Case Reference: 3219213

Appeal Decision
Inquiry Held on 1-4 October 2019 and 11-13 February 2020
Site visits made on 30 September 2019 and 3 and 4 October 2019
by Roger Catchpole BSc (hons) PhD MCIEEM
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 16th March 2020
Appeal Ref: APP/P0240/W/18/3219213
Land north of Sunderland Road (Northing: 250966 Easting: 516649)
• 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 Pigeon Land Ltd on behalf of J.W. Infield, G.W. Wheeler, J.R M
Jones, M.A. Wilsher, S.A. Wilsher, The Executors of R.G. Johnson, J.F. Hobbs and D.
Hobbs against the decision of Central Bedfordshire Council.
• The application Ref: CB/18/01674/OUT, dated 30 April 2018, was refused by notice
dated 31 July 2018.
• The development proposed is the erection of up to 228 homes, including 6 self-build
plots and affordable housing, together with associated access and spine road, reserved
site for medical surgery, care home site, family pub-restaurant site, amenity space,
allotment site and associated infrastructure with all matters reserved except for access
and spine road.
Decision
1. The appeal is dismissed.
Preliminary Matters
2. Following the introduction of late evidence and in anticipation of the interim
report on the emerging local plan, I agreed to adjourn the Inquiry on the fourth
sitting day to allow preparation of revised housing need evidence. The Inquiry
resumed on 11 February 2020 and I sat for a further two and a half days. The
oral submissions were supported by two revised proofs, one from Mr Lee
[ID17] and one from Mr Tiley [ID18] as well as a revised Statement of
Common Ground [ID16]. These incorporated all errata that were subsequently
submitted. A number of other documents were also submitted, as detailed at
the end of this decision. Issues relating to the examination of the emerging
plan were also briefly heard.
3. The application was submitted in outline, with only access to be determined at
this stage. However, it was accompanied by illustrative plans that seek to
demonstrate how the site might be developed to accommodate 228 dwellings
and associated development. These comprise: a layout plan (017-019-001
Rev B); a landscape masterplan (2017 A2-01-B); an affordable housing
location plan (017-019-004 Rev B); a parking plan (017-09-006); and a
parameters plan (017-019-005 Rev E). These plans are informed by the
proposed access from Sunderland Road and associated spine road.
4. The access plan (17504-5-SANDY-103D) shows that an access would be
provided by constructing a new arm onto an existing priority junction at
Goldfinch Drive and Sunderland Road. This would provide a single access point
to the proposed development and I am satisfied that the relevant local highway
standards could be secured via suitable conditions. The Highway Authority do
not object to this aspect of the proposal and a Transport Assessment [CD1.19]
concludes that the new junction would not have an unacceptable impact on
highway safety or lead to a severe, residual, cumulative impact on the wider
road network. In the absence of any substantiated, technical evidence to the
contrary I agree that there would be no unacceptable impacts on highway
safety or a severe impact on the wider road network. Consequently, I do not
discuss this matter further.
5. The Council has an emerging plan that is yet to be adopted. It is common
ground between the parties that it should only be afforded limited weight.
Consequently, this appeal was determined in accordance with the extant
development plan, the National Planning Policy Framework 2019
(the Framework) and the Planning Practice Guidance 2014 (as amended)
(PPG).
6. A number of matters, as set out in a general Statement of Common Ground
(SoCG), remain in dispute and relate to matters of development plan policy,
landscape character impact and the weight to be given to economic and social
benefits. However, it was agreed during the first phase of the Inquiry that
none of the relevant policies were out-of-date despite earlier submissions to
the contrary. Significant areas relating to local housing need and housing land
supply also remain in dispute as highlighted by various submissions to the
Inquiry. A 5-year housing land supply (5yr-HLS) base date of 1 July 2019 was
fixed in order to narrow the issues to be considered during the second phase of
the Inquiry.
7. One of the two Reasons for Refusal (RfR) was related to the absence of a
planning obligation to secure financial contributions to mitigate the impact of
the proposal on local infrastructure. The Council sought contributions relating
to education, leisure, sport, libraries and the provision of affordable housing.
However, this RfR was withdrawn during the first phase on the Inquiry when a
signed Unilateral Undertaking (UU) was submitted by the appellants under
s106 of the Town and Country Planning Act 1990 (as amended) (the Act).
8. If planning permission were granted, the UU would ensure that 35% of the
dwellings would comprise affordable housing units and that financial
contributions would be made to education, leisure/sport facilities, libraries and
waste management. The contributions are not contested by the appellants, bar
one relating to waste management, despite some concerns over how the
calculations were derived for the gym equipment and outdoor sports facilities.
The affordable housing contribution is a requirement of policy CS7 of the
Central Bedfordshire Core Strategy and Development Management Policies DPD
(North) 2009 (CS) whilst the other contributions are a requirement of policy
CS2 of the CS. These policies are supported by paragraphs 54 and 64 of the
Framework.
9. Bearing in mind the scale of the development and the potential impact on local
services, I find the expenditure would be necessary in order to make the
proposal acceptable in planning terms. This includes the £60 levy on each
house to provide waste receptacles because the Council has indicated that
there is no capital budget to provide such items. In the absence of
substantiated evidence to the contrary, I agree that there would be no realistic
prospect of delivery as any contribution from the occupiers towards this capital
cost could only be recouped through site specific changes to Council Tax
contributions after the dwellings are occupied and thus would be impractical.
10. Turning to existing educational, leisure and sports facility capacity, I am
satisfied that this is insufficient to meet the future population growth that
would result from the proposal, as set out in Mr Hughes proof and a Council
memorandum [CD3.07]. I note that the contributions towards gym equipment
at the Sandy and Biggleswade Leisure Centre and a 3G playing surface at
Sandy and Shefford Hockey Club were not fully justified. However, as they
were derived from the Sport England Sports Facility Calculator, I am satisfied
that, whilst lacking transparency, this nonetheless provides a suitably robust
basis for their derivation and that the values are consequently fair and
reasonable.
11. Given the above, I conclude that the contributions in the UU are related to
development plan policies and necessary to make the development acceptable
in planning terms. They are directly related to the development and fairly and
reasonably related in both scale and kind. As a result, I find that they comply
with the tests set out in paragraph 56 of the Framework and with
Regulation 122 of the Community Infrastructure Regulations 2010
(as amended).
12. In addition to the accompanied site visit I made on the 3 October 2019, I also
undertook two unaccompanied site visits on the 30 September 2019 and the
4 October 2019 to view the site from key vantage points on publicly accessible
land, as indicated by the parties in the site visit itinerary [ID13].
Application for Costs
13. An application for a partial award of costs was made by Central Bedfordshire
Council against Pigeon Land Ltd. This application is the subject of a separate
decision.
Main Issues
14. The main issues are the effect of the proposed development on the character
and appearance of the area and whether or not the Council is able to
demonstrate a 5-year supply of deliverable housing sites and justify its housing
need.
Reasons
Site and surroundings
15. The site covers an area of approximately 13 ha and is situated on agricultural
land immediately to the north of Sandy in the open countryside, beyond the
defined settlement limit. The southern boundary of the site abuts Sunderland
Road, the rear gardens of five properties on Goldfinch Drive and Dane Hill
Farm. The northern and eastern boundaries adjoin open agricultural land
whilst the majority of the western boundary is adjacent to the A1 road corridor
and an existing commercial, caravan storage site. The appeal site is broadly
rectangular with the longest axis running parallel to the A1 rather than the
settlement boundary.
Planning Policies
16. Planning law1 requires that applications for planning permission must be
determined in accordance with the development plan, unless material
considerations indicate otherwise. It is common ground between the parties
that none of the policies most relevant to the determination of this appeal are
out-of-date and are consistent with the Framework apart from policy DM4 of
the CS.
17. This policy seeks to differentiate between areas of built development associated
with settlements and the wider countryside. It defines the settlement
envelopes of major service centres, such as Sandy, with any development
beyond the defined limit being confined to the extension of gardens provided
they do not harm the character of the area. There is no dispute between the
parties that the appeal site is outside the Sandy settlement envelope and
therefore contrary to policy DM4.
18. The parties agree that policy DM4 is not fully consistent with the Framework.
This arises from its restrictive nature which gives protection to the countryside
for its own sake without recognising the varying qualities and characteristics
that are set out in paragraph 170. Its broad purpose does, however, accord
with paragraph 170(b) of the Framework insofar as it seeks to protect the
countryside for its own sake by virtue of its intrinsic character. The parties also
agree that the policy conflict should carry moderate weight. Bearing in mind
the Cawrey judgement [CD10.08], I also agree.
19. It is common ground between the parties that the proposed development
complies with all development plan policies apart from policies CS14, CS16
DM3, DM4 and DM14 of the CS. Conflict with policies CS16 and DM14 was
identified by the Council after the submission of the appeal. However, I am
satisfied that the appellants have had sufficient opportunity to make their case
in relation to these policies. Two more policies were originally in play, CS2 and
CS7 of the CS, relating to the second RfR that was withdrawn.
20. Taking each of the remaining policies in turn, I find the most relevant criteria to
be as follows. Policy DM14 seeks, among other things, to ensure that
proposals do not have an unacceptable impact on landscape quality and
contribute to landscape enhancement through tree planting. Policy CS16
seeks, among other things, to ensure that proposals conserve and enhance
countryside character and local distinctiveness in accordance with the Mid-
Bedfordshire Landscape Character Assessment. This includes the enhancement
of landscapes deemed to be of lesser quality and the preservation of existing
hedgerows.
21. Policy CS14 seeks, among other things, to ensure that proposals respect the
local context, distinctiveness and character of Mid-Bedfordshire’s places. Policy
DM3 seeks, among other things, to ensure that proposals are of an appropriate
scale and design to their setting and respect local distinctiveness. The
appellants contend that these are design policies that cannot be properly
evaluated at this stage because they relate to reserved matters and highlight
an appeal where the Inspector put these policies aside to be considered
another day [CD9.16].
1 Section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country
Planning Act 1990 (as amended)
22. However, whilst I appreciate that detailed design matters do not fall to be
considered, legitimate judgements can nonetheless be made on the general
extent and scale of the development given the indicative plans that have been
submitted. In this respect I have followed a similar approach to another
Inspector who did consider these policies at the outline stage [CD9.19].
Whether or not the Inspector ‘had cause to apply his mind’ to setting aside
these policies is speculative at best. As Mrs Justice Lang points out, in relation
to the St Modwen judgement [ID20], the Courts have repeatedly warned
against the ‘excessive legalism, hypercritical scrutiny and laborious dissection
of decision letters.’
Character and Appearance
Landscape Character
23. I have been provided with a Landscape and Visual Impact Appraisal (LVIA)
prepared by Liz Lake Associates on behalf of the appellants. This has been
prepared in accordance with the third edition of the Guidelines for Landscape
and Visual Impact Assessment 2013 [CD8.06]. The parties agree that the site
lies within Landscape Character Area 4A: Great Ouse Clay Valley (LCA 4A)
[CD1.15].
24. The relevant visual and perceptual character of the LCA 4A is summarised as
follows: ‘The open, gently rising slopes of the Great Ouse Clay Valley have
strong visual links with the surrounding higher ground of Clay Farmland to the
north and within Bedford Borough, and Clay Vales character areas particularly
the large-scale arable fields…..Urban influences include the A1 which has a
visual impact locally, and the exposed northern urban edge of Sandy’.
25. It goes on to identify one of the key visual sensitivities as comprising ‘openness
and long views across the gently rising slopes linking with the adjacent Clay
Farmland and Clay Vales landscape types’ and a management guideline to
‘conserve the rural settings of the towns and villages and enhance the
settlement edge, for instance, by woodland planting to screen large scale
development’.
26. I observed that the site itself has an open, rural character that rises from the
boundary of Sunderland Road to a low ridge at Highfields Farm. It comprises
an area of gently rolling, arable fields with views of the more prominent,
elevated landscape of the Everton Heath Wooded Greensand Ridge LCA to the
east. As such, it is representative of the wider visual character of LCA 4A even
though its features differ from the River Ivel valley to the west. Both parties
agree that it makes a positive contribution to local landscape character in this
respect.
27. The parties also agree that the existing northern limit of Sandy forms an abrupt
transition to the adjacent, arable, farmed landscape. Whilst the LCA identifies
an ‘exposed northern edge’ I only found this to be the case in relation to the
incongruent massing of some of the newer buildings on Goldfinch Drive. These
were not only prominent when viewed from within the site but also when
viewed from Photomontage Point 9 (PM9), as well as the proximal sections of
the Public Right of Way to the west of the A1 (FP1).
28. However, I found the older development at Fallowfield, that defines the
majority of the northern settlement edge, to be better integrated because of
the stature of the mature landscaping on the southern side of the road. This
significantly softens the built form of the houses and their boundary features to
the extent that views from the north are now largely restricted to the brown
concrete pantiles of the roofs. The Council has also pointed out that the
fieldwork for the LCA assessment was originally undertaken in 2006 when the
northern edge of the settlement would have been more prominent and
therefore more ‘exposed’.
29. Whilst it is possible to see the northern extension of the commercial district
from the appeal site, as well as passing trains, the separation distance,
hedgerows and intervening topography are such that these are not prominent
features and do not lead to a significant urbanising, visual effect. For the same
reason, I am not persuaded that the further extension of the built form in this
area, as part of the EA2 allocation, would have a significant effect on how the
settlement envelope is perceived from the appeal site.
30. The appellants acknowledge that there would ‘inevitably be a degree of harm to
the local landscape’ in paragraph 4.1.15 of the LVIA but that this would not
harm the character of the area because of the urbanising elements that
influence existing character and the limited number of ‘key characteristics’ of
LCA 4A that are present. During the Inquiry the appellants accepted that
whilst on the fringe of the urban area, the site could not be considered urban
fringe because it is not degraded and is in good agricultural condition.
31. The point is finely made regarding urban influences. I agree that the rear
garden boundaries of the houses on Goldfinch Drive, caravan storage site and
noise generated by the A1 and passing trains gives rise to a less rural
ambience in comparison with the landscape to the west of the A1. Whilst there
is some ribbon development along the A1 corridor, which includes the caravan
site, I do not find this overly intrusive or urbanising. This is down to the fact
that it is sparsely scattered and comprises relatively small areas of discrete
development, mostly on the other side of the carriageway.
32. I accept that the abrupt boundary of Sunderland Road with its roundabouts and
street lighting has an urban quality, as does the distant industrial area.
However, these features do not dominate the appeal site and the road is also
softened by an embankment and vegetation along FP24 to the north of
Sunderland Road. In visual terms the road contains the built environment and
provides a legible demarcation to the settlement.
33. Multiple viewpoints, along FP24, establish a prominent rural setting to this
boundary given the way in which the ground rises to a low ridge. When looking
in this direction I observed that there was limited intrusion of the built
environment in my peripheral vision. I am also mindful of the contribution it
makes to the intact arable landscape between Sandy and Tempsford, as
distinct from the Ivel Valley landscape and highlighted by the Council in
Mrs Ahern’s proof of evidence.
34. I find the suggestion that the appeal site is of low-medium value due to the
limited number of formally defined characteristics of LCA 4A to be contrived
under the circumstances. I also find the tally-based approach of counting how
many features are present to be inconsistent with 170(b) of the Framework
which stresses the importance of the intrinsic character and beauty of the
countryside and the economic benefits of the best and most versatile land.
35. The appellants maintain that the proposal would be well integrated into the
landscape and enhance the quality of the transition between the settlement
and wider landscape, as indicated by the Landscape Masterplan which sets out
one potential approach to this reserved matter [CD1.06]. A number of
unsecured benefits are identified in terms of improved greenspace access,
habitat creation, allotment provision and the restoration/enhancement of
characteristic landscape features such as hedgerows.
36. The appellants have sought to demonstrate how potential landscaping could
result in negligible landscape impacts on completion and a moderate beneficial
effect over time once it has become established. A series of visual receptors
were agreed with the Council and have informed this conclusion.
Photomontages have been created at each receptor point as part of this
evaluation and I have viewed the appeal site from all these locations.
37. I accept that the potential landscaping would better integrate the settlement
transition insofar as it relates to the five adjoining dwellings on Goldfinch Drive
but that this would be the extent to which the proposal would enhance the
settlement edge of Sandy. Given that the majority of the northern settlement
edge along Sunderland Road would remain unaltered, I find the benefits to be
overstated.
38. Moreover, any benefits need to be weighed against the significant urbanisation
of an area that currently makes a positive contribution to existing landscape
character. This would not only be related to the overall extent of the scheme
but also the significant increase in the length of the settlement edge and thus
the visual influence of the built environment on the open countryside.
39. I note that whilst the potential planting could soften the proposed development
after 15 years, negative landscape change would nevertheless remain
prominent at some receptors, most notably PM2 and PM4. Whilst the approach
to the priority junction is flanked by housing on either side, the eye is currently
drawn across the unimpeded rural landscape at PM2. The wide grass verges
and amenity planting help to frame this view which would be wholly disrupted
by the greater massing of the proximal parts of the proposed development
despite the kinetic views that would be preserved to the north east once the
junction is reached.
40. Turning to PM4, this receptor currently has a wide, unimpeded rural view
across the site to the A1 and beyond. Whilst scattered development along the
A1 is apparent, the proposal would nevertheless lead to a significant urbanising
effect. This is because the urban fringe would extend into this view and
significantly disrupt its rurality through the introduction of extensive built
forms. The effect becoming proportionately stronger as users of FP24 move
westward from PM4.
41. The appellants have used map regression analysis to show that the northern
settlement edge has not grown in a uniform manner in the past. However,
whether the historic, episodic settlement boundary growth of Sandy resulted in
more visually attractive phases of growth is unproven. On a more tangible
basis, I find that the strongly defined northern boundary contains the
settlement and avoids a creeping urbanisation of the countryside, thus
conserving the rural setting of Sandy and satisfying a key management
guideline for LCA 4A.
42. Given the above, I find that the negative visual impact of the proposed
development would significantly outweigh the visual benefits that could arise
from the potential landscaping and the indicative layout of this scheme. I
therefore conclude that the proposal would be contrary to policies CS16, DM4
and DM14 of the CS with respect to the location of the site outside the
settlement limit, a failure to conserve countryside character and
distinctiveness, enhance landscapes of ‘lesser value’ and an unacceptable
impact on landscape quality. I also find that the proposal would be contrary to
paragraph 170(b) of the Framework because it would, on balance, fail to
contribute to and enhance the intrinsic character of the countryside.
Housing Land Supply
43. A number of adjustments were made to the Council’s housing supply figures,
as set out in an addendum to the SoCG [ID19]. In this document the Council
maintains that it has a deliverable supply of about 9,511 units as compared to
the appellants estimate of around 6,041 units. Irreconcilable differences were
present between the parties in relation to the deliverability of two sites
(HT058(i) and HT058(ii)) with full planning permission and nine sites (HT005,
HT057, HT058, HT078, HT082, HT117, HT121(b), HT208 and HT237) with
outline planning permission. This accounts for a difference of some 3,470
units over the next five years.
44. Annex 2 of the Framework defines deliverable sites as those that are currently
available, in a suitable location for development and achievable, with a realistic
prospect that housing will be delivered within the next five years. The
definition goes on to advise that sites with detailed planning permission should
be considered deliverable until permission expires and that sites with outline
planning permission should only be considered deliverable where there is clear
evidence that housing completions will begin on site within five years.
45. Paragraph 0072 of the PPG provides examples of the type of evidence that
might be used to demonstrate deliverability. The most relevant to this appeal
is the current planning status of outline permissions in terms of how much
progress has been made towards approving reserved matters or whether there
is a link to a planning performance agreement that sets out the timescale for
approval of reserved matters applications and the discharge of conditions. In
this context, the evidence capable of demonstrating deliverability is open to
interpretation. The exact meaning of ‘clear evidence’ is not defined in policy
nor are there any specific evidential standards.
46. Whilst the appellants maintain that the quarterly reviews and trajectories of the
Council are insufficient, this is a matter of planning judgement according to the
particular circumstances of the case at hand. I give little weight to the views of
the other Inspectors on this matter, as highlighted in Mr Tiley’s proof of
evidence3. This is because the context of those decisions are not the same in
all respects. More specifically, they relate to annual, rather than quarterly,
monitoring of different housing market areas with two of them predating the
most recent changes to both the Framework and PPG.
2 Reference ID: 68-007-20190722
3 APP/W3520/W/18/3194926, APP/Z1510/W/18/3207509, APP/P0119/A/12/2186546 and
APP/Y3940/A/12/2183526
47. Turning to the individual sites, the appellants contend that land north of
Houghton Regis (HT057 and HT058) would meet the unmet housing needs of
Luton and should therefore be removed from any housing supply estimate. Mr
Tiley conceded in cross examination that there is no legal precedent that it is
either lawful or appropriate to disregard dwellings that lie within a housing
market area that may be regarded as deliverable. These dwellings are not part
of Luton’s trajectory nor is occupation in any way controlled. As they have not
been allocated to any other housing market area, to remove them from the
housing supply for Central Bedfordshire (CB) for nothing other than this reason
would be perverse as it would be tantamount to pretending that they do not
exist.
48. Mr Tiley asserts in his proof that the land is the ‘most obvious’ to address the
unmet needs of Luton given its geographical proximity, highlights a local plan
Inspector’s view that it ‘may contribute’ [CD8.02] and the role that it played in
securing planning permissions in the Green Belt. However, these
considerations are neither based on legal precedent nor are they supported by
any explicit policy despite the suggestion that a failure to agree with the views
of Mr Tiley would be contrary to the ‘realistic and robust’ consideration of
housing supply, as set out in the Oadby and Wigston judgement [CD10.01].
49. Mr Tiley cites some text at the end of paragraph 36 of the judgement which,
among other things, sets out how paragraph 49 of the 2012 Framework should
be interpreted. The following paragraph goes on to consider whether an
Inspector was justified in considering housing requirements for an
administrative area where the relevant housing market area extends beyond its
boundary. As this does not apply to the case at hand and deals with decision
making prior to the latest changes to the Framework and the PPG, I find that it
adds more heat than light to my deliberations.
50. Mr Tiley sought to bolster his position by concluding that ‘numerous Inspectors’
considered it necessary to remove the land north of Houghton Regis from the
deliverable supply but was only able to highlight two appeal decisions4 where
Inspectors had explicitly concluded on this matter [CD9.07 and CD9.13]. The
first was related to land off Mill Road where the Inspector noted that if the
unmet needs of Luton were to be excluded from the housing requirement, then
the release of Green Belt land north of Houghton Regis to meet such needs
should also be excluded to avoid an ‘unbalanced assessment’. The same
conclusion was reached in the second decision.
51. However, and as the first Inspector notes, the release of such land cannot be
reserved for Luton residents. As such, I find that there is no objective basis for
either partially or wholly excluding this land from meeting the needs of
Mid-Bedfordshire residents on practical grounds irrespective of the uncertainty
that arises from the comparison of a ‘policy off’ housing need against a ‘policy
on’ housing supply. As such, I find that the unmet needs of Luton do not
justify a reduction in the deliverable supply of 1,000 homes as set out in Mr
Tiley’s updated rebuttal proof [ID12].
52. Turning to the sites with outline permission, Mr Tiley suggests that the views of
stakeholders does not necessarily provide clear evidence because it serves the
purposes of the developers and leads to ‘overly optimistic delivery trajectories’
that ‘rarely come to fruition’. However, the unchallenged evidence in Mr
4 APP/P0240/W/17/3190687 and APP/P0240/W/17/3181269
Hughes rebuttal proof [R1.15-16] demonstrates an actual delivery rate of
9,814 dwellings per annum (dpa) over the last five years. As the Council
pointed out in closing, this equates to delivery in excess of 11,000 dpa over the
last 2.5 years. Whilst the past is not necessarily an indicator of the future, I
find this consistently high track record of delivery persuasive.
53. Instead, Mr Tiley prefers to rely on an average delivery rate of 200 dpa for
strategic sites as derived from national studies [CD11.04, CD11.06 and
CD11.07]. This was described by the Council as an ‘artificial and mechanistic
assessment’ and addressed during cross examination where it became
apparent that only a small proportion of the sites were delivered within a
modern housing market and policy context with the majority of sites being
between 10-20 years old and widely dispersed in terms of geography.
Calculating an average under such circumstances is practically meaningless
given the wide variation of the sample and the lack of any temporal
stratification. Moreover, it was clear that significant caveats applied and that
some conclusions were only identified by the authors as being relevant for a
limited period of time. One of the reports was also founded on another.
Consequently, I find this evidence unreliable and considerably less robust than
the approach taken by the Council.
54. Whilst actual delivery is different to deliverability and there are many factors
that are beyond the Council’s control, I nevertheless find the Council’s
approach of proactive, quarterly engagement to be realistic, pragmatic and
proven. Unlike annual assessments, this allows the Council to liaise with all
relevant stakeholders, take any changing, individual site circumstances into
account on a rolling basis and moderate lead-in times where necessary. It was
an undisputed fact that this is not a commonly applied approach and relies on a
much higher degree of surveillance than is usually present.
55. Nevertheless, I shall now consider each of the disputed sites in turn whilst
having regard to a recently issued decision5 (the recent decision) that was
submitted after the close of the Inquiry where some of the same sites were
also considered [ID31].
Land at Chase Farm and West/North East of High Street (HT005)
56. In his proof, Mr Tiley has highlighted the fact that there are a significant
number of outstanding actions related to a planning performance agreement
(PPA) before first completion and has sought to reduce the weight of such
agreements in his rebuttal proofs where he draws my attention to the decisions
of two other Inspectors6. However only one of these was submitted as
evidence [ID18] and therefore falls to be considered.
57. In his rebuttal proof, Mr Hughes points out that the first 200 dwellings are not
dependent on a spine road and that this will be provided by the Council along
with other, phased infrastructure. The existence of an agreed Masterplan and
PPA was also highlighted in this evidence. Although Mr Hughes conceded that
a s106 agreement was still outstanding in cross examination, he also pointed
out that the Council had a good level of control over delivery because it owns
the site.
5 APP/P0240/W/19/3236423
6 APP/J2210/W/18/3216104 and APP/R3650/W/19/3227970
58. Turning to the appeal decision7, Mr Tiley quotes an extract concerning site
specific statements in his revised rebuttal proof [ID12]. When read in the
round, the circumstances are not the same in all respects. This is because it
applied to a different local planning authority that was in the early stages of
seeking to achieve a rapid increase in the rate of housing delivery. As such,
the systems for enabling delivery were not tried and tested, as is the case for
CB. Additionally, a significant number of the sites were either dependent on
the delivery of major infrastructure works and/or relied upon statements
involving only a limited number of stakeholders. I therefore give this decision
limited weight.
59. The recent decision recommended a reduction of 96 dwellings but there is no
indication that the Inspector considered the existence of an agreed Masterplan
or the fact that the Council ownership provided a good level of control. Given
the above, I consider that the planned development is currently realistic and
clearly deliverable for this site.
Land North of Houghton Regis (HT057 and HT058)
60. In his rebuttal proof, Mr Tiley contends that the 371 dpa for these sites is ‘so
aspirational as to be unrealistic and never achieved on a site nationally’. He
acknowledges the presence of a PPA but notes that it is not publicly available.
Beyond this criticism, no further evidence is offered as to why the outline
permissions on these sites would not be deliverable. I have already dealt with
the matter of national averages and my conclusions remain the same in
relation to this site.
61. In his rebuttal proof Mr Hughes notes, in relation to HT057, that infrastructure
conditions have now been discharged for Phase 1 and that three house builders
have provided estimates that have taken account of the design codes, phasing
and masterplan for the site as part of pre-application discussions. The early
stage is acknowledged by the Council and delivery has consequently been
revised down to 250 dpa until further information becomes available.
62. Turning to HT058, Mr Hughes highlighted the fact that delivery has begun and
that the majority of the road infrastructure has already been provided. In
response to one of my questions, Mr Hughes noted that the high delivery on
this site was due to active engagement and that this had resulted in 749 homes
being built last year with 65 of those being on a single site.
63. The recent decision recommended a reduction of 200 dwellings but there is no
indication that the Inspector considered the fact that the majority of the road
infrastructure had already been provided and that the location had already
delivered a significant number of dwellings. Given the above, I consider that
the planned development is currently realistic and clearly deliverable for this
site.
Land east of Leighton Linslade – Clipstone Park (HT078)
64. In his rebuttal proof, Mr Tiley contends that no clear evidence has been
provided but does not offer any further detail concerning why it would not be
deliverable. Mr Hughes notes in his rebuttal proof that it is part of a larger,
dynamic site where 65 dwellings were delivered in the first quarter. He also
highlights the fact that some reserved matters approvals have already been
7 APP/J2210/W/18/3216104
granted, two applications are currently being considered for 400 units and that
discussions have begun for the remaining phases.
65. Given the above, I consider that the planned development is currently realistic
and clearly deliverable for this site.
Land at Moreteyne Farm (HT082)
66. In his first proof, Mr Tiley observes that outstanding information is still required
more than a year after the submission of an application for the approval of
reserved matters. In his rebuttal proof, Mr Hughes highlights the fact that it is
part of a site being delivered by a national developer and that it is currently
being built out by two house builders. In cross examination, Mr Hughes was
unable to offer any further detail other than the preliminary undertaking given
by the developer.
67. Given the above, I consider that the planned development is currently
unrealistic and insufficient evidence has been provided to the Inquiry for this
site to be clearly deliverable. As a result, I agree with the appellants that the
housing land supply should be reduced by 118 units at the current time.
Wixams (HT117)
68. In his proof, Mr Tiley observes that the site would require a ‘record delivery’
rate of 207 dpa which would not be justified by the national average of 161 dpa
or the local maxima of 201 dpa. In his rebuttal proof he notes the Council
added a further 57 homes during the course of the Inquiry and highlights the
fact that this would make the delivery even more unlikely. My previous
comments in relation to national averages also apply to this site.
69. Mr Hughes notes, in his rebuttal proof, that reserved matters have been
approved and work commenced on Village 4 and that the design code for
Village 2 has now been approved. Whilst the delivery trajectory has been
largely derived from the promotor, it has also been provided to customers who
are purchasing the properties. Mr Hughes maintained in oral evidence that the
promoters and retailers stand by their figures and that there would most likely
be a jump in delivery from the cumulative momentum that has accrued.
70. The recent decision recommended a reduction of 160 dwellings but there is no
indication that the Inspector considered the approval of reserved matters and
commencement of work at Village 4 or the publication of the anticipated
delivery to potential customers which would result in a loss of business and/or
penalties if it were not accurate. Given the above, I consider that the planned
development is realistic and clearly deliverable for this site at the current time.
Land at Saxon Drive (HT121b)
71. Mr Tiley, in his rebuttal proof, highlights the fact that an application for
reserved matters is still outstanding for this site and that no clear evidence of
deliverability is present. Mr Hughes, in his rebuttal proof, notes that the site is
Council owned land and that contracts have been exchanged with Taylor
Wimpey. In oral evidence, he also observed that this would not have occurred
had there not been a clear intention to develop the site.
72. Given the above, I consider that the planned development is realistic and
clearly deliverable for this site at the current time.
East of Biggleswade (HT208)
73. Mr Tiley, in his revised rebuttal proof [ID12], points out that the delivery of the
first 80 homes by the 30 March 2021 is unrealistic given the fact that an
application for reserved matters is still outstanding and that it would most
likely be at least 15 months before any work could commence. The Council
subsequently revised down the estimate for this site from 537 units to 117
units due to issues identified in the emerging local plan examination [ID19]. I
note the appellants position is that no dwellings will be delivered on this site
and in the absence of clear evidence to the contrary I agree.
74. Given the above, I consider that the planned development is currently
unrealistic and insufficient evidence has been provided to the Inquiry for this
site to be clearly deliverable. As a result, I agree with the appellants that the
housing land supply should be reduced by 117 units at the current time. This
is consistent with the recent decision where the site was discounted.
Thickthorn Park (HT237)
75. Mr Tiley, in his revised rebuttal proof [ID12], highlights the fact that this site is
not consistent with the definition of a deliverable site in Annex 2 of the
Framework. He maintains that this is a closed list and that the site fails to
qualify because it does not benefit from an extant planning permission. He
maintains that even if this were not the case, the absence of an agreed s106
makes delivery on this site unlikely.
76. Mr Hughes, in his rebuttal proof, maintains that outline planning permission
has been granted and that ‘heads of terms’ have had been agreed in relation to
the s106 agreement. However, it was confirmed that this was not the case at
the time of the first sitting of the Inquiry. Even if an outline permission has
since been granted, I have no clear evidence before me that the site would be
delivered.
77. Given the above, I consider that the planned development is currently
unrealistic and insufficient evidence has been provided to the Inquiry for this
site to be clearly deliverable. As a result, I agree with the appellants that the
housing land supply should be reduced by 265 units at the current time. This
is contrary to the recent decision which only reduced the number of units by
60. This is justified because the s106 had not been signed by the close of the
Inquiry.
Housing Supply Conclusion
78. In his final proof [ID12] Mr Tiley suggests a ‘best-case scenario’ for the
remaining sites where the Council can be given ‘the benefit of the doubt’.
Accepting this to be the case and bearing in mind the balance of probabilities, I
conclude that an overall supply of about 9,011 units can be justified at the
current time.
Housing Need
Policy Considerations
79. Paragraph 60 of the Framework states that strategic policies should be
informed by a local housing need (LHN) assessment, conducted using the
standard method (SM), as set out in national planning guidance, unless
exceptional circumstances justify an alternative approach which also reflects
current and future demographic trends and market signals.
80. Paragraph 73 goes on to advise that local planning authorities should
determine whether a deliverable five-year housing land supply (5yr-HLS) is
present against their LHN if strategic policies are more than five years old. As
this is the case for CB, local housing need is unequivocally defined in
footnote 37 as being calculated through the SM.
81. Turning to Annex 2 of the Framework, LHN is defined as the number of homes
needed through the application of the SM. In the context of providing strategic
policies, i.e. plan-making, it may be calculated using an alternative approach as
defined in paragraph 60 of the Framework. However, no exceptional
circumstances permit such an approach in relation to decision-taking.
82. This fact is not disputed by the Council and it is common ground that the
Council is unable to demonstrate a 5yr-HLS when LHN is calculated using the
SM. The appellants maintain that there can be absolutely no departure from
the SM in decision-taking and that the Council is wrongly interpreting the
meaning of the policies of the Framework which has led to a ‘misapplication’ of
Government policy.
83. In coming to this conclusion they rely upon the views of the Supreme Court in
Suffolk Coastal District Council v Hopkins Homes Limited judgement8 which
held that the approach to interpretation of development plan policies in the
Tesco Stores Limited vs Dundee City Council judgement9 applies equally to the
policies of the Framework in that a policy should be interpreted ‘objectively in
accordance with the language used, read always in its proper context’.
84. However, this speaks to the interpretation of policy rather than its application
which is a matter of planning judgement. The Council recognised in oral
evidence that it had departed from national policy but maintained that this was
a conscious ‘disapplication’ rather than a ‘misapplication’ of Government policy.
The Council has adopted this position in this case and in the examination of its
emerging local plan because the LHN methodology requires the use of the
2014 sub-national population projections. The Council maintains that the
projections are inaccurate for CB and that this alone justifies a departure from
national policy and advice.
85. The Secretary of State v West Berkshire judgement10 [CD10.07] establishes
the principle that policy-makers are entitled to express policy in unqualified
terms and that pre-existing policy should not be blindly followed by decision-
makers without considering whether or not the case in hand is an exception. It
goes on to note that the rule against fettering discretion is critical to lawful
public, decision-making and that without it, decisions are likely to be unfair.
Reference is also made in this judgement to Sedley LJ11 who observed that
planning policy is ‘not a rule but a guide’.
86. The appellants have pointed out that one of the grounds of challenge in this
case was not successful. Namely that the Written Ministerial Statement was an
afront to the statutory scheme, notably s38(6), because it did not allow for
8 [2017] UKSC 37
9 [2012] UKSC 13
10 [2016] EWCA Civ 441
11 [2005] EWCA Civ 520
departures. This is because it is always open to the decision-maker to decide
to place greater weight on the development plan or any other material
consideration which the appellants characterise as a ‘disapplication’ of policy
[ID28]. However, I do not share this view because a policy still applies under
such circumstances and is merely outweighed by other considerations.
87. The Gransden v Secretary of State judgement, cited in [ID20], offers further
insight into the Council’s position. It sets out that even though a body has to
have regard to policy this does not mean that it necessarily needs to follow that
policy provided clear reasons are given for a departure so that the recipient
knows the grounds upon which the decision is being taken. Indeed, the
Framework itself makes clear that, insofar as the determination of planning
applications is concerned, it is no more than ‘guidance’ and as such a ‘material
consideration’ for the purposes of section 70(2) of the Act.
88. Whilst not establishing legal precedent, the documents relating to an attempted
High Court challenge of the New Road, Clifton appeal decisions12 reiterate the
above points [ID20]. Sir Ross Cranston took the view that it was not even
arguable that the Inspector was not entitled to depart from national policy in
the contested appeals. Most importantly, the Secretary of State expressly
endorsed the departure from his own policy that was taken by the Inspector in
those appeals. I find this evidence admissible despite the warnings to the
contrary by the appellants in closing [ID28]. As the Council points out, the
Practice Direction [ID27] does not apply to planning inquiries and, in any
event, this evidence neither establishes a new principle nor extends an existing
one.
89. Given the above, I find that there is no lawful basis for resisting an exception
to the application of paragraphs 60 and 73 or Annex 2 of the Framework or the
advice of the PPG where clear and convincing reasons are given for such an
exception. As exceptionality is expressed in relation to plan-making, the
Framework is silent regarding the specific grounds that might justify such a
departure and it thus becomes a matter of planning judgement rather than a
policy prescription. I can find no legal or policy basis for Mr Tiley’s fall-back
position that if an exception were to be made that this would somehow need to
be ‘beyond exceptional’ and that any hypothetical test should be ‘more
challenging’ than the ones applied in a Local Plan examination.
90. I am, nevertheless, mindful of the need to significantly boost the supply of
housing to address the housing crisis and that any departures from the SM in
decision-taking should not be taken lightly and must be fully justified. I am
also aware that the views of Inspectors have varied in relation to this matter
and that decisions have gone both ways where housing need has been an
explicit consideration13.
91. I note that the decisions that the appellants rely upon where the SM is
favoured either do not consider circumstances specific to CB because they
apply to other local planning authorities or they comprise written
representations14 where the CB housing requirement was simply not tested. As
12 [CD9.19]
13 APP/C1950/W/17/3190821, APP/W3520/W/18/3194926, APP/Z1510/W/18/3207509,
APP/P1560/W/18/3196412, APP/P1560/W/18/3194826, APP/P0240/W/18/3211551, APP/P0240/W/19/3219983,
APP/P0240/W/18/3206495, APP/P0240/W/19/3220640, APP/P0240/W/18/3218992, APP/P0240/W/18/3204513
and APP/P0240/W/19/3236423.
14 APP/P0240/W/18/3211551, APP/P0240/W/19/3219983
such, I do not find them the same in all respects and this appeal has
consequently been determined on its individual merits and the evidence before
me.
Household Projections
92. The central thrust of the Council’s case is that the inaccuracy of the 2014-
based sub-national population projections for CB is such that they are not fit
for purpose and that this alone justifies an exception to be made to national
policy. On this basis, the Council maintains that it should continue to use the
Objectively Assessed Need (OAN) that forms the basis for its Strategic Housing
Market Assessment (SHMA) where the issues with the household projections
were considered at length and local evidence was used to establish
independent population estimates.
93. The Council maintains that the projections continue to overestimate the true
extent of population growth within CB. In his proof, Mr Lee identifies the
problem as being associated with the mid-year estimates (MYE) which
overestimate the net migration figures for CB. The Office for National Statistics
(ONS) recognises this problem and despite downward adjustments there
remain significant anomalies in the population growth projections for CB, as
well as a number of other local planning authorities. Whilst not unique, the
Council maintains that it is exceptional and has sought to establish this fact
through the comparative ranking of a number of different indicators.
94. The indicators and the position of CB relative to other local planning authorities
has been a matter of considerable dispute between the parties. Extensive
evidence was submitted during the course of Inquiry and no agreement could
be reached on which indicators were most important for establishing
exceptionality or even whether London boroughs should be included in the
comparison.
95. In relation to this last point, I accept the Council’s position that they should be
excluded. This is because the Greater London Authority is responsible for the
calculation of the 5yr-HLS for individual boroughs as part of its Spatial
Development Strategy for London. Unlike other authorities, this is not a matter
that is left solely to the boroughs to address through their local plans.
Although Mr Tiley attempted to draw an analogy to local planning authorities in
the East of England in oral evidence I find this contrived and not comparable to
the situation in London, not least because there is no analogous planning
mechanism that seeks to distribute a housing requirement on a regional basis
across the East of England.
96. Turning to the indicators themselves, it is common ground that CB ranks higher
than 253 other local authorities (excluding London) on every indicator favoured
by the Council and no higher than 51 on every indicator favoured by the
appellants [ID16]. Their selection was a matter of planning judgement with no
multivariate statistical analysis being undertaken by either side to establish the
variance structures, indicator redundancy or the differential sensitivity of the
rankings between indicators that would have supported a more objective
approach. Moreover, I find the use of parametric averages and Z-scores
[ID25] flawed due to the untested assumption that each indicator would have
the same magnitude of effect on the rankings and a failure to transform the
data to avoid the numerical compression arising from the large number of small
percentage values.
97. The Council has chosen to focus on indicators that directly relate to changes
the ONS has made to the MYE for all local authorities in England. This not only
considers the latest revisions for the period between 2011-2016 but also earlier
revisions for the period between 2001-2011. The appellants have chosen to
focus on a wider number of indicators with the Council only agreeing that two
are appropriate for establishing exceptionality (B1 and C2). The appellants
have highlighted the fact that half of the Councils indicators (A1, A2 and A3)
reflect the accuracy of the 2016 MYEs and do not therefore inform the 2014
household projections upon which the SM is based. They also note that two of
the indicators (A1 and C1) do not take account of proportionality.
98. However, I find the Council’s indicators more credible than the appellants
because they go to the heart of why CB should be considered exceptional and
highlight an ongoing issue with the ONS data. I find the use of contextual
measures, such as the difference between the MYE and school census changes,
diversionary because they are indirect, proxy measurements of varying
accuracy. The greater number of indicators that the appellants have relied
upon could have also altered the rank variance structure and thus the
likelihood that a greater number of authorities would rank higher than CB. Mr
Tiley confirmed, in response to one of my questions, that this had not been
considered and that it was beyond his expertise as a pure mathematician.
Consequently, this potentially confounding effect cannot be discounted and I
find the conclusions that these indicators support to be unreliable.
99. Added to this issue is the fact that four of the appellants’ indicators (G1, G2,
H1 and H2) relate to migration estimates that predate the ONS Migration
Statistics Programme. As Mr Lee points out in his supplementary proof [ID17],
the use of these data are flawed because the measurements were calculated
using a fundamentally different methodology to the one used by the ONS
between 2001-2014. In response to one of my questions Mr Tiley conceded
that ‘there were no other alternatives’ and that the indicators were ‘not
perfect’. Consequently, I find the justification for the use of these indicators is
not robust because it risks introducing systematic errors that are the product of
a change in methodology rather than any underlying demographic divergence.
100. Turning to the issues with the Council’s indicators. The two where
proportionality has been questioned are ranked according to the projected
number of individuals and are not expressed as a percentage of the population.
Given that population densities vary between authorities, I accept that the
ranking of these indicators may be different if they were expressed as a
proportion of the total population. However, the issue at hand is whether the
differences in the MYE and unattributable population change estimates, in and
of themselves, are exceptional. As such, there is an internal consistency to the
comparison irrespective of whether or not they are adjusted for the population
densities of individual authorities and expressed as a percentage. The three
where relevance to the 2016 projections has been questioned are relevant
because they illustrate systematic errors that have led to persistently
inaccurate population projections for CB. As they have not been taken in
isolation, they provide useful context for the indicators that are directly related
to the 2014 projections and speak directly to the core issue.
101. Turning to Mr Tiley’s observations that none of the Council’s indicators were
exceptional in isolation and that there are authorities that exceed CB on every
indicator. I accept this is the case but, as Mr Lee points out in his
supplementary proof [ID17], there are only five local authority areas that
ranked higher on all indicators which were, in order of magnitude: Guildford,
Charnwood, Newcastle-upon-Tyne, Welwyn Hatfield and Lancaster. Whilst CB
may not be the most exceptional, it is nonetheless amongst just half a dozen
authorities with the most significant errors in the ONS household projections.
102. The appellants submitted SHMA extracts from the above authorities during
the second phase of the Inquiry and it was noted, in oral evidence, that the
2014 household projections for these authorities all needed an uplift. These
extracts were limited with no wider context provided to the Inquiry save for the
oral evidence of Mr Lee and a letter concerning the Vale of Aylesbury local plan
examination submitted by the Council [ID24]. This established that there had
subsequently been significant downward adjustments by the ONS for some and
that significant student populations were present in at least three which meant
that they were not directly comparable to CB in any event. Consequently, I
give this evidence little weight.
103. Mr Lee has also indicated in oral evidence that he has only come across two
out of 50 local authorities for which the MYEs were inaccurate since the 2014
household projections were first published. Whilst only a limited sample, this
nonetheless indicates that the issue is not widespread. The appellants accept
that the methodology has been revised to improve MYEs but contend that the
SM would have been changed because the same issues apply to ‘every single
authority’ [ID28]. Given the above, I do not find this position tenable and it is
not surprising that the SM remains unchanged under the circumstances despite
the representations made by local planning authorities and others in response
to the technical consultation prior to its introduction.
Housing Need Conclusion
104. If the Council’s position on OAN, as set out in appendix 3 of ID19, is
assumed then this gives a deliverable supply of around 5.72 years. If the
appellants’ position, as set out in the same appendix, is assumed then this
gives a deliverable supply of around 5.36 years. The latter differs in that over
supply was not banked and completions north of Houghton Regis were
excluded from the calculation.
105. Although a deliverable supply of 3.64 years is only present when the SM is
applied, I find clear and convincing justification for the application of a tried
and tested method, as defined in the SHMA, for the reasons I have already
given. I do not consider a hybrid approach that includes a different
affordability adjustment to be tenable under the circumstances. Consequently,
the weight attributable to the SM in deriving the LHN is greatly reduced.
106. Accordingly, in line with paragraph 11(d) of the Framework the ‘tilted
balance’15 is not engaged. Consequently, my assessment of the proposal in the
planning balance will proceed against the policies of the extant development
plan.
Other Matter
107. In closing, the appellants highlight the Shropshire vs BDW Trading
judgement16 in regard to the principle that an Inspector at a planning appeal is
15 As defined by paragraph 11 of the National Planning Policy Framework 2019
16 [2016] EWHC 2733
only making judgements based on the material that has been submitted, which
may well be imperfect [ID28]. It goes on to state that an Inspector is not
making an authoritative assessment which binds a local planning authority in
other cases.
108. The appellants accept that whilst decisions are material considerations, they
are not case law. They also stress that the evidence before me from both
parties ‘is significantly different from that before previous inspectors’ in relation
to three appeal decisions that the Council relied upon in evidence17. However,
this principle cuts both ways and also applies to other decisions that the
appellants have relied upon.
109. Whilst I have read and had regard to all of the decisions that have been
submitted by the main parties, I have not made reference to each and every
one in my own decision. This is because it is rarely the case that any two
appeals are the same in all respects and I see no reason to subject the ones
that are not central to my reasoning to hypercritical scrutiny or laborious
dissection.
Planning Balance and Conclusions
110. Firstly, it is important to note the benefits of the proposed development that
can be summarised as follows:
• The provision of 228 dwellings with 35% allocated for affordable housing
which would boost the supply of housing. Whilst this would help to meet a
key Government aim, the weight to be afforded to it is limited by the fact
that the Council is able to demonstrate a 5yr-HLS. Bearing this in mind, as
well as the fact that the affordable housing is no more than policy compliant,
I give this benefit moderate weight.
• The provision of allotments would address an identified need, as was
apparent from the representations made by interested parties at the
beginning of the Inquiry. This would also be consistent with the Sandy
Parish Green Infrastructure Plan (2010). Bearing in mind that they could be
secured by condition and become a recreational destination for users, I give
this benefit moderate weight.
• The provision of public open space would help to deliver the objectives of the
Sandy Green Wheel Masterplan 2014 but I note that the day to day use is
most likely to benefit the occupants of the new dwellings given its location at
the edge of the settlement. Moreover, the granting of a public right of way
would need to occur in order to secure wider recreational benefits
irrespective of any condition. As such, I give this benefit little weight.
• The provision a care home would help to meet an agreed shortfall in the
number of care home beds in the local area. Although a condition for this to
be delivered prior to the occupation of more than 150 dwellings could be
imposed, this does not guarantee delivery and a significant proportion of the
housing could still be delivered without it. Bearing this in mind and the
absence of any legally binding agreement with a potential operator, I give
this benefit limited weight.
17 [CD19.9], [CD9.22] and [ID18] appendix 5
• There would be some wider economic benefits from the development but
none of them would be unique to the scheme or the location. Such benefits
are generic and consequently can only be afforded limited weight.
• It is common ground between the parties that the provision of a medical
centre carries little weight in the absence of any support from the local
Clinical Commissioning Group and I agree.
• The provision of a public house which may also comprise a restaurant could
provide local community benefits. However, there are no legally binding
agreements with a potential operator and a significant proportion of the
development could be delivered without it. Moreover, it is simply a licensed
establishment and the degree to which it could provide community benefits
is both unproven and aspirational. Consequently, I give this benefit little
weight.
111. Secondly, and on the other side of the balance the following matters are
important:
• The site is beyond the settlement limit and would cause harm to the intrinsic
beauty of the countryside which conflicts with a number of development plan
policies. Although there is policy support for the landscape and biodiversity
improvements, this would not outweigh the harm that would be caused or
outweigh the negative policy impact. As such, I give this harm significant
weight.
• It is common ground that the proposal would lead to the loss of ‘best and
most versatile’ agricultural land [ID28]. However, this was not a reason for
refusal and the Council agreed in oral evidence that this loss would not
outweigh the economic benefits. I am inclined to agree given the limited
footprint of the proposal and consequently give this harm limited weight.
• The Council does not agree that the site would provide easy access to local
facilities and services according to various guidance outlined in the proof of
Mr Hughes. Given that 8 out of 11 facilities would be more than 1km away,
the number of journeys that are likely to occur on foot would be limited thus
leading to a reliance on motor vehicles. However, the site would be served
by an existing network of well-lit roads that would support the use of
bicycles and thus an alternative transport means. As such, I give this harm
limited weight.
112. Even if I were to accept that the SM should be applied and that the tilted
balance should be engaged, the benefits would not outweigh the harm that
would be caused. I have found that the proposal would be contrary to the
development plan for the reasons set out in the relevant part of my decision.
Notwithstanding the social and economic benefits, the harm I have found would
significantly and demonstrably outweigh the benefits of the scheme when
assessed against the policies in the Framework taken as a whole.
Consequently, the presumption in favour of sustainable development does not
apply in this case. There are no other material considerations that indicate a
decision should be reached other than in accordance with the development
plan.
Conclusion
113. For the above reasons and having regard to all other matters raised I
conclude that this appeal should be dismissed.
Roger Catchpole
INSPECTOR
APPEARANCES
FOR THE APPELLANTS
Mr T Ivory instructed by DLA Piper UK LLP who called:
Mr N Tiley
Mr R Gray
Mr M Flatman
FOR THE COUNCIL
Mr A Booth QC instructed by Patricia Bramwell LGSS Law Ltd who called:
Mr J Lee
Mr P Hughes BA (hons) MRTPI Dip Man MCIM
Mrs K Ahern
INTERESTED PERSONS
Cllr P Blaine Sandy Town Council
Ms S Doyle Local Resident
Mr R Barlow Sandy and District Allotment and Leisure Gardeners’ Association
Ms S Russel Local Dementia Charity
DOCUMENTS SUBMITTED TO THE INQUIRY
OCTOBER 2019
ID1 Housing Land Supply Rebuttal Proof and Appendices RR1 to RR13 by Phillip
Hughes.
ID2 Housing Land Supply Rebuttal Appendices AR5.1 to AR5.24 by Neil Tiley.
ID3 Rank Percentile Graphs of Housing Need Indicators by Jonathan Lee.
ID4 Rank Percentile Table of Housing Need Indicators by Jonathan Lee.
ID5 Extract from Central Bedfordshire Initial Settlements Capacity Study 2017
from the Appellants.
ID6 Opening Statement from Sarah Doyle.
ID7 Opening Statement from Sarah Russel, delivered by Sarah Doyle.
ID8 Opening Statement from Mr Barlow.
ID9 Opening Statement of the Appellants.
ID10 Opening Statement of the Council.
ID11 Revised Housing Delivery Trajectories from the Council.
ID12 Housing Need and Land Supply Rebuttal and Appendices AR5.1 to AR5.23 by
Neil Tiley.
ID13 Joint Site Visit Itinerary with Walking Routes from the Appellants.
ID14 Central Bedfordshire Local Plan Exam 41 SP1 Amendment from the
Appellants.
ID15 Signed Planning Obligation by Unilateral Undertaking from the Appellants.
FEBRUARY 2020
ID16 Schedule of Respective Positions on Housing Requirement from the Main
Parties.
ID17 Supplementary Proof of Evidence by Jonathan Lee.
ID19 Statement of Common Ground Addendum from the Main Parties.
ID20 New Road, Clifton Legal Challenge Bundle.
ID21 Thrapston Appeal Decision18 from the Appellants (refused).
ID22 B1 and C2 Housing Need Indicators, from the Appellants.
ID23 Strategic Housing Market Assessment Extracts from the Appellants.
ID24 Inspector Letter Regarding Vale of Aylesbury Plan Examination from the
Council.
ID25 Z Scores of Housing Need Indicators from the Council.
ID26 Closing Submission of the Council.
ID27 Legal Authority Bundle from the Appellants.
ID28 Closing Submission of the Appellants.
ID29 Resubmission of Housing Land Supply Rebuttal Proof and Appendices RR1 to
RR13 by Phillip Hughes.
ID30 Partial Costs Application from the Council.
ID31 APP/P0240/W/19/3236423 from the Council (after closing).
18 APP/G2815/W/19/3232099


Costs Decision
Inquiry Held on 1-4 October 2019 and 11-13 February 2020
Site visit made on 30 September 2019 and 3-4 October 2019
by Roger Catchpole BSc (hons) PhD MCIEEM
an Inspector appointed by the Secretary of State
Decision date: 6th April 2020
Costs application in relation to Appeal Ref: APP/P0240/W/18/3219213
Land north of Sunderland Road (Northing: 250966 Easting: 516649)
• The application is made under the Town and Country Planning Act 1990, sections 78,
320 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Central Bedfordshire Council for a partial award of costs
against Pigeon Land Ltd.
• The inquiry was in connection with an appeal against the refusal of outline planning
permission for the erection of up to 228 homes, including 6 self-build plots and
affordable housing, together with associated access and spine road, reserved site for
medical surgery, care home site, family pub-restaurant site, amenity space, allotment
site and associated infrastructure with all matters reserved except for access and spine
road.
Decision
1. The application for an award of costs is allowed in the terms set out below.
Reasons
2. The Planning Practice Guidance 2014 (as amended) (PPG) advises that,
irrespective of the outcome of an appeal, costs may only be awarded against a
party who has behaved unreasonably and thereby directly caused another
party to incur unnecessary or wasted expense in the appeal process.
Unreasonable behaviour can either be procedural, relating to the process of an
appeal or substantive, relating to the merits of any issues arising from an
appeal.
3. The application for costs was made by the Council with reference to behaviour
during an Inquiry into a refusal to grant outline permission for the erection of
up to 228 homes, including 6 self-build plots and affordable housing, together
with associated access and spine road, reserved site for medical surgery, care
home site, family pub-restaurant site, amenity space, allotment site and
associated infrastructure with all matters reserved except for access and spine
road.
4. The Council believes that the appellant acted unreasonably because one of its
witnesses, Mr Tiley, sought to introduce new evidence, both orally and in
document form, whilst giving his evidence-in-chief on the last day of a 4-day
Inquiry. The Council contends that the evidence that Mr Tiley sought to
introduce had not been previously put to the Inquiry either in written
submissions or during the cross examination of the relevant Council witness,
Mr Lee. I ruled that this behaviour was Wednesbury unreasonable and
adjourned the Inquiry which was then resumed for a further 2.5 days, as set
out in my appeal decision. Taken together these perceived failings risk an
award of costs on procedural grounds.
5. The appellant believes that an award of costs is not justified because Mr Tiley
was unaware of the full extent of the Council’s case until receipt of Mr Lee’s
proof and the issues that came to light during his oral evidence on the first day
of the Inquiry. This specifically relates to the factors that justified the
downward adjustment of the Council’s Strategic Housing Market Assessment
(SHMA), as set out in paragraph 2.7 of Mr Lee’s proof, and an assertion that
Central Bedfordshire was exceptional on the basis of more than one housing
need indicator, as highlighted in oral evidence.
6. However, in contrast to the extensive rebuttal proof of Mr Tiley that was
submitted shortly before the opening of the Inquiry, Mr Lee’s proof was
submitted in good time which gave the appellant ample time to prepare its
case. Given the late submission of Mr Tiley’s rebuttal proof, I accept that the
Council had no opportunity to respond other than through oral evidence which I
find to be an entirely appropriate and reasonable response under the
circumstances.
7. Furthermore, in stating that no other LPA ranked higher, Mr Lee was merely
responding to a proposition put to him during cross examination. To behave
otherwise would have allowed the rebuttal to go unchallenged which would
have simply been non-sensical. Whilst the same argument was used to justify
the behaviour of Mr Tiley during his evidence-in-chief, I do not find this
proportionate bearing in mind the extent of evidence that he sought to
introduce.
8. Given the above, I find that that the appellant acted unreasonably by seeking
to introduce fresh and substantial evidence at a late stage thus necessitating
an adjournment.
9. The PPG advises that an application for costs will need to clearly demonstrate
how any unreasonable behaviour has resulted in unnecessary or wasted
expense. In other words, the existence of unreasonable behaviour is not
sufficient to justify an award of costs in and of itself. The behaviour must also
directly cause another party to incur unnecessary or wasted expense in the
appeal process. Where a partial award is sought then unnecessary expense
needs to be clearly attributable to a specific aspect of the proceedings.
10. The appellant maintains that matters post-dating the adjournment in October
2019 had a bearing on the time that was required to complete the Inquiry as
well as the fact that it resiled from evidence that I had not requested in Mr
Tiley’s supplementary proof of evidence. I accept that the Council submitted
additional evidence that had not previously been encountered, such as the Z-
scores, that necessitated a response. However, the unequivocal fact remains
that the Inquiry would have been completed in the allotted time had it not
been for the behaviour of Mr Tiley. As such, the additional time that was
required in February and the supporting evidence the Council was obliged to
produce would not have been necessary had his behaviour been otherwise.
11. Given the above, I conclude that unnecessary and wasted expense was
incurred by the Council because of the need to prepare supplementary housing
need evidence and attend the resumed inquiry in February 2020.
Costs Order
12. In exercise of the powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other enabling powers in that behalf, IT IS HEREBY ORDERED that
Pigeon Land Ltd shall pay to Central Bedfordshire Council, the costs of the
appeal proceedings described in the heading of this decision limited to those
costs incurred in relation to the preparation of supplementary housing need
evidence and attendance at the Inquiry between 11-13 February 2020.
13. The applicant is now invited to submit to Pigeon Land Ltd, to whose agents a
copy of this decision has been sent, details of those costs with a view to
reaching agreement as to the amount. In the event that the parties cannot
agree on the amount, a copy of the guidance note on how to apply for a
detailed assessment by the Senior Courts Costs Office is enclosed.
Roger Catchpole
INSPECTOR