Case Reference: 3220201

Appeal Decision
Inquiry Held on 6-8 August and 29-30 October 2019
Site visit made on 8 August 2019
by A J Mageean BA (Hons) BPl PhD MRTPI
an Inspector appointed by the Secretary of State
Decision date: 23 December 2019
Appeal Ref: APP/P1506/W/19/3220201
Land to the South of Long Road, Mistley
• 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 Tendring District
Council.
• The application Ref 17/01181/OUT, dated 17 July 2017, was refused by notice dated
29 November 2018.
• The development proposed is an outline application with all matters reserved, other
than strategic access points onto the public highway, for the erection of up to 485
dwellings, up to 2 hectares of employment land (A2/A3/B1/B2; B8; D1 uses), with
associated public open space and infrastructure.
Decision
1. The appeal is allowed and planning permission is granted for an outline application
with all matters reserved, other than strategic access points onto the public
highway, for the erection of up to 485 dwellings, up to 2 hectares of employment
land (A2/A3/B1/B2; B8; D1 uses), with associated public open space and
infrastructure at land to the south of Long Road Mistley, in accordance with the
terms of application ref 17/01181/OUT dated 17 July 2017, subject to the
conditions set out in the schedule attached to this decision.
Preliminary Matters
2. The application is in outline with all matters except for means of access reserved
for subsequent approval. In addition to the red line plan, I have considered the
application on the basis of the plans indicating the Long Road Preliminary Access
Arrangement (162173/A/02), Clacton Road Access Arrangement
(JTP/04814/DR2a) and Employment Area Access and Pedler’s Corner
Improvements (JTP/04814 DR4).
3. The application also sought approval for parameter plans which would control the
extent of a Reserved Matters application. These include a Density Parameter Plan
(OPA/17006-06a), a Landscape Parameter Plan (OPA/17006-04b) and a Storey
Heights Parameter Plan (OPA/17006-07b). Additional plans including an Outline
Landscape Masterplan, a 3D Model View V2, a Proving Plan V2 and an Illustrative
Masterplan are provided for illustrative purposes only. I have considered the
appeal on this basis.
4. The application was described as being for up to 500 dwellings. However, I
understand that, with the agreement of the Council, the description was changed
to up to 485 dwellings prior to the determination of the application. I have
considered the appeal on this basis.
5. At the time of the Inquiry, the draft Tendring District Council Development Plan
(2013-2033) (eLP) had been submitted for examination. Section 1 of the eLP,
prepared jointly for the North Essex Authorities (Braintree, Tendring and
Colchester), is being examined, with Section 2 of the eLP containing policies
specific to Tendring, including the allocation of sites. Paragraph 48 of the National
Planning Policy Framework (the Framework) sets out that weight may be given to
the relevant policies in emerging plans. In this case, given the stage the eLP has
reached, its provisions carry modest weight.
6. Evidence relating to character and appearance and housing supply was presented
to the inquiry in August. It was agreed that the inquiry would be adjourned to
provide the main parties the opportunity to clarify and minimise areas of dispute
concerning affordable housing and viability. As a result, an updated Statement of
Common Ground and additional evidence on these matters was produced. The
inquiry resumed for an additional two days at the end of October 2019.
7. Additional evidence was also requested from both parties regarding provisions to
ensure that the scheme would not have an adverse effect on the integrity of
protected habitat sites. The inquiry was closed in writing on 21 November 2019.
8. Before the inquiry commenced, the Council agreed that the provision of
appropriate planning obligations relating to financial contributions towards
education and healthcare provision, the management of on-site public open space,
off site traffic calming measures and the provision and monitoring of a Residential
Travel Plan would overcome part of the second main reason for refusal. A
completed signed and dated planning obligation by way of Unilateral Undertaking
under Section 106 of the Town and Country Planning Act 1990 (UU) was submitted
by the appellant at the inquiry.
Main Issues
9. Taking into account the above, and the evidence before me, the main issues are:
• The effect of the proposed development on the character and appearance of the
area;
• Whether or not the proposal would make sufficient provision for affordable
housing; and,
• Whether any harm in relation to issues (1) and (2) above, and any conflict with
the development plan, would significantly and demonstrably outweigh the
benefits when assessed against the policies in the National Planning Policy
Framework taken as a whole.
Reasons
Character and appearance
10. Outline planning permission for up to 300 dwellings and 2ha of employment land
was granted in July 20161. This was subsequently varied by an application
reducing the amount of open space and increasing the developed area2. An
1 15/00761/OUT
2 17/01537/OUT
approved reserved matters application sets out the first phase of development for
up to 96 dwellings on the northern portion of the site3. I have had regard to the
permitted scheme, as varied, (referred to henceforth as ‘the permitted scheme’)
when considering landscape and visual impacts.
11. The site is currently located outside the settlement boundary for Manningtree,
Lawford and Mistley. However, the eLP proposes that this area be incorporated
within the shared settlement boundary, and includes the allocation of 2ha at the
south eastern corner of the appeal site for employment development. The land
directly to the west is also proposed to be within the settlement boundary, with the
development known as ‘Lawford Green’ already underway on this site. This area is
therefore undergoing substantial change.
Landscape and visual character
12. The site lies within the Bromley Heaths Landscape Character Area (LCA) as defined
within the Tendring District Landscape Character Assessment 2001. Within this
large scale flat agricultural plateau, some elements of the characteristic qualities of
the Bromley Heath LCA are relevant to the appeal site in its undeveloped state.
Specifically, ‘large scale productive arable fields divided by low, gappy hedges
where hedgerow oaks stand out as silhouettes against the skyline’. More
generally, the LCA has a low density pattern of scattered farms and settlements
connected by a network of narrow lanes.
13. Looking at the landscape qualities of the appeal site and its immediate context in a
little more detail, this open and largely flat field is bound by a mixture of low
hedgerow, occasional shrub and tree planting, with one significant tree, a mature
oak, on the eastern boundary. The northern part of the site has an edge of
settlement character, as it adjoins Long Road, a busy route with pavement and
street lighting, and with built form clearly visible to the north east and north west.
Directly to the north of Long Road, an open landscape area is identified as a ‘Local
Green Gap’ (LGG) in the Tendring District Local Plan 2007 (LP) and proposed as a
‘Strategic Green Gap’ in the eLP. The area to the south has an open rural
character and little screening, with Dead Lane a narrow rural lane. To the west,
the parkland landscape, which is within the Manningtree and Mistley Conservation
Area (CA), also contributes to these rural qualities. To the east, the Lawford
Green scheme is being built on former fields and will ultimately adjoin the western
boundary of the appeal site.
14. Overall the 2001 LCA assesses the landscape character of this area as being
‘moderate’ though remaining ‘visually sensitive as a result of its open and rural
character and long views’. Similarly, the Tendring Landscape Impact Assessment
produced in 2009 (LIA) concluded that this area, including the Lawford Green site,
was of low to medium visual sensitivity. My view is that these assessments remain
relevant in that the site retains sensitivity due to its visibility and openness,
though this is moderated by its changing context.
15. In terms of its visual qualities, the site has a tight visual envelope as, with the
exception of those along Clacton Road and the public right of way (PROW) to the
east, most viewpoints are within its immediate vicinity. This reflects the generally
flat topography, meaning that there are no elevated positions from which to view
the site, and also the fact that there are no distinctive landscape elements
associated with the area to draw the eye. Longer distance views from the south
3 17/00535/DETAIL
tend to be interrupted by hedgerow trees or areas of woodland, and northern
views are contained by the edge of settlement. Whilst the Council suggests that
the visual envelope of the site extends considerably further south, from these
distant viewpoints the visibility of the site is limited.
16. The comparative analysis of the permitted and appeal schemes set out below is
undertaken in two sections: firstly, looking at the landscape and visual impact of
the scheme within the local area, and secondly, evaluating the differences in the
character and qualities of the schemes internally, in terms of the density and
pattern of built form.
Landscape and visual impact assessment
17. Assessing the differences between the permitted and proposed schemes is not
straightforward as both are in outline. The Landscape and Visual Appraisal
Addendum 2017 (LVAA) submitted with the appeal scheme is described as
providing ‘an assessment of any additional effects arising from the difference in
layout and design of the revised scheme’. However, it has subsequently been
clarified that the LVAA assesses the appeal scheme against an undeveloped
baseline, and does not therefore provide a comparative assessment. The
conclusions of this study, that the ‘development would not give rise to any
substantial additional effects when compared to the 2015 application’, may have
been misleading to the Council. Indeed, the assessment of landscape/visual
impact in the Officer Report is somewhat confused, appearing to refer to the site in
both its developed and undeveloped state.
18. My view is that it is inevitable that the significant increase in the number of
dwellings proposed, the changes in the dwelling mix and the addition of further
access points from Dead Lane will have landscape and visual consequences. The
magnitude of that change can be assessed from the range of material presented.
19. The original Landscape and Visual Impact Assessment (Liz Lake Associates 2015)
(LVIA) assessed the landscape effects of the permitted, though unvaried, scheme
as significant, changing from countryside to urban use with a moderate/substantial
adverse effect on landscape character. This would be mitigated with generous
public open space running through and around the site which, when established,
would reduce the effect on landscape character to moderate/slight adverse. In
basic terms this assessment is consistent with the Council’s 2009 LIA.
20. However, the Council suggests that the LVIA over-estimates the adverse effects
through the use of a three-point scale (slight, moderate or substantial effects), and
given the relatively low key, low density nature of the development. My view is
that whilst the permitted scheme is low density, it includes significant housing and
employment development. It can therefore be characterised as transformative, in
that it will change the character of the site from being open and rural to being
associated with the expanding settlement envelope. I therefore agree with the
LVIA assessment.
21. Additional change to landscape character would result from the appeal scheme by
virtue of its higher density, including some built form at a higher level, the greater
extent of developed area and the addition of two new access points from Dead
Lane. As a result of the approved scheme, the degree of sensitivity of the
landscape to the additional change proposed is low. Furthermore, much of the
perimeter belt of landscaped space would remain, noting particularly the retention
of the open area at the northern extent of the site, affording similar opportunities
for mitigation planting to the permitted scheme. Whilst there would be a reduction
in the amount of on-site open space from around 27% of the gross area to around
20.5%, and some sense of denser urban form is inevitable, any additional harm
would reduce to negligible as planting matures. The widening of Dead Lane to
accommodate the new access points would be a noticeable change, and locally of
some harm to landscape character. However, overall my view is that any
additional harm would not take the landscape effect of the appeal scheme
significantly beyond the moderate/substantial adverse, in time reducing to
moderate/slight adverse effect, as identified previously.
22. Turning to visual effects, the Council’s reason for refusal refers to the prominence
of the development from the south. In general terms the permitted scheme will
result in the loss of views across this open and undeveloped site. Whilst its low-
density form may suggest a porous nature, in reality views into the site would
focus on the landscape and built form in the immediate foreground, with some
visibility of variation across the skyline beyond. The parameter plans associated
with the appeal scheme indicate a ‘feathering’ of density, with the lowest density
on the periphery. As such, in those areas where the width of perimeter open
space would remain the same, my view is that no additional harm would be
discernible.
23. I have considered the specific viewpoints and visual receptors identified by the
Council as differentiating the two schemes. From Long Road, the visibility of the
development from the care home and properties adjacent to the north eastern
corner of the site would increase as the proposed developed area would extend
considerably closer to the shared boundary with these properties. The care home
has three storeys, though is contained by lower level buildings around its
periphery, such that views across into the appeal site are for the most part limited
to the dormer windows on the southern and western elevations. Whilst reduced in
extent, the proposed open space and landscape would to some degree mitigate the
presence of built form in relatively close proximity. It could also be argued that
these vantage points are at a higher level than most of the built form proposed,
and that some views to the landscape beyond would be retained. However, there
is no doubt that the sense of urban containment would increase, and that denser
urban form would be particularly apparent from these windows.
24. The primary first floor rear views of the other properties in the north eastern
corner are to the south south east. This would encompass the easternmost
properties and the band of open space and landscaping. The presence of built
form at a higher density than previously proposed, including in the illustrative
scheme a terraced row located immediately behind the detached dwellings, would
be clearly apparent. Overall the reduction in openness for the occupiers of the
care home and dwellings to the north east would be moderately harmful.
25. On the north western corner of the site the extent of open space would increase by
a moderate degree. There would be low density housing adjacent to this corner,
and an area of higher density immediately behind. This would contrast with the
looser low density layout of the approved scheme. In oblique views into the
appeal site from properties on the south side of Long Road it is possible, though by
no means certain, that the difference between the permitted and proposed
schemes would be apparent in terms of some reduction in porosity. However, it is
more likely that both schemes would result in an awareness of the buildings in the
foreground and some sense of built form beyond. That said, at this distance any
sense of increased density would be mitigated by the additional open space and
opportunity for landscaping in this area.
26. Reference is also made to visibility from properties on Waldegrave Way, whose
rear elevations back onto the LGG. However, given the presence of the LGG,
which in both schemes extends into the northern section of the appeal site, my
view is that any sense of additional density would not be clearly apparent.
27. In views from Clacton Road to the east, mostly by motorists and cyclists as the
pavement ends north of the entrance to Acorn Village, the reduction in open space
to the north east would be apparent. Also, some sense of a denser, more urban
form of development along this boundary may be visible. However, the presence
of the open area with drainage attenuation and landscaping, though modestly
reduced from the permitted scheme, would to a large degree mitigate any
apparent difference, particularly when vegetation is established.
28. Clacton Road marks the boundary with the CA. Whilst there would be some
distant and filtered views from the landscape of the CA, which includes PROW, the
increase in the quantum of development and density would not be apparent. As
such there would be no harm to the setting of the CA.
29. Dead Lane would be altered, including more than a doubling of its width at Pedler’s
Corner, and the probable addition of other elements such as signage and kerbs.
For users of this route the sense of it being part of the network of narrow lanes
running through the area would visibly change. However, this will be seen in the
context of the changing character of this area, with the presence of the
employment buildings in a broadly similar position, and therefore a clearly visible
presence from Dead Lane, in both schemes.
30. The provision of employment development in this position would also be consistent
with Policy SAE2 of the eLP, which refers to consideration being given to access via
Long Road, Dead Lane and/or Clacton Road. In my view the change in character
of Dead Lane would not be unreasonable in the context of the acceptance of the
expansion of the settlement to the south. Furthermore, the slight reduction in
perimeter open space adjacent to the south eastern corner would not significantly
undermine the ability to mitigate the change through landscaping.
31. I reach this view being mindful of the additional ‘opening up’ of the southern
boundary of the site to accommodate the two access points to the employment
area. Whilst not illustrated in the Viewpoints provided by the appellant, it is clear
that these would be more visually apparent and intrusive than the access points
for pedestrians and cyclists which are present in the permitted scheme. This
would create a further degree of visual intrusion for the users of PROW 172_1.
However, again, in the context of the transformative change underway in this
area, including the fact that the employment buildings would be clearly visible
whichever scheme is implemented (as demonstrated in Viewpoint 10), this would
not cause significant additional harm.
32. Views of the appeal site from the west along the PROW running through the
Lawford Green site will in the near future be closed down as this scheme is built
out. In time there will be views of the appeal development from the upper floors
of the Lawford Green site properties located close to the shared boundary of the
lower two thirds of the site. There would be some reduction in open space
adjacent to this shared boundary of a little over half the width of this area at the
widest point. However, the fact that there is a ‘Green Corridor’ along this
boundary on the Lawford Green side, and that the Density Parameter Plan
indicates that this part of the site would contain low density housing, means that
any additional visibility of the appeal scheme would not be significant and is
capable of being mitigated with landscaping.
33. I have considered the extended viewpoints identified by the Council, including
those from the gently rising ground to the south east, in as far as is possible with
this outline application. In general terms it would not be possible to distinguish
between the permitted and proposed developments, even in the winter months
when deciduous trees are without leaf.
34. The reduction in the overall level of open space would impact on the visibility of
the scheme and the effectiveness of mitigation, as noted in the analysis above.
However, with the exception of the north eastern corner, I have not found this to
be significantly harmful. Furthermore, whilst it is important to carefully consider
the integration of the scheme in the surrounding area, the level of open space
proposed at 20.5% is more than double the minimum of 10% of gross area
required by LP Policy COM9. As such this cannot be regarded as a tokenistic level
of provision. My view is that the open space to the perimeter of the site would
remain at a level sufficient to accommodate informal recreation opportunities and
a significant degree of landscaping, including more substantial trees, which in the
medium to longer term would make a positive contribution to the quality of the
local environment.
Density and pattern of built form
35. The permitted scheme has been promoted as a low-density development, to the
extent that a variation to increase the developable area was proposed as this was
required to achieve 300 dwellings at a reasonable density. Further, the LVIA
refers to the ‘relatively low-density parcels of development with public open space
running throughout the site helping to integrate the proposals into the landscape’.
The emphasis is on detached and semi-detached properties set in reasonably
spacious plots, particularly in the northern portion.
36. The quantum of built form on site would substantially increase with the appeal
scheme. Indeed, a standalone development of 185 units would be significant in its
own right. However, the nature of the accommodation provided would change,
with the indicative dwelling mix suggesting that there would be more apartments
(increased from 4.3% to 10.9%) and two bedroomed houses (increased from
17.7% to 33.9%), and fewer 4 bedroomed houses (decreased from 34% to
13.2%). There would be an increase in building height, with the appeal scheme
having no dwellings below 2 storeys (compared to 1.7% below 2 storeys in the
permitted scheme), and an increase in buildings at 2.5 storeys from 4.3% to 12%.
37. The parameter and illustrative plans provide some sense of how this could be
achieved. In order to accommodate the additional dwellings, the appeal scheme
would have a more formal layout and appearance in comparison with the looser
grain of the permitted scheme, and would also have a more varied streetscape to
accommodate the private space requirements of different dwelling types. The
‘feathering’ of densities would be clearly observable. This would vary from up to
around 45 dwellings per hectare (dph) in the centre, to 15-25 dph in peripheral
areas, with an average of 29.61 dph (net) overall.
38. LP saved Policy HG7 sets out that new housing development will normally be
expected to achieve a minimum density of 30 dph (net). It also requires that in
towns and villages, densities generally should fall within the range of 30-50 dph.
Whilst somewhat dated, these provisions are consistent with current Government
policy. Indeed, the Framework refers to the requirement for plans and decisions to
optimise the use of land in their area.
39. Saved Policy HG7 sets out that lower densities than 30 dph will need special
justification in terms of the character of the local environment. The supporting
text gives examples of special justification, such as the need to conserve
landscape features, a Listed Building in its setting, other on-site features of
interest, or to avoid development of an infill site appearing out of character with its
surroundings, particularly in rural areas. In the present case the landscape of the
area is not protected, other than the LGG to the north, which itself would be
reinforced by the open space in the northern portion of the site. The density
sampling illustrates that to the north of Long Road existing densities vary from 24
to 40 dph (though noting that these are areas without open spaces), and so saved
Policy HG7 densities are not out of place. I have also found that the appeal
scheme would not have a harmful effect on the adjacent CA. As such there is no
reason to conclude that the Policy HG7 densities would not be appropriate.
40. Density per se is a crude measure of the quality of environment. Of greater
importance is the creation of pedestrian scale places through the effective
enclosure of space, whether through landscaping or built form, or a combination of
the two. This principle is set out in the Essex Design Guide 2005 which has been
adopted by the Council as SPG. This refers to the increase in visual density from
uninhabited landscape to urbanity as a spectrum. Within this spectrum very low
densities can create the illusion of a residential environment in a rural area, with
landscaping used to structure space. Further along the spectrum, at densities
above 20 dph, the enclosure of space is more or less achieved by continuous
building frontages: ‘these are the type of groupings characteristic of historic towns
and villages in Essex’, including the historic cores of Manningtree and Mistley.
41. There is no reason why the appeal scheme could not produce a high quality living
environment. The site is of sufficient scale to establish a series of ‘character
areas’, as described in the Design and Access Statement 2017 (DAS). This
illustrates that from the low density rural edge, the structure could become
progressively tighter and more formal, culminating in a ‘village square’, which
would have a more concentrated urban character. This approach is supported by
the LCA advice which analyses the traditional settlement structure for the Bromley
Heaths area. It advises that areas of new residential development should
generally be closely related to existing settlements, and that there may be
opportunities to re-create village greens as a focus for development.
42. The mixture of dwelling types proposed, with some height variation, would support
the creation of variety and interest in the streetscene. The quantity of dwellings at
2.5 storeys would increase compared to the permitted scheme (from 13 to 57),
and I am aware that there will not be any dwellings above 2 storeys on the
Lawford Green site. However, these taller buildings would be positioned centrally
in accordance with the Storey Heights Parameter Plan, with limited visibility in the
wider area. Furthermore , my view is that if effectively deployed, the moderate
number of higher buildings could add structure and legibility to the layout. Whilst
some corner buildings appear as three storeys in the 3D model view, and indeed
reference is made in the DAS to 3 storey buildings, this plan is for illustrative
purposes only and, should the appeal be allowed, would not be binding on future
reserved matters applications.
43. From within the developed area the appeal proposal would have a different, more
urban character, and would be busier and noisier in comparison with both the
permitted development and Lawford Green. However, this would be a spin-off of
seeking to make the most efficient and effective use of a greenfield site. Given
that it would be unreasonable to regard the whole site area as edge of settlement,
there is nothing before me to indicate that this would be fundamentally
unreasonable or harmful. This must be seen in the context of the SPG which
demonstrates that higher densities can be accommodated whilst creating attractive
pedestrian scale environments with a strong sense of place. Furthermore, the fact
that policy supports higher density development cannot be ignored.
Conclusion on character and appearance
44. I have found that the introduction of the proposed 185 additional dwellings must
be seen in the context of the character and appearance of this area undergoing
significant change as part of the proposed extension of the settlement. This
includes the introduction of employment development to the south, in what is
currently an open and highly visible location. I conclude that, when the gross
effects of the appeal scheme in comparison with the permitted scheme are
considered, there would be no significant increase in landscape harm arising from
its development over that already permitted. The open space and planting would
enable effective mitigation of the development and enhancement of the landscape
setting. In this regard there would be no conflict with saved Policy QL9, whose
provisions are also contained in eLP Policy SPL3, which requires new development
to make a positive contribution to the quality of the environment and protect or
enhance local character. Nor would there be conflict with saved Policy EN1 which
requires that the Districts landscape and distinctive character be protected and
where possible enhanced.
45. I have also found that in visual terms there would be no significant increase in
visual intrusion, save for some upper level views for the occupiers of the care
home and properties in the north eastern corner of the site. On balance, this
minor harm would not be sufficient to undermine the acceptability of the scheme in
landscape and visual terms. The proposal would therefore not be in conflict with
other relevant aspects of saved Policy QL9, including that development should
respect or enhance views, skylines, landmarks, open spaces and other locally
important features. The changes to Dead Lane would be in conflict with that part
of saved Policy EN1 which seeks to protect the traditional character of rural lanes.
However, this change must be seen in the context of the proposed eLP extension
of the settlement boundary, and eLP Policy SAE2. On balance it is acceptable.
46. Insofar as it is possible to assess this outline proposal, I am satisfied that a high
quality scheme that responds to its context could be achieved. I have recognised
that in parts the appeal scheme would be of considerably higher density than those
accepted in recent developments nearby, and indeed the permitted scheme.
However, the policy imperative to use land efficiently has been highlighted.
47. Furthermore, appropriate densities could be achieved by following the tried and
tested design principles found in towns and villages throughout Essex. In this
sense the scheme would accord with the requirement of saved Policy QL9 that
development should relate well to its site and surroundings. It would also clearly
accord with paragraph 127 of the Framework, which sets out that planning
decisions should ensure that developments ‘are sympathetic to local character and
history, including the surrounding built environment and landscape setting, while
not preventing or discouraging appropriate innovation or change (such as
increased densities)’.
48. I conclude that, on balance, the appeal proposal would not have an unacceptably
harmful effect on the character and appearance of the area, when assessed
against the most important policies for determining this matter.
Affordable Housing
49. The need for affordable housing in both the District and the more immediate area
of Mistley has increased in recent times, and is acute. As of 1 October 2019, there
were 330 households on the Housing Register, increasing from the 102 households
noted on the decision notice issued in January 2018. Across the District there are
2,033 households on the Register. Around 75% of these require 1 or 2 bedroomed
units. Of the 1000 or so units approved in the Manningtree, Lawford and Mistley
area over the past 5 years around 6-7% are affordable units. The provision of
affordable housing from new development has therefore been limited.
Policy provisions
50. Saved Policy HG4 requires up to 40% of new dwellings on new residential schemes
of 5 or more units to be provided as affordable housing. However, it is common
ground that this requirement is out of date. As the provisions of saved Policy HG4
do not reflect the Framework and National Planning Practice Guidance (NPPG)
requirement for development plan policies relating to such contributions to be up
to date, with provision for viability assessment where justified by the appellant, I
do not disagree. Emerging Policy LP5 of the eLP is referred to in the reason for
refusal. This sets out that for developments involving the creation of 11 or more
(net) homes the Council will expect 30% of new dwellings to be made available as
affordable or council housing, subject to viability testing.
51. The Framework supports the provision of affordable housing in areas where need is
identified. It requires that plans set out the contributions expected from
development, with the NPPG advising that this should be informed by a
proportionate assessment of viability, including collaborative work with
stakeholders.4 Emerging Policy LP5 has been informed by the Economic Viability
Study (EVS), authored in part by the Council’s viability witness, which has been
prepared in line with the guidance. However, Section 2 of the eLP has not yet
been subject to the scrutiny required in order to conclude on soundness. There is
no evidence before me on the extent of unresolved objections.
52. The extant approval provides for 18 dwellings to be ‘gifted’ to the Council. The
appellant initially provided for the appeal scheme to retain the 18 gifted units and
for 30% of the additional 185 units to be affordable, that is 55 units (73 units in
total). This has subsequently been amended, with the UU providing for 73
affordable units in line with the Council’s current preference for affordable units.
This would provide for 15% affordable housing overall.
53. The term ‘net’ in eLP Policy LP5 is not defined. A reasonable approach to take
would be to assume that a ‘gross’ figure would include existing dwellings on a site,
which may or may not be demolished, to identify the net figure. In this case,
whilst there is an extant approval on this site which the parties agree is the
fallback position, this remains unimplemented. Whilst it is highly likely that this
scheme will proceed if the current appeal fails, there is no guarantee that it will.
4 NPPG: Paragraph: 002 Reference ID: 10-002-20190509
As the appeal scheme is substantially different from the extant approval, it was
necessary for a discrete and separate application for 485 dwellings to be
submitted. It is therefore appropriate that the scheme be considered afresh,
including its policy consistency.
54. The views on this point expressed by the housing officer, and repeated by the
planning officer in the Officer Report, appear to support the appellant’s view that a
reasonable approach would be to apply the 30% requirement to the net additional
dwellings above the permitted 300. I do not agree with this approach. I am also
aware that the Council has referred to the ‘additional’ dwellings when considering
the effect on character and appearance. However, this was purely to differentiate
the permitted and proposed schemes.
55. In summary, whilst saved Policy HG4 is out of date, emerging Policy LP5 has not
progressed very far. Therefore, the Council is without an up to date affordable
housing policy. Nonetheless the main parties have undertaken assessments of the
viability of the scheme against the eLP Policy LP5 requirement for 30% affordable
housing. The Framework paragraph 122 allows for decisions to take into account
local market conditions and viability. Paragraph 57 further clarifies that the weight
to be given to viability assessments is a matter for the decision-maker, having
regard to the circumstances of the case, including whether the plan is up to date.
In these circumstances the site-specific viability assessments submitted by the
parties assume a greater significance.
Viability testing
56. The NPPG sets out that viability evidence should assess whether a site is financially
viable, by looking at whether the value generated by a development is more than
the cost of developing it. This includes looking at the key elements of gross
development value, costs, land value, landowner premium, and developer return.
For the viability assessment of a specific site or development, market evidence
(rather than average figures) from the actual site or from existing developments
can be used. The assessment of costs should be based on evidence which is
reflective of local market conditions.5
57. Starting with the benchmark land value (BLV), the NPPG states that this should be
established on the basis of the existing use value (EUV) plus a premium for the
landowner6. EUV should be informed by market evidence of current uses, costs
and values. The premium to the landowner should provide a reasonable incentive
to bring forward the land, while allowing a sufficient contribution to fully comply
with policy requirements. Additionally, an alternative use value (AUV) can be used
in establishing the benchmark land value, providing that this fully complies with up
to date development plan policies. This valuation includes the premium to the
landowner.7
58. Initially, the parties set out in the original viability SoCG that the residual value
generated by the permitted scheme was the accepted minimum BLV for assessing
the viability of the appeal scheme. This fits with the criteria for AUV. It appears a
reasonable position to take given it relates specifically to the appeal site, and a
fully costed, consented and presumably viable scheme. This gives a BLV of
5 NPPG: Paragraph: 012 Reference ID: 10-012-20180724
6 NPPG: Paragraph: 013 Reference ID: 10-013-20190509
7 Ibid: Paragraph: 017
£10,471,000 using the Council’s median build costs and £5,502,624 using the
appellant’s mean build costs.
59. The appellant’s more recent suggestion is that the more generalised BLV data for
Manningtree and Rural North taken from the as yet untested EVS should be used
as an alternative starting point. This provides an estimate of the lowest values
that landowners may accept, and gives a BLV of £0.44m per gross ha for large
strategic sites over 20ha. On this basis the lowest BLV for the site would be
£10,322,400. However, the EVS is not intended to be used for individual scheme
appraisals. Overall, the AUV is preferred as it is based on actual market evidence
rather than the average figures presented in the EVS.
60. Turning to the disputed appraisal inputs, the two main points of disagreement
relate to build costs and affordable housing values. Starting with build, or
construction costs, (BC), the NPPG refers to these being based on appropriate
data, for example that of the Building Cost Information Service (BCIS). Both
parties have used BCIS data, though from the four indices available (lower
quartile, upper quartile, median and mean), the Council has preferred the BCIS
median cost for estate housing generally, whilst the appellant uses the BCIS mean
costs for estate housing generally and estate housing detached. The updated
SoCG Table 5.1.1 indicates figures of £1,261m2 and £1,404m2 respectively for
BCs. However, within their viability evidence the witnesses refer to having used
higher figures in their most recent viability testing (the Council £1,465m2,
‘excluding external works’; and the appellant £1,750.76m2, apparently including
‘externals’). Such inconsistencies have made it difficult to draw anything but the
most general of conclusions.
61. Median BC were used by the Council’s witness when producing the EVS. However,
the Council also argues that for a site of this size BC could be lower, and closer to
the lower quartile, because of the economies of scale that larger developers can
achieve. The Council’s evidence to support the view that for a site of this size the
mean rate is too high relates to an independent analysis of the costs associated
with a 4,000 dwelling urban extension at Cranbrook, Devon, dated 2018.
However, due to differences in infrastructure costs, it is difficult to undertake a like
for like comparison with the appeal scheme, nor can this study be assumed to
reflect local market conditions.
62. The Council also refers to evidence of BC from the projects analysed for BCIS
report for the Three Dragons8. As a starting point, as this report relates largely to
social housing, its relevance is not clear. Whilst there is limited evidence before
me on this point, it is reasonable to assume that BC associated with social housing
in general would be lower than market housing, as the emphasis is on building for
durability rather than marketability. Looking at the 15 year sample from 2003, at
table 810.1, sampling ‘estate houses generally’, the BC are considerably lower
than the median average of £1,206m2, once schemes are over 10 dwellings.
However, in table 810, sampling ‘mixed developments (houses and flats)’, which
better reflects the nature of the development proposed here, the median and
mean BC actually increase for schemes of above 101 units in comparison with
smaller schemes (of 51-100 units).
63. The reasons for these fluctuations in BC’s are not clear from this evidence.
However, it does not demonstrate that larger sites have lower BC. Overall the
Council’s evidence on BC is not convincing.
8 ‘Housing Development: Effect of number of dwellings on construction costs’ 12 March 2018
64. The parties agree that, whilst at outline stage, the quality of design and materials
envisaged for the appeal scheme, as set out in the DAS, would be above average
quality when compared with the standard designs typically used by volume
housebuilders. As such the appellant has favoured the use of the somewhat
higher mean BC. Evidence in support of this assumption is correspondence with
the builder of the adjacent Lawford Green site, which refers to an ‘all up’ BC,
presumably including external works, in excess of £1,755m2. This email evidence
is informal in nature and unsubstantiated, unlike the verified cost consultants
report produced for the Cranbrook development. However, taken at face value, it
is reasonable to assume that it is reflective of local market conditions, and up to
date. The appellant also illustrates how in terms of quality the appeal scheme is
comparable to Lawford Green. This evidence therefore carries at least modest
weight, and the appellant’s case for the use of mean build costs is the more
compelling.
65. Turning to affordable housing values (AHV), the parties have referred to the RICS
Guidance on this matter.9 This advises the use of either a cashflow valuation, using
a series of inputs to calculate what a registered provider (RP) could afford to pay
for the affordable housing on offer, or actual transactional data as evidence of
what an RP is prepared to pay within the specific area. The latter method is
preferred as it should be most reflective of local market conditions, and this is the
basis of the viability evidence set out in the updated SoCG. As such, I appreciate
that the debate around net rent capitalisation is of little substance.
66. The Council’s evidence on AHV was based initially on consultation with RP’s across
the Tendring area, and subsequent consultation specifically with two RP’s working
in the Colchester Broad Rental Market Area (BRMA). In response to requests for
comments on the assumptions made about AHV in the Tendring area, the RP’s
provided figures equating to £2,033m2 and £2,223m2. These appear to be based
on recent offers, or possible offers within the BRMA. Therefore, whilst not actual
transactional data and lacking in detail about basic assumptions around timing and
delivery, it is reasonable to assume that this is generally reflective of local market
conditions. On this basis the Council suggest an AHV of £2,111m2.
67. The appellants evidence on AHV was based initially on a cashflow valuation figure.
Updated evidence is based on two recent transactions from within the BRMA which
equate to £1,891.67m2 and £1,658.88m2. Additionally, a recent offer from a RP
for the purchase of the affordable housing in the appeal scheme suggests a value
of £1,850.24m2. Details of the basis of this offer are not provided, and the parties
disagree about whether such an introductory offer would be likely to go up or
down with subsequent negotiations. Nonetheless, my view is that the actual
transactional data provided by the appellant, whilst limited, is nonetheless
credible. The appellant has suggested an AHV of £1,850m2 which, based on the
evidence before me, appears to be the most soundly based figure and therefore
one which I prefer for use in the appraisals.
68. The remaining disputed inputs are profit on affordable housing and sales legal
fees. They have considerably less significant impact on appraisal results. With
regards profit on affordable housing, the NPPG refers to developer returns on GDV
of 15-20% on market housing, though suggests that a lower figure may be more
appropriate for affordable housing because of the lower risks associated with its
delivery, without indicating what this percentage might be.10 There is no
9 RICS Guidance Note ‘Valuation of land for affordable housing’ April 2016
10 NPPG: Paragraph: 018 Reference ID: 10-018-20190509
suggestion that this figure should relate to costs rather than GDV. I therefore
prefer the appellants approach.
69. With regards to sales legal fees, the parties disagree on whether or not this cost is
wrapped up in sales fees, though the evidence on this point is limited and it has
less financial consequence overall. It was also suggested by the Council that the
agreed SoCG infrastructure cost figure of £17,000 is actually ‘on the high side’.
However, as the evidence on this point is not clear, my view is that there should
be no further adjustments.
70. Whilst overall I have found the evidence presented by both parties to have
limitations, the appellant’s BC and AHV values appear to be the most soundly
based and reasonable. The appraisal results set out in Section 7 of the updated
SoCG indicate that if the appeal scheme were to proceed on this basis, and the
‘Proving Plan 2’ mix submitted with the application, only the option providing 73
(15%) affordable units would be close to the residual land value, accepted by the
parties as the minimum BLV. Based on this mix the appeal scheme could not
viably support 30% affordable housing.
71. An alternative ‘Mix 3’ is suggested by the Council, based on the two reserved
matters applications submitted for the permitted scheme. This seeks to
demonstrate that, even when the appellants inputs are used, the scheme could
viably deliver 30% affordable housing. However, as I have noted, the permitted
scheme contains markedly more larger dwellings and commensurately fewer small
units. As a result Mix 3 would require a further increase in the quantum of built
coverage of the site. Such modifications could generate a scheme which, based on
the appellants inputs, would viably support 30% affordable housing. However, the
suggested change to mix would require alterations to design parameters which
would go much further than ‘tweaking’ the scheme. There is no evidence before
me to demonstrate that, in design terms, such a scheme could be satisfactorily
accommodated on site.
72. Furthermore, the Proving Plan 2 mix has some correlation with the housing
requirement set out in the SHMA. For owner occupation, this is set out in the
supporting text for eLP Policy LP1 as 10.3% one bed, 31.5% two bed, 33.3% three
bed and 24.8% four or more beds. Mix 3, with no one bedroomed units, 18% two
bedroomed units, 41% three bedroomed units and 35% four bedroomed units
does not reflect the SHMA profile. The fact that other permitted schemes have
differed from the SHMA does not support this case. Furthermore, whilst achieving
30% affordable provision may be a higher priority for the Council than a SHMA
compliant mix, in the present case there is no basis for seeking to impose an
affordable housing requirement in relation to a housing mix that has not been
proposed, and which clearly goes beyond suggested design parameters.
73. To conclude, I have agreed that the requirements of saved Policy HG4 are out of
date. However, this remains the statutory development policy against which such
proposals should be determined. The implications of the non-compliance of the
scheme with these provisions are considered in the planning balance section
below.
74. As eLP Policy LP 5 has not been tested at examination it is afforded modest weight.
However, the Framework and NPPG allow for viability testing. Based on my
assessment of the viability evidence I conclude that the scheme would not be able
to viably support any more than 15% affordable housing overall, and therefore
that sufficient provision for affordable housing would be made.
Other Matters
Housing supply
75. The adopted LP does not make allowance for meeting housing need beyond 2011
and in this respect is out of date. The parties have agreed that the Council cannot
demonstrate a five year supply of housing land when this is assessed using the
standard method (SM). The SM gives a requirement of 863 dwellings per annum
(dpa) and, with the required 20% buffer, a five year requirement of 5,178
dwellings. On this basis the Council calculates that it has a 4 year supply. The
Inspector in the recent Lawford decision11 found the supply to be 3.7 years.
Detailed evidence on this point is not before me. However, with either figure, the
shortfall is significant.
76. The Council presented detailed evidence on what are considered to be errors in the
2014 based official population projections, specifically relating to ‘unattributable
population change’ (UPC). An OAN of 550 dpa is being considered as part of the
eLP examination. This suggests a current supply of 5.4 years. The interim
findings of the eLP examining Inspector indicate that the ultimate housing
requirement figure may be less than that generated by the SM. The Framework
paragraph 60 does allow for strategic policies to be informed by ‘exceptional
circumstances’ during the examination process. However, the examination has not
concluded, and the eLP is some way off adoption.
77. The Framework paragraph 73 sets out that where strategic policies are more than
five years old, local housing need should be calculated using the SM. Therefore,
whilst I agree that the evidence relating to UPC may be compelling, for the
purposes of this appeal the primary consideration is the housing requirement
established by the SM.
78. Inspectors have approached the situation in Tendring, and other areas where UPC
has been raised as an issue, in different ways. A number of the decisions referred
to by the Council pre-date the changes made to the Framework and NPPG
clarifying the circumstances for deviating from the SM. I therefore attach limited
weight to them.
79. More recently, some Inspectors have supported the Council’s position in the
present case that, whilst the SM should be used to assess housing land supply,
thereby engaging paragraph 11d) of the Framework, the facts around the OAN are
a material consideration for the weight to be attached to the extent of the housing
shortfall. However, this could temper the emphasis given to the Government
priority of significantly boosting the supply of housing, which I do not believe
would be the correct approach to take. I will return to this matter in the planning
balance section.
Traffic congestion
80. Whilst not a reason for refusing this scheme, strongly felt local submissions were
made about the effect of the scheme on congestion on Clacton Road and Long
Road, particularly given current traffic volumes en route to Mistley railway station
at rush hour. This was in the context of the pressure on Mistley station as it
effectively serves three settlements, the limited bus services and the volume of
11 APP/P1560/W/18/3201067
additional housing approved in the area recently. The concern is there is likely to
be an increasing reliance on private transport, bringing additional congestion.
81. The appellants transport study12 has assessed the implications for the local road
network. It concludes that, with mitigation, there would not be a significant
impact on the operation of this network. This includes consideration of key
junctions such as the Long Road/New Road/Trinity Road/Clacton Road junction. It
does acknowledge that with the development there could be a rise in queuing and
delays, particularly at the Cox’s Hill mini-roundabout. This is summarised in Table
7.1 which refers to the situation forecast for 2022, including committed
development. However, improvements to this junction are also proposed as part
of the appeal scheme, with carriageway widening on both the Cox’s Hill and Long
Road approaches. On this basis the further modelling set out in Table 7.2
indicates that there could be an improvement in the queuing and delay situation.
Other effects, including on the rail bridge underpass and level crossing on the
A137, were not found to be significant.
82. I understand that works are underway to increase parking capacity at the station,
and that there will be an increase in the number of rail services to accommodate
the increase in demand.
83. I have noted the change in the character of Dead Lane, and recognise that this
route is presently used by cyclists. However, there is no evidence before me that
this will lead to safety issues.
84. More generally, the site is within reasonable cycling and walking distance of some
local facilities such as schools and the station. The use of sustainable transport
means could be encouraged by ensuring that on site provision is well integrated
with such local facilities. Overall, I find no reason to reject the professional
assessment and conclude that on the balance of evidence the increased post-
development traffic would not have an unacceptable impact on highway safety.
Local services
85. Recognising that significant new development has already been permitted and is
underway in the local area, there is concern about the capacity of local services to
accommodate further development on this scale. Limited information is before me
on the cumulative effects of development in the locality. However, the area is
proposed as a ‘Smaller Urban Settlement’ in the eLP, characterised as having a
range of infrastructure and facilities in which it is possible to deliver sustainable
housing growth on a large scale. More specifically the UU would provide funding to
mitigate the effects of development on the capacity of early years, primary and
secondary school provision. Similarly, additional funding would be provided for
healthcare provision. Subject to this mitigation, there would not be an
unacceptable impact on local infrastructure and services.
European sites
86. The appeal site is located around 0.8km away from the Stour and Orwell Estuaries
Special Protection Area (SPA) and Ramsar site, around 11.5km from the Essex
Estuaries Special Area of Conservation (SAC) and around 11.5km from the Colne
Estuary SPA and Ramsar site. These European sites are afforded protection under
the Conservation of Habitats and Species Regulations 2017 (the Regulations). The
12 Journey Transport Planning, July 2017
Regulations require that the competent authority may agree to the plan or project
only after having ascertained that it will not adversely affect the integrity of the
European site. This requires consideration of whether the proposal would have an
effect on the qualifying features of the site, either alone or in combination with
other plans and projects. Where the potential for likely significant effects cannot
be excluded, an appropriate assessment of whether the plan would affect the
integrity of a European site must be undertaken.
87. In this case the appellant’s Habitat Regulations Assessment Report13 (HRA)
identifies the habitat types and species for which the Europeans sites are
protected. The qualifying features of the Stour and Orwell Estuaries SPA are under
the Birds Directive for internationally important populations of birds, internationally
important numbers of migratory species and significant waterfowl assemblage.
The Ramsar sites qualifying features are invertebrate fauna and nationally scarce
plants, overwintering bird assemblages of international importance and bird
species/populations of international importance. The SAC includes a number of
important habitats: for example, estuaries with unusual marine communities,
mudflats and sandflats. The Colne Estuary SPA supports internationally important
breeding and overwintering bird populations and assemblages. The Colne Estuary
Ramsar site is also important due to the extent and diversity of saltmarsh present.
88. The conservation objectives for the two SPA’s are to ensure that the integrity of
the site’s are maintained and restored as appropriate, and to ensure that the sites
contribute to the aims of the Birds Directive. This is achieved by maintaining and
restoring the extent and distribution of habitats, including their structure and
function, supporting processes on which the habitats rely, as well as the
populations of each of the qualifying features. The environmental conditions
required to support these objectives include low levels of disturbance for both
breeding and over-wintering birds, unpolluted intertidal habitats for bird feeding
and the maintenance of the current hydrological system.
89. Given that the Stour and Orwell SPA and Ramsar are the closest to the site, the
HRA has assumed that the effect of the development on these sites will also cover
any likely adverse effects on the other protected sites. I agree that this is a
reasonable approach to take. The proposal would not directly result in the loss of
habitats associated with the designated sites. However, given the proximity of the
appeal site to the SPA and Ramsar, the risk or possibility of significant effects in
terms of hydrological systems and recreation disturbance cannot be ruled out. I
am therefore required to undertake an appropriate assessment.
90. A development of this scale could lead to the disturbance of hydrological systems
through waste water and flooding, both during construction and subsequently.
The surface water drainage system would discharge into a nearby off-site
watercourse. This could affect water quality and therefore habitats further
downstream, giving the potential for significant adverse effects on hydrological
systems.
91. Measures to ensure the quality of drainage water would be unlikely to affect
habitats further downstream would need to be included, including trapped road
gullies and a catch pit upstream for debris. Whilst the proposal has been assessed
as having low flood risk, the connection of the foul drainage system to the public
network could increase flood risk. Off-site storage is therefore proposed in two
13 D F Clark Bionomique Ltd, 22 March 2018
locations to the west and north of the site. On this basis the drainage design is
unlikely to have a significant adverse effect on hydrological systems.
92. The Essex Coastal Recreational Disturbance Avoidance and Mitigation Strategy
2018 (RAMS) identifies that housing and population growth is likely to increase the
number of visitors in sensitive coastal areas, creating the potential for impacts
from increased recreational disturbance of birds and their habitats, unless
adequately managed. The appeal site is located within the likely ‘zone of influence’
for recreational disturbance within the Habitats Regulations Assessment work
undertaken for the eLP. The HRA refers to visitor surveys in 2012 which identified
an increase in visitor numbers to the Stour Estuaries, with the key reasons for
visiting being walking and dog walking. Restricted access to much of this area
means that disturbance is largely limited to the foreshore.
93. Given the potential for further recreational disturbance from the future occupants
of what would be a significantly sized development, I cannot conclude that there
would be no adverse effects on the integrity of the European sites. Mitigation
measures to address the potential for recreational disturbance are proposed. The
scheme would include 4.4ha of public open space, approximately 20.5% of the site
area. This would comprise public footpaths, cycleways and various green spaces.
A suggested condition is that a more detailed on-site Recreational Disturbance
Avoidance and Mitigation Strategy would be submitted to and approved by the
Council, with details of how each phase of development would deliver this in
advance of the first occupation of each phase. This would ensure the provision of
alternative on site recreation facilities prior to the occupation of the site. It is
distinct from the provision in Schedule 3 of the UU which would secure the transfer
of the freehold interest of the open space to the Council, along with future
maintenance arrangements.
94. The UU includes provision for £122.30 per net additional dwelling as a contribution
towards the RAMS. This is required for the overall ‘in combination’ mitigation
package identified. Offsite mitigation measures will focus on management
activities and behavioural change to help to control visitors to protected sites, and
in doing so will help to reduce the adverse effects associated with recreational
disturbance. The Essex Coastal RAMS Supplementary Planning Document (SPD)
will provide a formal county-wide mechanism for securing developer contributions
to fund the measures identified in the RAMS. Whilst the SPD has not yet been
adopted by the Council, Tendring and other Essex authorities have begun to collect
these contributions.
95. Natural England (NE) was consulted at the application stage. Their conclusion was
that based on the information provided in support of the application, and with the
inclusion of conditions, the proposal would be unlikely to have a significant effect
on the Stour and Orwell Estuaries SPA and Ramsar site, the Essex Estuaries SAC
or the Colne Estuary SPA and Ramsar site. On this basis NE have no objections.
This is based on consideration of on-site mitigation measures, and with a
contribution towards the RAMS as the mechanism for mitigating ‘in combination’
impacts. Based on my assessment set out above, I agree with NE’s conclusions.
96. Overall, having considered the suggested mitigation measures and the advice of
NE, I am satisfied that these measures could be secured and that they would be
effective in addressing the level of harm likely to be caused by the development.
On this basis the proposal would be unlikely to have significant effects on
designated sites, either alone or in combination with other plans or projects.
Planning obligation
97. The Council has provided a CIL Regulation Compliance Statement which sets out
the policy basis for each of the UU covenants, and their compliance with
Regulations 122 and 123 of the CIL Regulations. The affordable housing provision
would not meet the rate of 30% sought by eLP Policy LP 5, which is now seen as
the likely maximum viable level and justifies departure from LP saved Policy HG4.
Nonetheless this is subject to viability testing, following which I have found that
the requirements of eLP Policy LP 5 would be met.
98. The contribution towards healthcare would allow local services to respond to the
demand arising from the development, in accordance with LP Policy QL12 and eLP
Policy HP1. Contributions towards early years learning, childcare, primary and
secondary education provision are justified by reference to LP Policy COM 26 and
eLP Policy PP12. A contribution towards highway improvements is justified by
reference to LP Policy TR1 and eLP Policy CP2. The provision of open space and
the need to secure its future management is in accordance with LP Policy COM6
and eLP Policy HP5. The financial contribution towards mitigating the effects of
the development on nearby SPA/Ramsar/SAC sites is as required by the
Regulations.
99. I am satisfied that each of the covenants would be fully supported by policy and
would meet the tests for obligations set by Regulation 122(2) and echoed by the
Framework, in that they would be necessary to make the development acceptable
in planning terms, would be directly related to the development, and would be
fairly and reasonably related to it in scale and kind. I am also satisfied with the
form and drafting of the Section 106 UU and can therefore take the obligations into
account as material planning considerations.
Planning Balance
100. I have found that the proposal would not have an unacceptably harmful effect
on the character and appearance of the area. It therefore accords with the most
important development plan policies in this regard. I have also found that, having
considered the viability evidence, the proposal would make adequate provision for
affordable housing. However, this provision would not meet the higher test of
saved Policy HG4, which the parties agree is out of date, nor the requirements of
eLP Policy LP5 to which I attach modest weight. Nonetheless the scheme falls to
be determined in accordance with the development plan, unless material
considerations indicate otherwise.
101. As the Council cannot demonstrate a five year supply of housing land the
Framework paragraph 11d) requires that, in the circumstances of this case,
permission should be granted unless any adverse impacts of doing so would
significantly and demonstrably outweigh the benefits, when assessed against the
policies in the Framework taken as a whole. In this case a social benefit would be
the provision of 485 new dwellings, 185 more than the permitted scheme. Even if
I were to accept that the facts around OAN should temper the weight attached to
the provision of new housing, in the light of Government policy to boost housing
supply this would remain a significant benefit. There would also be 73 affordable
units, which in the context of continuing unmet need would be a very significant
benefit. There would be economic benefits through the 2ha of employment land,
and the site would provide a significant level of employment during the
construction period. In the longer term, future residents could be expected to be
economically active and to contribute to the support of local businesses and
services.
102. The potential ecological enhancement measures proposed, the provision of
greater than minimum areas of open space and green infrastructure, and
pedestrian facilities, would represent moderate environmental benefits. Given the
findings on the main issues in this case, there are no adverse effects that would
significantly and demonstrably outweigh the benefits, when assessed against the
policies of the Framework taken as a whole. Therefore, the Framework balance
provides an important material consideration that indicates support for a decision
other than in accordance with the adopted development plan.
Conditions
103. The suggested schedule of conditions was discussed at the inquiry and a
number of amendments made. I am satisfied that the conditions now set out in
the schedule annexed to this decision are necessary to make the development
acceptable and meet the tests set out in the Framework.
104. The conditions relating to the submission of reserved matters and
commencement of development are standard. The identification of the approved
plans is necessary to confirm the extent of the development and the location and
form of the approved access points. A condition requiring the submission of a
Phasing Plan is required to enable the development to be delivered in phases. This
is required before development commences to ensure clarity about the extent and
quantum of development in each phase.
105. A Construction Method Statement is required to protect the living conditions of
the occupiers of nearby residential properties and the surrounding area, and in the
interests of highway safety and environmental protection. The Statement is
required prior to the commencement of development to ensure that measures are
in place to safeguard the amenity of the area prior to any works starting on site.
106. A programme of archaeological work is justified to enable the proper
investigation and recording of the site, which is potentially of archaeological and
historic interest. The implementation of the agreed programme of works is
required prior to the commencement of development to ensure that any
archaeological interest is recorded before construction works start.
107. The approval and implementation of a surface water drainage scheme, and the
approval and implementation of ongoing maintenance arrangements, are
necessary to ensure the satisfactory drainage of the site and to prevent flooding,
including onto the highway, which otherwise could lead to highway safety issues.
A scheme to minimise the risk of off-site flooding during construction works is
required for similar reasons. A foul water strategy is also required to prevent
environmental and amenity problems. Failure to provide the information required
by these conditions before commencement of development could result in the
installation of a system that is not properly maintained and could increase flood
risk and pollution from the site.
108. A condition relating to the creation of access points, highway improvements, the
provision/improvement of bus stops and a footway/cycleway along Long Road is
required to protect highway safety and allow the efficient movement of
pedestrians, cyclists, public transport and other vehicles in and around the site. A
condition relating to the provision of a Residential Travel Information Pack is also
required to support sustainable travel principles.
109. Whilst landscaping is a reserved matter, conditions are necessary to ensure the
earliest practicable implementation of new planting in the interests of mitigating
the impact of the development on the character and appearance of the local area.
110. A condition relating to the provision of high speed broadband is necessary to
enable opportunities for web-based communication and home working. However, I
have adopted the more flexible wording suggested by the appellant in recognition
of the fact that technological advances may mean that below ground infrastructure
may not be required to support this.
111. A condition requiring an on-site Recreational Disturbance Avoidance and
Mitigation Strategy is necessary to meet HRA requirements. In addition, I have
included a condition relating to electric vehicle charging points to enhance the
sustainability of the development.
112. I have not included the suggested conditions relating to the size and provision
of two car parking spaces per dwelling, or the size of garages, as such detailed
considerations should be part of the reserved matters application. I have not
included a condition relating to the provision and implementation of a Local
Recruitment Strategy as I do not consider this to be sufficiently precise or
necessary to make the development acceptable in planning terms.
Conclusion
113. For the reasons set out above, and having regard to the submitted UU, I
conclude that the appeal should be allowed and outline planning permission
granted, subject to conditions.
AJ Mageean
INSPECTOR
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Tom Cosgrove QC Instructed by the Council’s Solicitor
He called:
Alison Hutchinson MRTPI Director, Hutchinsons
Richard Pestell MPhil MRTPI Director, Peter Brett Associates LLP
Jon Etchells MA BPhil CMLI Director, Jon Etchells Consulting Ltd
Laura Easton MSc CiHCM A s s o c i a t e , T h r e e D r a g o ns
Martin Carpenter BA D irector, Enplan
(Hons) MRTPI
FOR THE APPELLANT:
James Strachan QC Instructed by Strutt and Parker
He called:
Clare Brockhurst BSc F o u n d i n g P a r t n e r , T y l e r G r a n g e LLP
Hons), Dip LA,FLl
Michael Lowndes Senior Director, Turley
Anthony Lee BSc (Hons) MSc Senior Director, BNP Paribas Real Estate
(Econ) MA (TP) PhD MRTPI MRICS
Andrew Butcher Dip TP S e n i or Associate Director, Strutt and Parker
MRTPI
INTERESTED PERSONS:
Cllr Jamie Cambridge Mistley Parish Council
Mr Martin Rayner Local resident
Cllr Alan Coley Tendring District Council
Mr John Hall Local resident
Cllr Valery Guglielmi Tendring District Council, Lawford Parish Council
DOCUMENTS
1 Technical consultation on updates to national planning policy and
guidance. MHCLG, October 2018.
2 Government response to the technical consultation on updates to
national planning policy and guidance. MHCLG, February 2019.
3 Appellant’s opening statement.
4 Opening statement on behalf of the local planning authority.
5 Comments on Highway Impacts. Written statement of Mr John
Hall.
6 Statement of affordable housing on approved sites in
Manningtree, Lawford and Mistley (updated in appellant’s email
evidence 1 October 2019)
7 Updated Statement of Common Ground relating to Viability.
8 Joint Statement on housing density
9 Agreed Plans relating to housing density
10 Additional Proof of Evidence on Viability on behalf of the Council.
11 Letter to PINS from Council including affordable housing
information.
12 Updated CIL Compliance Statement: Council
13 Additional Proof of Evidence on Viability on behalf of the
Appellant.
14 Appellant updated list of suggested planning conditions
15 Dated and signed Planning Obligation by way of Unilateral
Undertaking
16 Appeal Decision APP/P1560/W/18/3201067
17 Appeal Decision APP/A1530/W/18/3207626
18 Letter from Examining Inspector for North Essex Authorities
Strategic (Section 1) Plan, dated 21 October 2019
19 Suggested amendments to Proposed Planning Conditions No 5 and
No.20.
20 Note to Inquiry from Journey Transport Planning relating to
transport matters
21 Closing Submissions on behalf of the Council
22 Closing Submissions on behalf of the Appellant
23 Email response from Council regarding Habitat Regulations and
amended/additional conditions
24 Council Committee Report relating to Essex Coastal Recreational
Avoidance and Mitigation Strategy, 16 July 2019
25 Essex Coastal RAMS Strategy 2018-38
26 Further suggested amendments to Conditions No 5 and 20,
additional suggested conditions relating to Electric Vehicle
Charging points and affordable housing.
27 Appellants response to HRA matters
28 Essex Coast RAMS Draft SPD 2019
29 Appeal Decision and draft Planning Conditions for Grange Road,
Lawford
30 Surface Property (November 2019) Statement on HRA Matters
31 Extract from TDC eLP – Policy PPL4 – Biodiversity and
Geodiversity
Schedule of Conditions
1. The development hereby permitted shall be begun before the expiration of two
years from the date of approval of the last of the reserved matters to be approved.
2. The application for approval of the reserved matters for the development, or any
first phase of development approved in relation to Condition 6 (Phasing Plan), shall
be made to the Local Planning Authority before the expiration of three years from
the date of this permission.
3. The development hereby approved shall be carried out in accordance with the
following approved plans:
a) 162173/A/02 dated 16th May 2016 – Long Road Preliminary Access Arrangement
b) JTP/04814 DR2a dated 17th November 2016 – Clacton Road Access
Arrangement
c) JTP/04814 DR4 dated 7th February 2017 – Employment Area Access and Pedler’s
Corner Improvements.
4. No development shall be commenced on any phase of development as approved
under Condition 6 (Phasing Plan) of this permission until plans and particulars of
"the reserved matters" relating to the appearance, landscaping, layout and scale
for that phase of development have been submitted to and approved in writing by
the Local Planning Authority. The development shall be carried out in accordance
with the approved details.
5. The reserved matters shall be in general conformity with the following parameter
plans:
a) OPA/17006-04b – Landscape Parameter Plan
b) OPA/17006-06a – Density Parameter Plan
c) OPA/17006-07b – Storey Heights Parameter Plan
6. No development shall commence until a Phasing Plan for the application site has
been submitted to and approved in writing by the Local Planning Authority. The
Plan shall identify the proposed physical extent of each phase of development and
approximate quantum of development.
7. No development shall commence on each phase until a Construction Method
Statement has been submitted to and approved in writing by the Local Planning
Authority for that particular phase. The statement shall include:
a) The proposed hours and days of working;
b) Proposals to minimise harm and disruption to the adjacent local area from
ground works, construction noise and site traffic; and
c) Details of a wheel washing facility.
The development shall be carried out in accordance with the Statement so
approved.
8. a) No development or preliminary ground-works for each phase shall commence
until a programme of archaeological trial trenching has been secured and
undertaken in accordance with a Written Scheme of Investigation, which has been
submitted by the applicant, and approved by the Local Planning Authority.
Following the completion of this initial phase of archaeological work, a summary
report will be prepared and a mitigation strategy detailing the approach to further
archaeological excavation and/or preservation in situ, if necessary, through re-
design of the development, shall be submitted to the Local Planning Authority.
b) No development or preliminary groundwork shall commence on those areas of
the development site containing archaeological deposits, until the satisfactory
completion of archaeological fieldwork, as detailed in the mitigation strategy, which
has been signed off by the Local Planning Authority.
c) Following completion of the archaeological fieldwork for any phase of
development, the applicant will submit to the Local Planning Authority a post-
excavation assessment (within six months of the completion date, unless otherwise
agreed in advance with the Local Planning Authority), which will result in the
completion of post-excavation analysis, preparation of a full site archive and report
ready for deposition at the local museum, and submission of a publication report.
9. a) No development shall commence on each phase of the development until a
detailed surface water drainage scheme for the site, based on sustainable drainage
principles and an assessment of the hydrological and hydro-geological context of
the development has been submitted to and approved in writing by the Local
Planning Authority. The drainage scheme shall identify, among other matters, how
the discharge of any surface water onto the highway will be avoided. The scheme
shall be implemented in accordance with the approved details.
b) No development shall commence on each phase of the development until a plan
detailing maintenance arrangements, including who is responsible for different
elements of the surface water drainage system and the maintenance
activities/frequencies, has been submitted to, and approved in writing by the Local
Planning Authority. The scheme shall be implemented and maintained in
accordance with the approved details and the adopting body responsible for
maintenance of the surface water drainage system must record yearly logs of
maintenance which must be available for inspection by the Local Planning Authority
on request.
10.No development shall commence on any phase of the development until a foul
water strategy has been submitted to and approved in writing by the Local Planning
Authority. No dwellings shall be occupied until the works have been carried out in
accordance with the foul water strategy so approved.
11.No development shall commence on any phase of development until a scheme to
minimise the risk of off-site flooding caused by surface water run-off and
groundwater during construction works has been submitted to and approved in
writing by the Local Planning Authority. The scheme shall be implemented in
accordance with the approved details.
12.No occupation of the development, or specific phase of development, shall take
place until the following have been completed, as necessary for each phase, in
accordance with details that shall have first been submitted to and approved in
writing by the Local Planning Authority:
a) A priority junction with right turn lane (with two pedestrian refuge islands) in
Long Road to provide access to the proposal site, in accordance with drawing
162173/A/02 - Long Road Preliminary Access Arrangement. The priority junction
shall have minimum 10.5 metre kerbed radii with dropped kerbs/tactile paving
crossing points, a minimum 6.75 metre access road carriageway with two 3
metre footway/cycleways, pedestrian/cycle refuge island and a minimum 120 x
2.4 x 120 metre clear to ground visibility splay.
b) A priority junction from Clacton Road to provide access to the site, in
accordance with Plan No. JTP/04814 DR2a. The priority junction shall have
minimum 10.5 metre kerbed radii with dropped kerbs/tactile paving crossing
points, a minimum 6.75 metre access road carriageway with one 2 metre
footway and a minimum 120 x 2.4 x 120 metre clear to ground visibility splay.
c) Prior to occupation of the employment land and any access derived from Dead
Lane, an improved junction shall be provided at Pedler’s Corner and
improvements to Dead Lane in accordance with Plan No. JTP/04814 DR4.
d) Improvements at the A137 Coxs Hill/Long Road/Wignall Street mini roundabout
as shown in principle on planning application drawing number JTP/04814 DR3a;
e) To current Essex County Council specification, the provision of two new bus
stops in Long Road or upgrade of the stops which would best serve the proposal
site, details of which shall have been agreed in writing by the Local Planning
Authority prior to commencement of the development; and
f) A minimum 3 metre-wide footway/cycleway along the proposal site's Long Road
frontage.
13.Prior to occupation of any phase of development, the Developer shall be
responsible for the provision and implementation of a Residential Travel
Information Pack for sustainable transport approved by Essex County Council for all
new residential dwellings.
14.All planting, seeding or turfing shown on the landscaping details required to be
submitted and approved under Condition 4 shall be carried out during the first
planting and seeding season (October - March inclusive) following the occupation of
the development or in such other phased arrangement as may be agreed in writing
by the Local Planning Authority.
15.Any trees or shrubs which, within a period of 5 years of being planted, die, are
removed or seriously damaged or seriously diseased shall be replaced in the next
planting season with others of similar size and species, unless the Local Planning
Authority agrees in writing to a variation of the previously approved details.
16.Prior to the occupation of any dwelling, a strategy to facilitate super-fast broadband
for future occupants of the site shall be submitted to and approved in writing by the
Local Planning Authority. The strategy shall seek to ensure that upon occupation of
a dwelling, either a landline or ducting to facilitate the provision of a broadband
service to that dwelling from a site-wide network, is in place and provided as part
of the initial highway works and in the construction of frontage thresholds to
dwellings that abut the highway, unless evidence is put forward and agreed in
writing by the Local Planning Authority that technological advances for the
provision of a broadband service for the majority of potential customers will no
longer necessitate below ground infrastructure. The development of the site shall
be carried out in accordance with the approved strategy.
17.As part of the Reserved Matters to be submitted in accordance with Condition 4, an
on-site Recreational disturbance Avoidance and Mitigation Strategy as outlined in
the Habitat Regulations Assessment by DF Clark (dated 22 March 2018) shall be
submitted to, and agreed in writing by, the Local Planning Authority. The Strategy
shall include:
a) Details of the measures set out below and as necessary to provide suitable on
site mitigation to reduce the frequency of visits to sensitive sites, these being:
a. High quality informal semi-natural areas
b. Measures to provide suitable routes for joggers, cyclists, walkers and dog
walkers
c. Dedicated dog-off lead areas
d. Signage and leaflets to households to promote these areas for recreation
e. Dog waste bins
f. Dedicated areas within which children can play.
b) Details of how each phase or phases of the development will deliver the
Recreational disturbance Avoidance and Mitigation Strategy to mitigate the
impact of the development in advance of first occupation of each Phase or
Phases.
Such measures as approved by the Local Planning Authority shall be carried out in
accordance with the Recreational disturbance Avoidance and Mitigation Strategy.
18.Each dwelling that includes a dedicated parking space shall be provided with a
vehicle charging point, in accordance with Building Regulations. The charging point
shall be provided prior to the occupation of each such dwelling.