highway capacity or the need for any more complex highway designs
such as ghost island right turn lanes. While I note the concerns raised by
interested parties about traffic impacts, the evidence before me does not
indicate that the development should be restricted on highways grounds. The
first Inspector noted little evidence of parking stress within Woburn Sands and
the intention for a Travel Plan to encourage sustainable modes of transport. I
have no reason to come to a different view on parking. [6.1, 7.107, 7.108]
Facilities and services in Woburn Sands
12.89. Woburn Sands retains a number of services and facilities including
schools, shops and a medical centre, with a bus service and train station.
While it may have lost or reduced the amount of services and facilities in
recent years, the town remains designated as a key settlement in Plan:MK.
Concerns regarding capacity limits at the schools and medical centre can be
addressed via financial contributions in the S106 agreement, which also
provides the opportunity for additional medical provision within the site. There
is little evidence before me to indicate that the development would have an
unacceptable impact on services and facilities in Woburn Sands. [6.1, 7.115,
9.2, 9.3, 9.9]
Heritage assets
12.90. The Grade II listed Deethe Farmhouse has architectural and historic
interest as an 18th century property with later alterations. Its significance is
also informed by its setting, which today includes the industrial estate as well
as the agricultural fields of the appeal site. The former, due to their modern
utilitarian appearance and use contribute little to the significance of the
farmhouse, whereas the latter make a positive contribution as remnants of the
building’s agricultural past. The building is not highly visible from either the
road or the site due to planting and so the positive contribution of the appeal
site is only moderate.
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12.91. The development would change the rural setting of the farmhouse but
the illustrative layout plans shows that a landscaping buffer can be provided
within the site to wrap around the shared boundary. Layout and landscaping
details could be addressed at reserved matters stage. For the above reasons,
the development would result in less than substantial harm to the significance
of the listed building. The level of harm would be low due to the existing
setting and the proposed mitigation measures. Nevertheless, NPPF paragraphs
193 and 194 state that great weight should be given to the conservation of the
listed building and that any harm requires clear and convincing justification. In
line with NPPF paragraph 196, this harm will be weighed against the public
benefits below. [6.1, 7.105]
12.92. The recently designated Grade II registered park and garden at
Wavendon House forms part of the grounds to the Grade II* listed Wavendon
House and extends close to the northern boundary of the site. The significance
of the park and garden derives from its historic and design interest as an 18th
century pleasure ground and park laid out by a significant landscape improver
of the time (Richard Woods). Wavendon House itself has architectural and
historic interest as a country estate home of 17th century origins largely
remodelled in the 18th century. A mature belt of trees on the edge of the
former golf course limit views between the park and garden and the site, while
the listed house is further away to the north with additional landscape
screening in place. Thus, the site only makes a minor contribution to the
significance of both heritage assets as part of their wider setting. The
development would provide trees and a landscape buffer along the boundary
nearest to Wavendon House. Details could be addressed at the reserved
matters stage. Given the existing screening and distances involved, there
would be no harm caused to either heritage asset. [7.105]
Character and appearance of the landscape
12.93. The development would have a significant visual and landscape effect on
the site itself given that it would change from agricultural fields to housing.
However, as noted by the first Inspector and the first SoS decision, the site
does not comprise a valued landscape and is contained by existing boundary
vegetation which limits views from wider vantage points. Moreover, the site
adjoins the edge of Woburn Sands and the development would be seen in the
context of existing housing. Although some hedgerows and trees would be lost
including those subject to a TPO, the intention is to retain and enhance
planting. Little has changed in visual and landscape terms since the first
Inquiry and decision. Therefore, I concur that the development would have a
very limited effect on the character and appearance of the landscape. [6.1,
6.3, 7.104, 7.117]
The Planning Balance
12.94. A number of benefits have been put forward by the appellant. The
provision of affordable housing beyond the minimum policy requirement should
be strongly supported in line with Policy HN2 and so carries significant weight.
The provision of market housing carries similar weight given the potential
number that could be delivered and the eagerness of the appellant as a small
to medium sized developer to deliver housing as swiftly as possible. The
provision of medical facilities within the site is a potential social benefit but
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only if it goes beyond mitigating the effect of the development which has not
been proven. [7.110-7.113, 7.115, 8.67, 8.68, 8.71]
12.95. The economic benefits would include temporary construction
employment, the provision of a range of homes for a cross-section of working
people, secondary employment through increased spending in the local area
and the payment of a new homes’ bonus to the Council, some of which could
be remitted to Woburn Sands Town Council. As such, reasonable weight can be
afforded to these benefits. [7.114, 8.69]
12.96. In highways terms, while the new road through the site between
Newport Road and Cranfield Road would offer an alternative route to the level
crossing junction, the appellant’s update TA notes very modest impacts on all
junctions as a result of the development. The housing would reduce the extent
and distance of car-borne commuting although not remove it altogether given
the distance to major areas of employment and the relatively limited train and
bus services. Therefore, only limited weight can be afforded any highway
benefits. [7.118, 8.70]
12.97. The environmental enhancement of ecology and the provision of
drainage measures to try and address existing problems would provide
moderate benefits. Little weight can be afforded to the appellant’s claim of a
high quality living environment given the limited information at outline stage
and the policy requirement that all development should be high quality.
[7.116, 8.72, 8.73]
12.98. Taken a whole, the benefits range from limited to significant in
magnitude. They can all be regarded as public benefits and set against the low
level of harm to the significance of the listed farmhouse, they would provide
clear and convincing justification for that harm. Having special regard to the
desirability of preserving listed buildings and their setting in line with Section
66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the
development would have an acceptable effect in terms of heritage assets.
[12.102-12.104]
12.99. The development would have an acceptable effect on a range of other
matters listed above. It would also be acceptable in terms of housing density.
There are insufficient grounds for withholding permission based on routes of
potential national infrastructure projects and the negative effect on best and
most versatile agricultural land would not, in itself, be a reason for refusal. The
conflict with Plan:MK Policy NE7 carries moderate weight as set out above and
would be outweighed by the benefits. [12.88-12.95]
12.100. However, there would be conflict with Plan:MK Policies DS1, DS2
and DS5 and WSNP Policies WS5 and WS6 due to the location of the site in the
open countryside. I have found that a 5 year HLS can be demonstrated and so
there is no reason to reduce the weight to the conflict with these policies on
that basis. Policies DS1, DS2 and DS5 are not inconsistent with the NPPF and
so carry full weight, while significant weight can be afforded to Policies WS5
and WS6 based on their NPPF consistency. As policies most important for
determining the application, none of these 5 policies are out of date. As such,
the tilted balance in NPPF paragraph 11(d) is not engaged. [7.119, 8.74-
8.76, 12.79-12.84]
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12.101. The development’s conflict with the development plan in terms of the
location of the housing carries substantial weight as it would not accord with
the spatial strategy set out in Plan:MK. While a number of benefits would be
achieved, they would be insufficient to outweigh the conflict with the
development plan. In line with Section 38(6) of the Planning and Compulsory
Purchase Act 2004, planning permission should not be granted.
12.102. Alternatively, if the SoS finds that a 5 year HLS cannot be demonstrated
or that the most important policies are out of date for other reasons, then the
tilted balance in NPPF paragraph 11(d) would be engaged. As there are no
policies in the NPPF that provide a clear reason for refusing the development
(having had regard to the effect on designated heritage assets), it would be
necessary to consider whether any adverse impacts of granting planning
permission would significantly and demonstrably outweigh the benefits when
assessed against the policies in the NPPF taken as a whole.
12.103. Moreover, it should be noted that if the SoS finds that there is a housing
land supply shortfall, then NPPF paragraph 123 would be engaged which seeks
to avoid homes being built at low densities. NPPF paragraph 123(c) states that
proposals should be refused where the decision maker considers that they fail
to make efficient use of land taking into account the policies of the NPPF.
13. Recommendation
13.1 For the reasons set out above, I recommend that the appeal be dismissed.
13.2 Nonetheless, if the SoS is minded to disagree with my recommendation and
allow the appeal, then the conditions listed in Annex 1 should be attached to
any permission granted along with the obligations set out in the S106
agreement.
Tom Gilbert-Wooldridge
INSPECTOR
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ANNEX 1: SUGGESTED CONDITIONS (28)
Details, phasing and lighting
1) No development shall commence on any phase of the development until
details of the layout, scale, appearance and landscaping for that phase
(hereinafter called 'the reserved matters') have been submitted to and
approved in writing by the Local Planning Authority
Reason: To meet the requirements of the Town and Country Planning
(Development Management Procedure) Order 2015
2) Application/s for approval of all the reserved matters shall be made to the
Local Planning Authority before the expiration of three years from the date
of this permission. The development hereby permitted shall be begun no
later than the latest of the following dates:
i. The expiration of three years from the date of this permission; or
ii. The expiration of two years from the date of the approval of the
last of the reserved matters to be approved.
Reason: To meet the requirements of Section 92 of the Town and Country
Planning Act 1990 as amended by Section 51 of the Planning and
Compulsory Planning Act
3) The development hereby permitted shall be carried out in accordance with
the following approved plans: PL-X-001 Rev B, PL-X-003 Rev C and PL-X-
004, but only in respect of those matters not reserved for later approval.
Reason: For the avoidance of doubt and in the interests of proper planning
of the development
4) The development hereby permitted shall not exceed 203 dwellings (Use
Class C3). The use classes are those set out in the Town and Country
Planning (Use Classes) Order 1987 (as amended) or in any provision
equivalent to that Class in any statutory instrument revoking or re-enacting
that order with or without modification.
Reason: To ensure the development conforms to the outline planning
permission
5) Prior to the commencement of development of any phase of the
development, a phasing plan for the whole site shall be submitted to and
approved in writing by the Local Planning Authority. For the avoidance of
doubt the phasing plan shall include the phasing of the delivery of all roads,
footways, redway and bridleway links and Framework Travel Plan
measures. The development shall take place in accordance with the
approved phasing plan.
Reason: In order to clarify the terms of this planning permission and ensure
that the development proceeds in a planned and phased manner. This is
pre-commencement condition as the phasing plan would need to be agreed
before any works begin.
6) The access arrangements hereby permitted shall be carried out in
accordance with Proposed Site Access drawings nos.WO1188-101 Rev P05
and WO1188-102 rev.P03
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Reason: To provide satisfactory highway connections to the local highway
network
7) Reserved matters applications for each phase of the development shall
include details of the proposed finished floor levels of all buildings and the
finished ground levels in relation to existing surrounding ground levels for
that phase. Development for that phase shall be undertaken in accordance
with the approved levels.
Reason: To ensure that construction is carried out suitable levels having
regard to drainage, access, the appearance of the development and the
amenities of neighbouring properties in accordance with Policy D5 of
Plan:MK
8) Reserved matters applications for each phase of the development shall
include details of the proposed boundary treatments for that phase. The
approved boundary treatments shall be carried out in accordance with the
approved details for that phase and be completed prior to the occupation of
the associated dwelling or first use of such phase of the development.
Reason: To provide adequate privacy, to protect the external character and
appearance of the area and to minimise the effect of development on the
area in accordance with Policy D5 of Plan:MK
9) Reserved matters applications for each phase of the development shall
include a lighting scheme for all public and private streets, footpaths and
parking areas. The lighting scheme shall include details of what lights are
being proposed, a lux plan showing maximum, minimum, average and
uniformity levels, details of means of electricity supply to each light and
how the lights will be managed and maintained in the future. If any lighting
is required within the vicinity of current or built-in bat features, it shall be
low level with baffles to direct the light away from the boxes and units,
thus preventing severance of bat commuting and foraging routes. The
approved scheme shall be implemented prior to the occupation of each
associated dwelling within that phase of the development.
Reason: In the interests of safety and amenity and in order to comply with
Policies D5 and NE6 of Plan:MK
10) Reserved matters applications for each phase of the development shall
incorporate measures to minimise the risk of crime in accordance with
Secured by Design principles. All dwellings shall be designed to achieve
Secured by Design accreditation (as awarded by Thames Valley Police) in
accordance with details to be submitted to, and approved in writing by, the
Local Planning Authority.
Reason: In the interests of reducing crime and disorder in accordance with
Policy EH7 of Plan:MK
11) Reserved matters applications for each phase of the development shall be
accompanied by a Sustainability Statement for that phase including, as a
minimum, details required by Policy SC1 of Plan:MK. The approved details
shall be implemented for each dwelling prior to the occupation of that
dwelling.
Reason: In the interests of achieving a sustainable form of construction and
to ensure the development complies with Policy SC1 of Plan:MK
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12) No development shall take place above slab level until samples of the
external materials to be used in the construction for each phase of the
development (if any) have been submitted to and approved in writing by
the Local Planning Authority. The development shall thereafter be carried
out in full accordance with the approved details.
Reason: To ensure that the development does not detract from the
character and appearance of the area in accordance with Policy D2 of
Plan:MK
Affordable housing
13) Reserved matters applications for each phase of development shall include
details of the location and type of affordable housing pursuant to the
development phase for which approval is sought. Each phase of the
development shall be carried out in accordance with the approved details.
Reason: To ensure that the development and location of affordable housing
is appropriate and in accordance with Policy HN2 of Plan:MK
Drainage
14) Prior to the commencement of the development hereby permitted a
detailed design, and associated management and maintenance plan, for a
surface and storm water drainage scheme, based on sustainable drainage
principles for the site shall be submitted to and approved in writing by the
Local Planning Authority. The management and maintenance plan shall
include details of the way the surface and storm water drainage scheme will
be implemented for each phase of development. The approved drainage
scheme shall subsequently be implemented and maintained in accordance
with the approved detailed design and scheme for maintenance, and in
accordance with the approved phasing details and be retained thereafter.
Reason: To ensure satisfactory and sustainable surface water drainage to
prevent the increased risk of contamination and flooding on or off site in
accordance with Policy FR1 of Plan:MK. This is a pre-commencement
condition as it is necessary to establish a drainage scheme before works
begin.
15) Prior to the commencement of each phase of the development, a foul water
strategy shall be submitted to and approved in writing by the Local
Planning Authority. No dwellings in that phase shall be occupied until the
works have been carried out in accordance with the approved foul water
strategy for that phase.
Reason: To ensure satisfactory and sustainable foul water drainage to
prevent the increased risk of contamination and flooding on or off site in
accordance with Policy FR1 of Plan:MK. This is a pre-commencement
condition as it is necessary to establish a drainage scheme before works
begin.
Car parking, travel and access
16) Reserved matters applications for each phase of the development shall
include a scheme to provide car parking and cycle parking and
manoeuvring of vehicles within the development in accordance with the
Milton Keynes Council Parking Standards SPG (2016) or any subsequent
parking standards adopted at the time any reserved matters application is
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submitted and in accordance with the Council's New Residential
Development Design Guide (2012) or any further guidance on parking that
may be adopted at the time any reserved matters application is submitted.
The approved scheme shall be implemented and made available for use for
each dwelling prior to the occupation of that dwelling and shall not
thereafter be used for any other purpose.
Reason: To ensure adequate parking provision at all times and to enable
vehicles to draw off, park, load/unload and turn clear of the highway so
that the development does not prejudice the free flow of traffic or the
safety on the neighbouring highway in accordance with Policies CT3 and
CT10 of Plan:MK
17) No development shall take place until there has been submitted to and
approved in writing by the Local Planning Authority a Construction and
Delivery Plan that shall outline, in accordance with the phasing as approved
under Condition 5 the proposed access works and which shall include links
to the existing highway, footpaths and cycle ways (including the
specification thereof). Development shall then take place in accordance
with the approved Construction and Delivery Plan. No other parts of the
development shall begin until the new means of access for that phase has
been provided and laid out in accordance with the Construction and
Delivery Plan and constructed in accordance with Milton Keynes Council’s
standard specification.
Reason: In the interests of highway safety and to ensure adequate
mitigation measures are in place. This is a pre-commencement condition to
ensure that there is agreement on construction traffic and deliveries before
works begin
18) Measures proposed within the approved Framework Travel Plan dated
March 2016 will be implemented in a phased manner, in accordance with
Condition 5. No phase of the development shall be occupied prior to the
implementation of the agreed Framework Travel Plan measures relating to
that phase. Those parts of the approved Framework Travel Plan that are
identified therein as being capable of implementation after occupation shall
be actioned and reported in accordance with the timetable contained within,
with a minimum of annual reporting for the first five years.
Reason: To support sustainable transport objectives including a reduction in
single occupancy car journeys and the increased use of public transport,
walking and cycling in accordance with Policy CT2 of Plan:MK
19) No dwelling shall be occupied in any phase of the development until the
estate road which provides access to the dwelling, from the existing
highway, has been laid out and constructed.
Reason: To provide satisfactory highway connections to the local highway
network in accordance with Policy CT2 of Plan:MK
Archaeology
20) Prior to the commencement of each phase of the development a
programme of archaeological field evaluation comprising trial trenching
shall be completed. The programme of archaeological evaluation shall be
detailed in a Written Scheme of Investigation submitted to and approved by
the Local Planning Authority in writing. On completion of the agreed
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archaeological field evaluation for each phase a further Written Scheme of
Investigation for a programme of archaeological mitigation in respect of
any identified areas of significant buried archaeological remains shall be
submitted to and approved by the Local Planning Authority in writing. The
scheme for archaeological mitigation shall include an assessment of
significance and research questions; and
i. The programme and methodology of site investigation and recording;
ii. The programme for post investigation assessment;
iii. Provision to be made for analysis of the site investigation and
recording;
iv. Provision to be made for publication and dissemination of the analysis
and records of the site investigation;
v. Provision to be made for archive deposition of the analysis and
records of the site investigation; and
vi. Nomination of a competent person or persons/organisation to
undertake the works set out within the Written Scheme of Investigation.
No development in any phase shall take place other than in accordance
with the Written Scheme of Investigation so approved. The development
hereby permitted shall not be occupied until the site investigation and post
investigation assessment has been completed in accordance with the
programme set out in the approved Written Scheme of Investigation and
the provision made for analysis, publication and dissemination of results
and archive deposition has been secured.
Reason: To enable expert investigation of cultural remains at this site of
archaeological interest in accordance with Policy HE1 of Plan:MK
Ecology
21) Any protected species survey report in excess of three years old at the time
of the commencement of development of each phase of the development
shall be updated and submitted to and approved in writing by the Local
Planning Authority prior to the commencement of development of that
phase of the development. Natural England derogation licence(s) shall be
obtained for any protected species likely to be harmed prior to the
commencement of the development.
Reason: To safeguard protected species and biodiversity in accordance with
Policy NE2 of Plan:MK
22) Prior to the commencement of development of each phase of the
development, a Landscape and Ecology Management Plan which covers the
landscape and ecological features of the development ensuring net gains
for wildlife compliance with local and national policies shall be submitted to
and approved in writing by the Local Planning Authority. The submitted
plan shall include the creation of additional habitat areas and a scheme to
incorporate additional biodiversity features such as swallow cups, bird and
bat boxes, bricks or cavities into appropriate buildings. Thereafter the
development shall be carried out in accordance with the approved scheme
and all features and access to them shall be maintained in perpetuity.
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Reason: To ensure the development incorporates adequate biodiversity
enhancements in accordance with Policies NE3 and NE4 of Plan:MK
Tree protection
23) All existing trees and hedgerows to be retained in each phase of the
development are to be protected according to the provisions of BS
5837:2012 'Trees in relation to design, demolition and construction -
Recommendations' prior to the commencement of any works on each
phase. All protective measures shall be in place prior to the commencement
of any building operations (including any structural alterations,
construction, rebuilding, demolition and site clearance, removal of any
trees or hedgerows, engineering operations, groundworks, vehicle
movements or any other operations normally undertaken by a person
carrying on a business as a builder) in that phase.
Reason: To protect significant trees and hedgerows, safeguarding the
character of the area and preserving habitats and to minimise the effect of
the development on the area
Open space, play areas and landscaping
24) Prior to the commencement of any phase of the development, an open
space specification which includes the location, details and specification for
all areas of open space including the Neighbourhood Play Area shall be
submitted to and approved in writing by the Local Planning Authority.
Detailed proposals for play areas shall be submitted and agreed at the
same time as the detailed housing layouts or otherwise demonstrate that
the minimum buffer distances between residential property boundaries and
the play area active zone can be achieved in compliance with the standards
set out in Plan:MK Appendix C, or any subsequent standards. The open
space specification shall also include the phasing for the laying out of all
areas of open space including any Play Areas and the long term
management and maintenance arrangements for all open space and play
facilities, to cover a minimum period of ten years. The development shall
be completed in accordance with the approved details.
Reason: To minimise the effect of the development on the area in
accordance with Policy L4 of Plan:MK
25) Reserved matters applications for each phase of the development shall
include a landscaping scheme with detailed drawings showing which trees
and hedgerows are to be retained in that phase and which trees and
hedgerows are proposed to be felled or lopped in that phase. The
landscaping scheme shall also show the numbers, types and sizes of trees
and shrubs to be planted in that phase including their locations in relation
to associated infrastructure and a species list to include native species and
species beneficial to wildlife. The planting plans shall include existing trees
and/or hedgerows to be retained and/or removed within each phase
accurately shown with root protection areas and based up to date tree
surveys. Any trees or shrubs removed, dying, or which become severely
damaged or diseased within two years of planting shall be replaced in the
next planting season with trees or shrubs of such size and species to be
agreed in writing by the Local Planning Authority.
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Reason: To protect significant trees and hedgerows, safeguarding the
character of the area and preserving habitats and to minimise the effect of
the development on the area
Construction
26) Prior to the commencement of development of any phase of the
development, a Construction Environmental Management Plan (CEMP) shall
be submitted to and approved in writing by the Local Planning Authority.
The CEMP shall include Noise Action Levels (based on a noise survey) and
site procedures to be adopted during the course of construction including
working hours, intended routes for construction traffic, details of vehicle
wheel washing facilities, location of site compound, lighting and security
and how dust and other emissions will be controlled. The development shall
be carried out in accordance with the approved CEMP.
Reason: To ensure there are adequate mitigation measures in place in the
interests of highway and pedestrian safety and in order to protect the
amenities of existing and future residents in accordance with Policies CT2
and NE6 of Plan:MK
27) Prior to the commencement of development on any phase, the developer
shall carry out an intrusive site investigation into the ground conditions at
the site to determine the likelihood of any ground, groundwater or gas
contamination of the site. The results of this survey detailing the nature
and extent of any contamination, together with a strategy for any remedial
action deemed necessary to bring each phase to a condition suitable for its
intended use, shall be submitted to and approved in writing by the Local
Planning Authority before construction works commence on that phase. Any
remedial works shall be carried out on each phase in accordance with the
approved strategy and validated on a phase by phase basis by submission
of an appropriate verification report prior to the first occupation on that
phase of the development. Should any unforeseen contamination be
encountered, the Local Planning Authority shall be informed immediately.
Any additional site investigation and remedial work that is required as a
result of unforeseen contamination shall also be carried out to the written
satisfaction of the Local Planning Authority.
Reason: To ensure the site is fit for its proposed purpose and any potential
risks to human health, property and the natural and historic environment
area appropriately investigated and minimised in accordance with Policy
NE6 of Plan:MK
Housing mix
28) Any reserved matters application shall be accompanied by details outlining
the proposed housing mix strategy which takes account of the latest
housing need within the District. The development shall be carried out in
accordance with the approved details.
Reason: To ensure that the development hereby approved reflects housing
need within the Borough in accordance with Policy HN1 of Plan:MK
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ANNEX 2: APPEARANCES
FOR THE APPELLANT
Peter Goatley and James Corbet Burcher of Counsel instructed by Stephen Webb of
Clyde and Co LLP.
They called:
Roland Burton BSc (Hons) MRTPI DLP (Planning) Limited
Tim Waller BA (Hons) DipTP MRTPI Waller Planning
Julian Hudson MA (Oxon) MSc MSc MCIHT Scott White and Hookins
Stephen Webb Clyde and Co LLP
FOR THE LOCAL PLANNING AUTHORIY
Reuben Taylor QC and Matthew Henderson of Counsel instructed by Sharon
Bridglalsingh of Milton Keynes Council.
They called:
James Williamson BA (Hons) MSs MRTPI Milton Keynes Council
Niko Grigoropoulos BSc (Hons) MA MRTPI Milton Keynes Council
Paul Van Geete Milton Keynes Council
Nazneed Roy Milton Keynes Council
INTERESTED PERSONS WHO SPOKE AT INQUIRY
Councillor Jacky Jeffries Woburn Sands Town Council
Councillor David Hopkins Danesborough and Walton Ward Councillor (Milton
Keynes Council) and Chairman of Wavendon Parish
Council
Judith Barker Local resident
Jenny Brook Local resident
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ANNEX 3: DOCUMENTS
INQUIRY DOCUMENTS (FOR REDETERMINED APPEAL)
RID01 Opening submissions on behalf of the appellant
RID02 Opening statement on behalf of the Council
RID03 High Court judgment R(oao Matthew Davison) v Elmbridge Borough
Council [2019] EWHC 1409 (Admin)
RID04 Statement by Councillor Jacky Jeffries
RID05 Statement by Councillor David Hopkins
RID06 Statement of Common Ground between the appellant and the Council
RID07 Quarter 3 (1 October to 31 December 2019) monitoring data of housing
starts and completions in Milton Keynes
RID08 Babergh District Council Housing Land Supply Position Statement 2019/20
to 2023/24
RID09 Court of Appeal judgment R (on the application of East Bergholt Parish
Council) v Babergh District Council) [2019] EWCA Civ 2200
RID10 Mid Suffolk District Council Housing Land Supply Position Statement
2019/20 to 2023/24
RID11 Email and photograph from Stephanie Forester (local resident)
RID12 Addendum to the Council’s justification document for Section 106
contributions
RID13 Note from the Council on the 2019 distribution of annual housing
monitoring proformas
RID14 Site visit itinerary
RID15 Note from the Council on the Babergh and Mid Suffolk Housing Land
Supply Position Statements
RID16 Statement by Judith Barker
RID17 Note from the appellant responding to the Council’s note (RID15)
RID18 Extract from the Encyclopedia of Planning Law and Practice 3B-2200.5
(Applications for outline planning permission)
RID19 Note from the Council clarifying the sites removed from the 2019 five-year
land supply when updated to a base date of 1 April 2019
RID20 Errata to Roland Bolton Proof of Evidence and Statement of Common
Ground on housing land supply
RID21 Closing submissions on behalf of Milton Keynes Council
RID22 Court of Appeal judgment City and District Council of St Albans v Hunston
Properties and Secretary of State for Communities and Local Government
[2013] EWCA Civ 1610
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RID23 Court of Appeal judgment R v Newbury District Council, Newbury and
District Agricultural Society, Ex Parte Chieveley Parish Council [1998]
EWCA Civ 1279
RID24 Agricultural land quality maps for urban extensions to Milton Keynes
compared to the appeal site
RID25 Order from the Planning Court regarding Milton Keynes Council’s claim for
Planning Statutory Review of Castlethorpe Road appeal decision
RID26 Court judgment Invercylde District Council v Inverkip Building Company
Limited
RID27 High Court judgment Bloor Homes East Midlands Ltd v Secretary of State
for Communities and Local Government [2014] EWHC 754 (Admin)
RID28 High Court judgment R (on the application of West Lancashire Borough
Council) v Secretary of State for Communities and Local Government
[2017] EWHC 3451 (Admin)
RID29 Closing submissions on behalf of the appellant
RID30 Final draft Section 106 agreement
RID31 Final draft Section 106 agreement (with tracked changes)
RID32 Supplementary Planning Guidance on Planning Obligations for Education
Facilities
RID33 Clean and tracked changes version of appellant’s closing submissions
reflecting amendments made at the Inquiry
RID34 Clean and tracked changes version of the Council’s closing submissions
reflecting amendments made at the Inquiry
RID35 Addendum to Statement of Common Ground regarding Area Tree
Preservation Order
RID36 Amended version of RID20
RID37 Completed and executed S106 agreement
PROOFS OF EVIDENCE (FOR REDETERMINED APPEAL)
Appellant:
APP1 Summary Proof of Roland Bolton (Housing Land Supply)
APP2 Proof of Roland Bolton
APP3 Appendices to Roland Bolton’s Proof
APP4 Rebuttal Proof of Roland Bolton
APP5 Updated Appendix 3 of Roland Bolton’s Proof
APP6 Rebuttal Appendix 3a of Roland Bolton’s Proof
APP7 Summary Proof of Tim Waller (Planning)
APP8 Proof of Tim Waller
APP9 Appendices to Tim Waller’s Proof
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APP10 Rebuttal Proof of Tim Waller
APP11 Errata to Roland Bolton’s Proof
APP12 Errata to Tim Waller’s Proof (Appendix 5)
Local Planning Authority:
LPA1 Proof of James Williamson (Housing Land Supply)
LPA2 Appendices to James Williamson’s Proof
LPA3 Rebuttal Proof of James Williamson
LPA4 Proof of Niko Grigoropoulos
STATEMENTS OF COMMON GROUND (FOR REDETERMINED APPEAL):
SOCG1 Statement of Common Ground on Housing Land Supply
RID06 Statement of Common Ground (overarching)
RID35 Addendum to Statement of Common Ground (TPO)
OTHER DOCUMENTS
TPO1 Area Tree Preservation Order dated 8 January 2020 and illustrative
drawing of other TPOs
REP1 Bundle of representations in respect of the redetermined appeal
CORE DOCUMENTS (FOR REDETERMINED INQUIRY)
Core Doc Name Drawing No. (or) Date
Ref Reference
CD1 - Application Documents
CD1.1 Application forms and Submitted
certificates 11/03/16
CD1.2 Application forms and Submitted
certificates 20/07/16
CD1.3 Site Location Plan Drawing PL-X-001/B Submitted
09/06/16
CD1.4 Parameters Plan Drawing PL-X-003/C Submitted
04/08/16
CD1.5 Illustrative Layout Drawing PL-X-004/C Submitted
17/10/16
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CD1.6 Illustrative Layout Drawing PL-X-005/B Submitted
(Transport) 17/10/16
CD1.7 Illustrative Layout Drawing PL-X-006/B Submitted
(Landscape) 17/10/16
CD1.8 Illustrative Layout Drawing PL-X-007/B Submitted
(Character Areas) 17/10/16
CD1.9 Illustrative Layout Drawing PL-X-008/B Submitted
(Affordable Housing) 17/10/16
CD1.10 Design and Access Submitted
Statement, Rev. A 04/08/16
CD1.11 Supporting Planning Submitted
Statement 11/03/16
CD1.12 Transport Assessment, Submitted
Revision C 08/07/16
CD1.13 Use of TEMPRO to Forecast Submitted
Traffic Impact in 2021, 14/11/16
Addendum to Transport
Assessment
CD1.14 Residential Travel Plan Submitted
11/03/16
CD1.15 Highway Access Drawings WO1188-101 P05 and Submitted
WO1188-102 P03 05/10/16
CD1.16 Arboricultural Schedule Submitted
11/03/16
CD1.17 Tree Survey Drawings SJA115.01.0 – Submitted
SJA115.01.06.0 11/03/16
CD1.18 Baseline Ecological Submitted
Evaluation and Impact 11/03/16
Assessment
CD1.19 Protected Species Report Submitted
27/07/16
CD1.20 Flood Risk Assessment Submitted
(incorporating Drainage 11/03/16
Strategy)
CD1.21 Further Details on Surface Submitted
Water Drainage 08/06/16
CD1.22 Geo-Environment Audit Submitted
11/03/16
https://www.gov.uk/planning-inspectorate Page 89
CD1.23 Landscape Character Drawing SJA115.10.0 Submitted
Areas 11/03/16
CD1.24 Landscape Masterplan Drawing SJA115.11.0 Submitted
11/03/16
CD1.25 Landscape and Visual Submitted
Impact Appraisal 04/08/16
CD1.26 Environmental Noise Submitted
Survey 11/03/16
CD1.27 Supplementary Noise Submitted
Impact Report: 11/03/16
SoundPLAN
CD1.28 Statement of Community Submitted
Involvement 11/03/16
CD1.29 Sustainability Statement Submitted
11/03/16
CD1.30 Delivery Programme Submitted
01/12/16
CD2 - Appellant Documents
CD2.1 Housing Density Drawing 213.3/101 Submitted
10/02/17
CD2.2 Appellants Statement of Submitted
Case (V1) 10/02/17
CD2.3 Appellants Statement of Submitted
Case (V2) 12/09/19
CD2.4 S106 Agreement 17/08/2017
CD2.5 Unilateral Undertaking 17/08/2017
CD2.6 Tim Waller, Planning Proof 13/06/2017
of Evidence
CD2.7 Roland Bolton, Housing 13/06/2017
Land Supply Proof of
Evidence
CD2.8 Roland Bolton, Housing 13/06/2017
Land Supply Proof of
Evidence Appendices
CD2.9 Mary Fisher, Landscape 13/06/2017
Proof of Evidence
https://www.gov.uk/planning-inspectorate Page 90
CD2.10 Mary Fisher, Landscape 13/06/2017
Proof of Evidence
Appendices
CD2.11 Katy Jordan, Wavendon 13/06/2017
Properties Proof of
Evidence
CD2.12 Tim Waller Rebuttal to 06/07/2019
Planning Proof of Evidence
CD2.13 Roland Bolton Rebuttal 06/07/2019
Housing Land Supply Proof
of Evidence
CD2.14 Peter Goatley Closing 19/07/2019
Submissions
CD3 - Council Documents
CD3.1 Pre-Application Advice 18/01/2016
Letter
CD3.2 Committee Report 08/09/2016
CD3.3 Minutes of Committee
Meeting
CD3.4 Decision Notice 05/12/2016
CD3.5 Note from Council’s Senior 28/11/2016
Engineer, ‘Highway
Observations for
16/00672/FUL
CD3.6 MKC Housing Land Supply www.milton-
Calculation and Trajectory keynes.gov.uk/planning-
April 2017 -2022 and-building/planning-
policy/five-year-
housing-land-supply-
annual-monitoring-
report
CD3.7 Countryside Officer Reps 20160423
CD3.8 Conservation Officer Reps 20160425
CD3.9 Passenger Transport Reps 20160527
CD3.10 Countryside Officer Reps 20160623
CD3.11 Travel Plans 20160628
CD3.12 Natural England Reps 20160812
CD3.13 Ecology Reps 20160817
https://www.gov.uk/planning-inspectorate Page 91
CD3.14 Urban Design Reps 20160817
CD3.15 Countryside Officer Reps 20160823
CD3.16 Network Rail Reps 20161018
CD3.17 Highways Observations 20161128
Final
CD3.18 Appeal Reps from MKC 20170515
Website
CD3.19 [Blank Record]
CD3.20 Trees
CD3.21 Dev Plans
CD3.22 Landscape Architecture
CD3.23 Wavendon PC
CD3.24 WS Town Council
CD3.25 WS Town Council
Appendix
CD3.26 Jon Goodall Planning Proof 13/06/2017
of Evidence
CD3.27 Jon Goodall Planning Proof 13/06/2017
of Evidence Appendices
CD3.28 Jon Goodall Housing Land 13/06/2017
Supply Proof of Evidence
CD3.29 Jon Goodall Housing Land 13/06/2017
Supply Proof of Evidence
Appendices
CD3.30 Tim Straker QC Closing 19/07/2019
Submissions
CD3.31 MKC housing statistics September
2019 Q2 Extract 2019
CD3.32 MKC June HLSP 2019 June 2019
CD3.33 Appendix 1 - Housing June 2019
Trajectory 2019 - 2024
CD3.34 MKC Assessment of Five June 2016
Year Land Supply 2016 -
2021
https://www.gov.uk/planning-inspectorate Page 92
CD3.35 MKC Five Year Housing June 2018
Land Supply Position,
2018
CD3.36 MKC Five Year Housing November
Land Supply 2011-2016 2010
CD3.37 MKC Interim Assessment November
of five year land supply, 2015
2015
CD3.38 MKC Housing Land Supply June 2017
Position 2017/18
CD3.39 Council's Addendum 12 September
Statement of Case 2019
CD3.40 Council's Addendum 12 September
Statement of Case 2019
Appendices
CD3.41 MKBC 2019 Annual June 2019
Housing Monitoring
Completed Proformas
CD4 - National Policy
CD4.1 National Planning Policy March 2012
Framework
CD4.2 National Planning Practice (Electronic Only)
Guidance
CD4.3 Ministerial Statement of June 2010
Greg Clark, then SSCLG
CD4.4 White Paper ‘Fixing Our February 2017
Broken Housing Market’,
UK Government
CD4.5 National Planning Policy July 2018
Framework
CD4.6 National Planning Policy February 2019
Framework
CD4.7 Independent Review of October 2018
Build Out, Rt Hon Sir
Oliver Letwin MP
CD4.8 Independent Review of June 2018
Build Out Rates Annexes
CD4.9 Independent Review of June 2018
Build Out Rates
Draft Analysis
https://www.gov.uk/planning-inspectorate Page 93
CD4.10 Housing Delivery Test July 2018
Measurement Rule Book
CD5 - Local Policy
CD5.1 Milton Keynes Local Plan
2001-2011
CD5.2 Milton Keynes Core
Strategy
CD5.3 Woburn Sands July 2014
Neighbourhood Plan
CD5.4 Strategic Land Allocation November
Development Framework 2013
SPD
CD5.5 Parking Standards SPD
CD5.6 Milton Keynes Sustainable
Construction Design Guide
SPD
CD5.7 Milton Keynes Affordable
Housing SPD 2013
CD5.8 Planning Obligations for
Educational Facilities
CD5.9 Planning Obligations for
Leisure, Recreation and
Sports Facilities SPG
CD5.10 MKC Supplementary
Planning Document Social
Infrastructure Planning
Obligations
CD5.11 New Residential
Development Design Guide
SPD
CD5.12 Milton Keynes Council February 2017
Urban Capacity Study
CD5.13 Milton Keynes Residential March 2017
Characterisation Study: An
Evidence Base For Plan:MK
CD5.14 Landscape Sensitivity December
Study to Residential 2016
Development in the
Borough of Milton Keynes
and Adjoining Areas
https://www.gov.uk/planning-inspectorate Page 94
CD5.15 Milton Keynes Strategic December
Housing Land Availability 2012
Assessment 2012
CD5.16 Plan: MK Topic Paper- September
Issues Consultation Rural 2014
Issues
CD5.17 Woburn Sands March 2014
Neighbourhood Plan - A
Report to Milton Keynes
Council of the Examination
into the Woburn Sands
Neighbourhood Plan
CD5.18 Development Plan Policies
Map Extract -
Development Boundaries
for Policies CS1 and H7
CD5.19 Development Plan Policies
Map Extract - Policy S10
CD5.20 Milton Keynes School Place
Planning Forward View
2017-18
CD5.21 Newport Pagnell
Neighbourhood Plan -
Referendum version
CD5.22 Milton Keynes Core February 2010
Strategy Sustainability
Appraisal Final Report
2010
CD5.23 Milton Keynes Site October 2016
Allocations Plan Proposed
Submission Draft October
2016
CD5.24 Plan:MK The Way Forward
Development Strategy
Topic Paper (2014)
CD5.25 Milton Keynes Strategic February 2017
Housing Market
Assessment 2016-2031
Report of Findings Feb
2017, ORS
CD5.26 Core Strategy Housing March 2011
Technical Paper
https://www.gov.uk/planning-inspectorate Page 95
CD5.27 Strategic Land Allocation
Development Framework
SPD Adoption Statement
November 2013
CD5.28 Milton Keynes Drainage May 2004
Strategy Development and
Flood Risk SPG
CD5.29 Milton Keynes Core May 2013
Strategy Inspector's
Report
CD5.30 Plan:MK Draft Consultation March 2017
(Reg18)
CD5.31 Plan:MK March 2019
CD5.32 Plan:MK Inspector's Report February 2019
CD5.33 Plan:MK Inspector's Report February 2019
Appendices
CD5.34 Milton Keynes Council July 2018
Response to Inspectors
Questions for Examination
Hearings - Stage 1, Matter
3
CD5.35 Milton Keynes overall
5YLSP at April 2018
CD5.36 Milton Keynes Council November
Assessment of Five Year 2010
Land Supply: 2011-2016
CD5.37 Milton Keynes Site July 2018
Allocations Plan
CD5.38 Milton Keynes Boundary October 2018
Settlement Review
CD5.39 Sustainability Appraisal November
Report (to Plan:MK) 2017
CD5.40 Sustainability Appraisal November
Map 2017
CD5.41 MK Local Development September
Scheme (LDS) 2018
CD6 - Appeal Decisions
CD6.1 Land North of Dark Lane, PINS Ref: 2225799 13/02/2017
Alrewas, Burton Upon
Trent, Staffordshire
https://www.gov.uk/planning-inspectorate Page 96
CD6.2 Brook Farm, 94 High PINS Ref: 3150607 31/08/2016
Street, Wrestlingworth,
Bedfordshire, SG19 2EJ
CD6.3 Land South of Nanpantan PINS Ref: 3028159 16/01/2017
Road, Loughborough,
Leicestershire
CD6.4 Land North of Lenham PINS Ref: 3151144 09/12/2016
Road, Headcorn, Kent,
TN27 9TU
CD6.5 Land East of Seagrave PINS Ref: 3152082 27/03/2017
Road, Sileby,
Leicestershire
CD6.6 Land at Wain Close, PINS Ref: 2224004 01/10/2015
Newport Road, Woburn
Sands, Milton Keynes
CD6.7 Land at Burford Road, PINS Ref: 3005737 24/08/2016
Witney, Oxford
CD6.8 Land East of Wolvey Road, PINS Ref: 2202261 03/01/2014
Three Pots, Burbage,
Leicestershire
CD6.9 Land at Long Street Road, PINS Ref: 3177851 05/03/2018
Hanslope
CD6.10 Land at Linford Lakes, off PINS Ref: 3175391 27/03/2018
Wolverton Road, Milton
Keynes, Bucks
CD6.11 Land at Moat Farm, PINS Ref: 3186814 30/04/2018
Chicheley Road, North
Crawley
CD6.12 Land off Olney Road, PINS Ref: 3182048 04/05/2018
Lavendon
CD6.13 Longdene House, PINS Ref: 3165974 10/01/2019
Hedgehog Lane,
Haslemere
CD6.14 Darnhall School Lane PINS Ref: 2212671 16/04/2019
Appeal - Decision Letter
CD6.15 Darnhall School Lane PINS Ref: 2212671 16/04/2019
Appeal - Inspectors report
CD6.16 Land on East Side of PINS Ref: 3194926 28/09/2019
Green Road, Woolpit,
Suffolk
https://www.gov.uk/planning-inspectorate Page 97
CD6.17 The Globe, 50 Hartwell PINS Ref: 3220584 05/09/2019
Road, Hanslope
CD6.18 Land off Castlethorpe Road PINS Ref: 3214365 26/09/2019
and Malt Mill Farm
Hanslope
CD6.19 Land at Church Farm, PINs Ref 3134194 12/08/2019
Wavendon
CD6.20 Land at Site North of PINs Ref: 3192918 06/12/2018
Former North
Worcestershire Golf Club,
Hanging Lane,
Birmingham
CD6.21 Land to the south of PINs Ref: 3185776 13/09/2019
Bromley Road, Ardleigh,
Colchester CO7 7SE
CD6.22 Land Off Colchester Road, PINs Ref: 3207509 27/03/2019
Bures Hamlet, Essex
CD6.23 Land Off Stone Path Drive, PINs Ref: 3162004 08/07/2019
Hatfield Peverel, Essex
CD6.24 Land to the South of Cox PINs Ref: 3227970 16/09/2019
Green Road, Rudgwick,
Surrey
CD6.25 Land North of Leighton PINs Ref: 3203307 24/01/2019
Road
CD6.26 Land at Well Meadow, Well PINs Ref: 2214400 07/01/2015
Street, Malpas, Cheshire,
SY14 8DE
CD7 - Case Law
CD7.1 St Modwen Developments [2016] EVVHC 968 28/04/2016
V SSCLG & East Riding of (admin)
Yorkshire Council
CD7.2 Suffolk Coastal DC v [2016] EWCA Civ 168 17/03/2016
Hopkins Homes & SSCLG
and Richborough Estates V
Cheshire East BC & SSCLG
CD7.3 Crane v Secretary of State [2015] EWHC 425 23/02/2015
for Communities and Local (admin)
Government
CD7.4 Suffolk Coastal District [2017] UKSC 37 17/03/2016
Council (Appellant) v
Hopkins Homes Ltd and
https://www.gov.uk/planning-inspectorate Page 98
another (Respondents)
Richborough Estates
Partnership LLP and
Another (Respondents) v
Cheshire East Borough
Council (Appellant)
CD7.5 Barker Mill Estates v [2016] EWHC 3028 26/11/2016
SSCLG & Test Valley BC (Admin)
CD7.6 St Modwen Developments [2017] EWCACiv 1643
Ltd v Secretary of State
for
Communities and Local
Government and another
CD7.7 Wokingham Borough [2017] EWHC1863
Council v Secretary of
State for
Communities and Local
Government and another
CD7.8 Barwood Strategic Land v [2017] EWCACiv893 30/06/2017
East Staffordshire BC
CD7.9 Monkhill Ltd v SSHCLG [2019] EWHC1993 24/07/2019
CD8 - Related Applications
CD8.1 11/00936/OUT -
Committee Report
CD8.2 11/00936/OUT -Decision
Notice
CD8.3 11/00936/OUT -Proposed
Site Layout Plan
CD8.4 11/00936/OUT -
SITE/LOCATION PLANS
CD8.5 12-01502-OUT, Officer
Report
CD8.6 12-01502-OUT, Decision
Notice
CD8.7 12-01502-OUT, Location
Plan
CD8.8 12-01502-OUT, Resolved
Site Layout
CD9 - Additional Documents from First Inquiry
https://www.gov.uk/planning-inspectorate Page 99
CD9.1 MK Housing Stats - Starts
2016/2017
CD9.2 MK Housing Stats - Comps
2016/2017
CD9.3 MK Housing Stats Appx 1a
Completions 1981-2017
CD9.4 MK Housing Stats Appx
Starts, Under Cons and
Completions by Tenure
CD9.5 MK Housing Stats Appx 1g
Starts Inside and Outside
MK Dev Area
CD9.6 Total Starts by Grid
Square
CD9.6a Starts by Grid Square
(200+)
CD9.7 Total Completions by Grid
Square
CD9.7a Housing Completions by
Grid Square
CD9.8 Summary Note of MK
Housing Statistics
CD9.9 Summary of RB PoE
delivery rates
CD9.10 Counsel Opinion on 5YHLS
CD9.11 Council's Instructions to
Counsel & appendices on
5YHLS
CD9.12 Council's Statement of
Case
CD10 - Documents Between First and Second Inquiries
CD10.1 Milton Keynes Borough 24/08/2017
Council request to
Secretary of State to
recover appeal
CD10.2 Letter from PINS rejecting 30/08/2017
call-in request
CD10.3 Letter from Ian Stewart 12/09/2017
MP to Secretary of State
https://www.gov.uk/planning-inspectorate Page 100
requesting appeal is called
in
CD10.4 Letter from Clyde & Co to 12/10/2017
the Secretary of State
regarding potential call-in
decision
CD10.5 Letter from PINS 31/10/2017
confirming appeal called in
CD10.6 Letter from Minister of 31/10/2017
State for Housing and
Planning to Ian Stewart
MP confirming call-in
CD10.7 Letter Clyde & Co to 08/11/2017
Minister of State for
Housing and Planning
regarding call-in
CD10.8 Letter from Minister of 20/12/2017
State for Housing and
Planning to Clyde & Co
regarding call-in
CD10.9 PINS letter and appeal 02/02/2018
timetable
CD10.10 Letter Waller Planning to 06/04/2018
Secretary of State
regarding recent appeal
decisions
CD10.11 PINS Letter re variation of 01/05/2018
appeal timetable
CD10.12 Letter from Ministry for 08/05/2018
Housing, Communities and
Local Government to
Milton Keynes BC
regarding recent appeal
decisions
CD10.13 Briefing Note on recent 22/05/2018
appeal decisions by Milton
Keynes BC sent to
Secretary of State
CD10.14 PINS Letter re variation of 23/05/2018
appeal timetable
CD10.15 Letter Waller Planning to 29/05/2018
Secretary of State
https://www.gov.uk/planning-inspectorate Page 101
regarding recent appeal
decisions
CD10.16 Letter Clyde & Co to 23/07/2018
Secretary of State
CD10.17 Letter from Secretary of 26/07/2018
state re. new NPPF & Site
Allocations Plan
CD10.18 Councillor Hopkins 01/08/2019
response to Secretary of
State
CD10.19 Clyde & Co response to 06/08/2018
Secretary of State
CD10.20 Woburn Sands & District 09/08/2018
Society response to
Secretary of State
CD10.21 Other responses to the 07/08/2018
Secretary of State
CD10.22 Woburn Sands Town 14/08/2018
Council response to
Secretary of State
CD10.23 Clyde & Co response to 15/08/2018
Secretary of State
CD10.24 Local resident response to 05/08/2018
Secretary of State
CD10.25 Local resident response to
Secretary of State
CD10.26 Local resident response to 16/08/2018
Secretary of State
CD10.27 Local resident response to 17/08/2018
Secretary of State
CD10.28 Milton Keynes BC e-mail 05/09/2018
and enclosure re.
emerging Plan:MK
CD10.29 Secretary of State's letter 27/09/2018
re. housing land supply,
emerging Plan:MK and
NPPF density policies and
enclosures
CD10.30 Waller Planning response 05/10/2018
to Secretary of State
https://www.gov.uk/planning-inspectorate Page 102
CD10.31 SPRU response to 05/10/2018
Secretary of State
CD10.32 Correspondence between 15/10/2018
Waller Planning and
MHCLG
CD10.33 Decision by the Secretary 05/12/2018
of State (now quashed),
incorporating the
Inspector's
recommendations
CD10.34 Judgment by the High 14/06/2019
Court in relation to the
Secretary of State's
decision
CD10.35 MHCLG letter re. need for 09/07/2019
further inquiry
CD10.36 Clyde & Co response to 18/07/2019
MHCLG
CD10.37 Milton Keynes BC response 30/07/2019
to MHCLG
CD10.38 Wavendon Parish Council 24/07/2019
response to MHCLG
CD10.39 Woburn Sands Town 16/07/2019
Council response to
MHCLG
CD10.40 Cllr Hopkins response to 11/07/2019
MHCLG
CD10.41 Local resident response to 19/07/2019
MHCLG
CD10.42 MHCLG letter re. second 16/08/2019
inquiry
CD10.43 PINS letter re. second 22/08/2019
inquiry
CD10.44 Inspector's Note of the
Pre-Inquiry Meeting
CD10.45 Email correspondence - 12/12/2019
Council were going
introduce new evidence to
seek to justify 33 of the
sites within their June
2019 trajectory
https://www.gov.uk/planning-inspectorate Page 103
CD11 - External Reports
CD11.1 “Start to Finish How November
Quickly do Large-Scale 2016
Housing Sites Deliver?”,
Nathaniel Lichfield and
Partners
CD11.2 HBF Survey - Chairman's
Update
CD11.3 Home Builders Federation 2016
Planning Policy Conference
presentation by John
Stewart
CD11.4 Housing Delivery on 2005
Strategic Sites, Colin
Buchanan
CD11.5 Urban Extensions 2013
Assessment of delivery
rates, Savills
CD11.6 University of Glasgow - February 2008
(CLG housing markets and
Planning Analysis Expert
Panel) Factors affecting
build out rates
CD11.7 Sutton Coldfield Green June 2014
Belt Sites Phase 2 Report
of Study, PBA
CD11.8 Hourigan Connolly - An
interim report into the
delivery of Urban
Extensions 2013
CD11.9 Ruth Stainer DCLG
Planning Update
CD12 - Niko Grigoropoulos Proof additional documents
CD12.1 Historic England 1 November
Designation Report, 2019
Wavendon House
Landscape
CD12.2 Final SAP Issues and September
Options Consultation 2014
Document
https://www.gov.uk/planning-inspectorate Page 104
CD12.3 Council’s note submitted 01/11/2019
at the Pre-inquiry meeting
re reasons for refusal
CD12.4 Woburn Sands July 2014
neighbourhood Plan Map
CD12.5 MK Settlement Boundary November
Study 2017
CD12.6 Plan:MK Proposals map March 2019
Sheet 4 extract
PLANS
Plans A 1. Site Location Plan PL-X-001 rev. B
2. Proposed site access drawing no.WO1188-101 rev.PO5
3. Proposed site access drawing no.WO1188-1021 rev.PO3
4. Site Location Plan PL-X-001 rev.B (A1)
Plan B Illustrative layout PL-X-004 rev.C
Plan C Parameters Plan PL-X-003 rev.C
INQUIRY DOCUMENTS (FROM FIRST INQUIRY)
ID01 Town and Country Planning (Development Management Procedure)
(England) Order 2015, extract
ID02 Statement of Common Ground
ID03 Opening Statement – Peter Goatley
ID04 Opening Statement – Tim Straker
ID05a Housing figures, updated
ID05b Summary; housing monitoring
ID06 Updated implications of using Core Strategy trajectory
ID07 Written objections from Steph Foster
ID08 Draft conditions 1
ID09 Draft Section 106 Agreement 1
ID10 Draft Section 106 Obligation 1
ID11 Development Brief for Walton Manor, Walton
ID12 Interventions by Milton Keynes Council to ‘boost the delivery of
housing’.
ID13 Minister opens the dual carriageways of the A421, helping to develop
2,900 new homes, October 2015
ID14 Funded road schemes
ID15 Eastern Expansion Area Delivery Pack
ID16 Strategic Land Allocation Delivery Pack
ID17 Programme of development on appeal site
ID18 Draft Section 106 Agreement 2
https://www.gov.uk/planning-inspectorate Page 105
ID19 Draft Section 106 Obligation 2
ID20 Draft conditions 2
ID21 Closing submissions – Tim Straker
ID22 Closing submissions – Peter Goatley
ID23 Signed Section 106 Agreement 3
ID24 Signed Section 106 Obligation 3
ID25 Suggested conditions 3
ID26 Letter dated 30 August 2017 refusing to recover the appeal for decision
by the Secretary of State
ID27 Letter dated 31 October 2017 recovering the appeal for decision by the
Secretary of State
DOCUMENTS (FROM FIRST INQUIRY)
Document 1 List of persons present at the Inquiry
Document 2 Conclusion and proof – Roland Bolton
Document 3 Appendices 1-35, folder 1 - Roland Bolton
Document 4 Appendices 36-62, folder 2 - Roland Bolton
Document 5 Supplementary proof and appendices 1-4 - Roland Bolton
Document 6 Proof and appendix – Katy Jordan
Document 7 Summary proof – Mary Fisher
Document 8 Proof – Mary Fisher
Document 9 Appendices A-D – Mary Fisher
Document 10 Summary proof – Tim Waller
Document 11 Proof and appendices 1-13 - Tim Waller
Document 12 Supplementary proof and appendices 1-6 - Tim Waller
Document 13 Summary and planning proof - Jon Goodall
Document 14 Appendices 1-18 to planning proof - Jon Goodall
Document 15 Summary and housing land availability proof - Jon Goodall
Document 16 Appendices 1-20 to housing land availability proof - Jon Goodall
Document 17 Statement - Cllr David Hopkins
Document 18 Objection letters on behalf of Wavendon Residential Properties
Limited and Merton College Oxford - Ian McGrane
A. Letter of objection from Integrated Transport Limited
B. Letter of objection from Heather Pugh, Partner, David
Lock Associates
Document 19 Statement - Cllr Jackie Jeffreys
Document 20 Statement - Chris Jenner
A. Technical Objection Report
Document 21 Statement - Alistair Ewing
Document 22 Statement - Judith Barker
Document 23 Bundle of representations in respect of the appeal
Document 24 Inspector’s index to representations
Document 25 Index to Core Documents
https://www.gov.uk/planning-inspectorate Page 106
www.gov.uk/mhclg
RIGHT TO CHALLENGE THE DECISION IN THE HIGH COURT
These notes are provided for guidance only and apply only to challenges under the
legislation specified. If you require further advice on making any High Court challenge, or
making an application for Judicial Review, you should consult a solicitor or other advisor or
contact the Crown Office at the Royal Courts of Justice, Queens Bench Division,
Strand,London,WC2 2LL (0207 947 6000).
The attached decision is final unless it is successfully challenged in the Courts. The Secretary of
State cannot amend or interpret the decision. It may be redetermined by the Secretary of State only
if the decision is quashed by the Courts. However, if it is redetermined, it does not necessarily follow
that the original decision will be reversed.
SECTION 1: PLANNING APPEALS AND CALLED-IN PLANNING APPLICATIONS
The decision may be challenged by making an application for permission to the High Court
under section 288 of the Town and Country Planning Act 1990 (the TCP Act).
Challenges under Section 288 of the TCP Act
With the permission of the High Court under section 288 of the TCP Act, decisions on called-in
applications under section 77 of the TCP Act (planning), appeals under section 78 (planning) may
be challenged. Any person aggrieved by the decision may question the validity of the decision on
the grounds that it is not within the powers of the Act or that any of the relevant requirements have
not been complied with in relation to the decision. An application for leave under this section must
be made within six weeks from the day after the date of the decision.
SECTION 2: ENFORCEMENT APPEALS
Challenges under Section 289 of the TCP Act
Decisions on recovered enforcement appeals under all grounds can be challenged under section 289
of the TCP Act. To challenge the enforcement decision, permission must first be obtained from the
Court. If the Court does not consider that there is an arguable case, it may refuse permission.
Application for leave to make a challenge must be received by the Administrative Court within 28 days
of the decision, unless the Court extends this period.
SECTION 3: AWARDS OF COSTS
A challenge to the decision on an application for an award of costs which is connected with a
decision under section 77 or 78 of the TCP Act can be made under section 288 of the TCP Act if
permission of the High Court is granted.
SECTION 4: INSPECTION OF DOCUMENTS
Where an inquiry or hearing has been held any person who is entitled to be notified of the decision
has a statutory right to view the documents, photographs and plans listed in the appendix to the
Inspector’s report of the inquiry or hearing within 6 weeks of the day after the date of the decision. If
you are such a person and you wish to view the documents you should get in touch with the office at
the address from which the decision was issued, as shown on the letterhead on the decision letter,
quoting the reference number and stating the day and time you wish to visit. At least 3 days notice
should be given, if possible.