Case Reference: 3233973

Our ref: APP/C2741/W/19/3233973
Lizzie Marjoram Your ref: 18/02687/OUTM
Bird Wilford & Sale
ehm@BWSLaw.co.uk
13 May 2020
Dear Madam
TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 78
APPEAL MADE BY [APPELLANT]
LAND AT MOOR LANE, WOODTHORPE, YORK, YO24 2QR
APPLICATION REF: 18/02687/OUTM
1. I am directed by the Secretary of State to say that consideration has been given to the
report of P W Clark MA(Oxon) MA(TRP) MRTPI MCMI, who held a public local inquiry
on 12 – 28 November 2019 into your clients appeal against the decision of City of York
Council to refuse their application for planning permission for 516 residential units, a
Local Centre, a Sports Pavilion and associated infrastructure, the demolition of existing
buildings and structures and creation of an Ecological Protection and Enhancement
Zone EPEZ) and vehicular access arrangements, in accordance with application ref:
18/02687/OUTM, dated 12 November 2018.
2. On 18 September 2019, this appeal was recovered for the Secretary of State's
determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the
Town and Country Planning Act 1990.
Inspector’s recommendation and summary of the decision
3. The Inspector recommended that the appeal be dismissed. For the reasons given
below, the Secretary of State agrees with the Inspector’s conclusions and agrees with
his recommendation. He has decided to dismiss the appeal. A copy of the Inspector’s
report (IR) is enclosed. All references to paragraph numbers, unless otherwise stated,
are to that report.
Environmental Statement
4. In reaching this position, the Secretary of State has taken account of the Environmental
Statement which was submitted under the Town and Country Planning (Environmental
Impact Assessment) Regulations 2011, as well as the Inspector’s comments at IR10,
the Secretary of State is satisfied that the Environmental Statement complies with the
above Regulations and that sufficient information has been provided for him to assess
the environmental impact of the proposal.
Ministry of Housing, Communities & Local Government Tel: 0303 444 1626
Jean Nowak, Decision Officer Email: PCC@communities.gov.uk
Planning Casework Unit
Matters arising since the close of the inquiry
5. The Secretary of State has received post inquiry correspondence from the local MP
Julian Sturdy on behalf of a cross party group of Yorkshire MPs, Philip Davies, Cat
Smith, Julian Smith, Alec Shelbrooke, Stephen Flynn and Rachael Maskel.
6. All the correspondence received raises concerns about the potential harm to Askham
Bog. The Secretary of State is satisfied that the issues raised do not affect his decision,
and no other new issues were raised in this correspondence to warrant further
investigation or necessitate additional referrals back to parties. A list of representations
which have been received since the inquiry is at Annex A. Copies of these letters may
be obtained on written request to the address at the foot of the first page of this letter.
Policy and statutory considerations
7. In reaching his decision, the Secretary of State has had regard to section 38(6) of the
Planning and Compulsory Purchase Act 2004 which requires that proposals be
determined in accordance with the development plan unless material considerations
indicate otherwise.
8. In this case, the City of York has not had an adopted statutory Development Plan since
1956. The Council have approved for development control purposes the City of York
Fourth Set of Changes (Development Management) Local Plan, but this has no
statutory status.
9. Other material considerations which the Secretary of State has taken into account
include the National Planning Policy Framework (‘the Framework’) and associated
planning guidance (‘the Guidance’). The revised National Planning Policy Framework
was published on 24 July 2018 and further revised in February 2019. Unless otherwise
specified, any references to the Framework in this letter are to the 2019 Framework.
Emerging plan
10. The emerging plan comprises the City of York Local Plan, which was submitted for
examination in May 2018 and the examination continues. The policies which parties
consider to be relevant are set out at IR21.
11. Paragraph 48 of the Framework states that decision makers may give weight to relevant
policies in emerging plans according to: (1) the stage of preparation of the emerging
plan; (2) the extent to which there are unresolved objections to relevant policies in the
emerging plan; and (3) the degree of consistency of relevant policies to the policies in
the Framework. The Secretary of State considers that, due to its stage in the
examination process, little weight can be attributed to the emerging local plan. The
Inspector noted that in practice, no party placed much reliance on any of the emerging
plan policies as such; rather, considerable reliance has been placed on the Framework
and the evidence underlying the policies in the emerging plan (IR21).
Main issues
Green Belt
12. Although it is established development plan policy that York should have a Green Belt,
Inspector and the parties that, for the purposes of this appeal, the site should be taken
as forming part of the York Green Belt and that the proposal should be regarded as
inappropriate development within the Green Belt (IR278-282).
13. For the reasons given at IR283-285, the Secretary of State agrees with the Inspector’s
consideration of the potential impact on the openness of the Green Belt at and agrees
that the proposed development would compromise the visual openness of the Green
Belt. He also agrees that the degree of harm caused to the openness of the Green Belt
would be substantial rather than overwhelming; and he considers that substantial weight
should be given to this harm.
Landscape
14. The Secretary of State agrees with the Inspector at IR286-296 that the main issues are
the impact on views of Askham Bog from the north and the effects of the proposed
EPEZ. He agrees with the Inspector that the proposal would bring built form closer to
the Bog but also agrees that isolation is not one of the Bog’s interest features. He notes
that the development would be screened by planting and by the EPEZ (IR287) and
agrees with the Inspector that the proposal would cause little harm to the landscape as
the site is a relatively self-contained element in the landscape while open countryside
would continue to surround York (IR289).
15. However, the Secretary of State agrees with the Inspector at IR292-294 that while the
loss of the site to built development would cause little harm to the landscape, in contrast
the EPEZ would cut across existing hedgerows, drains and landscape features and
would present an abrupt slope to the new bund. He therefore agrees that the EPEZ
would be an alien feature at odds with the existing character of the countryside; and that
it would fail to respect the intrinsic character and beauty of the landscape. He therefore
also agrees with the Inspector’s conclusion that the EPEZ would be inconsistent with
national policy expressed by Framework policy 170(b).
Askham Bog
16. The Secretary of State agrees (IR297) that Askham Bog comprises a precious and
delicate range of habitats that requires continued human intervention to maintain it in a
stable condition, or to restore it to a previous condition.
Water
17. The Secretary of State notes that there is universal agreement that the Bog depends on
water to survive, but disagreement about what effects, if any, the development would
have on the Bog’s water supply (IR298). He agrees with the Inspector at IR299 that,
while urban pollution would be harmful to the Bog, natural filtration prevents pollution in
surface water run-off from reaching the Bog, and there is no reason to disbelieve the
appellant’s assertion that a SUDS scheme could be designed to filter out the pollutants.
18. Having carefully considered the Inspector’s points on groundwater (IR300-308),
permeability (IR309-313), attenuation ponds (IR314-317) and flooding (IR318-319), the
Secretary of State agrees with his reasoning and agrees with his conclusions at IR320-
321, including that the hydrology of the bog is complex and nobody can have absolute
certainty about the source of the Bog’s water supply and the route by which it reaches
the Bog; therefore conclusions can only be presented in terms of likelihood and
probability. He further agrees that the built development itself is likely to have very little
adverse effect but that much more noticeable effects would result from the attenuation
ponds. He particularly agrees with the Inspector’s conclusion that the attenuation ponds
would greatly reduce the contribution that the site as a whole makes to the supply of
base-rich nutrients to the area in the vicinity of Askham Bog Drain and that these effects
would probably cause harm to the interests for which the Bog is cited as an SSSI and to
the deterioration of irreplaceable fenland habitat.
Ecological isolation
19. Having carefully considered the inspector’s discussion at IR322-329, the Secretary of
State agrees that there would be a biodiversity net gain resulting from the development
proposal, and that the EPEZ and the rest of the green infrastructure would be consistent
with the aim of achieving a Green Infrastructure Corridor through the city (IR324). He
further agrees at IR327 that the benefits of the increase in habitat benefiting the greater
number of species relevant to the Bog outweighs the effects of hindering deer
movements, and at IR330 that it would be wrong to think of the built development of this
proposal as presenting an environment that would be sterile to wildlife.
Urban fringe effects
20. For the reasons given at IR331-335, the Secretary of State agrees with the Inspector’s
conclusion at IR334 that unless there are control measures in place, there is a degree
of substance in the fears of damage to the Bog through unauthorised access.
Education, highway safety and other matters
21. For the reasons given at IR336-339, the Secretary of State agrees with the inspector’s
conclusions on these matters.
Very special circumstances
22. The Secretary of State has carefully considered the Inspector’s conclusions on housing,
including affordable housing, at IR340-345 and notes that all parties are agreed that
there is a housing crisis in York and that a five-year supply of housing land cannot be
demonstrated. The Secretary of State agrees with the Inspector at IR342 that the
provision of housing would be a considerable benefit of the proposal. He has also taken
into account that the proposal would provide 35% of the dwellings as affordable units,
above a policy requirement of 30%, and agrees that this has value in terms of national
policy, particularly in the light of the overall deficiency of supply.
23. The Secretary of State agrees with the Inspector’s conclusion at IR346 that the net
biological diversity gain of 80% would be a significant excess over what may become
the policy requirement, and his conclusion at IR347 and IR356 that the open space
provision would be well in excess of the policy requirement and would make a
substantial contribution to the remediation of open space deficiencies in the local area.
He has further taken into account the Inspector’s conclusions on the provision of a local
centre and community facilities (IR348), the clear urban edge (IR349) and the economic
benefits of the scheme (IR350). The Secretary of State’s conclusion on the Green Belt
balance is set out in paragraph 31 below. He agrees with the Inspector that all benefits
should be taken into account in the overall planning balance (IR350), and for the
avoidance of doubt, his conclusion on the Green Belt balance would not be different if,
unlike the Inspector, he had treated all benefits as potentially counting towards very
special circumstances.
Planning conditions
24. The Secretary of State has given consideration to the Inspector’s analysis at IR255-276,
the recommended conditions set out at the end of the IR and the reasons for them, and
to national policy in paragraph 55 of the Framework and the relevant Guidance. He is
satisfied that the conditions recommended by the Inspector comply with the policy test
set out at paragraph 55 of the Framework. However, he does not consider that the
imposition of these conditions would overcome his reasons for dismissing this appeal
and refusing planning permission.
Planning obligations
25. The Secretary of State has had regard to the Unilateral Undertaking dated 8 November
2019, paragraph 56 of the Framework, the Guidance and the Community Infrastructure
Levy Regulations 2010 as amended, as well as the Inspector’s comments at IR238-254
and conclusions at IR321, IR325, IR335, IR336, IR337, IR345, IR347 and IR348. He
agrees with the Inspector’s conclusions about which elements of the planning obligation
are and are not in accordance with the CIL regulations. Overall the Secretary of State
does not consider that the Unilateral Undertaking overcomes his reasons for dismissing
this appeal and refusing planning permission.
Planning balance and overall conclusion
26. Planning applications should be determined in accordance in accordance with the
development plan unless material considerations indicate otherwise. In this instance
there is no development plan.
27. As there is no development plan and a five-year housing land supply cannot be
demonstrated, paragraph 11(d) of the Framework indicates that planning permission
should be granted unless: (i) the application of policies in the Framework that protect
areas or assets of particular importance provides a clear reason for refusing the
development proposed; or (ii) any adverse impacts of doing so significantly and
demonstrably outweigh the benefits when assessed against policies in the Framework
taken as a whole.
28. The Secretary of State has taken into account the benefits of the scheme as set out in
paragraphs 22-23 above in reaching his conclusions. He has also taken into account
the harm to the Green Belt, which carries substantial weight against the proposal and
also the effect of the EPEZ on the landscape, which would be inconsistent with national
policy.
29. Paragraph 175(b) of the Framework states that development on land within or outside
an SSSI and which is likely to have an adverse effect on it should not normally be
permitted. The only exception is where the benefits of the development in the location
proposed clearly outweigh both its likely impact on the features of the site that make it of
special scientific interest, and any broader impacts on the national network of SSSIs.
Paragraph 175(c ) states that development resulting in the loss or deterioration of
irreplaceable habitats should be refused unless there are wholly exceptional reasons
and a suitable compensation strategy exists.
30. The Secretary of State has concluded that the proposal would probably cause harm to
the interests for which Askham Bog is cited as an SSSI and to the deterioration of
irreplaceable fenland habitat. He considers that the benefits of the development do not
clearly outweigh its likely impact, and that there are no wholly exceptional
circumstances which would justify the deterioration of the habitat. The proposal should
therefore be refused.
31. The Secretary of State has gone on to consider the Green Belt balance. He concludes
that the very special circumstances required to justify the development cannot be said
to exist, as the harm to the Green Belt and the landscape, and the probable harm to the
interests for which Askham Bog is cited as an SSSI and the irreplaceable fenland
habitat are not clearly outweighed by other considerations.
32. In the light of his conclusions on the SSSI and the irreplaceable habitat, along with the
Green Belt balance, the Secretary of State considers that there are protective policies
within the Framework which provide a clear reason for refusal. The presumption in
favour of sustainable development therefore does not apply.
33. Overall, the Secretary of State concludes that the appeal should be dismissed and
planning permission refused.
Formal decision
34. Accordingly, for the reasons given above, the Secretary of State agrees with the
Inspector’s recommendation. He hereby dismisses your client’s appeal and refuses
planning permission for 516 residential units, a Local Centre a Sports Pavilion and
associated infrastructure, the demolition of existing buildings and structures and
creation of an EPEZ and vehicular access arrangements, in accordance with application
ref: 18/02687/OUTM, dated 12 November 2018.
Right to challenge the decision
35. A separate note is attached setting out the circumstances in which the validity of the
Secretary of State’s decision may be challenged. This must be done by making an
application to the High Court within 6 weeks from the day after the date of this letter for
leave to bring a statutory review under section 288 of the Town and Country Planning
Act 1990.
36. A copy of this letter has been sent to City of York Council and the Yorkshire Wildlife
Trust, and notification has been sent to others who asked to be informed of the
decision.
Yours faithfully
Jean Nowak
Authorised by the Secretary of State to sign in that behalf
ANNEX A: SCHEDULE OF REPRESENTATIONS
General representations
Party Date
Philip Davies MP 17/02/2020
Cat Smith MP 21/02/2020
Alec Shelbrooke MP 4/03/2020
Rachael Maskell MP 6/03/2020
Rt Hon Julian Smith CBE MP 9/03/2020
Stephen Flynn MP 11/03/2020
Julian Sturdy MP 18/03/2020
Report to the Secretary of State for
Housing, Communities and Local
Government
by P W Clark MA(Oxon) MA(TRP) MRTPI MCMI
an Inspector appointed by the Secretary of State
Date: 10 February 2020
TOWN AND COUNTRY PLANNING ACT 1990
APPEAL BY [APPELLANT]
CITY OF YORK COUNCIL
Inquiry Held on 12-28 November 2019
Land at Moor Lane, Woodthorpe, York YO24 2QR
File Ref: APP/C2741/W/19/3233973
https://www.gov.uk/planning-inspectorate
File Ref: APP/C2741/W/19/3233973
Land at Moor Lane, Woodthorpe, York YO24 2QR
• 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 City of York
Council.
• The application Ref 18/02687/OUTM, dated 12 November 2018, was refused by notice
dated 12 July 2019.
• The development proposed is up to 516 residential units (Use Class C3); a Local Centre
(Use Classes A1-A4, AA, B1a, C3, D1 and Sui Generis Live Work Units); a Sports Pavilion
and associated infrastructure; the demolition of existing buildings and structures and
creation of an ecological protection and enhancement zone, and 4 new principal vehicular
access arrangements.
Summary of Recommendation: The appeal be dismissed.
Costs
1. By letter dated 24 September 2019, the appellant gave notice of a claim for costs
against the City of York Council (CYC) and the Yorkshire Wildlife Trust (YWT).
During the Inquiry and confirmed by e-mail dated 21 November 20191, the
appellant clarified that the letter of 24 September 2019 was only a notice of an
application for costs and not a formal application for costs and that such an
application is not being pursued by the appellant.
Procedural Matters
2. The appeal was recovered for the Secretary of State’s own determination by
direction dated 18 September 2019. The reason for this direction was that the
appeal involves proposals for residential development of over 150 units or on
sites of over 5 hectares, which would significantly impact on the government’s
objective to secure a better balance between housing demand and supply and
create high quality, sustainable, mixed and inclusive communities and proposals
for significant development in the green belt.
3. The Council’s decision lists six reasons for refusal.2 These concern harm to the
Green Belt through inappropriateness and harm to openness, harm to the
Askham Bog SSSI, impacts on education provision, potential for significant
impacts on the highway system and highway safety and harm to landscape
character.
4. A Case Management Conference, as recommended in the Rosewell Report, was
held on Tuesday 1 October 2019.3 During that case conference, the parties
accepted that the main issues in dispute were those suggested by the inspector
as follows;
i. Whether the proposal would be inappropriate development in the Green Belt
having regard to the current National Planning Policy Framework and, if so,
whether any harm by reason of inappropriateness, and any other harm, would be
1 Both letter and e-mail are filed in the yellow folder on the purple case file
2 The decision letter is filed in the buff folder on the purple case file
3 A note of the conference is filed in the blue folder on the purple case file
https://www.gov.uk/planning-inspectorate Page 1
clearly outweighed by other considerations so as to amount to the very special
circumstances required to justify the proposal.
ii. The effect on the openness of the Green Belt.
iii. The effect on the landscape character of the area.
iv. The effect on the Askham Bog SSSI.
v. The effect on the demand for and provision of schools.
vi. The effect on highway safety and the operation of the road network.
vii. The effect on the supply of market and affordable housing.
In the event, the two main parties reached agreement on issues (v), (vi) and
(vii) before the close of the Inquiry.
5. The Inquiry sat on 12, 13, 14, 19, 20, 21, 26, 27 and 28 November 2019 but was
then held open until 13 December 2019 for closing submissions to be made in
writing and for a signed planning obligation to be submitted. An accompanied
site visit took place on 15 November 2019. Unaccompanied site visits were made
on 11 and 29 November 2019.
6. The application is made partly as a full application for the demolition of existing
buildings and structures and creation of an ecological protection and
enhancement zone and partly in outline for up to 516 residential units, a Local
Centre, a Sports Pavilion and associated infrastructure with all matters reserved
except for four vehicular means of access to the site. Details of access within the
site, appearance, landscaping, layout and scale are reserved for subsequent
consideration and so do not fall to be considered within this appeal except in so
far as they are specified within parameters plans, for reasons explained further
below. Drawing RG-M-67 revision A shows the areas of the site for which
detailed approval is sought, although this drawing is listed as illustrative in the
Schedule of Submission Documents.
7. The application was accompanied by an Environmental Statement under The
Town and Country Planning (Environmental Impact Assessment) Regulations
2017. This includes three parameters plans, drawings numbered RG-M-47
revision J, RG-M-49 revision J and RG-M-52, revision C, respectively entitled
Land Use, Building Heights and Demolition Plan. In accordance with decisions of
the courts4, any parameter plan submitted with an Environmental Statement
must be applied by condition, if permission is granted, so as to establish an
envelope within which the detailed design and discharge of reserved matters can
proceed, irrespective of whether or not they would otherwise be required to make
the development acceptable. These matters are therefore included for
consideration within this appeal.
8. Consultee responses to the Scoping Report are included at Appendix 2.2 of the
Environmental Statement.5 Consultee responses to the Environmental Statement
4 R v Rochdale MBC ex parte Tew and Others [1999] 3 PLR 74 and R v Rochdale MBC ex parte
Milne [2000] EHWC 650 (Admin)
5 Document ESD013
https://www.gov.uk/planning-inspectorate Page 2
itself are not distinguished from comments made on the application as a whole.
Copies are included with the Council’s Questionnaire response.6
9. An Environmental Statement Addendum was submitted on 1 August 2019. It
was consulted upon as widely as the original Environmental Statement but this
produced only one response, from the Yorkshire Wildlife Trust.7
10. The Environmental Statement, comments made upon it, the Environmental
Statement Addendum and comments made upon it, form the environmental
information which is required to be taken into account in determining this appeal.
This has been done in writing this report. I am satisfied that the legal
requirements for Environmental Impact Assessment have been met.
11. Although an Environmental Impact Assessment has been required, no potential
adverse effect on a European Site has been identified and so no Habitats
Regulations Assessment is required.
12. Various Statements of Common Ground (SOCG) were agreed before the Inquiry.
They include agreements between the appellant and Highways England on
highway matters, between the appellant and YWT on hydrogeology, between
appellant, CYC and YWT on Ecology, between appellant and CYC on landscape, on
planning in general and on education matters.8 Two further SsOCG were agreed
between the appellant and CYC during the Inquiry, on Housing and on
Transportation and Highways.9 Only those on highways, education and housing
avoided or reduced the necessity of giving evidence during the Inquiry. Matters
of hydrogeology, ecology, landscape and planning in general remained
contentious.
The Site and Surroundings
13. The site and its surroundings are described in numerous places in the evidence.10
It lies adjacent to and south of the suburb of Woodthorpe on the southwestern
extremity of the currently developed area of York, approximately 3.5km from the
centre of the city. It is accessed from Moor Lane which is best described as a
residential distributor road carrying bus routes.
14. The site is approximately 40.05 ha in extent. It is irregular in shape. Its
northern boundary largely follows Moor Lane itself or the rear boundaries of
properties fronting onto the southern side of Moor Lane. It extends along Moor
Lane from its bridge over the East Coast Main Line (ECML) railway at its eastern
end almost as far as existing development on its north side extends at its
western end. Its eastern boundary is the ECML railway from Moor Lane
southwards as far as the Askham Bog SSSI. Its southern boundary is the
6 On electronic file. Paper copies not provided.
7 Filed in the blue folder on the purple case file
8 All the above are filed in a green folder on the purple case file
9 Inquiry documents INQ5 and INQ6
10 Environmental Statement (Document ESD 013), paragraph 1.5, chapter 3, paragraphs
8.60-8.68 and 8.76- 8.78, Technical Appendix 8.1, paragraphs 3.24-3.49, Technical appendix
10.1, section 2; Technical Appendix 14.1 (Transport Assessment), section2; Design and
Access Statement pages 6 and 7; Supporting Planning Statement (Document ESD05a(ii)),
section 2, pages 5ff; Highways Statement of Common Ground with the Council (Document
INQ6), section 2.2
https://www.gov.uk/planning-inspectorate Page 3
boundary of the SSSI itself, following the line of the watercourse known variously
as Holgate Beck or Askham Bog Drain south-westwards until reaching, at its
western end, the eastern boundary of the Pike Hills Golf Course.
15. The western boundary of the site follows a convoluted course around and
excluding other land in the control of the applicant. Initially it abuts the golf
course for a distance of about 125m north-westwards perpendicular to the
Askham Bog Drain, then turning at a right angle passing across open fields in a
north-easterly direction following an arbitrary line parallel to, and at a distance of
about 125m from, the course of the Askham Bog Drain until a point about 15m to
the west of the Marsh Farm Drain. The boundary then turns at a right angle to
travel northwards a short distance until meeting a field boundary. It then turns
westwards and follows field boundaries through Marsh Farm until meeting a track
known as Bog Lane. The boundary then turns northwards and runs along Bog
Lane and the former route of Moor Lane until it meets with the present route of
Moor Lane, enclosing a relatively narrow sliver of land contained between the old
and new alignments of Moor Lane.
16. The major part of the site is generally flat with a gentle slope down to the
Askham Bog Drain from a highest point of about 14mAOD to about 11.5mAOD.
About halfway along the southwestern arm of the site a slight mounding of the
land can be noticed, reflecting an underlying geological feature, resulting in a
slightly more pronounced slope close to the Drain in this location.11 The eastern
end of the site lies beyond the Holgate Beck, is raised, was formerly a landfill site
and is now pastoral. The rest of the site is generally used for arable farming with
farm buildings at its centre and is of limited ecological interest. It is divided into
fields by ditches and hedgerows. Most of the latter are species-rich and so are
classed as important. There is not an abundance of trees and none are the
subject of a Tree Preservation Order.
17. Land to the west of the site is also agricultural, which can be seen to continue
across the A1237 York ring road in the distance. To the north, it is residential,
dating variously from the 1960s, 1970s and 1980s to the present day.12 A 2km
pedestrian catchment from the site includes the following shops, services and
schools: Tesco, Coop Food, several doctors’ surgeries and pharmacies, the
Askham Bar Park and Ride Facility, a Post Office, play facilities, York College,
Copmanthorpe Primary, Woodthorpe County Primary and Dringhouses Primary
schools.13 To the east, beyond the ECML is a Park and Ride bus station and car
park. North of that and abutting Moor Lane is a large superstore, which
proclaims that it was established in 1990. It has its own extensive car park.
Further to the east is modern residential property, both houses and flats, and the
campus of York College.
11 A topographical site survey (drawing 20058 OGL revision 1) can be found at Appendix EDP1
(not to be confused with Plan EDP1) to Technical Appendix 8.5 of the Environmental
Statement and at Appendix B to Environmental Statement Appendix 13.1 (Flood Risk
Assessment)
12 Environmental Statement paragraph 3.14 and Appendix 8.1 paragraph 2.22
13 Supporting Planning Statement (Document ESD05a(ii), page 6, not disputed
https://www.gov.uk/planning-inspectorate Page 4
18. South of the site is the Askham Bog SSSI.14 This has the visual appearance of
woodland and is designated as Ancient Woodland. Beyond it and wrapping
around its western end is the Pike Hills Golf Course. Further south still is the
Tadcaster Road and the A64 trunk road beyond which is the residential
settlement of Copmanthorpe.
19. Some of the site comprises Best and Most Versatile agricultural land. The
majority of the site lies within Environment Agency Flood Zone 1 (less than 1 in
1,000 annual probability of river flooding) but there are areas associated with
drainage ditches on the site which are classified as Flood Zones 2 and 3. Other
than Askham Bog SSSI and Ancient Woodland, other statutory or non-statutory
ecological, environmental or heritage designations within the hinterland of the
site are not significant to the outcome of this appeal.15
Planning Policy
20. The City of York has not had a complete adopted Local Plan since 1956.16 In
April 2005, the Council approved for development control purposes what is
known as the City of York Fourth Set of Changes (Development Management)
Local Plan.17 It was never subject to Examination and so could not be formally
adopted as part of the statutory Development Plan, though the Council still uses
it for development control purposes.18 The emerging City of York Local Plan was
submitted to the Secretary of State for examination on 25 May 2018.19 The
examination continues at the time of writing this report.
21. Paragraph 2.9 of the Council’s report on this case20 lists the policies within the
emerging plan which it considers are directly and most relevant to the
consideration of this proposal. Appendix IV of the appellant’s Supporting
Planning Statement21 appraises the proposal against draft policies of the
emerging local plan. Lists of relevant policies are also given in the appellant’s
14 The citation for Askham Bog SSSI can be found at Appendix 4 of Tom Wigglesworth’s Proof
of Evidence, at Annex EDP1 of Appendix 9.1 (the Baseline Ecology Report) of the
Environmental Statement and as Core Document CD082
15 Environmental Statement, Technical Appendix 8.1, paragraph 2.3, Technical Appendix 9.1,
paragraphs 9.56, 9.65 and 9.66-9.68 and Technical Appendix 10.1, paragraphs 5.26, 5.37-
5.55, 5.56-5.136 and 6.12
16 Appellant’s Statement of Case (Core document CD088) paragraph 4.1 and Supporting
Planning Statement paragraph 5.3
17 Core Document CD004
18 The Council’s report on this application (Core Document CD001) states that “Its policies are
however considered to be capable of being material considerations in the determination of
planning applications where policies relevant to the application are consistent with those in
the NPPF, although the weight that can be attached to them is very limited.” Technical
Appendix 10.1 of the Appellant’s Environmental Statement lists and summarises the following
relevant policies at paragraphs 3.28-3.33; SP3, HE2, HE4, HE9 and HE10. Technical
Appendix 14.1 (Transport Assessment lists and summarises the following relevant policies at
paragraph 4.3.1; T2b, T7c and T13a.
19 Core Documents CD006 and 007
20 Core Document CD001
21 Document ESD05a(ii)
https://www.gov.uk/planning-inspectorate Page 5
Environmental Statement22 and in the Council’s Statement of Case.23 There is a
large degree of agreement;
▪ Draft Policy DP2: Sustainable Development;
▪ Draft Policy DP3: Sustainable Communities;
▪ Draft Policy SS1: Delivering Sustainable Growth for York;
▪ (Council only) Draft Policy SS2: The Role of York’s Green Belt;
▪ (Council only) Draft Policy R1: Retail hierarchy and sequential approach;
▪ (Appellant only) Draft Policy R2: District and Local Centres and Neighbourhood
Parades;
▪ (Appellant only): Draft Policy H1: Housing Allocations;
▪ Draft Policy H2: Density of Residential Development;
▪ Draft Policy H3: Balancing the Housing Market;
▪ (Council only) Draft Policy H4: Promoting self and custom house building;
▪ (Council only) Draft Policy H9: Older Persons Specialist Housing;
▪ Draft Policy H10: Affordable Housing;
▪ Draft Policy HW2: New Community Facilities;
▪ Draft Policy HW3: Built Sport Facilities;
▪ (Council only) Draft Policy HW4: Childcare provision;
▪ (Appellant only) Draft Policy HW5: Healthcare Services;
▪ (Council only) Draft Policy HW7: Healthy Places;
▪ Draft Policy ED6: Preschool, Primary and Secondary Education;
▪ Draft Policy D1: Placemaking;
▪ Draft Policy D2: Landscaping and Setting;
▪ (Council only) Draft Policy D3: Cultural Provision;
▪ (Appellant only): Draft Policy D4: Conservation Areas;
▪ (Appellant only): Draft Policy D5: Listed Buildings;
▪ Draft Policy D6: Archaeology;
▪ (Appellant only) Draft Policy D7: The Significance of Non-Designated Heritage
Assets;
22 Document ESD013, paragraphs 7.8, 11.18, 16.21 and 16.22; Technical Appendix 8.1,
paragraph 2.21; Technical appendix 10.1, paragraphs 3.23-3.26; Technical Appendix 14.1
(Transport Assessment), paragraph 4.3.3.
23 Paragraph 3.14
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▪ (Appellant only) Draft Policy D9: City of York Historic Environment Record;
▪ Draft Policy GI1: Green Infrastructure;
▪ Draft Policy GI2: Biodiversity and Access to Nature;
▪ Draft Policy GI3: Green Infrastructure Network;
▪ (Appellant only) Draft Policy GI4: Trees and The Hedgerows;
▪ Draft Policy GI6: New Open Space Provision;
▪ Draft Policy GB1: Development in the Green Belt;
▪ Draft Policy CC1: Renewable and Low Carbon Energy Generation and Storage;
▪ Draft Policy CC2: Sustainable Design and Construction of New Development;
▪ Draft Policy ENV1: Air Quality;
▪ (Appellant only) Draft Policy ENV2: Managing Environmental Quality;
▪ (Appellant only) Draft Policy ENV3: Land Contamination;
▪ Draft Policy ENV4: Flood Risk;
▪ Draft Policy ENV5: Sustainable Drainage;
▪ Draft Policy T1: Sustainable Access;
▪ (Appellant only) Draft Policy T2: Strategic Public Transport Improvements;
▪ Draft Policy T7: Minimising and Accommodating Generated Trips; and
▪ (Council only) Draft Policy DM1: Infrastructure and Developer Contributions.
But, as the examination has not yet concluded, it cannot be presumed that all or
any of these policies will be found sound. Paragraph 48 of the NPPF sets out the
three criteria by which emerging Local Plan policies can be afforded weight;
The stage of preparation of the emerging plan (the more advanced the
preparation, the greater the weight that may be given);
The extent to which there are unresolved objections to relevant policies (the
less significant the unresolved objections, the greater the weight that may be
given);
The degree of consistency of the relevant policies in the emerging plan to the
policies in the relevant NPPF (in this case, that published in March 2012).
In practice, no party has placed much reliance on any of the emerging plan
policies as such. Rather, considerable reliance has been placed on the NPPF and
the evidence underlying the policies in the emerging plan.
22. The Regional Spatial Strategy for Yorkshire and the Humber (the Yorkshire and
Humber Plan, May 2008)24 was revoked in 2013 except for policies YH9 and Y1
24 Core Document CD011
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and the Key Diagram of the RSS insofar as it illustrates the RSS York Green Belt
policies and the general extent of the Green Belt around the City of York. For
convenience, the relevant parts are quoted as follows;
YH9 entitled “Green Belts” reads: “The detailed inner boundaries of the Green
Belt around York should be defined in order to establish long term development
limits that safeguard the special character and setting of the historic city. The
boundaries must take account of the levels of growth set out in this RSS and
must also endure beyond the Plan period”.
Y1 entitled “York sub area policy” reads: “Plans, strategies, investment decisions
and programmes for the York sub area should:
C Environment
• 1. In the City of York LDF, define the detailed boundaries of the outstanding
sections of the outer boundary of the York Green Belt about 6 miles from York
city centre and the inner boundary in line with policy YH9C.
• 2. Protect and enhance the nationally significant historical and environmental
character of York, including its historic setting, views of the Minster and
important open areas”.
23. These two policies are therefore the only formal development plan policies
applicable to the site.
Planning History25
24. The Council promoted a Green Belt Local Plan in 1994. Although never adopted,
it was the subject of an Inquiry and an inspector’s report which advised that
“Moor Lane provides a clear and satisfactory edge to the developed area of York”
and that “it helps to separate York and Copmanthorpe and to prevent further
sprawl of the built-up area.”26
25. The Council’s Preferred Options Local Plan (June 2013) identified approximately
17 ha of Land at Moor Lane, Woodthorpe as development allocation Site ST10 for
511 dwellings. In terms of the appeal proposals, this allocation broadly accords
with the area of the site indicated for residential and local centre on the land use
parameter plan accompanying the current application. The same area was also
included in the City of York Local Plan Further Sites consultation in June 2014
where it was deemed capable of delivering approximately 511 dwellings over the
lifetime of the plan period. Following this it was then proposed as safeguarded
land site SF12 in the draft Publication Local Plan in September 2014. Progress on
this plan was subsequently halted by a Council resolution of October 2014 to
review the overall housing requirements included in the plan.
26. No part of the site was included as a proposed allocation in the City of York Local
Plan Preferred Sites consultation in July 2016, nor in the pre-publication
(regulation 18) and publication (regulation 19) versions of the City of York Local
25 This is discussed at length in the appellant’s Supporting Planning Statement (Document
ESD05a(ii), section 3, pages 8-16 and is also summarised in paragraphs 1.7-1.12 of the
Council’s committee report (Core Document CD001)
26 Quoted in Historic England’s letter dated 7 February 2019 objecting to the planning
application
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Plan submitted for examination in May 2018. Instead the entire site is proposed
for inclusion within the Green Belt.
The Proposals
27. A description of the development proposed in this appeal is set out in full in
chapter 5 of the Environmental Statement27 and in section 4 of the Supporting
Planning Statement.28 In several places the proposals are described as the first
phase of a larger development.29 The site forms part of a 97ha site being
promoted through the local plan process.30
28. In summary, the planning application covers about 40.05 ha. It is a hybrid
proposal (part outline, part detailed) for a residential-led mixed-use
development. Outline planning permission is being sought for up to 516
residential dwellings and a local centre (14.78 ha of built development)31 on
about 17 ha of the site with public open space, allotments, formal and informal
recreational facilities on about 13.75 ha32 (34% of the site33) and an ecological
protection and enhancement zone (EPEZ) 125m wide from the Askham Bog SSSI
on the remainder. Full planning permission is being sought for the creation of the
EPEZ, four principal means of access, and demolition of a select number of
existing buildings and structures on site. The appellant invites appropriate
conditions which would control the maximum number of dwellings to be built on
the site together with applying the parameter plans which control the disposition
of land uses and limit the height of buildings to 2 and 2½ storeys.
29. A number of details are indicated in the supporting material. These would have
to be secured by condition or planning obligation if thought to be necessary for
the development to be acceptable. They include illustrative highway
improvements to Bog Lane (the former alignment of Moor Lane) to widen it to
5.5m, provide a footpath, street lighting and a speed limit,34 off-site
improvements to Moor Lane (to provide a footpath/cycleway for 1.4km,
reconfigure the western arm of the Moor Lane/Chaloners Road roundabout,
provide two toucan crossings and two bus shelters),35 an intent to provide 35%
of the dwellings proposed as affordable housing,36 elevated ground floor levels to
27 Document ESD013
28 Document ESD05a(ii)
29 Environmental Statement paragraphs 1.7 and 4.37 and Technical Appendix 14.1 (Transport
Assessment) paragraphs 8.2.2 and 8.4.1-8.4.8; Supporting Planning Statement (November
2018) paragraph 3.24
30 Design and Access Statement, page 30
31 Supporting Planning Statement (November 2018) paragraph 6.1
32 Environmental Statement paragraph 5.21 and Supporting Planning Statement paragraph
4.23
33 Environmental Statement paragraph 5.22. The Supporting Planning Statement paragraph
4.24 gives the figure as approximately 29% of the site
34 Environmental Statement paragraph 5.39 and Supporting Planning Statement paragraph
4.28
35 Environmental Statement paragraphs 5.41-5.45 and Appendix 14.1 section 3.5 and
Supporting Planning Statement paragraphs 4.30-4.34
36 Environmental Statement paragraph 5.15 and Supporting Planning Statement paragraph
4.8
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avoid excess surface water run-off,37 a restriction of A1, A2, A3 and A4 uses
within the local centre to a cumulative maximum of 200 sq m,38 the provision of
a sports pavilion of up to 150 sq m floorspace,39 a full-sized football pitch, a 5-a-
side football pitch, 4 tennis courts, allotments, a multi-use games area (MUGA),40
landscape buffers on the southern boundary of the built development the
northern side of the EPEZ,41 access routes to drains for the benefit of the Ainsty
Internal Drainage Board (IDB)42 and a surface water drainage strategy.43
30. The EPEZ is proposed in detail.44 These details include
• A 1.8m deer fence on the EPEZ’s northern boundary;
• A zone of permanent open water (minimum depth 0.3m) and marsh within
proposed surface water attenuation basins along the majority of the EPEZ
(western section). The attenuation basin has been designed with 1 in 4 side
slopes, a nominal retained water level of 300mm, with deeper pools of 500mm
provided in some areas;
• A bund up to 3m high to the south of the attenuation basins (and created
using cut from their excavation) along the majority of the EPEZ (western
section). The crest of the bund would vary between 2.1 metres and 6.1 metres in
width. The bund would be constructed with a 1 in 5 slope with a maximum height
of 3.5m above existing AOD. This would provide a steep landform and a
visual/perceptual buffer between the development to the north and SSSI to the
south;
• Dense thorny scrub/woodland planting on the proposed bund in the western
section and within the eastern section of the EPEZ where no bund is proposed;
and
• A 3m tall security fence to the south of the planting running the entire length
of the site’s southern boundary.
31. The supporting material also gives consideration to measures which may need to
be taken during construction. These would have to be secured by condition or
obligation if thought necessary to make the development acceptable. They
37 Environmental Statement paragraph 5.49 and Supporting Planning Statement paragraph
4.38
38 Environmental Statement paragraph 5.18 and Supporting Planning Statement paragraph
4.20
39 Environmental Statement paragraph 5.19 and Supporting Planning Statement paragraph
4.21
40 Environmental Statement paragraph 5.20 and Supporting Planning Statement paragraph
4.22
41 Environmental Statement paragraphs 5.23 and 5.25 and Supporting Planning Statement
paragraph 4.24
42 Environmental Statement paragraphs 5.52, 5.53 and 5.58-5.60 and Supporting Planning
Statement paragraphs 4.44-4.48
43 Environmental Statement paragraphs 5.62-5.66 and 5.70-5.71 and Supporting Planning
Statement paragraphs 4.51-4.60
44 Environmental Statement paragraphs 5.27, 5.28 and 5.30 and Technical Appendix 13.1
(Flood Risk Assessment), paragraphs 7.5.15-7.5.18 and Supporting Planning Statement
paragraphs 4.12, 4.13 and 4.15
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include a Waste Management Strategy,45 a Construction Environmental
Management Plan (CEMP),46 the location of site compounds47 and hours of
work.48
The Case for the appellant
Green Belt
32. Although the boundary of the Green Belt has never been defined in an adopted
Local Plan, it is accepted for the purposes of this appeal that the site should be
deemed to be within the Green Belt.49 Nevertheless, there are doubts about
whether the emerging local plan yet to be adopted will or should define the site,
or all of the site, as lying within the Green Belt. The evidence base for the Local
Plan includes documents which indicate that the parts of the current appeal
proposal which are proposed for built development are not necessary to fulfil the
purposes of the Green Belt. Although the submitted plan defines all of the site as
Green Belt, earlier iterations of the emerging Local Plan preceding its submission
for examination excluded that part of the site from the Green Belt which is now
proposed for built development.50
33. As is clear from Core Document CD05, those iterations of the Local Plan had been
through both a site selection process and a Sustainability Appraisal that tested
proposals against a range of objective criteria and reasonable alternatives.
National advice then, as now, was that land should not be included in the Green
Belt which it is not necessary to keep permanently open. It can only be inferred,
therefore, that while the area of the site proposed for built development was
recognised as serving some Green Belt purpose, that was not of such
onclusiondimcportance as to merit keeping the site permanently open.51 The
only reason the site is not now proposed for exclusion from the Green Belt in the
submitted plan is because of doubts over its effect on Askham Bog.52
34. Although elements of the scheme would not be inappropriate within the Green
Belt,53 they are not separable from elements which are inappropriate within the
Green Belt and so, the scheme as a whole must be deemed to be inappropriate
development within the Green Belt.54
45 Environmental Statement paragraph 5.73 A Waste Management Strategy is submitted with
the application as a supporting document (ESD05a(vi))
46 Environmental Statement paragraphs 5.76 and 5.90-5.91 and Table 3. A Framework CEMP
is submitted with the application (Document ESD05a(vii))
47 Environmental statement paragraphs 5.84-5.86
48 Environmental statement paragraphs 5.87-5.89
49 Appellant’s statement of case (Core Document CD088), paragraph 6.1. General Statement
of Common Ground paragraph 3.1
50 Supporting Planning Statement paragraph 6.13ff; Proof of evidence of Gary Halman on
behalf of the appellant paragraph 8.10-8.12 (Mr Halman also prays in aid at paragraphs 8.5-
8.7 of his proof, the views of an Inspector in a report to the Secretary of State but the
Secretary of State did not accept those views in his decision)
51 Appellant’s closing submissions paragraph 7; Duncan McInerney’s Proof of Evidence
footnote 19
52 Confirmed by Frances Harrison in cross-examination
53 Duncan McInerney’s Proof of Evidence paragraphs 6.11, 2nd bullet and 6.13
54 Appellant’s closing submissions, paragraphs 13 and 14.
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Harm to Green Belt
35. Although, by definition, inappropriate development is harmful to the Green Belt
and should not be approved except in very special circumstances, in this case,
harm would be limited and there are very special circumstances which apply. In
national policy, Green Belt serves five purposes:
a) To check the unrestricted sprawl of large built-up areas;
b) To prevent neighbouring towns merging into one another;
c) To assist in safeguarding the countryside from encroachment;
d) To preserve the setting and special character of historic towns; and
e) To assist in urban regeneration, by encouraging the recycling of derelict and
other urban land.
But only one of these ((c), encroachment into the countryside) would be
compromised by this proposal55 and so, harm would be limited.
36. Moor Lane is put forward by the Council as the logical boundary of the Green Belt
but housing development already extends, unchecked, on its south side. The
proposal would provide a better designed urban edge, as the Council’s own
evidence confirms.56 The part of the site proposed for built development is in a
sustainable location, well served by local facilities,57 is not identified in the
Council’s Local Plan evidence base as an area essential for preventing
coalescence,58 would be contained within an area of open space and landscaping
and so the proposal does not represent unchecked urban sprawl.59
37. As with the Council’s own proposal for development of 158 houses on the
northern edge of Copmanthorpe, no merging of neighbouring towns would result.
A large visual gap between the York conurbation and Copmanthorpe would
remain, in the form of the open space proposals of the site itself, the Askham
Bog SSSI, the surrounding Pike Hill golf course and the A64 corridor.60
55 Appellant’s closing submissions, paragraph 15
56 Ibid, referencing Mrs Priestley’s evidence for the Council; Esther Priestley’s Proof of
evidence for the Council paragraph 3.3.4
57 Environmental Statement paragraphs 7.29 to 7.40; Highways Statement of Common
Ground with the Council (Inquiry Document INQ6) section 3
58 Appellant’s Statement of Case (Core Document CD088) paragraphs 2.6, 7.10 and 7.12;
Design and Access Statement (Document ESD07) pages 22-25; Supporting Planning
Statement (Document ESD05a(ii)) paragraphs 2.10 and 2.11; Sustainability Statement
(Document ESD05a(v)) paragraphs 4.2.3; Environmental Statement paragraphs 3.22, 7.29-
7.40 and 14.70-74 and succeeding paragraphs (wrongly numbered 14.2 and 14.4-12) and
Appendix 14.1 (Transport Assessment) section 5: Gary Halman’s Proof of evidence paragraph
8.10
59 Supporting Planning Statement (Document ESD05a(ii)) paragraph 6.20; Appellant’s closing
submissions, paragraph 15
60 Supporting Planning Statement (Document ESD05a(ii)) paragraph 6.20; Appellant’s closing
submissions, paragraph 15
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38. The primary purpose of the York Green Belt is said to be the protection of the
historic setting of York61. Yet it is clear from a series of Historic Character and
Setting documents prepared as part of the evidence base for the emerging Local
Plan that the part of the site proposed for built development has no positive role
in that purpose.62
39. There is no evidence at all that allowing the appeal would cause the
redevelopment of previously developed land in York itself to be held back. On
the contrary, the lack of sufficient appropriate and available sites for
redevelopment within York itself causes the Council to promote strategic housing
sites for development within the Green Belt in its emerging local plan.63
Openness and landscape
40. The proposals would result in an increase in tree cover and an increase in a
variety of landscape features but a loss of openness.64 It is accepted that the
openness of the Green Belt would be reduced both by the transformative effects
of built development proposed on part of the site and by the construction of a
1.8m deer fence and a 3m security fence in the EPEZ. But it is contested that
the bund and attenuation ponds to be constructed in the EPEZ would compromise
Green Belt openness because the bund will be landscaped and is intended to be
read as consistent with open countryside character. Trees are not inconsistent
with openness as NPPF paragraph 142 confirms.65 The attenuation ponds will not
intrude into openness in any three-dimensional sense and will read, in visual
terms, as being part and parcel of the surrounding open countryside.66 Following
recent judgements, Green Belt openness now includes a landscape dimension.67
61 Andrew Crutchley’s proof of evidence on behalf of the appellant paragraph 4.53. Confirmed
by Frances Harrison in cross-examination
62 Appellant’s closing submissions paragraphs 8-10,12 and 15, referencing Core Documents
CD09, 029-031 and 035 and paragraph 9 of the Landscape Statement of Common Ground;
Appellant’s Statement of Case (Core Document CD088) paragraphs 7.10, 8.5-6; Design and
Access Statement page 16; Supporting Planning Statement (Document ESD05a(ii)) paragraph
6.15; Alison Stockdale’s proof of evidence on behalf of the Council paragraph 3.38 and 3.39;
Duncan McInerney’s proof on behalf of the appellant paragraph 2.3; Andrew Crutchley’s proof
on behalf of the appellant paragraphs 4.53 and 4.61; Environmental Statement paragraphs
8.73 and 10.42 and Technical Appendix 10.1 paragraph 5.20. Confirmed in cross examination
by Frances Harrison and Esther Priestley
63 Appellant’s closing submissions paragraph 15; Appellant’s Statement of Case (document
CD088) paragraph 7.3; Supporting Planning Statement (Document ESD05a(ii)) paragraph
2.16; Council officers’ report (CD001) paragraphs 3.4 and 4.88; Council’s Statement of Case
paragraphs 4.6 and 4.7, Frances Harrison Proof of Evidence paragraph 5.2; Environmental
Statement paragraphs 4.39-4.49; Gary Halman’s proof on behalf of the appellant paragraph
9.22; General SOCG paragraph 3.4
64 Landscape Statement of Common Ground
65 Duncan McInerney, oral evidence in chief
66 Appellant’s closing submissions, paragraph 14; Duncan McInerney’s Proof, paragraph 5.20;
67 Duncan McInerney’s Proof of Evidence paragraphs 6.3 – 6.8, referencing [2016] EWCA Civ
466; John Turner v Secretary of State for Communities and Local Government, East Dorset
Council (2016) and [2018] EWCA Civ 489: Samuel Smith Old Brewery v North Yorkshire
County Council
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41. Two part-time farming businesses would be affected by the loss of 23 hectares of
“best and most versatile” agricultural land (57% of the site). But any greenfield
development anywhere around York is likely to have a similar effect.68
42. The land is not designated for its landscape qualities.69 It has a medium overall
value and is not a valued landscape in the terms of the NPPF.70 The presence of
urban features is keenly felt in the forms of the A1237, the A64, the ECML, the
large Tesco store, the Park and Ride facility71 and the existing built development
at Woodthorpe, characterised as having an anonymous suburban feel.72 The site
forms a small part of the Landscape Character Area in which it sits and contains
no rare or especially distinctive features and so its development will have no
significant effect on that Landscape Character Area.73 It has little ecological
interest other than hedges and ditches.74 Landscape considerations were never a
reason for excluding the site as a development proposal from the Local Plan.75 It
is land that has no greater intrinsic value in the planning balance than any other
undesignated farmland surrounding the city of York.76
43. In visual terms the site is unusually contained.77 There is a greater sense of
exposure and intervisibility with the surrounding landscape in the western site
sections in contrast to the impression of enclosure adjacent to the low lying
Askham Bog SSSI.78 Even so, the development would not be located or be so
68 Supporting Planning Statement paragraphs 8.148-8.150; Environmental Statement
paragraphs 4.24 and 17.6
69 Appellant’s Statement of Case, paragraph 8.2; Design and Access Statement page 16;
Landscape Statement of Common Ground
70 Landscape Statement of Common Ground; Duncan McInerney’s Proof of evidence
paragraph 7.3
71 Appellant’s closing submissions paragraph 17; Duncan McInerney’s Proof of Evidence
paragraph 2.3; Environmental Statement Appendix 8.1 paragraph 2.30
72 Appellant’s closing submissions paragraph 16 referencing the City of York Characterisation
Project 2013 (Appendix 6 of Mr McInerney’s Proof of evidence on behalf of the appellant);
Duncan McInerney’s proof paragraphs 2.8 and 2.9; Environmental Statement Appendix 8.1
paragraph 2.23
73 Appellant’s Statement of Case, paragraph 8.3; Design and Access Statement page 16;
Appellant’s closing submissions paragraph 17, quoting Mrs Priestley’s cross-examination;
Environmental Statement paragraphs 8.77, 8.145 and 8.153; Landscape statement of
Common Ground
74 In oral evidence in chief, Tom Wigglesworth confirmed that a further 8 out of 52 hedgerow
sections (H2, H9, H12, H17, H22, H26, H39 and H42) would qualify as important in the terms
of the Hedgerow Regulations 1997 over and above those listed in table EDP A5.1 and Plan
EDP2 even though paragraph A5.6 of Annex EDP5 of Appendix 9.1 of the Environmental
Statement correctly records the criteria applicable to northern counties for a classification as
important. This correction did not change the conclusions of the Environmental Statement
because the hedgerows in question had anyway been classed as species-rich.
75 Confirmed by Frances Harrison and Esther Priestley in cross-examination, with reference to
core documents CD113 (Site Selection Paper 2013 Main Report), Annex 18 and CD9 City of
York (September 2014) Local Plan Site Selection Addendum Paper page 191.
76 Duncan McInerney’s proof of evidence paragraph 3.12
77 Appellant’s closing submissions paragraph 18; Mr McInerney’s Proof of Evidence paragraphs
2.5 and 2.6; Environmental Statement paragraphs 8.80 and 8.134
78 Environmental Statement Appendix 8.1, paragraph 3.31
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extensive as to cause visual harm to the setting of the City as seen from a
recognised viewpoint on the outer ring road.79
44. There is no landscape watershed on or close to the site in terms of any physical
barrier or topographic feature that the scheme would breach.80 It would merely
extend the existing suburb of Woodthorpe south onto land of equivalent
character and quality to that which existed prior to the most recent stage of
Woodthorpe’s evolution.81
45. Views south from Moor Lane towards the woods of Askham Bog are of local
value, at the bottom end of the hierarchy. They only exist because field hedges
are low, contrary to the recommendations of the Council’s own character area
assessment. Askham Bog itself is indistinguishable from other woodland features
on the horizon.82 Views would not be extinguished83 but relocated. The appeal
proposal would, in effect, change and move southwards the built interface with
the adjacent open farmland. It would not remove the opportunity to experience
the setting of what would become the new edge of Woodthorpe. As Mrs Priestley
agreed in cross-examination, the allocation which the Council once proposed
would have had substantially the same impact as the appeal proposal.84
46. It is generally accepted that the introduction of new built form anywhere into the
open countryside will cause some degree of harm to landscape character and
visual amenity.85 The issue is whether the harm is so significant that it merits
dismissal of the appeal.86
47. The sensitivity of Askham Bog is primarily ecological. The view north from
Askham Bog is a view that almost nobody sees.87 YWT has no formal intention to
create a boardwalk in the northern part of the Bog.88 Whilst it is legitimate to
note that the fences and mound of the EPEZ, if taken in isolation, are not in
themselves characteristic of the host landscape, it is not fair to ignore the role of
planting which in time will give the mound the appearance of a stand of trees
which are in any event characteristic of the immediate area.89 The planting of
thousands of trees would be a positive long-term benefit.90
79 Appellant’s Statement of Case, paragraph 8.6, quoting opinion of the Council’s design
officer recorded at paragraph 3.11 of Council’s committee report; Supporting Planning
Statement paragraph 8.77; Duncan McInerney’s Proof of evidence paragraph 4.6:
Environmental Statement paragraph 8.73
80 Environmental Statement paragraph 8.171; Duncan McInerney’s proof, paragraph 2.10
81 Environmental Statement paragraph 8.171
82 Duncan McInerney, oral evidence in chief
83 Duncan McInerney’s Proof, paragraphs 3.15 and 4.15
84 Appellant’s closing submissions paragraph 21
85 Environmental Statement paragraph 8.50
86 Appellant’s closing submissions paragraph 19
87 Duncan McInerney’s proof, paragraph 5.12; about four people per day according to oral
evidence in chief; Appellant’s closing submissions paragraph 22
88 Appellant’s Addendum to closing submissions, responding to Council’s closing submissions
paragraph 41(1)
89 Appellant’s closing submissions paragraph 23
90 Environmental Statement paragraph 8.146
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Askham Bog
(i) Hydrology, Hydrogeology and Surface water drainage
48. Studies previous to the Environmental Statement conclude that Askham Bog is
critically dependent on precipitation for water supply rather than surface water
runoff or groundwater inputs.91 Those who oppose the development appear to
have three concerns;92
• That the development will result in a lowering of groundwater levels which
will lead to the Bog drying out
• That the proposed surface water drainage strategy will cause reduced flow
rates in the Askham Bog Drain/Holgate Beck, a lowering of water levels in
the Bog and hence its drying out
• That the development will generate contaminants which will be fed into the
Bog
A conceptual hydrogeological model has been prepared, on the basis of which it
is concluded that the proposed built development will not give rise to any
significant adverse effect on the groundwater anywhere on the site, in the
general vicinity or near the SSSI in respect of groundwater levels, flows or
chemistry.93
a) Contamination
49. The Ainsty IDB catchment for the area is shown in Mr Parkinson’s Rebuttal Proof
dealing with Surface Water Drainage at page 12. The appeal site as a whole
represents about 10% of the catchment.94 The area proposed for housing
represents only about 2.6% of the catchment. In context, some 19% of the
catchment is already developed.95 Holgate Beck and its contributors, the Askham
Bog Drain and Pike Hill Drain, receive water from multiple sources subject to
urban influence (e.g. the A1237, the A64, Pike Hills Golf Club, Copmanthorpe
village, the ECML, the existing developed parts of Woodthorpe and the waste
water treatment works which until 2004 discharged treated sewage into Askham
Bog Drain and in storm conditions still discharges raw sewage) as well as run-off
from fertilised arable land.96
50. Yet, according to Professor Fitter’s evidence, the condition of the Bog has
improved over time.97 The assertion by Yorkshire Wildlife Trust (YWT) that even
91 Environmental Statement paragraph 12.30
92 Appellant’s closing submissions paragraph 25
93 Richard Thomas Proof of Evidence paragraph 9.1.2
94 Paragraph 5.1.13 of PBA Technical Note attached as Appendix 1 to Avison Young letter
dated 12 April 2019 responding to representations made during the statutory consultation on
the application (Document ESD06a)
95 Michael Parkinson’s Surface Water Drainage Proof, paragraph 4.1.6
96 R H Thomas’s Hydrology Proof of Evidence paragraph 4.3.3; Michael Parkinson’s Surface
Water Drainage Proof paragraphs 4.1.7 to 4.1.13; Appellant’s closing submissions, paragraph
25
97 Also noted by Tom Wigglesworth in his Ecology Proof, paragraph 2.17
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small changes to the water chemistry or levels in the Beck and/or the Bog could
have a damaging effect is therefore surprising.98
51. Worst-case scenario testing has shown that the effects of migration of
contaminants from urban surface water run-off presents no significant risk to the
Holgate Beck.99 In practice, the surface water run-off from the site will have
been treated by way of a SUDS scheme100 and will have to achieve compliance
with the SUDS Mitigation Index. Maintenance and management of the SUDS
would be through adoption by Yorkshire Water or by the Management Company
prescribed by the planning obligation.101 Mr Parkinson’s drainage evidence102
demonstrates that the development would present no hazard at all to the
chemistry of the Bog. Mr Parkinson was not challenged on this issue in cross-
examination.103
b) Groundwater
52. The British Geological Survey (BGS) map shows that two superficial deposits
underly the site. The west of the site is underlain at outcrop by the Vale of York
Formation. The majority of the eastern part of the site is underlain at outcrop by
the Alne Glaciolustrine104 Formation, itself underlain by the Vale of York
Formation.105
53. The Alne Formation in this location is described by the BGS as laminated silt and
clay with occasional sand beds.106 The York Formation comprises predominantly
glacial till107 with interbedded sand, gravel and laminated clay,108 sometimes
called boulder clay.109 Both are defined as unproductive strata110 or aquitards,111
98 Appellant’s closing submissions, paragraph 25
99 Richard Thomas’s Hydrology Proof paragraph 9.1.10; Appellant’s closing submissions
paragraph 32
100 Richard Thomas’s Hydrology Proof paragraphs 5.1.3 and 5.1.7; Environmental Statement
paragraphs 9.145 and 12.60 to 12.65
101 Paragraph 4.1.11 of PBA Technical Note dated 29.3.2019 attached as Appendix 1 to Avison
Young’s letter dated 12 April 2019 to York City Council, commenting on responses made to
the consultation on the planning application (Document ESD06a); Environmental Statement
Appendix 13.1 (Flood Risk Assessment) “It is also anticipated that the maintenance of the
swales and basins will be via a private management company. This will be agreed with CYC
at the detailed design stage and the mechanism to secure this will be via the s106”
102 Michael Parkinson’s Surface Water Drainage Proof, paragraphs 6.1.12 to 6.1.23 and 7.1.4
and 7.1.6
103 Appellant’s closing submissions, paragraph 25
104 Sediments deposited into lakes that have come from glaciers
105 Richard Thomas’s Proof of evidence paragraph 4.5.1; appellant’s closing submissions
paragraph 26
106 Richard Thomas’s Hydrology Proof of evidence paragraph 7.2.3; Appellant’s closing
submissions, paragraph 27; Core Document CD038, Vale of York 3-D Borehole Interpretation
and Cross-sections Study paragraph 6.2.7
107 Unsorted glacial sediment
108 R H Thomas’s Hydrology Proof of Evidence paragraph 4.5.1; Core Document CD038, Vale
of York 3-D Borehole Interpretation and Cross-sections Study paragraph 6.2.4
109 Richard Thomas’s Rebuttal Proof paragraph 2.2.16
110 Environmental Statement paragraph 13.56
111 R H Thomas’s Hydrology Proof of Evidence paragraph 7.2.6 and 8.2.2
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namely, a rock with limited permeability that allows some water to pass through
it but at a very reduced rate.112
54. All geoscience is based on sampling and interpolation.113 Site investigation work
has been comprehensive.114 Suggestions that the collection or analysis of data
were flawed are regrettable and are disproven.115 There were 10 soil cores,116 15
boreholes,117 the majority of which were instrumented with groundwater
monitoring standpipes,118 recorded at monthly intervals over a fifteen-month
period,119 15 gauge boards in watercourses,120 14 trial pits,121 40 archaeological
trenches,122 the BGS borehole data123 and data from 31 dipwells collected by
Arup for the YWT in 2003.124 Both permeability125 and infiltration126 tests were
carried out. The infiltration tests’ non-compliance with BRE365 is irrelevant
because that is intended to test suitability for soakaways. 136 water samples
were each tested for 40-50 determinants.127 Laboratory tests are subject to
quality controls, audited annually.128 The collected information shows glacial till
to be a little more extensive than in BGS.129 It confirms the published BGS
material.130
55. Although there are some areas of the site that will experience drainage into the
subsurface, overall, clay soils predominate and the volume of the groundwater
recharge is low.131 The evidence confirms that the land where the built
112 R H Thomas’s Hydrology Proof of Evidence paragraph 7.2.5
113 Richard Thomas, in cross-examination
114 Appellant’s closing submissions paragraph 28
115 Appellant’s closing submissions paragraphs 35 and 36; Addendum to Appellant’s closing
submissions, responding to paragraphs 51(13(i)), 51(13(ii)), 51(13(iii)) and 51(16) of
Council’s closing submissions
116 Core Document CD039 paragraph 2.4
117 Core Document CD040, paragraph 3.2; Environmental Statement appendix 12.1
paragraph 2.2
118 Core Document CD040, paragraph 3.6
119 R H Thomas’s Hydrology Proof of Evidence paragraph 8.2.1; oral evidence in chief referred
to six monitoring rounds at quarterly periods.
120 R H Thomas’s Hydrology Proof of Evidence paragraph 8.2.21
121 Core Document CD040, paragraph 3.3
122 Document ESD013; Environmental Statement Appendix 10.1 (Historical Baseline),
Appendix EDP4, section 4
123 Environmental Statement Appendix 11.1 Combined Phase 1 and Phase 2 Ground Condition
Assessment paragraph 3.1 and Appendix 4
124 In the Arup study carried out for the YWT (Core Document CD037)
125 Core Document CD040, paragraph 4.3
126 Core Document CD040, paragraph 4.4
127 Richard Thomas, orally in chief
128 Richard Thomas’s oral evidence in chief
129 Richard Thomas’s oral evidence in chief, comparing his figures 3, 4 and 5
130 R H Thomas’s Hydrology Proof of Evidence sections 7.3 and 7.5; Environmental Statement
appendix 12.1, paragraph 2.3
131 Richard Thomas’s Proof of Evidence paragraph 8.2.10, referencing Environmental
statement Addendum Appendix 4; Richard Thomas’s Rebuttal Proof paragraphs 3.2.12-3.2.16
and 3.2.27; Environmental Statement Appendix 12.1 paragraphs 3.1 and 3.3
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development would be located is characterised by low permeability132 and low
infiltration133 inhibiting rainwater recharge into groundwater. The variation
across a level site in seasonal changes in groundwater indicates discontinuous
hydrogeology resulting from low permeability.134 Permeability tests are not
applicable to vertical rainwater infiltration. There is a layer of clay before water-
bearing sands are reached. One isolated incident of a water strike in clay is
explained by a rupture of the base of the clay as the borehole approached a layer
of water bearing ground under pressure.135 Land drainage will carry away any
infiltration as run-off to farm ditches but standing water in the fields shows that
there is little or no infiltration.136 Seasonal variations in groundwater levels are
explained by the phenomenon of water loading,137 not rainfall recharge.138
56. Of the borehole material, 83.5% was classed as clay, only 11.5% as sand in
pockets and lenses,139 in two different geological strata. No borehole
encountered multiple layers or pockets of sand and so there is no evidence to
support Dr Foley’s theory advanced on behalf of the Council that there are
continuous connected layers or pockets of sand providing permeable hydraulic
connectivity.140 Broadly speaking, his proposition is that rain falling on the part
of the site proposed for development would find its way through 2-3m of clay to
reach silty sand, then through linked pockets of that material to reach the bog.141
His theory is not supported by the results of the infiltration tests, the gauge
board data or the chemistry.142 Dr Foley never explains how rainwater would
penetrate the thick layer of clay overlaying any sand layer.143
57. The quantity of rainwater recharge that reaches the groundwater bearing strata
is insignificantly small in comparison with surface water run-off. Groundwater
132 (Between 1x10-6 and 5x10-6 m/sec) Appellant’s closing submissions paragraph 30; R H
Thomas’s Hydrology Proof of Evidence paragraph 8.2.7; Environmental Statement Appendix
12.1 paragraph 3.3
133 R H Thomas’s Hydrology Proof of Evidence paragraph 8.2.8
134 Richard Thomas’s Rebuttal Proof paragraph 3.2.2; Environmental Statement Appendix
12.1 paragraph 2.4 and Appendix 12.2
135 Addendum to Appellant’s closing submissions, responding to Council’s closing submissions
paragraph 51(12(ii))
136 Richard Thomas’s Rebuttal Proof paragraphs 3.2.11 and 3.2.13 referencing observations
made in representations consequent on the appeal from third party Mr J L Turner CEng MICE
(held on electronic file only)
137 the quantitative increase or decrease in confined aquifer water pressures created by the
loading effect of changes in near-surface water mass. In cross-examination, Mr Thomas
asserted that 1m depth of water was not required to result in an increase of pressure of 1m.
138 Appellant’s closing submissions paragraph 34; addendum to appellant’s closing
submissions, responding to paragraphs 53 and 56-57 of the Council’s closing submissions
139 Richard Thomas’s Rebuttal Proof paragraph 2.2.5
140 Appellant’s closing submissions paragraphs 28 and 34; Environmental Statement
paragraph 12.31 “The differences in major ion chemistry indicate that the groundwater[s] in
the area of the site are different and are not in hydraulic continuity”; Environmental
Statement Appendix 12.1 paragraph 3.4
141 Dr Foley, in cross-examination
142 Appellant’s closing submissions paragraph 34; Richard Thomas’s Rebuttal Proof paragraph
2.2.1 notes that Dr Foley analyses grouped boreholes as though they were separate locations,
which skews his results.
143 Appellant’s closing submissions paragraph 29; Richard Thomas’s Rebuttal Proof
paragraphs 2.2.10-12 and 3.3.6
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quality is protected by the overlying beds of low permeability clay.144 The
groundwater under the part of the site proposed for built development does not
appear to have been contaminated by urbanisation.145
58. About halfway along the southwestern arm of the site a ridge of Vale of York
Formation Glacial Till extends south-eastwards almost to the Askham Bog
Drain/Holgate Beck. This lies directly south of the area where built development
is proposed to be located and prevents any groundwater flow in a southerly
direction towards Far Wood, Middle Wood and the south-western two thirds of
New Wood.146 Consequently, the hydraulic gradient in groundwater is towards
the south east, reflecting topographical contours.147 Only the north-eastern third
of the Near Wood portion of the SSI lies directly down gradient of the part of the
site where built development is proposed.148 The gradient does not necessarily
mean flow or connectivity.149
59. The combination of low permeability and shallow gradient along this flowpath
would result in a groundwater flow velocity of 4.6mm per day.150 Worst case
scenario testing of much higher permeability and flow rates shows that
groundwater would represent just 2% of the estimated average flow in the
Beck.151 This demonstrates that even in the very unlikely scenario that there is
hydraulic interconnectivity, the throughflow would be very low indeed.152 Dr
Foley’s calculation on behalf of the Council is based on a complete drain down of
groundwater rather than just a release of pressure and so is flawed.153
Comparisons of groundwater data with data from gauge boards in the drains
demonstrate limited hydraulic connectivity between groundwater on site and
water in the Askham Bog Drain/Holgate Beck,154 a finding which is confirmed by
chemical analysis.155
144 Richard Thomas’s Proof of Evidence paragraph 9.1.3
145 R H Thomas’s Hydrology Proof of Evidence paragraph 8.3.24-8.3.27; R H Thomas’s
rebuttal Proof of Evidence Appendix 2
146 R H Thomas’s Hydrology Proof of Evidence paragraphs 8.2.17 and 8.2.19
147 R H Thomas’s Hydrology Proof of Evidence paragraph 8.2.16
148 R H Thomas’s Hydrology Proof of Evidence paragraph 8.2.19; Appellant’s closing
submissions paragraph 31
149 Richard Thomas, orally in cross-examination
150 This equates to 1.68 m per year which is comparable to Dr Foley’s estimate (given in
cross-examination) of 50-60 years for chloride shown in groundwater samples near Moor
Lane to reach the Beck. Alex Jones’s oral evidence in chief confirms that water would take
decades to move through areas of low permeability
151 R H Thomas’s Hydrology Proof of Evidence paragraphs 8.2.13 and 9.1.5-9.1.7; Appellant’s
closing submissions paragraph 32; Mr Thomas’s Rebuttal Proof paragraph 1.4.7 referencing
sections 9.1.5 and 9.1.6 and appendix 6 of his Proof of Evidence and appendix 2 of his
Rebuttal Proof. Paragraphs 3.2.23-3.2.24 of his Rebuttal Proof examine an over-estimate of
groundwater flux which leads to a figure of 5% of the lowest (rather than average) flow rate
of the Beck
152 R H Thomas’s Hydrology Proof of Evidence paragraph 8.2.20; Mr Thomas’s Rebuttal Proof
paragraph 3.4.15 and 3.4.19
153 Appellant’s closing submissions paragraph 35; R H Thomas’s Rebuttal Proof paragraphs
3.2.6-3.2.8 and 3.2.17 to 3.2.21
154 R H Thomas’s Hydrology Proof of Evidence paragraphs 8.2.21-8.2.27
155 R H Thomas’s Hydrology Proof of Evidence paragraph 8.3.5-8.3.28; R H Thomas’s rebuttal
Proof of Evidence section 3.3 and Appendix 2; Appellant’s closing submissions paragraph 33
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60. The west end of the attenuation ponds will intercept the groundwater table but
any groundwater flow intercepted by the attenuation pond in this location will be
very limited in volume and any zone of dewatering would be limited radially. In
any event, the eastern three-quarters of the attenuation pond system will be
above the groundwater table, so any groundwater entering the pond system at
its western end will infiltrate back into the ground at its eastern end.156
61. Mr Jones’s evidence on behalf of the YWT depends on Dr Foley’s theory of great
permeability.157 The data for only two out of 31 dipwells and one borehole out of
fifteen support the proposition that a south-eastern part of the site lies on water-
bearing sand158 and that does not demonstrate continuity with the part of the site
proposed for built development.159 The eastern end of the site sits on the Alne
Formation but groundwater flow would still be low because of the flat hydraulic
gradient and the low permeability of the ground.160 The proposition that there is
a strong correlation between groundwater levels in the Alne Formation and the
Beck depends on a comparison between water levels in Borehole BH14/07 and
Gauge Board 14/09 but the two are 430m apart along the length of the Beck.
The borehole is only 20m away from the Beck yet shows levels sometimes higher
than the Beck and sometimes lower which disproves the suggested correlation.161
62. The suggestion162 that groundwater pressure from the higher land of the site
would exert upward pressure on the Bog from below is not consistent with the
Arup Report163 commissioned by the YWT in 2003 to advise them upon a future
management and recovery strategy for the Bog,164 nor with the evidence from
the appellant’s borehole BH14/07 and from Arup’s dipwells that summer
groundwater levels are below those of the Askham Bog Drain/Holgate Beck. If
the hypothesis were true, then upward pressure would maintain groundwater
levels at the level of the Beck.165
63. There is a raised dome of groundwater in the Bog all year round, maintained by
precipitation and the relatively low permeability of the ground below and to the
side of the Bog. With occasional exceptions, the shallow groundwater table
slopes outwards from the Bog. It steepens as it gets closer to the Drain/Beck,
which indicates low hydraulic connectivity. Water does not flow upwards so,
other than from groundwater seepage along the southern boundary of the SSSI,
156 Addendum to appellant’s closing submissions, responding to paragraph 51(8(iii)) of
Council’s closing submission. In answer to my question concerning paragraph 8.2.11 of his
proof, Mr Thomas corrected the reference in Appendix 4 to the Environmental Statement
Addendum to the effect that the attenuation ponds would be hydraulically disconnected from
the underlying groundwater and SSSI by stating that the attenuation ponds would not be
lined. Mr Parkinson subsequently confirmed that it was the intention that the attenuation
ponds would be unlined and so not hydraulically disconnected from groundwater.
157 Appellant’s closing submissions paragraph 47
158 Appellant’s closing submissions paragraphs 39 and 40; Mr Thomas’s Rebuttal Proof
paragraphs 2.5.4, 2.5.6, 3.2.14-16 and 4.1.2
159 Appellant’s closing submissions paragraphs 46 and 47
160 Richard Thomas’s Proof of Evidence paragraphs 8.4.4 and 8.4.7
161 Appellant’s closing submissions paragraph 38
162 By Dr Foley on behalf of the Council
163 Core Document CD037
164 Richard Thomas’s Rebuttal Proof paragraph 3.4.17
165 Appellant’s closing submissions, paragraph 44
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there is no discernible lateral or upward flow of groundwater into the Bog. On
rare occasions, evapotranspiration lowers the groundwater table in the Bog below
the level of the water in the Beck, thus reversing the hydraulic gradient but even
so, the lack of hydraulic conductivity means that the higher water level in the
Beck is unable to top up the level in the Bog. Recovery does not take place until
rainfall replaces the water lost.166
64. In summary;
• Groundwater levels across the appeal site vary widely, with no sensible
pattern.
• Groundwater chemistry demonstrates long residence times.
• There is little or no flow of groundwater but there are seasonal pressure
changes.
• Baseflow of groundwater into the Beck is negligible.167
65. Neither the Council nor the YWT advance any plausible case to demonstrate how
their claimed effects would materially alter the status quo in the catchment.
Neither sought to demonstrate likely harm to the Bog but rather created a series
of hypothetical scenarios designed to force the decision-maker to follow the
precautionary principle.168 What is very clear is that there is no hydrological
connectivity between the northern part of the appeal site and the Beck and that
hydrological connectivity between the Beck and the Bog is very low with water
tending to flow from the Bog to the Beck rather than vice-versa.169 In any event,
the level of water in the Beck is controlled by pumps, irrespective of any
groundwater flow from the site.170
c) The hydrology and hydrogeology of Askham Bog
66. The best evidence there is concerning the hydrology/hydrogeology of the Bog is
the Arup Report of 2003.171 It was commissioned by the YWT to advise them
upon a future management and recovery strategy for the Bog, uninfluenced by
the need to make a case at a planning appeal. There were 31 dipwells created
and monitored over an extended period. The Beck level was monitored and the
depth of peat within the Bog mapped.172
67. Until the present public inquiry, the findings of the Arup report have never been
questioned. All of the appellant’s recent investigations are consistent with the
findings of the Arup report. The findings of the Arup report are quite clear;
• There is not a major upwelling of groundwater into the Bog.
166 Richard Thomas’s Proof of Evidence, paragraph 10.6.1. Mr Thomas’s Rebuttal Proof
paragraphs 3.4.21 and 3.4.22
167 Appellant’s closing submissions paragraph 46; Richard Thomas’s Rebuttal Proof,
paragraph 3.3.11 also provides a good summary of his position on groundwater
168 Appellant’s closing submissions paragraph 47
169 Appellant’s closing submissions paragraph 45
170 Appellant’s closing submissions paragraphs 46 and 47; Richard Thomas’s Proof of Evidence
paragraph 9.1.7 and Rebuttal Proof paragraph 3.4.3
171 Core Document CD037
172 Appellant’s closing submissions paragraph 41
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• Water flows mainly from the Bog into the Beck.
• There is little exchange of water between the Beck and the Bog. The Beck
has little effect on water levels in the Bog.
• The most dramatic event affecting the Bog is overtopping of the Beck but
its contribution to the annual water balance is minimal because it usually
occurs in winter when the water table is close to the surface in any event
so that most of the water flows back into the Beck within days.
• The Beck is a relatively unimportant source of water to the Bog as it
generally functions as a drain. The Bog is critically dependent upon
precipitation for its water supply.173
The last point is consistent with Core Document CD044,174 which is quite clear
that the water table rises and falls in response to rainfall. There is no suggestion
of water moving from the Beck although the role of overtopping is specifically
highlighted.175
68. Mr Jones, for the YWT, identified four ecohydrological conditions that occur on
the Askham Bog;
• Areas of higher ground above flood levels with acidic habitats fed by
rainfall with lower nutrient levels
• Habitat affected by flooding where the nutrient quality of flood water
affects the habitat
• Habitat where water quality is influenced by groundwater from the Alne
Formation
• Groundwater seepage along the southern boundary of the SSSI.176
69. Of these, the first and last would not be affected by the development. The
appellant’s response to the third is reported earlier. The second proposition was
not quantified but is not credible. Under post-development conditions, there
would be a net gain in the quantity of water from the development site due to
reduced net transpiration rates.177 Run-off from the part of the site proposed to
be developed (2.6% of the catchment) will be maintained at a greenfield rate of
173 Appellant’s closing submissions, paragraph 42, referencing paragraphs 10.3, 11.1.3,
11.2.2, 11.2.3, 13 and 15.2 of CD037 (the Arup Report)
174 Core Document CD044 “A Wood in Ascam– A Study in Wetland Conservation” edited by
Alastair Fitter and Clifford Smith November 1979
175 Appellant’s closing submissions paragraph 43. This is somewhat contradicted by Mr
Thomas’s assertion in paragraph 3.4.25 of his Rebuttal Proof that “the lowest elevation to
which the groundwater level can fall is the lowest level of the surface water in Holgate Beck/
Askham Bog Drain” but he himself disproves this assertion in 10.6.1 of his Proof of Evidence
and in paragraph 3.4.21 of his Rebuttal Proof of Evidence
176 Appellant’s closing submissions paragraph 37
177 Appellant’s closing submissions paragraph 37; Environmental Statement Addendum
paragraph 4.6; PBA Technical Note 002 dated 19.6.2019 attached as Appendix 4 to the
Environmental Statement Addendum; Mr Parkinson’s oral evidence in chief
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1.4 l/s/ha178. This would be a reduction in the rate of flow from 3.1 l/s/ha but
not a reduction in the volume of flow.179 The greenfield run off from the rest of
the appeal site (and from the rest of the catchment of Holgate Beck) will remain
unchanged.180
70. Only the north-eastern third of Near Wood in the SSSI lies directly down-gradient
from the surface water discharge from the part of the site that would be
developed.181 The discharge of water from the proposal’s attenuation basins
would maintain height levels in the receiving ditch for longer periods of time.182
In any event, the water level in Askham Bog Drain/Holgate Beck is controlled by
the IDB’s pumping station.183 The range of fluctuation is between 11.05 and
11.35 AOD adjacent to Near Wood but the effects extend all round the Bog.184
There is no requirement to provide any flow from the development site to the
Bog to maintain the current regime.185 If the attenuation ponds were to dry out,
this would be as a result of weather conditions (drought), not the development.
This would not affect what goes on in the Bog as there would be no run-off from
anywhere in such conditions.186
71. It is incorrect to state that water levels in Askham Bog Drain prevent drainage of
the Bog itself. There is an outward hydraulic gradient from the Bog to the Drain
and therefore always an element of drainage. A more appropriate statement
would be that the low permeability of the ground below and around the Bog
restricts the drainage outflow to the Beck to a negligible proportion of the
rainwater replenishing the Bog. Nevertheless, it is important to maintain water
levels in the Beck to minimise the drainage effect.187 The Flood Risk Assessment
describes the management actions which have been taken in recent years in the
Pike Hill Drain and its connecting channels with the Askham Bog Drain to secure
this.188
72. Under normal flow conditions, there is no continuity between surface water from
the appeal site, Askham Bog Drain and the Askham Bogs.189 Nevertheless, the
Beck can supply base-rich nutrients against a hydraulic gradient by the process
of diffusion.190 The supply of base-rich nutrient water to the Bog occurs as a
178 Compared to a Qbar greenfield run-off rate of 3.1 l/s/ha (paragraph 4.55 of Appellant’s
Supporting Planning Statement) (Qbar is the peak rate of flow for the mean annual flood) and
a Q100 of 11.1 l/s/ha (the peak flow for the 1 in 100 year event)(paragraph 7.3.1 of
Environmental Statement Appendix 13.1 (Flood Risk Assessment)
179 Michael Parkinson, orally, in cross-examination
180 Appellant’s closing submissions paragraph 37
181 Richard Thomas’s Proof of Evidence paragraph 8.2.19
182 Richard Thomas’s Proof of Evidence paragraph 8.2.11
183 Environmental Statement paragraphs 13.47-13.48; Environmental Statement Appendix
13.1 paragraphs 2.3.9-2.3.12
184 Richard Thomas’s Proof of Evidence paragraph 4.3.5 and Rebuttal Proof paragraphs1.4.2
and 3.4.3 (omitting the report of the contribution of the outfall from the Askham Bryan Waste
Water Treatment Works which Inquiry Document INQ1 shows to have ceased since 2003).
185 Environmental Statement paragraphs 12.40 and 13.49
186 Addendum to appellant’s closing submissions, responding to Council’s closing submissions
paragraph 51(8(iii)) and to YWT’s closing submissions paragraph 29
187 Richard Thomas’s Rebuttal Proof of Evidence paragraphs 3.4.22 and 3.4.23
188 Environmental Statement appendix 13.1 paragraphs 2.3.13 and 2.3.14
189 Environmental Statement paragraphs 12.36 and 12.38
190 Richard Thomas’s rebuttal Proof paragraph 3.2.24
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result of the overtopping of the Beck.191 The flooding occurs when the IDB’s
pumps cannot cope with the volume of water received. Those events will still
occur.192
(ii) Ecology
73. Although the sensitivity of the Bog is assessed as medium in the Environmental
Statement, the scope of work undertaken in data collection prior to making the
application reflects the sensitivity and importance of the Bog.193 The Ecological
Impact Assessment within the Environmental Statement surveyed hedgerows,
breeding birds, bats, badgers, water vole, otters, great crested newts, reptiles
and invertebrates on the appeal site.194 The Supporting Planning Statement195
notes the presence of three species of aquatic invertebrates of scarce status
associated with the acidic conditions which occur in the SSSI.196
74. The Bog is also an ancient semi-natural woodland but that contributes to the
“unfavourable” condition classification of four out of six units of the SSSI because
the extent of woodland has reduced the extent of open wet and marshy habitats
and prevented some areas from being managed through grazing.197 Natural
England’s standing advice requires a standoff or buffer between development and
an Ancient Woodland.198 The majority of construction would be at least 175m
from the SSSI.199
75. The Case advanced by the Council and the YWT has three strands of alleged
harm to the Bog;
• through reductions in the base-rich nutrient water level of the Askham Bog
Drain
• by way of isolation and the loss of metapopulation effects
• through increased activity by humans and their pets200
191 Appellant’s closing submissions paragraph 45; Richard Thomas’s Rebuttal Proof paragraph
3.2.24
192 Appellant’s closing submissions paragraph 37; Environmental Statement Appendix 13.1
(Flood Risk Assessment), Appendix E, paragraph 4.1.10 “The dimensions of the culvert inlet
have been used in an Orifice unit at the downstream end of the model. It is considered that
this will represent the potential restriction of the culvert on flows entering the pumping
station. In addition, the capacity of the pumping station is far exceeded by the peak inflows
to the model. Therefore it is considered that the limiting factor and largest influence on peak
water levels within the watercourses and bog at the downstream end of the model will be the
pump capacity, not the culvert capacity.”
193 Addendum to appellant’s closing submissions, responding to paragraph 13 of YWT’s closing
submissions
194 Supporting Planning Statement paragraph 8.17; Tom Wigglesworth’s Proof of Evidence
paragraphs 2.6-2.11
195 Paragraph 8.27
196 Tom Wigglesworth’s Proof of Evidence paragraph 2.23; Environmental Statement
paragraph 9.63
197 Tom Wigglesworth’s Proof of Evidence paragraph 2.18; Environmental Statement
paragraph 9.59
198 Environmental Statement Appendix 8.1, paragraph 4.26
199 Environmental Statement paragraphs 9.101 and 9.106
200 Appellant’s closing submissions paragraph 48
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a) Harm to flora
76. The disposition of species specifically dependent on base-rich nutrient conditions
lies in the centre or southern edge of the bog rather than on its northern edge
(next to the Drain), where none of the predominant habitats are specifically
dependent on base-rich conditions.201 Nevertheless, in general terms, the
proposition is correct that even a small change in the hydrology of the site could
have a significant adverse impact on the flora of the Bog. However, the
hydrological and hydrogeological evidence (reported above) provides a
compelling case that the development will not affect the
hydrological/hydrogeological regime of the Bog.202 It will not result in loss or
deterioration of irreplaceable habitats.203
b) Isolation
77. In general terms it is probably true that whatever is put on agricultural land by
way of development would be less penetrable to various species than is open
agricultural land. But the significant tree planting associated with the proposal
and the biodiversity net gain the development would produce should not be
ignored.204
78. Bats presently traverse Woodthorpe and, no doubt, Copmanthorpe. There is no
evidence that the appeal site itself is an important feeding resource for bats.
They would be able to move in a north south direction through the open land to
the west of the site.205 The provision of bat boxes and roosting features and the
design of bat-sensitive lighting installations is proposed within the housing
development.206
79. Deer are noted to have a role in browsing within the Bog. The fences in the EPEZ
would prevent this species moving north onto the site but there is no evidence at
all that they currently use the appeal site to feed. They would still be able to
access the open land to the west. There is no evidence at all to show how any
impacts on deer might result in any harm at all to the SSSI.207
80. Similarly, there is no evidence that the appeal site has any particular value for
hedgehogs and badgers.208 They would still be able to access land to the west of
the site.209
81. Sir John Lawton (for the YWT) agreed that there was no evidence that great
crested newts would be unable to forage adequately or to access their breeding
ponds as a result of the development.210
201 Richard Thomas’s Rebuttal Proof paragraph 3.4.13 and Appendix 3
202 Appellant’s closing submissions paragraph 50
203 Addendum to Appellant’s closing submissions, responding to paragraph 7 of YEWT’s
closing submissions
204 Appellant’s closing submissions paragraph 51
205 Appellant’s closing submissions paragraph 52
206 Environmental Statement paragraph 9.184
207 Ibid
208 Tom Wigglesworth’s Proof of Evidence paragraph 5.32
209 Ibid
210 Ibid
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82. Bats, birds and flying invertebrates would not be restricted by the fencing of the
EPEZ.211 Sir John Lawton accepted that aquatic species including otter, water
vole, amphibians and invertebrates would be able to access the wider landscape
by means of the drains and ditches which would pass under the fences in the
EPEZ.212
83. None of the above demonstrate any likelihood of harm to the integrity of the
SSSI which would bring NPPF paragraph 175 into play. The Environmental
Statement recognises that development in proximity to Askham Bog SSSI could
potentially result in its isolation and/or fragmentation from the surrounding
ecological network. But the EPEZ is proposed as part of the Council’s Green
Infrastructure corridor.213 The EPEZ would deliver clear net gain for biodiversity
through increased available habitat. Sir John Lawton accepts that the concept of
“bigger, better, joined” did not require the EPEZ itself to be a nature reserve.
Other than species restricted by the fencing, the EPEZ would benefit
metapopulations and contribute to the Council’s green infrastructure
objectives.214
c) Public pressure
84. There is existing a significant urban area within 400m walking distance of the
northern boundary of the SSSI.215 Access is easy to achieve. Some
unauthorised access occurs but the amount is modest. Simply walking through
the SSSI does not cause harm.216 Although there is evidence of dens, campfires
and littering which poses a serious long-term threat to the habitats and species
present217 and is part of the reason for classifying some units of the SSSI as in
unfavourable condition218 there is no evidence of material harm to the special
interest of the Bog.219
85. Access to the SSSI from Copmanthorpe to the south via the Tadcaster Road is a
similar distance to that of the proposed housing to the north of the SSSI
boundary. Yet the reserve is open and visitors are encouraged with free entry.
The large number of visitors does not cause unacceptable problems. Increased
recreational visits to the Bog as a result of the proposed housing would be
minimal compared with the numbers currently received (and encouraged).220
There is no reason to suppose that the inhabitants of the appeal proposal would
behave differently from existing residents of the locality.221
211 Tom Wigglesworth’s Proof paragraph 5.30
212 Tom Wigglesworth’s Proof of Evidence paragraph 5.31
213 Environmental Statement paragraph 9.149; Council’s committee report paragraph 4.11
214 Appellant’s closing submissions paragraphs 49 and 52
215 Environmental Statement paragraph 9.134
216 Tom Wigglesorth in cross-examination
217 Design and Access Statement page 48; Tom Wigglesworth’s Proof of Evidence paragraph
2.19; Environmental statement paragraphs 3.28 and 3.29
218 Supporting Planning Statement paragraph 8.23; Environmental Statement paragraph 9.59
219 Appellant’s closing submissions paragraph 53
220 Supporting Planning Statement paragraph 8.55
221 Appellant’s closing submissions paragraph 53 and Addendum to Appellant’s closing
submissions responding to paragraph 35 of YWT’s closing submissions.
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86. Although YWT’s own study of damage and disturbance due to the proximity of
housing222 advises that the ideal separation should be more than 500m, it
records a noticeable reduction in negative effects to nature reserves that are
more than 100m from housing.223 The EPEZ and the landscape buffer around the
housing would combine to a depth of 175m. Nevertheless, in response to early
pre-application concerns expressed by Natural England and YWT,224 the EPEZ has
been designed to deter any access from the north. It would reduce the potential
for littering and fly tipping and so would be a planning benefit.225 It would have
two fences (the extent of which could be required to be increased through a
suggested condition), permanent water features and thorny hedges.
87. The SSSI is not attractive to dog walkers. Only 13% of visitors to the bog are
dog walkers. The provision of alternative open space within the appeal proposals
will provide a diversionary attraction.226
88. The harm of cat predation can be overstated.227 The designated interest features
of Askham Bog SSSI are open fen and fen woodland, not vulnerable to cats.228
The citation lists mainly flora but notes that the site is renowned for its insect
fauna. Habitat creation in the public open space would provide an alternative
opportunity for an increase in prey attractive to cats. Many cat species are
averse to water, prevalent in the bog, and which would form part of the EPEZ.229
The fences of the EPEZ could be designed to deter entry by cats.230
89. Critical to the achievement of the ecological strategy is the long-term
management and maintenance of the EPEZ. A Landscape Management Plan for
the EPEZ and a Landscape and Ecology Management Plan for land outside the
EPEZ is proposed.231 A maintenance regime would counter damage to the
fences. It would remain an obligation for future occupants of the development, as
required by the submitted planning obligation and supplemented by a suggested
condition.232
222 Core Document CD025, referenced in Environmental Statement paragraph 9.139
223 Tom Wigglesworth’s Proof of Evidence table EDP6.1, third row
224 Appellant’s Statement of Case paragraph 3.7
225 Appellant’s Statement of Case paragraph 7.33; Tom Wigglesworth’s oral evidence in chief
226 Tom Wigglesworth’s Proof of Evidence paragraph 5.20; Duncan McInerney’s Proof
paragraph 5.19
227 Tom Wigglesworth’s Proof of evidence paragraph 5.22, referencing the RSPB website
https://www.rspb.org.uk/birds-and-wildlife/advice/gardening-for-wildlife/animal-
deterrents/cats-and-garden-birds/are-cats-causing-bird-declines/
228 Supporting Planning Statement paragraph 8.53; Tom Wigglesworth’s Proof of Evidence
paragraph 5.21 and the Environmental Statement paragraph 9.141 both point out that
Natural England, in its response to the York Local Plan further Sites Consultation (July 2014),
advised that recreational disturbance and domestic cat predation are not a significant concern
for Askham Bog SSSI as birds are not an interest feature.
229 Tom Wigglesworth’s Proof of Evidence paragraph 5.22
230 Appellant’s closing submissions paragraph 54
231 Tom Wigglesworth’s Proof of Evidence paragraphs 3.13 and 3.14
232 Appellant’s closing submissions, paragraph 55
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Schools
90. Notwithstanding existing capacity in local schools,233 it is accepted that the
development will give rise to a need for additional Primary, Secondary and early
years/pre-school places to be provided, together with land for the pre-school
facility.234 A parcel of 662 sq m of land will be provided, together with a financial
payment at a rate of £3,816,027 index linked per 516 houses paid in phases but
to be adjusted in line with approved reserved matters before the final phase
payment according to agreed formulae for calculating pupil yield and costs per
place.235
Highway safety
91. The proposal includes off-site improvements; road improvements to Bog Lane; a
3m wide, 1.4km long combined footway and cycleway along Moor Lane and a
Toucan crossing to link the cycleway to on-road cycle lanes; the reconfiguration
of the Moor Lane/ Chaloner’s Road mini roundabout and a second Toucan
crossing to help pedestrians reach eastbound bus stops on Moor Lane.236
92. The Initial Transport Assessment examined local junctions on the highway
network for 2020 and 2023 together with other cumulative development. They
were found to operate within capacity.237 Following criticism by the Council and
by Highways England of the trip generation rates used in the initial Transport
Assessment these estimates were revisited.238 The revised trip generation
agreed with the Council is predicated on the achievement of a 10% reduction in
vehicular trips through the implementation of a Travel Plan, improvements to bus
services and off-site cycle route improvements.239 These are secured through the
planning obligation. This work identified six junctions on the national strategic
road network which would experience increases of over 30 trips during a peak
hour as a result of the development but none would cause a severe impact other
than that on the junction of the A64 and A1237. A mitigation scheme has been
designed240 in agreement with Highways England241 and would be funded through
the planning obligation. Adjustments would also be needed to the junction of
Moor Lane with the Tadcaster Road and Tesco access and to the junction of the
A1036 Tadcaster Road with Sim Balk Lane. These would be secured through the
planning obligation.242
233 Supporting Planning Statement paragraph 7.94; Environmental Statement paragraphs
7.32, 7.35 and 7.60
234 Education SOCG, paragraph 4.3.2
235 Education SOCG paragraphs 4.4.4-4.4.9
236 Supporting Planning Statement paragraphs 4.30 and 4.31; Environmental Statement
paragraph 18.116
237 Supporting Planning Statement paragraphs 8.124ff
238 PBA Technical Notes TN05 March 2019, TN06 April 2019, TN07 May 2019, TN08 June 2019
and TN09 July 2019(documents ESD06a)
239 Highways statement of Common Ground agreed with the Council (Inquiry document INQ6)
sections
240 Drawing number 29426/5506/021 revision B
241 Statement of Common Ground with Highways England
242 Highways Statement of Common Ground with the Council (Inquiry Document INQ6),
sections 4.17 and 4.18
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93. Although excessive speeds on Moor Lane are identified as an existing
condition,243 the appellant and Council are agreed that, should they persist,
traffic calming would be necessary to make highway conditions acceptable for the
development to proceed. Consequently, the planning agreement makes
provision for speed monitoring and for payment of a contribution towards traffic
calming measures if required.
Other matters
94. The application is accompanied by an Outline Energy Statement.244 Table 5.1
indicates the potential of photovoltaic panels, solar water heating and heat
pumps to comply with policies CC1, CC2 and CC3 of the emerging local plan.
95. There are two Air Quality Management Areas in York. Exceedances of air quality
thresholds are expected with or without the development. The effects of the
development are not expected to be significant but it is recommended that
electric vehicle charging infrastructure is included in the detailed design of the
development.245 The effects during construction are recommended to be
mitigated by the imposition of Institute of Air Quality Management 2014
guidelines through a Construction Environmental Management Plan to be secured
by condition.246
96. With mitigation (such as double glazing with trickle vents and protection of
external amenity areas alongside Moor Lane), the effects on the development of
noise and vibration (through generated traffic and from plant in the commercial
and sports buildings) are expected to be negligible.247 Construction noise should
be controlled through the Construction Environmental Management Plan to be
secured through condition.248
97. The proposed development would be so distant from the Askham Bryan
Conservation Area that it would have no effects on its significance or setting.249
The farm buildings to be demolished are of negligible heritage value but their loss
should be mitigated by a limited programme of building recording.250 There are
records of ridge and furrow cultivation but imperceptible on site. Archaeological
investigation found only ditches of low value. Paleoenvironmental remains may
be of medium significance. Their loss should be mitigated by sampling and
recording in the footprint of the proposed attenuation pond.251
98. The appellant’s preliminary ground conditions assessment recommends that
further ground investigation and assessment be undertaken, notably in the area
243 Highways Statement of Common Ground with the Council (Inquiry document INQ6),
paragraph 2.3.2
244 Document ESD05a
245 Supporting Planning Statement paragraphs 8.134ff; Environmental Statement paragraph
15.106
246 Environmental Statement paragraph 15.103
247 Supporting Planning Statement paragraphs 8.136-8.146; Environmental statement
paragraphs 16.156, 16.159 and 16.169
248 Environmental Statement paragraph 16.151
249 Environmental Statement paragraphs 10.53 and 10.120
250 Environmental Statement paragraphs 10.72 and 10.125
251 Environmental Statement paragraphs 10.60, 10.66-70 and 10.128 and Appendix 10.1
(Historical Baseline) Appendix EDP5 paragraph 4.2
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of and around the former Chaloner’s Whin landfill and in and around Marsh
Farm.252
Very Special Circumstances
99. Examination of the Local Plan is currently in progress and has called into question
the basis on which the Green Belt boundary has been chosen.253 Notwithstanding
such arguments, the appellant’s case adopts a pragmatic approach to pursuit of
this appeal on the basis that the site should be deemed to be within the Green
Belt but that there exist compelling very special circumstances which support the
appeal proposals.254 These are listed in the appellant’s opening and closing
statements255 and can be summarised as;
• Housing supply in a situation of shortage
• Affordable housing supply in a situation of shortage
• Net biological diversity gains on site
• Provision of open space well in excess of requirements, in a situation of
deficiency
• Delivery of a local centre and community facilities
• Design to provide a clear urban edge
• Economic benefits
(i) Housing
100. The Housing Land Supply has an agreed range of 2.19-2.77 years.256 It is
representative of a situation that both the Council and the local MP describe as a
crisis.257
101. At the time of preparing the Environmental Statement the latest York Annual
Monitoring Report showed the completion of new dwellings (net) had averaged
252 Environmental Statement Appendix 11.1 paragraph 7.2
253 Appellant’s Statement of Case (Document CD088) paragraph 4.2; Supporting Planning
Statement Appendix V
254 Gary Halman proof paragraph 8.12.
255 And in Statement of Case section 7 and Supporting Planning Statement section 7
256 Inquiry Document INQ5. The appellant and the Council are content that the appeal
decision is based on a range rather than a specific figure. The difference between them lies in
a dispute over the deliverability of eight sites. Both parties adduce a number of appeal
decisions in support of their respective interpretations of deliverability. There is little point in
trying to home in on a more precise figure for two reasons; (i) whichever figure is chosen, the
Housing Land Supply is clearly inadequate, and (ii) because in terms of precise detail the
situation is volatile, changing on a daily basis as homes fall into or out of the pipeline as the
example given in paragraph 3.3 of the SOCG demonstrates but such volatility does not affect
the scale of the deficiency so is not likely to lead to a different overall conclusion, namely that
the Housing Land Supply is clearly inadequate. However, should the Secretary of State wish
to alight upon a precise figure, the information necessary to make that choice is contained
within paragraph 2.13 of the SOCG.
257 Appellant’s closing submissions paragraph 57
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around 652 since 2008. With the exception of 2016, the Council has failed to
meet its target requirements in each year since 2007.258
102. Representations were prepared by GVA HOW Planning on behalf of the
Applicant in response to the City of York Publication Local Plan Regulation 19
Consultation (February 2018). The Representations identified that the Council’s
approach to identifying its Objectively Assessed Need (OAN) is unsound. The
Council rejected the advice of GL Hearn, their professional advisors, that 867
dwellings per annum (dpa) should be regarded as the demographic ‘starting
point’ for establishing the OAN, with percentage uplifts to account for market
signals across York. To respond to both market signals and affordable housing
need, GL Hearn recommended a 10% uplift resulting in an OAN of 953 dpa.
103. Notwithstanding the evidence base presented to CYC regarding their OAN and
housing trajectory and delivery, the Council have progressed with a draft local
plan which sets out an OAN of 867 dpa. In light of this, the Planning Inspectors
reviewing the draft Local Plan have identified particular concerns regarding the
OAN figure and the Green Belt Review.259 The Council is currently promoting an
OAN through the Local Plan process of 790 dwellings pa.260
104. Within the administrative boundary of York, there are a number of local,
regional and nationally designated ecological sites, including an internationally
designated ecological site. Several of the key local plan allocations are
constrained by these ecological sites and the potential effects of development
upon these have yet to be fully demonstrated to the satisfaction of statutory
consultee Natural England.
105. Furthermore, given the City of York’s heritage status there are also heritage
constraints associated with some of the development sites identified in the Local
Plan, which affects the potential development capacities. Other recurring
constraints for draft allocated sites include air quality, with a significant area of
the strategic highways network designated an Air Quality Management Area
(AQMA) due to exceedances of pollution criteria; extensive flooding associated
with the Rivers Ouse and Foss; and highways impacts coupled with a need for
infrastructure improvements to accommodate the growing population and
number of vehicle users on the highways network.
106. Most of the strategic allocations in the emerging local plan are the subject of
significant opposition from both the public and statutory consultees.261 For the
purposes of this appeal it is not permissible to presume that York’s housing crisis
will be resolved by the emerging local plan.262
107. In the absence of the proposed development, it is not considered the Local
Plan can deliver the housing to achieve a realistic OAN263 and additional sites will
be required to deliver the authority’s OAN. The Application site is extremely well
258 Appellant’s closing submissions paragraph 57, referencing the SHMAA Addendum 2017,
paragraph 3.13, copy not provided.
259 Appellant’s Statement of Case, paragraph 4.2; Supporting Planning Statement paragraphs
5.14, 7.11 and Appendix 5
260 Gary Halman proof paragraph 6.20
261 Gary Halman’s Proof of Evidence on behalf of the appellant, appendix 5
262 Appellant’s closing submissions, paragraph 6
263 Environmental Statement, paragraphs 4.8-4.11 and 4.46-4.47
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placed in a sustainable location to help deliver this additional need, being
suitable, available and deliverable.
108. Housing affordability is also a challenge for York. In 2017, the ratio of lower
quartile house prices to earnings (a measure of housing affordability) stood at
9.1 in York, compared to 5.7 regionally and 7.3 nationally. Further, the ratio
between York and England has widened over the past 10 years, indicating that
affordability has worsened in York relative to nationally.264 By September 2018,
lower quartile affordability ratios at 9.41 are significantly higher than both
national and regional ratios.265
109. Private rental costs have also risen so that York’s rental costs significantly
exceed those for the region and England as a whole.266 G L Hearn in the 2019
Housing update directly relate this to a lack of affordability in the purchase
market.267
110. Affordable housing supply is very low. The 2016 SHMA noted a need for 2,865
affordable units 2014-2019. Actual delivery was 462. However, right to buy
sales of the Council’s housing stock were 324 over the same period. Thus, the
net addition to the affordable stock over the period was only 138 homes.268
111. The proposal will deliver 35% affordable housing, in excess of the emerging
local plan requirement of 30% and well in excess of the Council’s recent average
achievement of 13.31%.269 This represents a very special circumstance
necessary to make the proposal acceptable in planning terms.270
112. The Council disparages the value of this provision in excess of requirements by
insisting on a particular fixed price for the discounted sale housing which would
be less than 30% of open market value, a discount of over 70%. In contrast,
nothing in the definition of affordable housing in Annex 2 of the NPPF requires a
discount of more than 20%. Nor does it require discounted market sales housing
or other affordable routes to home ownership to be routed through a Registered
Provider as middle man offering no added value. The administrative provision to
ensure continued occupancy by eligible persons is achieved with a Land Registry
restriction on the title of a discounted sale dwelling.271
264 Environmental Statement, paragraphs 3.21 and 7.27. The appellant’s closing submissions,
paragraph 57, referencing Gary Halman’s proof paragraph 6.4 has different figures, based on
average house prices rather than lower quartile figures (9.9 for York, and 7.3 for the region).
The document at Appendix 3 of Gary Halman’s proof to which he refers has average figures
different again for 2016/2017; 9.6 for York, 7.2 for the region and 10.2 for England but the
point remains the same.
265 Gary Halman’s proof paragraph 6.6
266 Gary Halman’s proof paragraph 6.8
267 Gary Halman’s proof paragraph 6.9
268 Gary Halman’s proof paragraph 6.10
269 Gary Halman’s proof paragraph 6.22
270 Gary Halman’s proof paragraph 6.23
271 Appellant’s closing submissions, paragraph 57; Addendum to appellant’s closing
submissions, commenting on paragraph 77 of Council’s closing submissions
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(ii) Biodiversity gains
113. The site has been the subject of several decades of intensive arable farming.
Consequently, both its landscape fabric and its ecology have become relatively
impoverished.272 The development layout will enable the majority of the
important habitats present on site to be retained, protected and enhanced,273
whilst also enabling the creation of new habitats of ecological value.
Notwithstanding the barrier which security fencing will provide to larger
mammals,274 the EPEZ and other new habitats and green infrastructure will
reverse the recent trend of increasing habitat fragmentation in areas surrounding
Askham Bog SSSI by providing native wetland, grassland, scrub and woodland
habitats.275 This will in turn maintain and enhance opportunities for the existing
protected species populations and provide an overall significant net gain in
biodiversity.276
114. A Biodiversity Impact Assessment has been undertaken using the DEFRA
Biodiversity Metric 2.0. This demonstrates that an area-based biodiversity unit
net gain of 117.54% would be achieved. By way of context, DEFRA has
consulted on a proposed 10% mandatory gain. Notwithstanding the proposed
removal of 32% of existing hedgerows on site (of which 81% would be classed as
“important”,277 a 5.32% increase in linear habitat biodiversity unit would be
achieved but this does not take into account the bund and ponds, even though
they would be linear features.278 The Council contests the appellant’s use of the
DEFRA matrix for calculating benefits but accepts that a net gain can be
demonstrated.279 Even correcting for the Council’s points produces a biodiversity
unit net gain of 80%, well above the government target.280
272 Design and Access Statement pages 14 and 16; Supporting Planning Statement paragraph
7.105; Tom Wigglesworth’s Proof of Evidence paragraph 2.31; Environmental Statement
paragraphs 9.73 to 9.92 records the presence on site of 15 bird species of conservation
concern but none in numbers, commuting bats on the southern boundary, typical for urban
edge farmland, no evidence of roosting bats (Marsh farm buildings unsuitable), no badgers
found, though site suitable, no signs of water vole or otter but known to occur, no Great
Crested Newts on site, no reptiles on site and no indication that any of the notable aquatic
invertebrates recorded within the SSSI have significant populations which extend beyond the
habitats of the SSSI into and across the aquatic habitats within the site.
273 Recommendations for tree protection are made in the Environmental Statement Appendix
8.1, section 5
274 Tom Wigglesworth’s Proof of Evidence on behalf of the appellant paragraphs 5.30-5.32
275 Supporting planning statement paragraph 8.59; Environmental Statement paragraph
9.179 records the proposed creation of approximately 5.2ha of new native woodland,
hedgerow and scrub planting. Table 9.10 summarises proposed habitat losses and gains
276 Design and Access Statement page 14; Supporting Planning Statement paragraphs 8.66
and 8.67
277 Environmental Statement paragraph 9.111. Subsequently corrected during cross-
examination
278 Tom Wigglesworth’s Proof of Evidence on behalf of the appellant paragraphs 3.16-3.22
279 Appellant’s closing submissions, paragraph 58; Nadine Rolls’s oral evidence in chief and
Rebuttal proof on behalf of the Council, paragraph 4.18. The Council’s committee report,
paragraph 4.11, confirms that, in part, the proposals comply with the Council’s Green
Corridors Technical Paper (Core Document CD072a)
280 Tom Wigglesworth, oral evidence in chief.
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(iii) Open space
115. Woodthorpe, Bishopthorpe and Copmanthorpe are the three suburbs of York
which are closest to the site. All three are deficient in outdoor sport and amenity
greenspace.281 Woodthorpe and Dringhouses Ward has recognised issues in
respect of both physical and mental health and isolation.282 The site would
provide a total of 13.75ha of such space, well in excess of the policy requirement
of 7.74ha.283 That level of provision would be a significant community benefit.284
116. The Illustrative Masterplan demonstrates that this area of the site could
accommodate the following uses:
• A full-size football pitch;
• A 5-a-side football pitch;
• 4 tennis courts;
• Allotments;
• Multi-use Games Area;
• Skate Park; and
• Extensive POS and Green Infrastructure.285
Its precise nature is not specified because the Council has yet to complete its
audit of recreational provision. The Unilateral Undertaking allows for its precise
nature to be designed so as to provide maximum benefit and alignment with local
needs and the Council’s Playing Pitch Strategy when published. A high-quality
scheme is capable of being developed in conjunction with Sport England.286
(iv) Local Centre and community benefits
117. Although there is a good range of facilities within walking distance, the local
centre at Woodthorpe does not offer space for community use or for
opportunities such as a nursery facility which could be provided at the local
281 Design and Access Statement page 64; Environmental Statement Appendix 8.1, paragraph
2.28
282 Appellant’s closing submissions, paragraph 58; Supporting Planning Statement paragraph
7.88
283 Supporting Planning Statement paragraph 4.23 (paragraph 7.84 and appellant’s closing
submissions paragraph 58 refer to 13.57ha, understood to be an error because Land Use
Schedule shown on page 40 of the Design and Access Statement and figures for “Open space”
and “Sports Pitches” on pages 49 and 50 of the Planning Obligation sum to 13.75ha which is
also the figure given in paragraph 5.21 of the Environmental Statement). This does not
include the external tennis courts which may be included with the Pavilion as defined on page
50 of the planning obligation
284 Appellant’s closing submissions, paragraph 58; Appellant’s Statement of Case, paragraphs
7.24-7.26; Supporting Planning Statement paragraph 7.88; The Council’s committee report
paragraph 3.27 confirms that it would reduce the shortfall in outdoor sports provision in the
area.
285 Supporting Planning Statement paragraph 4.22; Environmental Statement paragraph 5.20
286 Appellant’s Statement of Case, paragraph 7.25
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centre proposed on site.287 While giving it little weight, the Council’s committee
report accepts the local centre as a benefit of the proposal.288
(v) Design to provide a clear urban edge
118. Detailed design would be a reserved matter but the land-use parameter plan
specifies the location of a landscape buffer. The new settlement edge is to be
softened through the use of locally represented, and therefore visually
appropriate, new tree planting to ensure that the edge of the proposed
development is not considered to be abrupt.289 Mrs Priestley’s evidence on behalf
of the Council notes that the proposal could provide a better urban edge to
Woodthorpe.290
(vi) Economic benefits
119. Mr Halman on behalf of the appellant estimates that about 300 construction
jobs would be directly provided for about five years, increasing construction
employment in York by 6%.291 The additional household expenditure resulting
from the additional population would amount to around £5million, supporting 50
full time equivalent (fte) jobs. There would be fiscal benefits to the Council of
about £3.7million in New Homes Bonus and approximately £900,000 annually in
Council tax revenue.292
The Case for the Council
120. Development of the housing element of the site was once included as a
proposal in early stages of the emerging local plan. But the site is subject to
such severe constraints that no part of the site is now proposed or safeguarded
for development in any version of the emerging local plan since 2014. These
constraints outweigh any benefits of the proposal.293 The constraints relate to
• Green Belt
• The impact on the Askham Bog; and
• Impact on landscape character
Impacts on transportation294 and on education provision295 have been resolved by
agreement with the appellant.
287 Appellant’s Statement of Case, paragraph 7.33: Design and Access Statement, page 64
288 Council committee report, paragraph 4.89
289 Appellant’s Statement of Case paragraph 8.4
290 Esther Priestley’s Proof of Evidence on behalf of the Council, paragraphs 3.1.1 “within
itself, the proposed development and open spaces have design merit” and paragraph 3.2
291 Design and Access Statement, page 64; Environmental Statement paragraphs 7.45 and
7.47
292 Supporting Planning Statement, paragraphs 7.95-7.99; Environmental Statement
paragraph 7.67
293 Council’s opening statement paragraphs 1, 2 and 3; Frances Harrison’s Proof of Evidence
section 4
294 Council’s closing submissions paragraph 9 referencing Inquiry Document 6 (Highways
Statement of Common Ground)
295 Council’s opening statement paragraph 3
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Green Belt
121. The current Green Belt status of the site is beyond doubt, as the appellant
accepts.296 The assessment of the Green Belt credentials for the site was carried
out as part of the emerging local plan and previously endorsed by the York Local
Plan Green Belt Inspector’s Report in 1994.297 The whole site lies within the
general extent of the Green Belt in accordance with the saved policies of the
Yorkshire and Humber Regional Spatial Strategy 2008. The full force of green
belt policies applies to the whole site.298 The proposed Green Belt boundary in the
appeal location provides the most consistent and easily recognisable boundary in
the area and has associations with historical features established for a significant
period of time.299 There is no basis for any watered-down approach to the
application of the NPPF’s strict approach to Green Belt.300
122. It is correct to recognise that the housing element of the appeal site was not
identified as performing a strategic role in terms of the green belt or rural setting
and that the only stated reason for its omission as a proposed allocation
subsequent to the 2014 Publication Draft Local Plan was because of doubt over
the impact on Askham Bog and that there were sufficient alternative sites which
better met the site selection criteria.301 But it is a mistake to conclude from that
that this element of the site offers little or nothing material in Green Belt
terms.302 The remainder of the site is identified as performing a strategic role.303
296 Council’s closing submissions paragraph 12, referencing the appellant’s Statement of Case
paragraph 7.8 and the general Statement of Common Ground paragraphs 2.1-2.3 and 3.1;
Council’s Statement of Case paragraph 2.6 referencing appeal decisions including
APP/C2741N/O5/1189897 and APP/C2741N/O5/1189885; Frances Harrison’s Proof of
Evidence paragraph 2.8 referencing additional appeal decisions APP/C2741/W/16/3149489,
APP/R0660/A/13/2210660; Frances Harrison’s Rebuttal Proof paragraphs 2.2, 2.4, 2.5, 2.7,
2.8 and 2.9 referencing additional appeal decisions APP/C2741/V/05/1189972,
APP/C2741/A/08/2069665, APP/C2741/W/16/3149489, APP/C2741/W/19/3227359 and
contrary decision APP/C7241/A/13/2191767
297 Council’s closing submissions paragraph 3 and 19, referencing Core Document CD035
(topic Paper TP1 Addendum), Annex 3, paragraph A3:9, Historic England’s consultation
response letter dated 7 February 2019; Mrs Harrison’s Proof of Evidence paragraph 2.4
298 Council’s opening statement paragraph 4; Council’s closing submissions paragraph 13; Mrs
Harrison’s Proof of Evidence paragraph 2.6 and her Rebuttal Proof paragraph 2.3
299 Council’s Statement of Case paragraph 3.13
300 Council’s closing submissions paragraph 16(1)
301 Council’s closing submissions paragraph 15; Council’s committee report (Core Document
CD001) paragraph 3.2; Council’s Statement of Case paragraph 4.7; Frances Harrison’s Proof
of Evidence paragraphs 3.14-3.15; Alison Stockdale’s Proof of Evidence paragraphs 3.38 and
3.39
302 Council’s opening statement paragraph 5, referencing Mrs Harrison’s Proof of evidence
section 4 including figures 1 and 2; Council’s closing submissions referencing Mrs Harrison’s
proof paragraphs 3.6-3.9; Council’s closing submissions paragraph 15 which point out that
the Preferred Options Plan 2013 did not conclude that no weight be given to the other
purposes of the Green Belt which land around York might serve; Core Document CD035
pages 11 &12, paragraphs 4.6 and 4.7
303 Council’s closing submissions paragraph 14; Mrs Harrison’s Proof of Evidence paragraphs
3.7-3.12 and figures 1 and 2 (copied from Core Document CD003) show that the part of the
site not proposed for built development is identified as an area retaining the rural setting of
the city and as a Strategic Area to keep permanently open
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The site includes in part land that is important to the character and setting of
historic York.304
123. The detailed assessment of the site in Local Plan Topic Paper TP1 Annex 3
addendum305 makes it clear that the land is within an area which serves the first
four Green Belt purposes in that
• The adjacent land is important to the historic character and setting of York
• The land functions in maintaining separation between York, the outer ring
road (A1247/A64) and Copmanthorpe
• The area between Moor Lane and the A64 also contains other land uses
which illustrate elements of the countryside and which enhance the Green
Belt. The openness of the area has created valuable resources for the
population of York as emphasised by the designation of District Green
Corridor 14
• There is no difference between the housing element and the remainder of
the site in terms of landscape or openness. All the land south of Moor
Lane is rolling diverse arable farmland
• Askham Bog provides historical evidence of the geological and climatic
evolution of the area as well as the influence of human processes
• While much of the urban area of Woodthorpe to the north is modern
development with only tenuous links to the city centre, the close proximity
of development has not blighted the adjacent farmland
• There are good views from Moor Lane and properties in Woodthorpe into
Askham Bog and the surrounding countryside which increases the sense of
the city within and close to its rural context
• The proposed Green Belt boundary supports York as a compact City within
a contained and concentric form of development which maintains views
across the flat terrain and limits development within the identifiable
compact district of Woodthorpe
• Moor Lane provides the logical boundary between the existing urbanised
areas and the countryside. It serves to protect areas of historic character
and setting while preventing coalescence of settlements and encroachment
into the countryside.306
304 Council’s opening statement paragraph 7, referencing Core Document CD035 (Local Plan
Topic Paper TP1 Addendum) – Annex 3 at page A3:9
305 Core Document CD035 – App3 at page A3.9
306 Council’s opening statement paragraph7, referencing Core Document CD035 (Local Plan
Topic Paper TP1 Addendum) – Annex 3 at A3:10; Council’s closing submissions paragraphs 17
and 18 referencing Mrs Stockdale’s Proof of Evidence paragraphs 2.3, 3.21-3.26 and section 4
(At paragraphs 3.23 and 3.26 Mrs Stockdale actually claims that all five purposes of the
Green Belt are served).
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124. There is no parallel with the Boroughbridge Road appeal decision307 relating to
proposed site allocation ST2 in the emerging local plan.308 That site is not now
serving any Green Belt purpose and is surrounded by development. It has no
particular resonance with the current appeal. Indeed, its credentials serve to re-
enforce the significant problems with the appeal site.309
125. The appellant confuses openness and landscape.310 The landscape
considerations imported by Mr McInerney, supported by legal authorities, are
misconceived.311 The development would offer no benefit such as increased
openness.312 A lack of special landscape qualities cannot undermine the
fundamental aim of Green Belt policy of keeping the land permanently open, free
from any building.313 There would be a very significant and visual loss of
openness arising from the housing element of the proposal314 and from the sports
pavilion.315
126. Engineering operations are also inappropriate development if they conflict with
the purposes of the Green Belt or do not preserve its openness.316
Notwithstanding the lack of any buildings on the EPEZ, its height, length and
depth and its 3m high security fence would have a significant effect on openness.
Planting on it cannot take away from the loss of openness arising from the
engineering operation of its construction. Planting cannot make it appropriate
development.317 It is both an integral element of the appeal proposals and of
itself also offends green belt principles. Even though some elements of the
proposal may themselves not constitute inappropriate development, they are not
severable from the application as a whole.318
127. The concept of compensatory improvement to the Green Belt in relation to
paragraph 138 of the NPPF applies concerning the removal of land from the
Green Belt through the Local Plan process and not, as here, in relation to the
307 Appendix 1 of Mrs Harrison’s Rebuttal Proof and Core Document CD035A
308 Core Document CD007 Appendix 1 at page 44
309 Council’s closing submissions paragraph 16(2)
310 Council’s closing submissions paragraph 20 referencing Mr McInerney’s Proof paragraph
1.10 and Mr Halman’s comment (c)
On page 31 of his main proof
311 Council’s closing submissions paragraph 22 (2), supported by an Annex quoting legal
authorities Lindblom LJ in R (oao Lee Valley Regional Park Authority) v Epping Forest DC
[2016]EWCA Civ 404 and in Samuel Smith Old Brewery (Tadcaster) v North Yorkshire CC
[2018] EWCA Civ 489; Turner v Secretary of State for Communities and Local Government
[2016] EWCA Civ 466
312 Council’s closing submissions paragraph 22(1)
313 Council’s closing submissions paragraph 27
314 Council’s closing submissions paragraph 26; Council’s committee report paragraph 4.8
315 Council’s Committee report paragraph 4.7
316 Council’s closing submissions paragraph 22(2)
317 Council’s closing submissions paragraph 22(3); Council’s committee report paragraphs 4.9
and 4.14; Council’s Statement of Case paragraph 4.15
318 Council’s opening statement paragraph 6, referencing Ms Priestley’s Proof of Evidence
paragraph 3.1.1 on page 13; Council’s closing submissions paragraph 23; council’s committee
report paragraph 4.10; Esther Priestley’s Proof of Evidence paragraph 3.3.2; Alison
Stockdale’s Proof of Evidence paragraph 3.11, 3.12 and 3.13
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determination of an appeal.319 Government policy320 is that substantial weight is
given to any harm to the Green Belt. The Council emphasises the essential
characteristics of openness and permanence of Green Belts and the fundamental
aim of Green Belt policy to keep land permanently open.321
Landscape character
128. The appeal site, adjacent fields and the Bog are rural in character and
independent in nature from the adjacent built edge of the City. The site is a
component of the open countryside that surrounds York and contributes to the
setting of the historic City.322
129. Within itself, the proposed development and open space have design merit.323
Housing, infrastructure and a local centre would replace the essentially open,
rural landscape on about 14ha of the site. Views across open countryside from
Moor Lane would be lost. Moor Lane would become closed in by built
development for the majority of its length. The existing development on the
south side of the road is not a precedent because it comprises a variety of ages
and styles, only one unit deep with views of the countryside in between the
houses.324 An alien, 3m high, earth bund and fencing would be introduced.325
The current clear urban edge would be moved closer to the Bog, a landscape of
high sensitivity. A sequence of built development, agricultural field, ancient
woodland and Bog would be replaced by a sequence of built development, trees
and wetland buffer, ancient woodland and Bog.326 Views north from the Bog
would also be significantly and detrimentally changed.327 Although the site has
no special landscape quality designation, it is clearly of local value in providing a
sense of place, a rural setting and a direct association with the countryside.328
The term landscape does not mean just special or designated landscapes.329
130. Mr McInerney, for the appellant, accepted the following points;330
• Green Belt remains a significant policy constraint
319 Council’s closing submissions paragraph 24
320 NPPF paragraph 144
321 Council’s closing submissions paragraph 11
322 Council’s opening Statement paragraph 14; Council’s closing submissions, paragraph 28.
But see Council’s Committee Report (Core Document CD001) paragraph 3.11 for a more
qualified comment “The development is not so extensive that its visual impact would cause
significant harm to the setting of the city from the outer ring road.” And Esther Priestley’s
Proof of Evidence paragraph 3.4.22.
323 Esther Priestley’s Proof of evidence for the Council, paragraphs 3.1.1, 3.2.2, 3.2.4 and
3.2.6
324 Esther Priestly, oral evidence in chief
325 Esther Priestley’s Proof of Evidence paragraphs 3.1.1 and 3.1.14
326 Council’s Committee report (Core Document CD001) paragraphs 4.12 and 3.10; “The
result is that the overall land mass becomes part of a shared, more complex but not
unattractive environment”; Esther Priestley’s Proof of Evidence paragraph 3.3.9
327 Council’s Committee Report (Core Document CD001) paragraph 3.10
328 Council’s opening statement paragraphs 14 15 and 16; Ms Priestley’s Proof of Evidence
paragraph 2.3.2
329 Council’s closing submissions paragraph 29
330 Council’s closing submissions paragraph 31, referencing Mr McInerney’s Proof of Evidence
paragraphs 1.10, 1.13, 1.18(ii), 3.15, 5.16 and 5.20
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• The site is largely free of urban fringe effects
• The countryside south of Moor Lane forms part of the setting of the city
• Within that setting is the Bog which is accepted to be a landscape feature
of high sensitivity
• The setting of the historic city of York is an important matter, including in
landscape terms, and one which the Council has repeatedly raised in
objection to the site
• The development would have a significant impact on views enjoyed by
users of Moor Lane
• The EPEZ is not a feature characteristic of the site’s Landscape Character
Type.
131. The containment of the site is overstated. The site is not separated from the
open agricultural setting of the city by the northern bypass. Rather, the northern
ring road passes through a contiguous agricultural landscape which can be
appreciated on both sides of the road. The road causes severance but the
landscape pattern continues from one side to the other.331 Both sides are within
the same Landscape Character Type. There is intervisibility between both sides.
There is a view from footpath 2/5/20 on the west of the bypass to the proposed
housing on the east. Except at junctions, the road is not picked out by lamp
posts. Mr McInerney for the appellant agreed all these points.332
132. Perception of a city often comprises a collection of limited views. The number
of vehicles using Moor Lane gives significance to views therefrom.333 Mr
McInerney has underestimated the number of people using Moor Lane.334 These
views are recognised as good in the City of York Characterisation Project.335
Their substitution by foreshortened views from the development proposed would
be incomparable to the existing situation.336 A profound and permanent change
will be clearly suffered, in particular by those moving and residing along Moor
Lane.337
133. In addition, views north from the Bog will be completely blocked by the
proposed bund within the EPEZ. Such artificial enclosure, removing the
opportunity to enjoy the Bog’s rural setting is too heavy a price to pay. To say
that it is a view that would be enjoyed by very few fails to take into account;
• The aim of the YWT to extend public access to a path along the north of
the reserve, from which a northern outlook over open countryside would
be blocked
331 Council’s closing submissions paragraph 32
332 Council’s closing submissions paragraph 33
333 Council’s closing submissions paragraph 34
334 Council’s closing submissions paragraph 36
335 Council’s closing submissions paragraph 35 referencing appendix DM6 of Mr McInerney’s
evidence for the appellant,
336 Council’s closing submissions paragraph 37
337 Council’s closing submissions paragraph 40
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• The inconsistency of a bund and security fence with the perception of the
Bog in the countryside
The impact of the EPEZ in terms of views to and from the Bog has therefore been
significantly underestimated.338 It would be a significant and unnatural
intervention in the landscape.339 It would be about ten times the height of any
elevational differences in the Bog. It looks very much like placing to the north of
the Bog a smaller version of the York Moraine (which lies to its south). It would
appear to represent a significant change in topographic setting for the Bog, not
recognised by Mr Thomas or Mr Parkinson for the appellant.340 Its planting would
not be typical of the local landscape.341
134. Mr McInerney sought to devalue the character and intrinsic value of the site
but;342
• The urban fringe of Woodthorpe has not blighted the adjacent farmland
• The York Landscape Appraisal is recognised as a useful reference,
identifying key features and best practice design principles
• The appeal site is broadly representative of the overall character and
qualities of the rolling diverse arable farmlands Landscape type
• There is nothing which differentiates the landscape within the red line
boundary of the site and the rural landscape to its west
• The site is part of a rural, working agricultural landscape
• The enclosure of Moor Lane would remove the sense of place and relief
from extensive suburban areas in a way not comparable with enclosure
from the growth of hedgerows or the existing development on the south
side of Moor Lane
• Whilst audible, traffic on the A64 and northern ring road does not weigh
heavily on the tranquillity of the site.
135. Woodthorpe provides a clear and satisfactory urban edge with trees and
hedges. It provides a sense of place which development would erode.
Therefore, its presence does not justify development but heightens the
338 Council’s closing submissions paragraph 41, referencing the YWT’s response to the
Environmental Statement Addendum (at Appendix 2 of Ms Priestley’s Proof of Evidence);
Council’s committee report paragraph 4.15; Esther Priestley’s Proof of Evidence paragraphs
1.2.3, 2.4.7, 3.3.3, 3.3.12 and 3.4.9 “I think, despite the current informal nature of the
access to the northern boundary of the Bog, the significance of the views and the
setting/context of the Bog should be given more weight due to the nature and national status
of the SSSI and its significance as a natural heritage asset.” And “Existing views across open
fields, including hedgerows and Marsh Farm buildings, with the urban edge in the distant
background, dotted with trees, gives the SSSI a sense of its rural context and separation
from the growth of the city.”
339 Council’s Committee Report paragraph 4.13
340 Council’s closing submissions paragraph 51(8(iii))
341 Esther Priestley’s Proof of Evidence, paragraph 3.3.14
342 Council’s closing submissions paragraph 35 referencing paragraph 3.7 and appendix DM3
of Mr McInerney’s evidence for the appellant and paragraph 8.75 of the Environmental
Statement
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importance of keeping the site undeveloped. The impact of the loss of the site
has been underestimated.343 The sense of place is heightened by the presence of
Askham Bog, a key feature of the open countryside contributing to the landscape
setting of the historic City.344
136. The landscape serves a substantial population, providing the city and its
outlying villages with a rural setting and direct access to the countryside. It thus
has a value and status which reaches beyond the relative quality of its aesthetic
appeal.345
Askham Bog
137. This issue has two separate elements;
• Hydrogeological considerations
• Urban edge impacts
(i) Hydrogeological considerations
138. Development on land outside an SSSI which is likely to have an adverse effect
on it should not be permitted. Exceptional circumstances are required for that to
happen. The Bog is an asset sensitive to changes in groundwater. It is to be
cherished and protected. Its lowland fen element represents irreplaceable
habitat at risk from the development and so the development should be refused
unless there are wholly exceptional reasons where the public benefit would
clearly outweigh the loss or deterioration of habitat.346
139. The context for consideration of this issue is;347
• The sensitivity and importance of the water table to the irreplaceable
habitat of lowland fens, threatened through changes in land drainage.348
• The need for a strict and precautionary approach, matching the effort of
assessment to the level of risk of environmental damage and based on a
robust conceptual model of the site.349
• The sensitivity of the plant communities of the Bog to changes in water
levels measured in a few centimetres.350 The species Carex Elongata
343 Council’s closing submissions paragraph 38
344 Council’s closing submissions paragraph 39(1), referencing the Heritage Topic Paper
Update for the Local Plan 2014 (Core Document CD033 – App3)
345 Council’s closing submissions paragraph 39(2)
346 Council’s opening statement paragraph 10; Council’s closing submissions paragraph 7, 46,
47 and 83
347 Council’s closing submissions paragraph 50
348 Council’s Updated Biodiversity Action Plan pp39-42 (Core Document CD075), especially
section 5 on page 41; Nadine Rolls’s Proof of Evidence paragraph 6.7
349 CIEEM guidelines detailed in Ms Rolls’s Proof of Evidence section 5 and paragraphs 6.1-
6.6; ODPM Circular 06/2005 (Core Document CD073) referenced in Ms Rolls’s Proof at
paragraph 5.4; Paragraph 3.1 of Environment Agency’s Hydrogeological Impact Appraisal
Advice (Paragraph Appendix B of Proof of Evidence of Mr Jones for the YWT)
350 Table on page 40, figure 3.6 on page 42 and table on page 45 of the study of Askham Bog
by Professor Fitter and Clifford Smith (Core Document CD044); paragraph 3.3 of Arup Report
2003 (Core Document CD037)
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(gingerbread sedge) is part of the designated features of the SSSI and is
dependent on winter flooding of the wet woodland at the west of the
reserve.351
• The Bog’s system has evolved over 10,000 or so years. Effects may take
place over long periods.352
• The marginality of the Bog; “Askham is located in a climatic region where
rainfall and evapotranspiration are finely balanced, and the site lies on the
edge of the range where oligotrophic353 mires, especially raised bogs, can
exist.”354
• The “limited connectivity” insisted upon by Mr Thomas on behalf of the
appellant355 may therefore be highly significant. The need for caution is
reflected in the extensive measures relied upon by the appellant to justify
a conclusion that there will be no harm to the Bog.
The hydrogeological model
140. The simplest hydrogeological model of a continuous groundwater body flowing
down to the immediately down-gradient Askham Bog is discounted by the
appellant despite it being the most likely option from considerations of
topography, geology and basic hydrogeological principles.356
141. The centre of the Bog is rainwater fed. It is a different habitat from that at the
edge of the Bog fed by groundwater.357 The distribution of base-rich358
dependent species sensitive to acidity thus acts as an effective long-term monitor
of bog hydrology. It presents a further line of evidence. There is a hydraulic
gradient which drives groundwater flow towards Askham Bog. It imparts
groundwater pressure in the Bog itself, and discharges into Askham Bog Drain,
supporting the water level in the Drain which in turn inhibits drainage from the
Bog and contributes base-rich water to the Bog at times of surface water
flooding.359
142. The appellant’s assessment misrepresents the overarching hydrological
system, especially in terms of the importance of groundwater. Their conclusions
regarding lack of significant impacts are not well founded.360 YWT has provided
detailed evidence from four years of records which show that hydrological
continuity occurs between the site and the Bog.361 Dr Foley on behalf of the
351 Council’s committee report paragraph 4.26; Nadine Rolls’s Proof of Evidence paragraph
6.14
352 Dr Foley, in evidence in chief
353 relatively poor in plant nutrients and containing abundant oxygen in the deeper parts.
354 Paragraph 9.2 of Arup Report (Core Document CD037)
355 Council’s closing submissions paragraph 48
356 Council’s Committee Report paragraph 4.23
357 Council’s Committee report paragraph 4.18; Dr Foley’s Proof of Evidence paragraph 7.7
358 Dominated by calcium and magnesium cat-ions and bicarbonate an-ions; alkaline
359 Dr Foley’s Proof of Evidence paragraph 7.9.5
360 Council’s opening statement paragraph 12
361 Council’s committee report paragraph 4.25
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Council does not suggest that rainwater is not the main source of supply to the
Bog but he highlights its critical reliance on groundwater as well.362
143. Mr Thomas (on behalf of the appellant) considered groundwater to be confined
by clay.363 He accepted that if his conceptualisation of the hydrogeology is in
some way mistaken or in error, this would make a material difference to his
assessment of the development’s impact on the Bog.364 He confirmed that his
model relies upon a correct interpretation of observed geology.365 That theory
can be tested by examining seasonal groundwater levels, groundwater drainage
and groundwater chemistry.366
Groundwater levels
144. With the exception of one borehole (BH14/02), seasonal fluctuations in
groundwater levels are consistent with rainfall recharge to unconfined
groundwater.367 Delays between rainfall recharge and groundwater level
response is indicative of time taken for permeation and is not evidence of
hydraulic discontinuity.368 Mr Thomas’s explanation for seasonal fluctuations in
groundwater levels is water loading. His explanation was not justified. It is not
plausible because a 1m rise in pressure would require the equivalent of 1m
weight of water to be imposed. This would require 4m depth of ground to
achieve the level changes recorded. Yet the water-bearing sands are all within
4m of the surface.369
145. Borehole BH14/02 exhibits the least synchronous annual water fluctuations
and the most significant thickness of clay above any of the sand units monitored.
The sand strata in boreholes BH14/01, 14/05, 14/06, 14/07 and 14/10 are in
relatively shallow strata.370
362 Council’s closing submissions; Dr Foley’s Proof of Evidence paragraph 7.13 and Dr Foley’s
Rebuttal Proof paragraph 2.1(1)
363 Council’s closing submissions paragraph 51(10) referencing Mr Thomas’s Rebuttal Proof
paragraph 3.2.18 in relation to Boreholes BH14/01, 14/02, 14/06 and 14/10. Mr Thomas
gives figures in m/sec for characteristic ground permeability at the site in paragraph 8.2.7 of
his Proof of Evidence; Vale of York Formation (Till) Clay 3 x 10-8 to 3 x 10-7; Vale of York
Formation Clayey or silty sand layers within Till Clay 1x10-6 to 6 x 10-6; Alne formation silt
1x10-8; Alne Formation Clayey or silty sand 5 x 10-7 to 5 x 10-6 Dr Foley tabulates the results
of permeability tests on the boreholes at table 1 of his Proof in paragraph 6.3.5. He
described these results as moderate permeability in response to my question, characterising 1
x 10-3 to 1 x10-5 as moderate; 1 x 10-5 to 1x10-6 as low-moderate and 1 x 10-4 to 1 x10-7 as
low. These categorisations overlap. Figure 19 of Alex Jones’s proof of evidence quotes table
5.4 from R Brassington’s 1988 textbook defining ranges of permeability but using a different
unit of measurement (m/day)
364 Council’s closing submissions paragraph 51(1)
365 Council’s closing submissions paragraph 51(2), referencing Mr Thomas’s Proof of evidence
paragraphs 8.4.1-8.4.5, 8.4.7 and 8.4.9
366 Dr Foley’s Proof of Evidence paragraph 6.2
367 Dr Foley’s Proof of Evidence section 6.3
368 Dr Foley’s Proof of Evidence paragraphs 6.3.13 and 6.3.14. In cross-examination, Dr
Foley estimated 50-60 years to be the rate of movement between the part of the site
proposed for development and the Beck
369 Council’s closing submissions paragraphs 52 to 58
370 Council’s closing submissions paragraph 51(11)
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146. Mr Thomas argued that water strikes in boreholes are proof that clay inhibits
rainwater recharge into lower sandy layers.371 Yet borehole BH14/07 has sand
with no clay at a depth of between 1.2 and 4.5m, likely to be unconfined, but
records a water strike at 3.5m, rising to 0.9m after 20minutes. Borehole
BH14/06, gravelly clay, struck water at 1.9m rising to 1.6m after 20minutes. So,
there is a very variable response of the ground with regard to recorded geology
and water strikes. Both clays and unconfined sands exhibit water level rises after
water strikes and therefore not necessarily being indicative of clay soils inhibiting
rainwater recharge into lower sand layers as Mr Thomas contended.372
147. The appellant’s infiltration tests did not comply with the methodology of BRE
digest 365.373 Only two were excavated to the required depth, one to only 0.7m.
Infiltration rates may therefore have been underestimated. Given the concerns
about the limited scope of the boreholes, the particular importance and
sensitivity of the Bog, it was essential that as many and as thorough infiltration
tests as possible were undertaken, over an appropriate timescale, to an
appropriate depth and in triplicate.
148. The original results of the permeability tests374 do not sit comfortably with the
appellant’s conceptual model. They were reinterpreted by Mr Thomas. He gives
reasons375 but, given the need for a precautionary approach, the Council
contends that further tests should have been carried out. The variability in the
outcomes spans a fairly large permeability range such that the use of a geometric
mean rather than an arithmetic mean or median makes no meaningful difference.
Consequently, neither the infiltration nor the permeability tests undermine Dr
Foley’s concerns on behalf of the Council over the reliability of Mr Thomas’s
conceptual model on behalf of the appellant.376
Groundwater flows
149. Groundwater contour plots indicate the direction that groundwater might be
expected to flow. If ground has some widely distributed degree of permeability,
one would expect to see groundwater contours indicating a slope in the hydraulic
gradient from areas of higher ground to lower, indicating a water flow. From the
appellant’s data, groundwater contours can be drawn.377 The water slope mimics
the topography. It’s what would be expected in a normal situation.378 Mr
Thomas acknowledged a hydraulic and topographic gradient from the appeal site
371 Council’s closing submissions paragraph 51(12) referencing Mr Thomas’s Proof of Evidence
paragraphs 8.4.1 and 8.4.7
372 Council’s closing submissions paragraph 51(12)
373 Council’s closing submissions Paragraph 51(13(i)), referencing Dr Foley’s Rebuttal Proof
paragraphs 2.6 and 2.7 and Inquiry document INQ2
374 Core Document CD040
375 Mr Thomas’s rebuttal proof paragraph 3.2.10
376 Council’s closing submissions paragraph 51(13). Dr Foley’s Proof of Evidence paragraphs
6.3.5- 6.3.11 calculate the mean permeability of the appellant’s boreholes and from that go
on to calculate a crude estimate of the quantity of groundwater drained on a seasonal basis
but this argument is not used in the Council’s final comments. In cross-examination Dr Foley
accepted that the appellant had targeted high permeability boreholes and had not targeted
low permeability boreholes for the collection of data and that the analysis was best done
using random data rather than that for targeted boreholes.
377 Dr Foley’s Proof of Evidence section 6.4, referencing Core Document CD042
378 Dr Foley, in evidence in chief
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south-eastward towards Holgate Beck and the Bog and also a gradient south-
westward from the site towards the Bog on the west side of a low ridge of glacial
till.379
150. Boreholes and trial pits BH14/01 (north), BH14/10 (north), BH14/06 (central),
TP14/05 (central), TP14/06A and B (central), BH14/08 (on boundary of Bog) and
BH14/07 (on boundary of Bog) all contain layers of sand between 0.5 and 4.2m
thick, starting no deeper than 3.5m below the surface.380 The minimum distance
between boreholes is 250m.381 There are no other intervening boreholes, the
archaeological trenches are not deep enough to provide meaningful information
and other information referred to by Mr Thomas in cross-examination and re-
examination is inconclusive.382 This is not enough information to conclude that
the sand layers are not contiguous. The uncertainty is demonstrated by the
question marks littering Mr Thomas’s figure 5 in his Rebuttal Proof.383 Therefore,
Mr Thomas’s interpretation goes beyond the available data on the geology. The
gap in the evidence cannot be made good by his reliance on other matters.384
151. In the 1:50,000 geological map of the area showing superficial deposits, two
obvious lobes of sand of the Vale of York Formation can be clearly seen either
encroaching onto or overlain by the glaciolacustrine Alne Formation.385 Additional
evidence of ground permeability is provided by the Centre for Ecology and
Hydrology’s Hydrology of Soil Types Baseflow Index (BFI HOST) soil class for the
catchment, which is listed as 0.6. This represents a semi-permeable
catchment.386 The appellant’s own report Investigating the hydrological
relationship between the Moor Lane site and Askham Bog SSSI387 evidences sand
in its various forms in many of the soil cores taken on and close to the appeal
site.388
Groundwater drainage
152. Mr Thomas’s concept, on behalf of the appellant, of clay-dominated
impermeable ground is contradicted by the appellant’s own WWT consulting
report of conversations with the farmer and findings of mottling in clay
evidencing good drainage due to the largely porous nature of the soils. It
379 Council’s closing submissions paragraph 51(3)
380 Council’s closing submissions paragraph 51(4), Dr Foley’s Proof of Evidence paragraph 4.1
381 Dr Foley in evidence in chief
382 Council’s closing submissions paragraph 51(4)
383 Council’s closing submissions paragraph 51(5)
384 Council’s closing submissions, paragraph 51(6)
385 Dr Foley’s Proof of Evidence paragraphs 5.1 and 5.2, referencing Core Document CD089
(sic - CD090 is meant) British Geological Survey. 1:50,000 Series, England and Wales Sheet
71, Selby. Bedrock and Superficial Deposits. NERC 2008. In cross examination, Dr Foley
agreed with paragraph 2.2.17 of Mr Thomas’s rebuttal proof which pointed out that the
geological map (CD090) identified only the peat of Askham Bog itself, the Alne Glaciolustrine
Formation described as laminated silt and clay and the York Moraine member located to the
south of the Bog and described as including gravelly sandy clay, clayey sand and a little sand
and gravel.
386 Dr Foley’s Proof of Evidence paragraph 6.3.12 referencing Core Document CD077,
paragraph 4.4.16
387 WWT Consulting report 2013 (Core Document CD039)
388 Council’s closing submissions paragraph 51(7), referencing soil cores BAR1, 2, 3, 5, 7, 13
and 14 and figures 3, 4, 5, 8, 10, 17 and 17 of Appendix II of the report
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advises that shallow subsurface flows from these fields would be intercepted by
the ditch network and by Holgate Beck.389
153. The shallow nature of the groundwater being monitored should be emphasised.
It is entirely within the range of near-surface weathering processes experienced
by the development site for several thousand years since formed by the drainage
of the glacial lake. Mottling at least 1.7m deep within the soils implies that some
parts are aerobic and some anaerobic. To be aerobic requires oxygen
penetration. That requires open and interconnected pore spaces. They would
permit infiltration of rainfall from the surface.390
154. On the information of the WWT consulting report, the soils on site appear to be
relatively permeable and capable of transmitting water either to the drainage
network or to groundwater.391 A proportion of rainfall is likely to bypass the field
drains and ditches and enter groundwater.392 The majority of rainfall events in
the UK are less than 4mm in total. Intensity varies but would not necessarily
generate run-off even if infiltration is low because duration is short. Thus, the
majority of rainfall events do not generate run-off but allow a significant portion
of the rainfall to be infiltrated.393
155. The WWT Consulting report concludes that although surface and sub-surface
hydrogeological inputs from the land to the north of Askham Bog are not the
primary hydrological input to the Bog, they do play a role in maintaining water
levels within the Beck. It advises that water levels in the Holgate Beck and
surrounding ditches should be maintained at their current levels by designing
sustainable drainage features that mimic the current drainage network and
current infiltration processes occurring across the site.394
156. The SUDS scheme proposed would not mimic the current regime. The
attenuation ponds represent an elongated trench cutting across the drainage
slopes. Their depth would be at least 0.5m below the recorded winter water
table along the entire northern margin of the Bog east of the golf course. Thus,
the winter water table would be intercepted and drained. Dr Foley’s evidence is
that this would lead to export of water from the catchment during the winter that
would otherwise have flowed more slowly through the ground to discharge in the
base of the valley over the subsequent summer. This would result in a year-on-
year net loss of groundwater storage within the catchment and so a loss of
hydraulic head in the land surrounding the bog. It would alter the current
seasonal patterns and the ponds would be at risk of drying out at times.395
389 Council’s closing submissions paragraph 51(8(ii)) referencing WWT Consulting report
paragraph 4.2
390 Council’s closing submissions paragraphs 51(14) and (15)
391 Dr Foley, in evidence in chief, referencing Core Document CD039, figure 3 on page 10 and
paragraphs 3.20-3.27 and 4.2
392 Council’s closing submissions paragraph 51(9) referencing Mr Thomas’s Rebuttal Proof
393 Dr Foley’s Proof of Evidence paragraph 7.3.2
394 Council’s closing submissions paragraph 51(8(iii)) referencing WWT Consulting report
paragraph 4.5
395 Council’s closing submissions paragraph 51(8(iii)); Dr Foley’s Proof of evidence paragraph
8.14, elaborated in response to my question
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157. The level of outlet from the attenuation ponds would be 11.2m aod. When
water level in the attenuation ponds falls below that level, it will not discharge. It
is hard to see how that mimics the existing situation.396
158. Natural England has advised that there are likely to be technical or engineering
solutions available to mitigate against hydrogeological impacts resulting from the
development. Yet the appellant has not been able to satisfy Natural England by
supplying them.397 The attenuation ponds would clearly impact on the quantum
and quality of groundwater reaching the Bog.398
Groundwater chemistry
159. Groundwater which does not flow or flows slowly absorbs minerals to form a
sulphate-chloride type of composition. Groundwater flowing quickly would tend
towards a bicarbonate composition. Groundwater at the end of a flowpath will
have greater concentrations of total dissolved solids. Spatial plots of
groundwater chemistry based on the appellant’s data indicate a high variability
but an alternative to groundwater discontinuity or lack of connectivity as an
explanation is the strong correlation of higher concentrations of dissolved solids
associated with the urban fringe at Moor Lane and with historical waste tipping at
Chaloner’s Whin.399
160. Hydrochemical analysis arguing for differences in groundwater chemistry
should not be relied upon400 because
• No error bars are presented in any of the appellant’s groundwater
chemistry plots
• Laboratory techniques for estimating error are not a substitute for
duplicate samples taken in the field
• Duplicate samples are not presented
Summary
161. In summary;401
• Groundwater contours are what would be expected from a simple model of
unconfined slope drainage
• Confined pockets of groundwater would not show the spatial correlation or
temporal synchronicity evidenced
• Slope drainage in variably permeable sediments at Moor Lane does exactly
what it does everywhere else as shown in the diagram of the hydrologic
cycle presented in paragraph 3.1.3 of Mr Parkinson’s rebuttal Proof
396 Mr Morgan’s cross examination of Mr Parkinson
397 Council’s closing submissions paragraph 62 referencing paragraph 2.5 of Core Document
CD078
398 Council’s committee report paragraph 4.25
399 Dr Foley’s Proof of Evidence section 6.5
400 Council’s closing submissions paragraph 51(16) referencing Dr Foley’s rebuttal proof
paragraphs 2.17-2.22
401 Council’s closing submissions paragraph 60
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(substituting bog for river and low-medium permeable aquatic deposits for
bedrock aquifer402)
• Lack of hydraulic connectivity would be uncharacteristic
• It would require a much more elaborate explanation than that provided
and which is refuted by Dr Foley
• Unconfined slope drainage represents a significant flow403
• This is not described as an “aquifer” as alleged by Mr Thomas404
• The flow does not need to be of aquifer proportions to be significant in the
context of the ecohydrology of Askham Bog
• The control of the water level by pumps and the site’s small contribution to
the catchment are not answers to the uncertainties and the potential harm
to the Bog
162. As a result, the Council does not consider that Mr Thomas’s explanation
provides any answer to the clear indication from the borehole information,
supported by other information, as to the likelihood of hydraulic connectivity
between the appeal site and the Beck and the Bog.405 Broad trends in
groundwater levels, drainage, hydraulic gradients, flow direction and
hydrochemistry, all point to a situation that conforms to what would be expected
from a consideration of topography, superficial geography and basic
hydrogeological principles, namely that groundwater flows in the direction of the
slope beneath which it is situated. This is a textbook situation and accordingly
one would expect groundwater to discharge in the base of the valley occupied by
Askham Bog.406
Consequences
163. The assessment undertaken by the appellant has failed to identify negative
changes that have a high probability of occurring to Askham Bog as a result of
the proposed development and its surface water management, namely; generally
lowering ground water levels, lowering water levels in Askham Bog Drain and
other boundary drains resulting in water being drawn from the SSSI and reducing
the frequency and magnitude of flood events through the controlled attenuation
of surface water.407
164. A combination of guidance on the identification and risk assessment of
groundwater dependent terrestrial ecosystems408 with the 2011 National
Vegetation Classification Survey of the SSSI409 shows that the majority (98%) of
habitats present in Askham Bog are classified as having high to medium ground
402 Dr Foley in evidence in chief
403 Dr Foley’s Proof of Evidence paragraph 6.3.7 to 6.3.9
404 In paragraphs 3.2.17 and 3.2.18 of his Rebuttal Proof
405 Council’s closing submissions paragraph 59
406 Dr Foley’s Proof of Evidence, paragraphs 7.4 and 7.5
407 Nadine Rolls’s Proof of Evidence paragraph 6.10
408 Core document CD083
409 Core Document CD069
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water dependency.410 The distribution of habitat types found in Askham Bog
shows the presence of Birch woodland associated with moderately acid peats in
the centre of Near Wood and two types of fen meadow associated with higher
alkalinity and nutrient rich situations found towards the northern boundary.411
165. Surface water flooding from Askham Bog Drain along the northern boundary
also appears to be important to habitats within the SSSI. Elongated Sedge
(Carex elongata) is found in Far Wood and the western Side of Middle Wood. It
is flood-dependent.412
166. Many of the habitats at Askham Bog are generally associated with variable
water levels and so specific tolerances to the lowering of levels are difficult to
define, however it is likely to lead to a loss of wetland interest and increased
representation by ‘dryland’ species. Drier conditions and lower soil water levels
can result in the release of the nutrients which have accumulated within the soil
also leading to changes in species composition. This change would represent a
deterioration of the habitat, and therefore the qualifying features of the SSSI.
The change is unlikely to be apparent within one growing season, but will become
visible over several years, and might happen very slowly.413
167. Many of the habitats at Askham Bog, particularly the fen-meadow, are
transitional habitats. This is a stage in the natural process of ecological
succession. Maintaining the nature conservation interest of the site requires
management to interrupt this process. Drying of the site will only act to
accelerate it, favouring tree growth. Periodic inundation through flooding
combined with higher groundwater levels is likely to help hinder scrub growth.
Scrub encroachment in the SSSI is one of the main factors identified by Natural
England leading to an unfavourable condition classification.414
168. Although a complex and potentially slow process, it is possible to restore water
levels supporting lowland fens but this is largely dependent on being able to
make changes to both the wider hydrological catchment and restoring more
marginal habitats. The proposed development would represent an irreversible
change to the catchment.415
169. The appellant claims a betterment through reduced agricultural run-off.
Agriculture is recognised as a key source of diffuse pollution but the government
is taking steps to address this. The appeal site is located within a Nitrate
Vulnerable Zone which requires land managers to limit the average amounts of
fertiliser and to create buffers to watercourses, enforced by the Environment
Agency. Urban diffuse pollution is typically more complex. The appellant’s
groundwater data shows heightened chloride and Total Dissolved Solids near
Moor Lane, likely to reflect urbanisation impacts. Some evidence in the Aquatic
410 Nadine Rolls’s Proof of Evidence paragraph 6.12 and Appendix 1. Elaborated orally in
evidence in chief
411 Nadine Rolls’s Proof of Evidence paragraph 6.13 referencing Core documents CD044,
CD069 and Appendix IV of CD085
412 Nadine Rolls’s Proof of Evidence paragraph 6.14
413 Nadine Rolls’s Proof of Evidence paragraph 6.15 referencing Core Document CD085
paragraph 4.24
414 Nadine Rolls’s Proof of Evidence paragraph 6.16
415 Nadine Rolls’s Proof of Evidence paragraph 6.17 and 6.47
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Invertebrate Survey indicates likely urban pollution within Marsh Farm Drain
close to Moor Lane, clearing by the time it passes Marsh Farm.416
170. It is reasonable to predict that an extension of the urban area south from Moor
Lane will result in bringing the source of any urban run-off pollution closer to the
SSSI and result in the loss of dilution of this through infiltration, replaced by
surface water capture.417 A standard SUDS treatment maybe insufficient to
address pollutants such as chloride resulting from winter road gritting which are
not removed by filtration.418
171. The Fen Management Handbook 2011 describes water as the main carrier of
dissolved chemicals to lowland fen habitats. Consequently, it strongly influences
the acidity and fertility of the site, which in turn affects the type and growth of
vegetation and fauna which it supports. The critical loads for different chemicals
would vary for different plant species but overall changes in water chemistry
would be expected to cause an increased growth of some plants and the loss of
others less able to respond, changing the species composition leading to the
deterioration of the habitat.419
172. There is clearly a real risk of deterioration to the irreplaceable element of the
Bog. Therefore wholly exceptional circumstances must be demonstrated for the
development to be allowed to proceed.420
(ii) Urban edge impacts
173. Much of the Bog is currently openly accessible with little substantial restriction
on movement in and out of the SSSI and the fields to the north of it.421 The
EPEZ would complete the ecological isolation of the Bog.422
174. The introduction of significant numbers (1,135) of new residents in closer
proximity to the SSSI would cause harm through the exacerbation of urban edge
effects.423 The extensive measures that the appellant is putting forward are
testimony to the potential problems.424 They are not likely to be overcome by
the EPEZ because;425
416 Nadine Rolls’s Proof of Evidence paragraph 6.20, referencing Core Document CD079
(Environmental Statement Appendix 9.1 Annex EDP10)
417 Dr Foley’s Proof of evidence paragraph 8.14, elaborated in response to my question
418 Nadine Rolls’s Proof of Evidence paragraph 6.21
419 Nadine Rolls’s Proof of Evidence paragraph 6.22, referencing Core Document CD085
420 Council’s closing submissions paragraph 62 referencing paragraph 2.5 of Core Document
CD078
421 Council’s Committee report paragraph 4.13
422 Council’s Committee report paragraph 4.31
423 Unauthorised access and damage on the northern edge of the SSSI is acknowledged by Mr
Wigglesworth in paragraph 2.19 of his Proof of Evidence and at paragraph 2.1 of his Appendix
TW10; Nadine Rolls itemises trampling and dogs’ discouragement of stock grazing as urban
edge effects in paragraphs 6.28 and 6.29 of her Proof of Evidence
424 Council’s closing submissions paragraph 65(2)
425 Council’s opening statement paragraph 13; council’s closing submissions paragraphs 63,
64 and 65, referencing Natural England’s consultation response (Core Document CD078) at
paragraph 3.1 and section 1 of Annex A; Council’s Committee report (Core Document CD001)
paragraph 3.13
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• The open space proposed will fail to divert people’s interest because it
would not be at least as attractive as the wooded Bog itself. If that were
not true, the EPEZ would not be necessary
• As a barrier, the EPEZ represents a challenge which people will overcome
by destructive techniques such as cutting and burning
• As a barrier, the EPEZ would be ineffective because the thorny scrub would
be discontinuous in order to allow access for IDB maintenance426
• The attenuation ponds would be too shallow, require regular dredging and
can dry out427
• Its effectiveness depends on a rigorous maintenance regime
• There are current desire lines and access can be obtained at the eastern
end of the golf course428
For these reasons, additional measures set out in Schedule 9 of the appellant’s
Unilateral Undertaking would be necessary for the YWT to deal with increased
visitor numbers429.
175. Complementary fauna and flora have to be considered in addition to those
included in the SSSI citation. Consequently, there are real concerns regarding
cats.430 Between the ponds are water-free areas which will allow them to pass.
Burrowing animals will offer cats a way to pass under the security fences.
176. Copmanthorpe, south of the SSSI, does not present equivalent urban edge
impacts because;431
• The A64 presents a barrier. It is a four-lane road carrying a heavy volume
of 43,561 vehicles per day with a central reservation safety barrier and
severed from Copmanthorpe by close-boarded fencing.
• Entry to the Bog is by its main entrance with signage, and controlled by
boardwalks
426 Council Committee Report paragraph 4.28; Nadine Rolls oral evidence in chief
427 Reference is made to paragraph 1.3 of Natural England’s consultation response (Core
Document CD078) and to Ms Rolls’s Proof of Evidence paragraph 6.35; See also Council’s
committee report paragraphs 4.28 and 4.33
428 The Council’s closing submissions actually state the western end of the golf course but this
must be an error as the western end of the golf course abuts the A1237 northern ring road.
The passage is obscure but oral evidence given during the Inquiry makes it clear that what is
meant is the western end of the site which is the eastern end of the golf course. See also
Council’s committee report paragraph 4.30 and Nadine Rolls’s Proof of Evidence paragraph
6.39 and 6.40. In oral evidence in chief, Tom Wigglesworth reported that one can walk down
the track (Bog Lane) to the west of the site, trespass through existing farmland and gaps in
hedges to reach the golf course from which there is a stile entrance into the SSSI. This route
was followed (with consents) on my site visit.
429 Council’s CIL Compliance Statement, section 12
430 Council’s closing submissions paragraph 66(5), referencing Core document CD084; Nadine
Rolls’s Proof of evidence paragraph 6.32
431 Council’s closing submissions paragraph 66, referencing Ms Rolls’s Proof of Evidence
paragraphs 4.3 and 6.26
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177. No degree of biodiversity gain, nor any of the other benefits relied upon, can
override the real risk of a material increase in adverse urban edge effects on the
Bog.432 Nevertheless, the EPEZ is a necessary and integral part of the appeal
scheme and so its management and maintenance in accordance with a suitably
robust scheme operated by an organisation that has a permanent and
sustainable income stream would be necessary if the development were to
proceed. The appellant’s Unilateral Undertaking is deficient in this respect and so
a condition to require a properly funded management scheme and organisation
would be necessary if the appeal is allowed 433.
Other matters
178. The appellant’s original calculation of trips generated was too low. Accurate
assessment would reveal significant impacts on the A1237, the A1036 and the
A64 junctions.434 The Highways Statements of Common Ground agree the
measures necessary to make the development acceptable, including measures to
improve public transport and cycling facilities.435 The Council’s CIL Compliance
Statement436 demonstrates that these provisions would be necessary to make the
development acceptable in planning terms, directly related to the development
and fairly and reasonably related in scale and kind. It describes the nature of the
projects on which the money would be spent so as to mitigate the effects of the
development.
179. A provision of land and financial contributions to the provision of education
facilities are needed.437 The Education Statement of Common Ground agrees on
their provision.438 The Council’s CIL Compliance Statement439 demonstrates that
these provisions would be necessary to make the development acceptable in
planning terms, directly related to the development and fairly and reasonably
related in scale and kind. It describes the nature of the projects on which the
money would be spent so as to meet the demand arising from the development.
180. Conditions could require adequate mitigation for archaeological harm, for the
recording of undesignated heritage assets (parts of Marsh Farm) to be
demolished and for the provision of low energy features to comply with policy.440
No exceptional circumstances
181. There is no dispute that the Council cannot demonstrate a 5-year Housing
Land Supply.441 But that is being addressed through the emerging local plan and
432 Council’s closing submissions paragraph 67
433 Council’s CIL Compliance Statement (Inquiry Document INQ3), paragraphs 11.5 and 11.7
434 Council’s Committee Report paragraph 4.41
435 Statement of Common Ground with Highways England; Highways Statement of Common
Ground with the Council
436 Inquiry Document INQ 3, section 8
437 Council’s Committee report paragraph 4.50
438 Council’s Statement of Case paragraphs 4.19-4.22
439 Inquiry Document INQ3, section 7
440 Council’s Committee report paragraphs 4.56, 4.57 and 4.60; Frances Harrison’s Proof of
Evidence section 5
441 Council’s Committee report paragraph 4.88; Council’s Statement of Case paragraph 4.6
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the current supply being achieved.442 The appellant relies upon there being
objections to other strategic sites to disparage the likelihood of York’s housing
crisis being resolved by the emerging local plan. But those objections are
overstated and there were a greater number of objections to the inclusion of the
appeal site at earlier iterations of the emerging local plan, including those from
Natural England and Historic England.443
182. Even a Housing Land Supply of 2.2 years as the bottom of the agreed range
simply cannot justify the extensive loss of openness and infringement of Green
Belt purposes that would arise in this case.444 The tilted balance of paragraph 11
of the NPPF does not apply for that reason and also if it is concluded that harm
would arise to the SSSI.445 Footnote 58 to the NPPF paragraph 175(c) gives an
indication of what might constitute the wholly exceptional circumstances needed
to disregard the policy of refusing planning permission for development resulting
in the loss or deterioration of irreplaceable habitats. Housing supply does not
compare to an infrastructure project where the public benefit would clearly
outweigh loss or deterioration of habitat.446
183. The proposal would provide 5% more affordable housing than the emerging
local plan policy would require but the extra is not being provided in accordance
with the evidence-based tenure split of housing need447. There are doubts that it
would be affordable by reference to local conditions. Discounted sales will not be
meaningfully affordable to local residents448. The exclusion of Registered
Providers from the transfer of discounted sale dwellings would place an
administrative burden on the Council449 and would not ensure permanent
occupation by those eligible. So, caution should be applied to the weight given to
this benefit.450 The provision of dwelling plots for sale to self-builders would
comply with emerging plan policy H4, would be necessary to make the
development acceptable in planning terms, would be directly related to the
development and fairly and reasonably related in scale and kind451.
184. The proposal would meet the emerging local plan policy G16 requirements for
open space.452 It would be necessary to make the development acceptable in
planning terms, proportionate and directly related to the development453. The
benefits of the open space provision should not be exaggerated. There is no
442 Council’s closing submissions paragraphs 5 and 71, referencing Mrs Harrison’s Proof of
Evidence paragraph 5.4 and her Rebuttal Proof section 4 on pages 8-11 and section 6 at
paragraphs 6.2-6.6 and 6.10.
443 Council’s closing submissions paragraph 73, referencing Mrs Harrison’s Rebuttal Proof
sections 4 and 5 and Appendix 4
444 Council’s closing submissions paragraph 5, referencing the table in section 3 of the
Housing Statement of Common Ground; Council’s closing submissions paragraph 75 and 76
445 Council’s closing submissions paragraph 69 and 83; Council’s committee report paragraph
2.12 (Core Document CD001); Alison Stockdale’s Proof of Evidence paragraph 3.9
446 Council’s closing submissions paragraph 83
447 Council’s CIL Compliance Statement (Inquiry Document INQ3), paragraphs 6.4 and 6.5
448448 Council’s CIL Compliance Statement, paragraphs 6.7 and 6.8
449 Council’s CIL Compliance Statement, paragraph 6.6
450 Council’s closing submissions paragraph 77
451 Council’s CIL Compliance Statement, section 15
452 Council’s committee report paragraph 4.53
453 Council’s CIL Compliance Statement (Inquiry Document INQ3), section 14
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deficiency of natural or semi-natural open space in the ward concerned.
Distances to play areas diminish their value. Over-provision of amenity green
space only benefits the development itself, not existing residents in Woodthorpe.
The extent of over-provision of sports pitches remains unclear. Though welcome,
directly related to the development, proportionate and necessary to make the
development acceptable in planning terms in the event that the appeal is
allowed454, it adds little in relative terms to counter the substantial harm that
would result from this proposal.455
185. Given existing facilities, the proposed local centre, although acceptable,456
does not materially assist a case for there being very special circumstances.457
Reliance on high quality design cannot count as a contributor to very special
circumstances because good design is expected of any development.458 Harmful
effects would not be overridden by good design, layout or landscaping of the
housing scheme.459 The creation of new jobs and economic investment is
welcome but that has to arise from otherwise acceptable development.
186. In part, the proposal complies with the Council’s Green Corridors Technical
Paper (January 2011).460 There would be a net increase in biodiversity but this
has been exaggerated by Mr Wigglesworth’s assessment which conflicts with the
Biodiversity Metric.461 In any event, biodiversity gains cannot override protection
of the SSSI.462
The Case for the Yorkshire Wildlife Trust
187. YWT is the second oldest of the 47 wildlife trusts in the UK. It manages more
than 100 natural reserves. It has a membership of over 44,000 people.463
188. Askham Bog has evolved over 15,000 years. It is an ancient place which, in
the words of Sir David Attenborough, must be protected.464
454 Council’s CIL Compliance Statement (Inquiry Document INQ3), section 13
455 Council’s closing submissions paragraph 78; Council’s Committee Report (Core Document
CD001) paragraph 3.27
456 Council’s committee report paragraph 4.37
457 Council’s closing submissions paragraph 79, referencing Mrs Stockdale’s Proof of Evidence
paragraph 3.56
458 Council’s closing submissions paragraph 79
459 Council’s closing submissions paragraph 30
460 Council’s committee report paragraph 4.11
461 Council’s closing submissions paragraph 84, referencing Ms Rolls’s Rebuttal Proof
paragraphs 4.13-4.19, elaborated in oral evidence in chief. The metric relies on applying
numerical values to four components, a difficult concept to apply reliably. Attenuation ponds
have been wrongly scored. Loss of trees and hedgerows not fully accounted. Connectivity
values appear to be wrongly applied.
462 Council’s closing submissions paragraph 85, referencing paragraph 4.18 of Ms Rolls’s
Rebuttal Proof
463 YWT’s opening submissions paragraphs 11, 12 and 13; YWT’s letter dated 4 February
2019 objecting to the planning application (included with Council’s response to appeal
questionnaire, supplied in electronic form only)
464 YWT’s opening submissions paragraphs 1, 3 and 4
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189. The Bog has attracted naturalists from all over the UK for nearly 200 years.465
Its significance as one of the premier natural history locations in the country has
been recognised for over 150 years; by the Society for the Promotion of Nature
Reserves (the precursor to the Royal Society of Wildlife Trusts) set up by Charles
Rothschild in 1912 and by Francis Terry and Arnold Rowntree who bought the site
for what became the Yorkshire Wildlife Trust. It was first notified as a SSSI
nearly 60 years ago in 1961.466
190. Recent records show that there are at least 2925 non-microbial species
recorded from Askham Bog, a figure that represents over 5% of the total UK
species list. In the nineteenth century the site contained samples of 25% of all
plant species in the UK. Extensive lists of animal and plant species recorded on
the site are unique in Yorkshire as well as nationally and internationally.467 The
SSSI designation is for Askham Bog’s insect fauna in toto, not just for three
species.468
191. As an SSSI it is of national significance. It contains lowland fen and ancient
woodland which are irreplaceable habitats. Some of the irreplaceable fen
habitats are threatened European-wide.469 Therefore, they are also
internationally important. Its interest derives from its transitionary condition.470
Its significance is not recognised in the appellant’s Environmental Statement,
which assesses the sensitivity of the Bog only as medium.471
192. It is popularly valued. It is enjoyed by over 20,000 visitors per year.472 YWT
has aspirations to extend its boardwalk towards the north of the SSSI within
Middle Wood. The development would compromise visitors’ views of the
countryside from that edge.473 YWT’s petition against development attracted
over 7,000 signatures474 and 400 letters. In less than a month, their campaign
raised over £28,500 from 332 people.475
465 YWT’s opening submissions paragraph 15; Professor Fitter’s oral evidence in chief is that
earliest records are eighteenth century
466 YWT’s opening submissions paragraphs 5, 6 and 7; appendix 1 of YWT’s letter dated 4
February 2019 objecting to the planning application (included with Council’s response to
appeal questionnaire, supplied in electronic form only); Professor Fitter’s Proof of Evidence
paragraph 2.2
467 YWT’s opening submissions paragraph 15; YWT’s letter dated 4 February 2019 objecting to
the planning application (included with Council’s response to appeal questionnaire, supplied in
electronic form only): Professor Fitter’s evidence paragraph 2.6. Professor Fitter’s oral
evidence suggested that 5% is an underestimate; he would expect 10%.
468 YWT’s closing submissions paragraph 18, referencing Mr Wigglesworth’s cross-
examination; Sir John Lawton, oral evidence in chief
469 Professor Fitter’s Proof of Evidence paragraph 5.3 commentating that chalk-rich fen
dominated by saw sedge is a European priority habitat.
470 Alex Jones’s Proof of Evidence section 4
471 YWT’s closing submissions paragraphs 11, 12 and 13; Alex Jones’s Proof of Evidence
paragraph 6.15
472 YWT’s comments of 2 October 2019 on the Environmental Statement Addendum (included
within blue folder on purple case file; also attached as appendix 2 to Esther Priestley’s Proof
of Evidence)
473 Ibid
474 This petition was not presented to the Inquiry
475 YWT’s opening submissions paragraphs 8, 9 and 10
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193. YWT emphasises the three parts of NPPF paragraph 175;476
• If significant harm to biodiversity cannot be avoided, adequately mitigated
or, as a last resort, compensated for, then permission should be refused
• Development likely to have an adverse effect on an SSSI should not
normally be permitted, with one specified exception
• Development resulting in the loss or deterioration of irreplaceable habitat
such as ancient woodland should be refused (exception again specified)
194. YWT’s primary concerns are threefold;477
• Increased isolation affecting biodiversity
• Risks from proximity to housing
• Impact on hydrology
Isolation
195. Ecologists have known since 1967 that isolated sites have an impoverished
flora and fauna.478 Making Space for Nature (the Lawton Report 2010) argued
for large-scale habitat restoration and re-creation in order to safeguard wildlife.
The Lawton Principles of bigger, better managed, joined up sites have become
the guiding principle underpinning wildlife conservation in both the voluntary and
statutory sectors across the UK. Through government publications479 they are a
part of government policy. NPPF paragraph 170 requires net gains to
biodiversity.480
196. The element most relevant to Askham of the “bigger, better, joined” approach
of the Lawton Principles is joined.481 To a degree, the Bog is already isolated,
surrounded as it is by the A64 road to the south, the ECML to the east and Pike
Hills golf course, which wraps around the Bog to the south, west and north.482
The golf course is relatively less permeable than farmland483 which currently joins
the Bog to the wider countryside through its northern boundary. This is
important because of the effects of metapopulation dynamics, evidenced by the
58% overlap in species of invertebrates found in both the Bog and the appeal
site. The development would further sever the already much diminished
476 YWT’s closing submissions paragraph 4
477 YWT’s opening submissions paragraph 14
478 Sir John Lawton’s Proof of Evidence paragraph 3.1 referencing The Theory of Island
Biogeography by Robert H. MacArthur and Edward O. Wilson 1967
479 Biodiversity 2020 published in 2011 and A Green Future, our 25-year Plan to improve the
Environment (2018)
480 YWT’s closing submissions paragraph 9; Sir John Lawton’s Proof of Evidence paragraphs
2.3 to 2.5 and 2.7
481 YWT’s closing submissions paragraph 10
482 YWT’s opening submissions paragraph 16; Sir John Lawton’s Proof of Evidence paragraph
4.1
483 YWT’s closing submissions paragraph 17, referencing Sir John Lawton’s evidence
paragraph 4.2
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connections between Askham Bog SSSI and the surrounding countryside,
increasing its isolation and causing further loss of species.484
197. Isolation, not absolute or binary but relative, will have an impact on the
biodiversity of the Bog. The EPEZ is described by the appellant as an
impenetrable barrier. Its placement across approximately 50% of the northern
boundary of the Bog represents, at the very least, a relative increase in the
isolation of the Bog.485 It is a textbook definition of increased isolation.486 For
the appellant, Mr Wigglesworth denied that the EPEZ will be a major barrier to
larger non-flying animals because they would bypass it or were unimportant.
The appellant cannot have it both ways.487 At all points along a scale from very
well connected to completely isolated, increasing isolation leads to loss of some
species and reductions in the abundance of others.488
Proximity to housing
198. YWT is concerned about the extent to which populations of some insects would
be damaged by artificial domestic and street lighting less than 200m from the
Bog. The appellant had no answer other than vague references to a lighting
strategy to minimise the effects.489
199. For the appellant, Mr Wigglesworth maintained that the existing cat population
from surrounding local areas was not known to be causing an issue in the Bog.
His refusal to accept that the development of 516 houses would cause a greater
threat to wildlife from cat predation is unpersuasive. Under cross-examination he
agreed that domestic cats kill birds, that small mammals comprise a bigger
proportion of domestic cats’ prey than do birds and that some species of bird
may abandon or not take up territories frequented by cats.490
200. The large village of Copmanthorpe, to the south of the Bog, is separated by a
bund, fence and an exceptionally busy dual carriageway A64 with a central
reservation. The road carried an average daily vehicle flow of 58,682 in 2018, an
average of approximately 4,000 per hour, or 1 per second. It forms a barrier to
the movement of people, cats and other wildlife491 but is one of the main
contributors to the existing partial isolation of the Bog. Because the housing and
associated lighting lie beyond and below the moraine that carries the A64, the
lights from Copmanthorpe are barely visible (if at all) from the Bog.492
201. Askham Bog receives a large number of regular visitors from Copmanthorpe
via the quieter Tadcaster Road which has an underpass beneath the A64
immediately opposite the entrance to the Askham Bog nature reserve. Welcome
signs and nature reserve interpretation boards are provided. Visitors are directed
onto the boardwalk to enjoy the wildlife of Askham Bog.493 To cope with
484 YWT’s closing submissions paragraph 10
485 YWT’s closing submissions paragraphs 17 and 23 referencing Sir John Lawton’s evidence
486 YWT’s closing submissions paragraph 23
487 YWT’s closing submissions paragraph 20
488 YWT’s closing submissions paragraph 21
489 YWT’s closing submissions paragraph 19, referencing Mr Wigglesworth’s cross-examination
490 YWT’s closing submissions paragraph 22
491 YWT’s closing submissions paragraphs 34 to 36
492 YWT’s closing submissions paragraph 41
493 YWT’s closing submissions, paragraphs 37 to 40
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increased visitor numbers resulting from the development would impose
additional site management costs and a need to engage with the new community
to foster respectful use of Askham Bog. These costs would amount to an
additional staff resource of two days per week, or £16,400pa, maintenance costs
of £3,000pa and materials costs of £2,750pa. The appellant’s offer to fund a
liaison officer for seven hours per month for five years would be insufficient to
deliver what is required494.
Hydrology
202. Past changes in the catchment area of the Bog have included the loss of semi-
natural/natural habitat to intensive agriculture and recreational land use (golf
course), associated intensive drainage, diversion of outfall from the Yorkshire
Water Waste Water Treatment Works495 and changes to water quality and
chemistry.496 Natural England considers that past modifications to the SSSI
catchment are reversible and therefore that the SSSI could achieve a favourable
condition classification but that as the proposal lies across a significant proportion
of the SSSI’s catchment, it may have significant and irreversible effects which
would compromise the potential to achieve favourable condition status.497
203. Habitats in Askham include both fen and bog. Bog normally develops above
the groundwater level. It depends on rainfall and is therefore acidic. Many of
the peats in Askham Bog are not acidic, so must have developed in groundwater.
Fen is base-rich (a pH level greater than about 5.5) and so must exhibit
groundwater or surface water.498
204. Historical reductions in the level of the water table at Askham Bog have
coincided with species loss.499 The Bog has experienced a steady loss of species
over the past 100 years. Many mineral-rich-dependent species were lost
between 1879 and 1940, few since. The extent of those habitats has decreased
over the same period. Most of the wetland species that have been lost are
particularly associated with plant communities wholly or partially dependent on
groundwater. Drying is associated with evapotranspiration from tree cover but
land drainage has played a major role.500 At the western end of the SSSI the
Askham Bog Drain has been moved northwards because its original route failed
to drain the land.501
205. Askham Bog depends for its long-term survival on the maintenance of a high
water table, especially in spring and early summer. To restore peatland, the
494 Inquiry Document INQ9
495 A flow estimated at not less than 2 litres/second or 173 cubic metres per day in Richard
Thomas’s rebuttal proof paragraphs 3.4.4-3.4.5
496 YWT’s closing submissions paragraphs 31 and 32, referencing Core Document CD078,
objection letter from Natural England to CYC dated 20 February 2019
497 YWT’s closing submissions paragraph 32; YWT’s aspirations for the renaturalisation of land
surrounding the SSSI are described in its original objection to the planning application
(included with CYC’s response to appeal questionnaire, provided in electronic form only), at
paragraph 4.11 of Sir John Lawton’s Proof of Evidence and in section 6 of Professor Fitter’s
Proof of Evidence.
498 Professor Fitter’s oral evidence in chief.
499 YWT’s closing submissions paragraph 14, referencing Professor Fitter’s evidence
500 Professor Fitter’s Proof of Evidence paragraphs 3.1-3.7; Alex Jones oral evidence in chief
501 Oral evidence in chief of Alex Jones.
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water table needs to be within 10cm of the surface.502 Water level monitoring
suggests that much of the Bog is fully saturated in winter but water levels drop
by 0.5-0.75m over the summer.503 Management by YWT involving damming of
cross-ditches within the Bog, clearing tree cover in New Wood and mowing or
grazing fen has resulted in a recovery of some of the more threatened habitat
types.504 Distinct plant communities on Askham Bog are defined by a very few
centimetres change in the height of the peat surface. Minor changes in water
table levels would cause significant species loss.505 Activity resulting in a
reduction in the water table would lead to severe damage to the site and to
further losses of species.506
206. Lower lying parts of the bog flood about 2-3 times per year, higher parts every
twenty years. Although flooding was regarded as a nuisance in the Arup report
of 2003, damaging nutrients no longer come in following the diversion of the
sewage works outflow to a different catchment. Some species, such as Carex
elongate, would not survive without regular flooding.507
207. Despite recovery, large parts of Askham Bog are still in “unfavourable”
condition, especially the fen communities in New Wood close to the northern
boundary ditch. Government policy is to restore SSSIs to “favourable” condition.
This requires restoration of the hydrological regime to that which allowed the Bog
to form. If bog restoration is to be successful, water must be returned to the
edge of the bog. An effective recovery programme would involve restoring the
lagg508 whose original dimensions are suggested clearly by the 12.25m
contour.509 The development would make restoration impossible, partly by
development on the water catchment, partly by the construction of the bund in
the buffer zone on the original lag fen.510
208. The appellant’s hydrogeological argument has three strands;511
• The bog is critically dependent on rain and groundwater is unimportant
• There is very limited connectivity between the Bog and external drains
502 Alex Jones’s Proof of Evidence paragraph 5.4
503 Alex Jones’s Proof of Evidence paragraph 4.14
504 YWT’s opening submissions paragraph 18; Professor Fitter’s Proof of Evidence paragraphs
4.1 to 4.6 and oral evidence in chief
505 YWT’s closing submissions paragraphs 14 and 15, referencing Professor Fitter’s evidence
(for YWT), the Environment Agency’s report A wetland framework for impact assessment at
statutory sites in England and Wales (Appendix 15 to Professor Fitter’s evidence) particularly
figures 3.3 and 3.4 on page 48; Dr Foley’s evidence (for CYC) and Alex Jones’s evidence
paragraph 5.5
506 YWT’s opening submissions paragraph 18; the mechanism of peat drying out and
collapsing is described in paragraph 5.6 of Alex Jones’s Proof of evidence
507 Professor Fitter’s oral evidence in chief.
508 A lagg, also called a moat, is the very wet zone on the perimeter of peatland or a bog
where water from the adjacent upland collects and flows slowly around the main peat mass
509 Clearly visible on Map 1 of Alex Jones’s evidence
510 Professor Fitter’s Proof of Evidence, section 6; oral evidence in chief referencing his
Appendix 22 (Joint Nature Conservation committee (JNCC) report No 365 Characterisation of
Hydrological Protection Zones at the Margins of Designated Lowland Raised Peat Bog sites,
fourth paragraph on page 1 of foreword
511 YWT’s closing submissions paragraph 30
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• There will be no changes to the water level in the Beck because the
attenuation basins will mimic the current hydrology
(i) Rainwater and groundwater
209. YWT’s evidence512 shows that groundwater both supplied mineral rich water
and supported the position of the water table. This is typical of a bog system in
which the supply of water is predominantly from rainfall (and is therefore base-
poor) but the level of the water table in the system depends on groundwater
(which is base-rich). The glacial moraine to the south, approximately where the
A64 is situated, has a calcareous character. Water draining from the moraine is
alkaline, leading to the development of base-rich fen communities at the margins
of the SSSI. By contrast, the peat in the centre of the reserve is acidic and
mainly fed by rainwater. The site receives extensive ground and surface water
input from the south whereas the central part is predominantly rain-fed. Peat
alkalinity and the greater abundance of nitrophilous species on the north side
point to a major influence of the eutrophic513 Holgate Beck water.514
210. The variation in water supply influences controls the distribution of habitats. It
is likely that rainfall is the main input of water to the Bog but what determines
the plant communities on the site is the level of the water table at different times
of year.515 The appellant’s model offers no explanation for their distribution.516
211. In line with Environment Agency guidance, Mr Jones for YWT presented a
conceptual model of the hydrogeology of the site and the Bog.517 This contrasts
with the evolution of the appellant’s case during the Inquiry,518 so Mr Jones’s
evidence should be preferred.519 Mr Thomas’s explanation (on behalf of the
appellant) for variations in seasonal groundwater levels is not evidenced with a
source of sufficient pressure change to cause the variations shown and cannot
apply to the thicker sand deposits of the EPEZ area which his own figure 5 shows
are not overlain by clay.520
512 YWT’s original objection to the planning application, especially Appendices 2 and 3; Core
Document 099c
513 when a body of water becomes overly enriched with minerals and nutrients
514 YWT’s objection to the planning application, dated 4 February 2019, particularly Appendix
2 (included with CYC’s response to appeal questionnaire, provided in electronic form only)
referencing Core Document CD044 A Wood in Ascam; Professor Fitter’s Proof of Evidence
paragraphs 2.1 and 5.8 and orally in cross-examination
515 Professor Fitter’s Proof of Evidence, paragraph 5.8; The distribution of habitats is shown in
Core Documents CD044 A Wood in Ascam and figure 4.1 of CD99c JBA Consulting Report
(2nd February 2019). Askham Bog review, document reference 2019s0135
516 YWT’s closing submissions paragraph 30a
517 Alex Jones’s Proof of Evidence Figure 14
518 YWT’s closing submissions paragraph 24 to 26, referencing Alex Jones’s Proof of Evidence
appendix B Hydrogeological impact appraisal for dewatering abstractions, Environment
Agency 2007; section 3 and appendices B and C of Alex Jones’s evidence explains what a
conceptual model is and why it is needed
519 YWT’s closing submissions paragraph 28
520 Footnote 4 of YWT’s closing submissions paragraph 25
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(ii) Hydrological connectivity
212. The suggestion that there is very limited hydrological connectivity between the
Bog and the Askham Bog Drain (Holgate Beck) and between the development
site and the Drain is based on inadequate data521 from the appellant’s surveys
and a selective interpretation of the Arup Report of 2003. Although the Arup
report is a helpful document, it should be read in the context of the information
and improved understanding that has become available since its publication over
16 years ago.
213. Mr Jones’s evidence522 indicates that the Beck and the boreholes on the
development site track each other closely. Numerous references in Arup as well
as data in Appendix 3 of the original YWT submission to CYC dated 4 February
2019523 display connectivity between the Beck and the Bog over a distance of at
least 20m wide.524 For the appellant, Mr Thomas’s conclusion to the contrary is
based on a comparison of groundwater level records from borehole BH14/07 in
2014-2015 with Askham Bog Drain level records for 2000-2002. These do not
relate to the same hydrological event.525
214. It would be expected that at least 10% of the groundwater inputs which
sustain rivers during drier periods would come from the site. Mr Thomas’s figure
of 2% as the contribution of the site’s groundwater flow to the flow in the
Askham Bog Drain is based on a low permeability rate and a high existing flow in
the drain. The permeability of the silty sand in the location for which his
calculation is made is between 7.5 and 38 times higher than the figure of
1 x 10-6m/s for the permeability of the part of the site to be built on which he
uses and would increase the proportion of the flow calculated to originate from
groundwater. The Qmean figure of 20.8 l/s which Mr Thomas uses in his
calculations is relatively high. The bog will be most sensitive to a lowering of the
water table during dry conditions, so it would have been more appropriate to
have used the Q95526 flow rate of 4.7 l/s in the calculation. This would have led
to a calculation of a significantly higher proportion of flow resulting from
groundwater.527
215. Michael Parkinson’s Rebuttal Proof on behalf of the appellant relies on the
2003 Arup report to challenge the view that periodic overbank flooding from the
Beck is critical to the Bog. Yet both chemical evidence (the distribution of
influence of base-rich alkaline water) and botanical evidence (the spread of the
rare sedge Carex elongata) shows that flooding is both regular and important.528
521 Appendix 2 of YWT’s original objection to the application (included with CYC’s response to
the appeal questionnaire, in electronic form only)
522 Alex Jones’s Proof of Evidence, paragraph 4.18 and figure 9
523 Included with Council’s response to appeal questionnaire, provided in electronic form only
524 YWT’s closing submissions paragraph 30b; Alex Jones’s Proof of Evidence paragraphs
4.18-4.22 and figure 9
525 Alex Jones’s rebuttal proof paragraph 2.4
526 The figure exceeded for 95% of the time
527 Alex Jones’s rebuttal proof paragraphs 2.7-2.10
528 YWT’s closing submissions paragraph 27
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(iii) Attenuation basins
216. Although the appellant’s understanding of the ecohydrological controls of the
Bog has evolved, the scheme has not evolved to match. The attenuation basin is
to measure over 800m long, approximately 45m wide and will vary from 1.3-2m
deep. It will need to be kept relatively empty so that it can contain run-off flows
from the 10% of the SSSI’s catchment which it drains. If not lined, it would be
linked to groundwater levels but would lower them through evaporation. If lined,
it would not feed into groundwater.529 Michael Parkinson, for the appellant
accepted during cross-examination that if the attenuation basin dried out, its
water level would have to rise to a certain point before it discharged water into
Askham Bog Drain. Appendix 3 of the Environmental Statement Addendum
notes that attenuation basins will dry out less often than once in every five years
but that is quite frequent.530 This structure cannot therefore mimic as claimed
the current water supply mechanism to the Bog.531
217. The peak run-off rate from the attenuation basins is to be limited to 1.4 l/s/ha
instead of the current 3.1. This halving of the discharge rate could have a
significant impact on how Askham Bog floods and affect the habitats which are
dependent on that type of periodic flooding.532 If the SUDS function was
excluded, the design could focus on replicating or improving the water supply to
the Bog and potentially recreate some of the functions of the lagg area
highlighted by Professor Fitter.533
218. The appellant has misunderstood and/or ignored the fundamental ecological
and hydrological controls of the irreplaceable habitats of Askham Bog in the
design of the scheme. The appellant has failed to demonstrate the benefits or
wholly exceptional circumstances necessary to comply with NPPF paragraph 175.
It follows that there is a real possibility of harm. In order to protect irreplaceable
habitat, the precautionary principle must apply and the appeal should be
dismissed.534 If allowed, strategies for monitoring the hydrology and botany of
the Bog should be imposed by condition535.
The case for others who appeared at the Inquiry
Janis Grant
219. Janis Grant lives on Moor Lane, advises that she has interviewed everyone on
Moor Lane and spoken to other local people and so presents what she believes to
be the views of her local community. There is support for the site remaining
Green Belt because of the openness of aspect that it gives to Moor Lane and the
protection it gives to Askham Bog. There is local support, interest and pride in
Askham Bog as a special area of national importance which forms a visual
backstop to the view from windows or gardens or from walking or driving along
529 Alex Jones’s evidence paragraphs 5.14 and 5.15
530 Alex Jones’s Proof of Evidence paragraph 6.11
531 YWT’s closing submissions paragraphs 29 and 30c
532 JBA Consulting report, commissioned by YWT, table 6.1; Alex Jones’s Proof of Evidence
paragraphs 5.9 and 5.10 and oral evidence in chief
533 Alex Jones’s Proof of Evidence paragraph 5.16
534 YWT’s closing submissions paragraphs 7 and 44.
535 Inquiry Document 9, section 4, paragraphs 12 and 13
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Moor Lane. There is incomprehension that the development could, would or
should be permitted on the basis of there being no adopted local plan.
220. Rainfall creates marshes and lakes of local gardens. Surface flooding has
increased in recent years. From October to March gardens remain wet. The
Marsh Farm site shows identical characteristics. The suggestion that there is no
interconnectedness with Askham Bog stretches credulity. Information that the
IDB’s Moor Lane pumping station is close to capacity is not reassuring.
221. Traffic is a growing issue of major local concern. Narrative examples of local
congestion are given. Public transport to the site is poor. Additional patronage
from the proposed development would not be sufficient to support an increased
bus service but it will generate increased car usage.
222. There is a history in York of developers reducing affordable housing
commitments because of viability issues. Although greenfield sites are less costly
to develop, this one would carry a heavy burden of EPEZ, sports provision and
other structures and costs so one wonders what effect viability considerations
would have on the provision of affordable housing.
Ann Reid
223. Ann Reid has resided in Woodthorpe since 1985, was a local councillor for 32
years until May 2019 and was chairman of the planning committee for the last
four of those years.
224. The engineering operations necessary to deliver the development would be
inappropriate in the Green Belt. The EPEZ, with a bund of the size proposed, and
its fencing designed to exclude people and animals, would affect openness and is
itself inappropriate in the Green Belt.
225. Moor Lane creates a definite edge to the urban area. Extension south would
be seen as urban sprawl.
226. Very special circumstances need to be site-specific. Those advanced by the
appellant are generic.
227. The measures proposed to protect the Bog cannot be known to work until after
the event. But adverse effects would then be irreversible.
228. Experience of other housing adjacent to open space shows impact from human
activity – rubbish, domestic pets and demands to trim trees. Wildlife needs to
move freely. If the buffer zone and Bog are made impregnable, that would not
be possible. If wildlife can move freely then so can people. The solution to the
conundrum is not to develop the land.
229. Protective conditions would need to be maintained in perpetuity. But
circumstances change and that may not be possible.
230. The most recent ONS figures indicate a need for 790 dwellings per annum.
The emerging local plan would allocate sufficient land to meet that need. A
decision on this appeal should be deferred until the outcome of the local plan
examination is known.
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Cllr Stephen Fenton
231. Cllr Fenton is one of three councillors for the Dringhouses and Woodthorpe
ward. There was unanimity at the planning committee.
232. Significant local opposition is not motivated by nimbyism but by concern for
the setting of the city and the effects on local infrastructure and the Bog.
233. York is in dire need of housing and affordable housing. The Council has the
most ambitious housing construction programme since the 1960s. Sites causing
the least harm to the Green Belt have been identified for development. Moor
Lane is not one of them.
234. Moor Lane is used as a cut-through. The report to committee noted that the
appellant’s estimated trip generation was based on averages for the whole city.
But trip rates are higher in Moor Lane. The use of more relevant data shows the
likely true impact of traffic. A bad situation would be made worse. Bus services
would be adversely affected. Air pollution would be caused. The agreements
reached on mitigation measures is welcome.
235. He acknowledges the greater expertise of the YWT in relation to ecology.
Written Representations
236. Thirty-seven written representations were sent to the Inspectorate in response
to notification of the appeal including one from Natural England commenting on
the proposal’s expected hydrological effects on Askham Bog. Others commented
on the loss of Green Belt, the irreplaceable nature of Askham Bog, its habitat,
hydrology and hydrogeology, its fauna, its benefits to people with mental health
issues, its role as a tourist attraction, the enclosure of wildlife, the need to
manage land surrounding a conservation area, cat predation, inaccuracies in the
submitted Drainage Strategy Plan, existing poor site drainage, the need to give
precedence to open land in preference to development, the effects of the
proposed development on tranquillity, air quality, traffic, infrastructure and
schools and an alleged lack of need for housing.
237. In addition, representations made to the Council at application stage need to
be taken into account. The Council’s committee report records 401 of these.
After discounting duplicates, there are 390 included with the Council’s response
to the appeal questionnaire form.536 They include three which support the
development proposal on grounds of the need for more housing. The remainder
oppose the development on grounds which are adequately summarised within the
Council’s committee report;537
• Effects on wildlife
• Effects on Askham Bog
• Isolation of nature reserve leading to loss of species
• Infrastructure and highways issues
536 Only supplied in electronic format.
537 Core document CD001 paragraphs 3.30 to 3.82
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• Demand for schools
• Effect on local amenities
• The need for sports centre facilities
• The needs of older people
• Insufficient parking
• Electricity demands leading to outages
• Flooding on site
• Sewerage capacity
• Loss of agricultural land
• Green Belt; sprawl, coalescence etc;
• Height of houses proposed
Obligations
238. The Unilateral Planning Obligation submitted before the close of the Inquiry
consists of a set of recitals, followed by ten sections making provisions as to
definitions and interpretation, legal effect, conditions precedent, indexation, legal
costs, interests, land charge, expert determination, notifications and charges.
Paragraph 3.2 refers to the planning obligations contained in Schedules 1 to 8
inclusive. In fact, there are nine schedules but Schedule 1 is a list of the land
parcels in each ownership and Schedule 2 describes the development. Recital H
requests the Secretary of State to confirm that the obligations of Schedule 8538
do not comply with the tests of regulation 122 of the Community Infrastructure
Levy (CIL) Regulations 2010 and shall not apply in the event that planning
permission is granted.
239. Schedule 3 requires 11% of all the dwellings in each phase and in the scheme
overall to be provided as discounted sale dwellings at 80% of market value. It
requires 24% of the dwellings in each phase and in the scheme overall to be
provided as social rent housing at 60% of market rent for a one-bedroom flat,
55% of market rent otherwise. It requires a scheme of affordable housing and
an affordable housing car parking plan to be submitted as part of the reserved
matters applications for each phase of the development. Thus 35% of all
dwellings would be provided as affordable housing in each phase and in the
scheme overall.
240. Schedule 3 requires the mix and type of affordable housing to be proportionate
to the mix and type of housing in the scheme as a whole, to be pepper-potted in
its distribution and to be physically indistinguishable. It has provisions requiring
the delivery of the affordable housing to relate to the delivery of full-price market
housing, for the affordable housing to be offered to Registered Social Providers,
for it to remain affordable in perpetuity and for its release to the full price
housing market, subject to a commuted payment to the Council, in the event
that the provisions for affordability fail to deliver.
538 The context makes it clear that it is in fact Schedule 9 which is meant
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241. Schedule 4 has provisions concerning the EPEZ, open space, and the sports
pitches and pavilion. It also makes provision for a YWT liaison officer. For the
EPEZ, it requires the 3m security fence element to be constructed before any
dwelling is occupied. All elements of the EPEZ must be completed before more
than 100 dwellings are occupied, at which point the EPEZ maintenance plan
(which is attached to the planning obligation as an Appendix) must be in
operation. However, neither the planning obligation, nor the EPEZ maintenance
plan itself make any arrangements for any organisation or funding to carry on the
subsequent operation of the maintenance plan. Clause 6.3 of the obligation
specifically provides that individual owners and Registered Providers are not
bound by the planning obligations other than in relation to occupancy and
affordable housing.
242. In contrast, the provisions for the Open Space (the definition of which excludes
the EPEZ and the Sports Facilities) require a management company to be set up,
with funding and the means to employ appropriate numbers of qualified
personnel. This would be responsible for managing and maintaining the open
space. Provision is also made for their transfer to the Council.
243. The quantity and nature of the open space is defined. An open space
management plan is to be submitted to the Council for approval with the
reserved matters application for each phase of development. But there is no
requirement to make a reserved matters application for the layout of the open
space in the first place, or that it be provided and laid out. There is an explicit
expectation that this be required by condition of any permission for the
development.
244. Likewise, although the Planning Obligation requires a Sports Facilities
Maintenance and Management Plan to be submitted to the Council for approval,
and that no more than 75% of dwellings be occupied until it is approved, there is
no requirement to make a reserved matters application for the sports facilities in
the first place, nor any requirement that they be provided, even if a reserved
matters application is approved. Instead there is a specific expectation that
these matters would be required by condition.
245. Although the provisions relating to the Sports Facilities Maintenance and
Management Plan specify that it must detail how the Sports pitches and pavilion
will be made available for public use free of charge, there is no explicit provision
to set up any organisation to operate the Sports Facilities Maintenance and
Management Plan. There is provision to offer the sports facilities and pavilion to
a sports club at a peppercorn rent.
246. The provisions for a YWT liaison officer would require the owners of the
development to employ a person for seven hours per month for five years from
the first occupation of the development, in order to advise new residents about
the Bog and provide them with guidelines for responsible visits, to provide a
point of contact for the YWT to raise concerns for immediate redress and to
broker volunteering and membership opportunities between residents and the
YWT.
247. Schedule 5 requires no more than 50% of dwellings to be occupied before the
reserved matters application for the local centre is made and for no more than
80% of dwellings to be occupied before it is completed.
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248. Schedule 6 details the highways and public transport provisions. A public
transport contribution of £100,000 is to be paid in five equal annual instalments
for improved public transport. A one-off payment of £20,000 is to be paid for
off-site footway and cycle improvements. £90,000 is to be paid for upgrading
shelters at three in-bound bus stops. A speed survey on Moor Lane is to be
conducted annually after 50% occupancy until one year after full occupation of
the completed development. If that survey demonstrates that speeding
occurs539, then a sum of £60,000 is to be paid towards traffic calming measures.
249. A travel plan contribution of £100,000 is to be paid in five equal annual
instalments. The travel plan itself is to be required by condition. A total of
£206,400 is to be paid towards a sustainable travel pack contribution of £400 per
dwelling, comprising £300 per house for either a bus pass or for cycling
equipment and £100 for car club membership. Occupancy thresholds are linked
to the payment of the public transport and travel plan contributions.
250. A payment of £250,000 is to be made towards the A1237 Moor Lane
roundabout improvements. A payment of £100,000 is to be made towards the
A1036 corridor and Sim Balk Lane improvements.
251. Schedule 7 details the education contributions. Payment of £759,165 as a
contribution to an early years and childcare facility is to be paid before any
dwelling is occupied. Land for an early years facility is to be identified and
approved before 50% of dwellings are occupied. It is to be reserved for 10 years
or until 75% of the development is occupied, whichever is the sooner and
transferred to the Council before 75% occupancy. A primary education
contribution of up to £1,780,329 and a secondary education contribution of up to
£1,276,574 are to be paid in three instalments related to the occupation of
dwellings. The figures will be formalised in accordance with a formula applied to
the numbers and mix of dwellings approved at reserved matters stage.
252. Schedule 8 requires land for up to 5% of the market housing in each phase to
be reserved for up to 12 months for self-build housing. It details requirements
for advertising the facility.
253. Schedule 9 makes provision for payments to the YWT; £90,000 over 30 years
for maintenance of the boardwalk and for community engagement activities;
£300,000 over 30 years to monitor and manage the hydrology of the Bog; and
£460,000 over 30 years to employ a warden for three days a week. The
contributions are linked to the occupancy of dwellings.
254. I report on the compliance of the provisions of the planning obligation with the
CIL regulations in my conclusions below.
539 The trigger for payment is ambiguous. The definition of “traffic calming contribution” says
it will be paid if the speed survey results show that more than 5% of all recorded speeds are
in excess of the speed limit. Clause 12 of the Schedule states that it would be payable if the
survey results in an 85th percentile of recorded speeds equalling or exceeding 35mph
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Conditions
255. The Council prepared a list of suggested conditions in the event of the appeal
being allowed540. The appellant provided a commentary on these541. My
recommendation is that the appeal should be dismissed but, in the event that the
Secretary of State were to take a different view, my observations on the need for
conditions are set out below and a schedule of nineteen recommended conditions
is attached. The Council prepared its list of suggested conditions in two parts,
one relating to the parts of the proposal which are submitted in detail, the other
to the parts of the proposal which are submitted in outline. On the basis that the
Secretary of State is to make a single determination of the appeal, and to
eliminate duplication, my schedule of recommended conditions is resolved into a
single list.
256. The Council’s suggested conditions full 1 and outline 1 and 2 would impose
time limits for commencement as required by statute. My schedule of conditions
2, 3 and 4 apply these. The Council’s suggested conditions full 2 and outline 3
and 4 would apply the parameter plans and specify the other plans approved so
that the provisions of the Act for allowing minor material amendments can apply.
These become conditions 9, 10, 11 and 12 of my schedule of conditions.
257. The Council’s suggested condition full 3 seeks to redress perceived deficiencies
in the EPEZ Maintenance Plan appended to Schedule 4 of the Unilateral
Undertaking. I have already noted in paragraph 241 above that details of neither
the planning obligation, nor the EPEZ maintenance plan itself make any
arrangements for any organisation or funding to carry on the subsequent
operation of the maintenance plan and that this deficiency needs to be remedied.
Condition 13 is therefore recommended. Condition 14 is likewise recommended
(in pursuit of the Council’s suggested condition full 4) to remedy an incomplete
boundary fencing of the EPEZ.
258. The Council’s suggested conditions full 5, outline 16 and full 6 and outline 18
pick up recommendations of the appellant’s Environmental Statement.542 I have
translated them as recommended conditions 6d, omitting excessive and
unnecessary detail, and 5. The Council’s suggested conditions full 7 and outline
17 setting a time limit by which a further ecological survey is required are
unnecessary because the Wildlife and Countryside Act applies in any event and
any developer will need to protect themselves from prosecution by ensuring that
their knowledge of the potential for the existence on site of protected species is
up to date before commencing construction.
259. A development of the size proposed is likely to be constructed in phases. The
consequent need for a phasing plan was recognised by all parties during the
Inquiry. I have therefore included recommended condition 1 in the Schedule of
conditions, reflecting the Council’s suggested condition outline 5 but omitting the
detail of the content of the phasing strategy which would be premature and not
necessary to specify in advance. However, submission of details in phases will
not reveal the extent of compliance with emerging local plan policy H9 on
housing mix until all phases have been submitted. There is therefore a need to
540 Inquiry document INQ10
541 Inquiry Document INQ11
542 Environmental Statement paragraph 9.171, pages 9-44 and 9-45
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include a dwelling mix strategy within the phasing plan, reflecting the objectives
of the Council’s suggested conditions outline 35 and 36.
260. Schedule condition 15, reflecting Council’s suggested condition outline 6,
limiting the number of dwellings to 516 is necessary because the transport
effects and mitigations are calculated on the basis of 516 dwellings. A greater
number of dwellings would invalidate the calculations and thus throw doubt on
the acceptability of the proposal. Likewise, recommended condition 16, limiting
the quantity of non-residential floorspace to be provided, reflects the Councils’
suggested condition outline 7. It is necessary to comply with emerging local plan
policies R1 and R2 and because greater quantities of floorspace would need to be
assessed for their impacts on other local centres.
261. The Council’s suggested condition 8, limiting the heights of buildings to be
constructed, would duplicate the provisions of recommended condition 10,
applying the parameters plans which include controls on the height of
development and so, would be unnecessary.
262. As noted in paragraphs 243 and 244 above, although the Unilateral
Undertaking makes provision for a maintenance plan for the open space and
sports facilities to be approved, it includes no requirement for these facilities to
be provided in the first place. There is an explicit expectation that the provision
of these facilities will be required by condition. This is reflected in the Council’s
suggested conditions outline 9 and 10, translated into recommended condition
13.
263. By contrast, the planning obligation includes provisions limiting the occupation
of dwellings until the EPEZ is complete and so there is no need for the Council’s
suggested condition outline 11.
264. The Council’s suggested conditions outline 12 and 13 would duplicate some of
the provisions of Schedule 9 of the planning obligation. I discuss these in
paragraph 321 of my conclusions below. For the reasons set out there, I
consider that these provisions would fail to meet the CIL tests and so, insofar as
those tests duplicate the “six tests” for the reasonableness of conditions, I
conclude that these provisions should not be required as conditions.
265. The Council’s suggested condition outline 14, for the provision of a landscape
and ecological management plan, would duplicate provisions in Schedule 4 of the
Unilateral Undertaking and so would be unnecessary.
266. Landscaping is a reserved matter and so it is unnecessary to require by
condition the submission of landscaping details. It is also premature and
unnecessary to specify by condition at this stage what the content of a reserved
matters application should be. I therefore do not include the Council’s suggested
conditions 15 and 22 within my list of recommended conditions.
267. On the other hand, although paragraph 9.184 of the Environmental Statement
recommends that durable bird boxes and bat boxes, including a range of designs
to suit different species, be erected on retained mature trees and that bird
nesting features (e.g. swift boxes and sparrow terraces) and bat roosting
features (e.g. bricks and access tiles) be incorporated into selected new
buildings, such details would not necessarily form part of routine reserved
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matters submissions and so recommended condition 6b is necessary, reflecting
the Council’s suggested condition outline 19.
268. Similarly, many of the mitigation measures proposed in the Environmental
Statement can only be secured through one or several method statements.
These would not normally feature as reserved matters applications and so their
submission must be secured by condition 6e, reflecting the Council’s suggested
conditions 20 and 37 but omitting the premature and unnecessary specification of
the content of the method statements.
269. Although landscaping is a reserved matter and proposals for new landscaping
can be expected to be forthcoming in response to the condition requiring the
submission of reserved matters, tree preservation is not inherently a feature of
landscaping proposals and so there is a necessity for recommended condition 6c,
reflecting parts of the Council’s suggested condition 21 but omitting parts which
are premature and unnecessary prior to the consideration of reserved matters
applications.
270. Appearance is a reserved matter and so it is not necessary to require by
condition the submission of details of external materials. For that reason, I do
not include the Council’s suggested condition 23. But reserved matters would
not necessarily include the submission of details of foul and surface water
drainage, boundary fencing or of street and external lighting, so the Council’s
suggested conditions 24 and 26 are necessary (recommended condition 6h) to
require the submission of those details. Suggested condition 27, specifying an
aspect of surface water drainage design, would be premature and unnecessary
until those details are submitted for consideration
271. The appellant’s submitted Outline Energy Statement records the requirements
of emerging local plan policies CC1, CC2 and CC3 for reductions in carbon
emissions and for performance in excess of the Building Regulation requirements
and so the Councils’ suggested condition 25 is necessary and justified, becoming
recommended condition 8.
272. Paragraph 6.2.3 of the appellant’s submitted Flood Risk Assessment543
recommends that ground floor levels are set 150mm above surrounding ground
to mitigate the residual flood risk associated with excess surface water runoff in
an extreme rainfall event. A condition (17) to require this provision would be
necessary and would put into effect part of the Council’s suggested condition 28.
Examination of applications for reserved matters and other details to be
submitted in accordance with other conditions will establish whether the
development would meet the aims of the remainder of the Council’s suggested
condition 28.
273. Paragraph 15.106 of the appellant’s Environmental Statement recommends
that as mitigation for the effects of the development on air quality, electric
vehicle charging points be provided at all off-street parking places. This would
need to be required by recommended condition 18, in pursuit of the Council’s
suggested condition 29.
543 Appendix 13.1 to the Environmental Statement
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274. Paragraph 11.42 of the appellant’s Environmental Statement recognises that
further ground investigation and assessment will need to be undertaken and will
be secured through a planning condition. Section 7.2 of Appendix 11.1 to the
Environmental Statement recommends that intrusive ground investigations are
carried out in the area of and around the Chaloner’s Whin landfill and in and
around Marsh Farm. Recommended condition 6i is necessary to give effect to
these recommendations, similar to the Council’s suggested conditions 30, 31 and
32.
275. Chapter ten of the appellant’s Environmental Statement recognises that
impacts would occur to undated archaeological ditches recorded in evaluation
trenches at three locations within the site, to known paleoenvironmental remains
located in the south-east part of the site and to the nineteenth century
outbuildings at Marsh Farm. The first of these are considered of insufficient
heritage value to warrant specific mitigation but for the second,
paleoenvironmental sampling, analysis and publication is recommended and for
the last, a programme of building recording. These would need to be secured by
recommended conditions 9 and 7 based on the Council’s conditions 33 and 34.
276. The Unilateral Undertaking makes provision for funding, in accordance with a
timetable, the off-site highways works necessary to make the development
acceptable. The developer is not responsible for carrying out the off-site
highways works and so the Council’s suggested condition 38 seeking to make the
developer responsible for the delivery of these matters would not be a reasonable
condition to impose. However, Schedule 6 of the Unilateral Obligation makes it
explicit that a condition (19) is necessary to require the submission of a travel
plan, which the obligation will then underwrite. Paragraph 1.2.2 of the submitted
Travel Plan544 makes it clear that it is not intended as the final Travel Plan for the
development.
Conclusions
277. References in this section in square brackets [thus] are to previous paragraphs
of this report.
Green Belt
278. Although it is established development plan policy that York should have a
Green Belt [22], its boundaries have never been defined. They are a matter of
current controversy in the examination of the submitted City of York Local Plan
[25, 26].
279. It is not for me to say where the boundaries of the York Green Belt should be
drawn. That is a matter for the Local Plan examination. But I do observe that
the Green Belt boundary proposed by the Council is already overtaken by
development sprawl on about one-third of the southern side of Moor Lane [36],
that although Moor Lane is a convenient boundary to draw on a map, there are
others equally conveniently drawn in the recent past [32], that there is no
obvious landscape threshold which signifies where the boundary should be drawn
[44], that these are some of the arguments being made for a different boundary
544 Appendix 14.2 of the Environmental Statement
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[35-39] and so it should not be presumed that the Green Belt boundary as
submitted is fixed.
280. For the purposes of this appeal, all parties are agreed, and I concur, that the
site should be taken as forming part of the York Green Belt [32, 121]. But,
before making a decision, the Secretary of State will wish to confirm the current
position in relation to the Local Plan examination because the outcome of that
process may invalidate some of the following conclusions relating to Green Belt.
281. The description of development encompasses several elements, not all of
which fall squarely within the definition of inappropriate development contained
within paragraph 145 of the NPPF [34]. Not specified in the description of
development, the proposal includes about 17ha of public open space which would
fall within the scope of NPPF paragraph 146(e) [28]. There would also be a sports
pavilion which might also fall within the scope of paragraph 145(b), except that
the Council considers (and the appellant accepts) that it would not preserve the
openness of the Green Belt [125]. The Council considers (but the appellant
denies [40]) that the proposed Ecological Protection and Enhancement Zone
would lie outside the scope of NPPF paragraph 146(b) because its height, extent
and the inclusion of 3m high fencing would not preserve Green Belt openness
[126].
282. Resolution of these issues is unnecessary because both main parties agree
(and I concur) that the above elements are not separable from the residential
dwellings and local centre proposed [34, 126]. The latter are most definitely
inappropriate development within the Green Belt [125] and therefore the whole
proposal must be regarded as inappropriate development within the Green Belt.
Green Belt openness
283. It has to be said that if the Council’s proposed Green Belt boundaries are
adopted then the openness of the Green Belt in this vicinity is already
compromised by the row of housing development which extends for about one-
third of the south side of Moor Lane abutting the site [36]. It is also fair to say
that the sense of openness in this part of the Green Belt is compromised by its
juxtaposition with the built-up area of York but that is true of any boundary
situation. Other than that and the nearby buildings of the former Eastfields
Farm, the relative flatness of the locality, the size of the fields, the intermittent
nature of some of the field boundaries and the relative lack of trees mean that
this part of the Green Belt has a very open feel [16].
284. The site is presently undeveloped except for the buildings at Marsh Farm.
Most of these (other than the farmhouse itself) would be demolished as part of
the proposal [28]. To that extent the proposal would add to the openness of the
Green Belt. That would be more than outweighed by the 14.78ha of built
development proposed on about 17ha of the 40 ha site [28] which represents a
loss of openness of about 37% of the site. To a degree, I concur with the view of
the Council that the height, extent, artificial form and fences associated with the
EPEZ would compromise the visual openness of the Green Belt (even though it
would not conflict with any of the purposes of Green Belt) and so that represents
an additional loss of openness.
285. In assessing the degree of harm to the openness of the Green Belt which this
development would cause, account must also be taken of the fact that, in the
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recent past, assessments have been made that it is not essential to keep this
area of Green Belt open [32, 33, 122]. I therefore conclude that the degree of
harm caused by the effect of the development on Green Belt openness would be
substantial rather than overwhelming.
Landscape
286. There is little that separates the parties on this topic except the importance
which the Council places on views from the north of Askham Bog and the effects
of the proposed EPEZ.
287. It is factually correct that the development would bring built form closer to the
Bog. Insofar as the development would be visible, that would reduce the Bog’s
sense of isolation in the countryside [129, 133, 135]. But; very few people
currently experience the view north from Askham Bog and the YWT’s aspirations
to make that part of the Bog more accessible would not be for the purposes of
enjoying a view of the surrounding countryside but to make the interest features
of the Bog more available [47]; a sense of isolation in the countryside is not one
of the Bog’s interest features; the development could and would be screened by
planting and by the EPEZ [40]. Consequently, I do not share the Council’s
concern with the view from the Bog.
288. The site is best and most versatile agricultural land [41]. It is unspoilt by its
proximity to the urban area but is relatively unremarkable in terms of its
landscape [42, 44, 129, 134, 136]. Notwithstanding the Council’s repeated
references to Woodthorpe and Askham Bog giving the locality a sense of place
[129, 134, 135], in truth, the former has nothing to signify a sense of arrival or
departure; it is simply competent suburban architecture of its time which ceases
to extend further without ceremony [42, 44]. The latter, notwithstanding its
ecological significance, appears in the landscape as no more than another belt of
trees in the distance [45].
289. The site is a component of the open countryside that surrounds York and
contributes to the setting of the historic city [128] but it is not an essential
component for that purpose [38, 43]. It is a relatively self-contained element in
the landscape [43, 131]. Open countryside would continue to surround York and
provide a setting for the historic city if this site were developed [45]. In general
terms therefore, the loss of this site to built development would cause little harm
to the landscape.
290. No party has suggested that the site is a valued landscape in the terms of
NPPF paragraph 170(a) but all agreed that the intrinsic character and beauty of
the countryside should be recognised. Such character as this site has comprises
ditches and hedgerows, a gentle slope down to the Askham Bog Drain and a low
ridge of glacial till about halfway along the south-western arm of the site [16,
149].
291. Landscaping to screen the development would add to tree cover [40]. The
built development elements of the proposal could be detailed to respect the
hedges and ditches as the appellant’s illustrative material demonstrates.
292. In contrast, the EPEZ would cut across existing hedgerows and drains. It
would present an abrupt slope to a bund with a steep landform of a height as
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great or greater than the total height differential across the whole site [30, 133,
224].
293. Rather than the bund being constructed as a continuation eastwards of the
existing low ridge of glacial till which is a feature of the landscape [16, 58, 149],
the attenuation ponds which would form part of the EPEZ would cut through that
feature and separate it from the new bund to be constructed. The extent of the
attenuation ponds is greater than is necessary to serve the development; they
are designed to serve a much more extensive proposal [27]. The positioning of
the attenuation ponds in relation to the topography can be seen most clearly in
map 1 attached to Alex Jones’s Proof of Evidence for the YWT. The bund, not
shown on that map, would lie between the attenuation ponds and the Bog to the
south.
294. I therefore conclude that the EPEZ would be an alien feature. In that it would
cut across and be at odds with the existing character of the countryside it would
fail to respect its intrinsic character and beauty. Consequently, it would be
inconsistent with national policy expressed by NPPF paragraph 170(b).
295. Paragraphs 4.12 of the Supporting Planning Statement and 5.27 of the
Environmental Statement promise a zone of permanent open water (minimum
depth 0.3m) and marsh within the proposed surface water attenuation basins. In
the section of the appellant’s Design and Access Statement dealing with Green
Infrastructure, the permanent attenuation lakes of the EPEZ are described as
intended to have a shallow profile along the edges in order to develop a gradual
transition to allow for establishment of wetland meadow, species rich grassland
and aquatic and marginal edge species. Those descriptions might almost be
understood as intending to recreate features of the Bog itself or of the lagg
described in YWT’s evidence [207, 217]. Closer inspection of the detailed
drawings of the attenuation ponds shows this to be a misconception. The profile
at the edges would be 1:4, hardly shallow, and the marginal planting would be
infrequent. I cannot identify any marsh in the drawings.
296. This missed opportunity is not a ground for refusal, nor a reason to dismiss the
appeal, but it does confirm the point made by the YWT that the construction of
the EPEZ would preclude this particular element of aspirations for the restoration
of the Bog. It also demonstrates that the net gain in biodiversity, claimed by the
appellant as a benefit of the scheme in line with NPPF paragraph 170(d), is not as
great as perhaps it could have been.
Askham Bog
297. There is universal agreement that Askham Bog is precious [73, 74, 138, 189,
190, 191]. There is also agreement that it is delicate [76, 139, 205]. It should
not be thought of as homogenous; it encompasses a wide variety of habitats,
from wet to less wet, from acid to alkaline [76, 141, 164, 203]. Nor should it be
thought of as constant, unchanging; if left to its own devices, it would eventually
evolve from fen into woodland and lose much of its interest. It is precisely its
intermediate state which makes it of such interest [167, 191]. It is the product
of evolution over centuries [139, 188]. It requires continued human intervention
to maintain it in a stable condition, or to restore it to a previous condition [168,
207].
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(i) Water
a) Pollution
298. There is universal agreement that the Bog depends on water to survive and
thrive. Drier conditions and lower soil water levels can lead to a collapse in the
peat, the release of nutrients, changes in species composition and a deterioration
of the habitat [48, 156, 166, 167, 204, 205] but there is complete disagreement
on the routes by which, and in what proportions and qualities, the water arrives
at the bog [140, 142, 143]. Consequently, there is complete disagreement about
what effects, if any, the development would have on the Bog’s water supply.
299. Although the part of the site proposed for built development represents only
about 2.6% of the catchment, of which 19% is already developed, [49] all parties
are agreed that urban pollution in the water reaching the Bog would be harmful.
The evidence suggests that currently, the natural filtration provided by the
existing ditches on site prevents pollution in surface water run-off from reaching
the Bog [169]. There is no reason to disbelieve the appellant’s assertion that a
SUDS scheme can be designed to filter out pollutants [51, 170].
b) Groundwater
300. The majority of habitats present in Askham Bog are classified as having high
to medium ground water dependency [164] but that fact tells nothing about the
source of the groundwater or its qualities. The parties argue about whether it
derives from percolation from the drains surrounding the site collecting run-off,
from percolation through the underlying geology or simply from prevention of
rainfall drainage into the drains [141, 142, 143, 211, 212].
301. The level of groundwater within the Bog fluctuates with the seasons but at all
times it has a domed profile, with levels reducing towards the drains on either
side, more pronounced towards the Askham Bog drain to the north, less so
towards the drain to the south [63]. So, it is clear that the drains do what their
names imply; they drain. There is a consensus that the level of water in the
drains should be kept high so as to prevent them draining too effectively [71,
205]. This is done partly by damming the drains leading into the Askham Bog
Drain and partly by the IDB controlling its pumps so that they do not pump water
out of the drain when its level falls [70, 71, 205]. Neither of these management
actions would be affected by the development proposed.
302. A major constituent of the supply of water to the Bog is rainfall by direct
precipitation. This would not be affected by the development. But it is acidic and
therefore only supports those elements of the interest features of the Bog which
like acidity [68, 141].
303. Groundwater contains nutrients [159]. Nutrient-rich or base-rich water seems
to be both a problem and a necessity. In the Arup report of 2003, it is frequently
referred to as a nuisance but, it is no longer regarded as such, following the
diversion of the sewage works outflow to a different catchment [207].
Agricultural run-off is recognised as a nuisance, high in nitrates. The appellant
claims, and the Council accepts, that reduced agricultural run-off would be a
benefit of the development [169]. But some habitats within the Bog are
recognised by the YWT as benefitting from proximity to the nitrogen-rich Askham
Bog Drain [141, 209].
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304. The observation that the critical loads for different chemicals would vary for
different plant species but overall changes in water chemistry would be expected
to cause an increased growth of some plants and the loss of others less able to
respond, changing the species composition, has the ring of truth [171]. It does
not necessarily follow that changing the species composition would lead to the
deterioration of the habitat because it is the YWT’s aspiration to restore the Bog
to favourable condition which may well involve the reintroduction of species not
currently present.
305. Resulting from Arup’s work commissioned by the YWT, action has been taken
in the recent past to remove the outflow from the Askham Bryan Waste Water
Treatment Works as a source of supply feeding the Askham Bog Drain. Although
proof of cause and effect is not supplied, subsequently Carex elongata has
flourished [206]. That is reckoned to have been beneficial but there is an implicit
consensus that anything which would further change the chemical composition of
water reaching the bog would introduce a degree of risk to its interest features.
306. There is argument about the degree to which the water table in the Bog is
supported from below by hydraulic pressure from higher ground nearby as
opposed to rainfall from above [62, 63, 141, 209]. All parties seem to accept
that the higher ground to the south of the site (the York Moraine) exerts such
pressure and that it produces seepage of mineral-rich groundwater into the drain
on the south side of the Bog. The appellant denies that its contribution goes
beyond that drain so as to support groundwater levels in the Bog itself.
307. The development proposed would not affect any contribution to the water
supply in the Bog emanating from the York Moraine so, to that extent, it is not
necessary to resolve the dispute between the parties but it is worth noting that
there is evidence that the drains, although effective as drains, are only effective
for a limited distance, 20m or so, on either side of the drain [213]. So, although
I understand that peat can exert a capillary action and I understand the
appellant’s point that the drains relieve hydraulic pressure from higher ground on
either side of the Bog [63], I am not convinced that they would eliminate it
entirely. My view therefore is that although there may be no major upwelling
[67], hydraulic pressure from higher ground does, to some extent, support the
water table in the Bog.
308. The York Moraine to the south of the bog generally rises higher than the land
in the appeal site to the north of the Bog and so hydraulic pressure from the
appeal site would be less. All parties accept the York Moraine as relatively
porous whereas they dispute the porosity of the ground to the north of Askham
Bog and its ability to exert similar pressure or to produce similar seepage [141-
143 and 144-148]. Attention thus turns to the extent that the site seeps
nutrient-rich groundwater into the Askham Bog Drain and thence into the Bog
itself.
c) Permeability
309. The rainwater which falls onto the site must either evaporate (or transpire
through whatever is grown on the site), infiltrate, or run-off. The appellant’s
view is that the proposal would reduce quantities lost to evaporation or
transpiration and increase the quantity of run-off (although the rate of run-off
would be reduced, controlled by the attenuation ponds in the SUDS system) and
that there is no, or very limited, infiltration and hence no, or very limited,
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seepage of nutrient-rich groundwater from the site into the Askham Bog Drain
[69].
310. There is conflicting evidence about the efficacy of surface water drainage. For
the three weeks that the Inquiry sat, there remained standing water on parts of
the site. Local residents confirm that this is normal [55, footnote 136, 220,
236]. All but one trial pit failed the soakaway test. Yet the site has land drains,
is served by ditches and the tenant farmer affirms that there are no problems
with drainage [152-155].
311. Based upon the evidence submitted, there can be no certain way of knowing
the truth. All parties rely on sample boreholes, trial pits or trenches from which
they interpolate (guess) what lies between [54]. From the evidence and
interpretations presented it appears to me most likely that the majority of the
area where built development is proposed is relatively impermeable to infiltration
and that the part of the site nearer to Holgate Beck to the east is more
permeable [53, 61, 144-154].
312. Nevertheless, there is probably some infiltration into groundwater even from
the least permeable parts of the site [55]. Because the ground is relatively flat
and rather impermeable, the rate of flow of groundwater towards the Bog will be
very slow [59, 61, 144, 214]. Any change in the quantity of groundwater flow
resulting from the built development may take as much as sixty years to be
manifest [Footnote 150].
313. Even in the part of the site to be built upon, hard surfacing will not cover
100% of the site. There will still be a percentage of the built area which will not
be hard surfaced, where rainwater can still infiltrate into the ground. Taking that
into account, together with the figure for the area of built development as a
percentage of the site [49] and the parties’ estimates for the contribution of
groundwater flow to the flow in the Askham Bog Drain [59], I conclude that the
effects of the built development on the contribution which groundwater flow
makes to the water levels in the Drain would be very small [155].
d) Attenuation ponds
314. Of more significance would be the effect of the attenuation ponds to be
constructed as part of the EPEZ. These are designed to serve a larger site and so
would be more extensive than is necessary to serve the development proposed.
Consequently, they would cut through the low ridge which provides a minor
watershed between land which drains into Askham Bog Drain adjacent to Near
Wood and that which drains into the Drain adjacent to Middle Wood [58, 156].
They would intercept whatever ground water is seeping into the Askham Bog
Drain, not just from the area of the site where built development is proposed but
from a wider catchment and divert it eastwards as surface water towards the
outfall into Marsh Farm Drain [60]. This would have a much more significant
effect on groundwater flow than the increased area of hard surfacing within the
catchment resulting from the built development itself.
315. The SUDS system and its attenuation ponds would be intended to mimic the
current water supply mechanism to the Bog. Yet the outfall would be positioned
at a level which would prevent the lowest 300mm of the attenuation pond from
draining. At least once in every five years, in periods of dry weather,
evaporation would lower the water below that level, causing a delay in the flow
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into the Drain until the attenuation basins recovered [157, 216], so not
mimicking the current water supply mechanism.
316. Even so, the majority of water falling as rain on the built development will find
its way into Askham Bog Drain as surface water via the SUDs system discharging
into the surface water drain known as Marsh Farm Drain and thence into Askham
Bog Drain rather than as groundwater [57].
317. The Drain is a drain. It is not an irrigation canal. It is intended to take water
away from the Bog rather than feed it, even though it is managed in such a way
as to drain the Bog as little as possible [65, 67, 71]. Consequently, I am not
convinced that it somehow feeds nutrient-rich water into the Bog, although the
appellant did offer a scientific explanation for how nutrients could be transferred
whilst still operating as a drain [72]. My conclusion therefore draws attention to
the role played by flooding.
e) Flooding
318. Surface water flooding appears to be important to habitats within the SSSI
[165, 206, 215]. It is one of the ways in which base-rich nutrients are delivered
to the Bog. It is also helpful in hindering scrub growth deleterious to the
condition of the SSSI [167]. It occurs when the IDB pumps draining the
catchment are overloaded [72]. The IDB has required, and the appellant has
agreed to design the attenuation ponds associated with the SUDS so that the
run-off rate is reduced to a level which will not overload the IDB pumps.
319. Although, as the appellant points out, this will not have any effect on the total
quantity of water in the system [69, 70], if it works as intended, it will have the
effect of the water from the site, which represents 10% of the catchment of the
Askham Bog Drain, overloading the IDB pumps less frequently. Consequently,
even though 90% of the catchment would be unaffected, flooding would be likely
to be less frequent, to the detriment of the Bog [163].
f) Conclusion on water
320. In conclusion, my advice on the controversies surrounding the hydrology of
the Bog is to conclude that the built development itself is likely to have very little
adverse effect but that much more noticeable adverse effects would result from
the attenuation ponds, both in the way they would intercept groundwater flows
from an area far wider than that proposed for built development in this appeal
and also in the way the IDB has required the appellant to limit their outflows.
Both of these effects would greatly reduce the contribution which the site as a
whole makes to the supply of base-rich nutrients to the area in the vicinity of the
Askham Bog Drain. The site as a whole represents about 10% of the IDB
catchment area [49] and so these effects would probably cause harm to the
interests for which the Bog is cited as an SSSI and to the deterioration of
irreplaceable fenland habitat.
321. My conclusion is presented in terms of likelihood and probability because it is
quite clear from the evidence presented to this Inquiry that nobody can have
absolute certainty about the source of the Bog’s water supply and the route by
which it reaches the Bog. For that reason, if the appeal were to be allowed
contrary to my recommendation, it would be tempting to endorse the proposals
for a programme of hydrological monitoring enshrined in Schedule 9 of the
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Unilateral Undertaking. But I do not do so and, indeed, advise that the
provisions of Schedule 9 relating to hydrology monitoring would not comply with
the CIL regulations for the following reasons:
• A programme of hydrological monitoring does not modify or mitigate any
of the characteristics of the development proposed; if the development
proposed is not acceptable, hydrological monitoring would not make it so.
If the development proposed is acceptable and is permitted, hydrological
monitoring could either confirm or disprove the correctness of that decision
but, if it were to disprove the correctness of the decision, it would be too
late to remedy the matter. It would not make the development acceptable
in planning terms and is therefore not necessary in order to do so.
• It is not directly related to the development but is more in the nature of an
academic research project of general value and applicability.
• There might be an implication that if hydrological monitoring found that
the development had caused harm to the Bog, then remedial action would
ensue. But, as the scope of any remedial action cannot be prescribed in
advance, it cannot be said to be fairly and reasonably related in scale and
kind to the development.
(ii) Ecological isolation
322. Askham Bog is both an SSSI and Ancient Woodland [18]. That introduces
some tensions because woodland is (through transpiration) one of the agents
which tends to induce a drying-out of the Bog. In seeking to restore the Bog, the
YWT has already carried out some clearance, mows fen, introduces grazing
ponies and encourages deer browsing to control tree growth [74].
323. Natural England’s standing advice in relation to Ancient Woodland requires a
standoff or buffer between development and Ancient Woodland [74]. That
requirement coincides with pre-application advice which led to the EPEZ
component of the appeal proposal, designed to preclude human activity reaching
the SSSI from the appeal site [86].
324. Although disparaging the choice of species to be planted in the EPEZ [133],
and challenging the precise scoring of the evaluation matrix, the Council accepts,
and I concur with, the appellant’s basic premise of a biodiversity net gain
resulting from the development proposal [77, 113, 114, 186]. The Council also
accepts, and I agree, that the EPEZ and the rest of the green infrastructure (to
be the subject of detailed proposals) would be consistent with its aim of
achieving a Green Infrastructure Corridor through the city [83].
325. In the event that the Secretary of State disagrees with my recommendation, I
confirm that the EPEZ is an intrinsic part of the development proposed which
would need to be secured in the way proposed in the planning obligation [241],
which in that respect would comply with the CIL regulations. The deficiencies of
the planning obligation in providing an organisation to realise the ongoing
management plan should be noted and remedied by condition.
326. The EPEZ would be permeable to the majority of species which comprise the
ecology of the Bog [81,82]. They would benefit from the greater
metapopulations which the net gain in biodiversity would provide [83, 113]. But
the movements of some larger ground-based species, not specifically defined as
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part of the special interest of the SSSI but nevertheless contributing to its
ecology, would be hindered or prevented by the EPEZ. Consequently, the EPEZ
represents a relative increase in the isolation of the Bog [197]. It would still be
possible for the YWT to bring grazing ponies onto the SSSI, through gates, as is
done now, but deer would find their movements onto Near and Middle Woods
more circumscribed [79, 80].
327. This effect is not quantified but the Secretary of State may wish to consider
that the benefits of the increase in habitat benefitting the greater number of
species relevant to the Bog outweighs the effects of hindering deer movements,
whose loss of contribution to the Bog’s ecology can be balanced by increased use
of other management methods for controlling tree growth and spread.
328. There is concern that the built development components of the site would also
be a direct barrier to species movement. Detailed design of the housing layout is
a reserved matter. But the Lawton Principles of bigger, better, joined up would
apply through NPPF paragraph 170(d) requiring the provision of net gains for
biodiversity, including by establishing coherent ecological networks that are more
resilient to current and future pressures [195].
329. There are recommendations within the Environmental Statement, which can be
required through conditions, suggesting measures which could make even the
built development more permeable and welcoming to wildlife. In addition to the
SUDS measures, these would include the retention and new planting of
hedgerows, bird boxes, bat boxes, hedgehog holes in fences and street lighting
designed to minimise interference with bats [78].
330. It would be wrong to think of the built development of this proposal presenting
an environment that would be sterile to wildlife. Populations of some insects
would be damaged by artificial lighting within the built development but that
would be some 200m away from the Bog and insect populations nearer to the
Bog would benefit from the general effect of biodiversity net gain. It is reported
that bats currently commute between the Bog and built development at
Woodthorpe. Although reactions will vary between species, there is no reason to
suppose that they, and other wildlife, could not continue to do so.
(iii) Urban Fringe effects
331. At present, housing in Woodthorpe is about 400m to the north of Askham Bog
[84]. Housing in Copmanthorpe is much closer but there is an effective barrier,
in the form of the A64 dual carriageway, across the shortest distance to the Bog
[176, 200]. A longer route, 800-900m to the Bog, is available to the Bog’s public
car park [201]. The built part of the proposal would approach to within 200m or
so of the Bog. Although less than the YWT’s ideal separation distance of 500m, it
would be about double the distance which the YWT recognises as a threshold for
the effects of adverse human behaviour [86].
332. In contrast to the approach from the public car park which welcomes visitors
with signage, information and a boardwalk [85, 201], the approach from the
proposed housing development would be blocked by the EPEZ, intended to be an
impenetrable barrier [86, 197]. The fencing proposed in the EPEZ could be as
effective a barrier to human movement as is the fencing which seeks to prevent
the residents of Copmanthorpe from trying to cross the A64 dual carriageway.
But, it could be easily circumvented.
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333. There would be, as was demonstrated on my site visit, an easy route from the
western end of the proposed development, following field boundaries and
trespassing across the golf course, to reach the SSSI, a distance of about 350m
or so [174]. It is a route which appears currently to have a degree of regular
use. It would be likely to have more such in the future. It would thus be
apparent to residents of the development that, as a barrier to movement, the
EPEZ serves little or no purpose and so might be treated with a degree of
irritation and disrespect. In light of the provision of additional hunting territory
for cats within the open space, I am less convinced by the idea that the Bog
would be attractive to, or vulnerable from, the increased number of cats [88]
resulting from the development.
334. Some diversionary attraction would be exercised by the effects of the provision
of open space within the development attractive to dog walkers [87]. I do not go
so far as endorsing the likelihood of some of the more extreme examples of
criminal damage instanced by the Council and the YWT occurring to any frequent
degree [174]. But I do conclude that, unless there are control measures in
place, similar to those which greet visitors from the south, there is a degree of
substance in the fears of damage to the Bog through unauthorised access
expressed by the Council and the YWT [footnote 422].
335. The measures for dealing with increased visitors, proposed by the YWT [201],
funding for which is sought through Schedule 9 of the Unilateral Undertaking
[253], might be appropriate and necessary if access to the Bog from the appeal
site was opened and welcomed. But, that is not what is proposed; on the
contrary, access to the Bog from the appeal site is to be closed and made
unwelcome. For that reason, I advise that the provisions of schedule 9 of the
Unilateral Undertaking would not comply with the CIL regulations in that they are
not necessary to make the development acceptable, do not relate to the
development as proposed and so would not be reasonably related in scale or kind
to the proposal as made. In contrast the provisions for a YWT liaison officer set
out in Schedule 4 of the planning obligation would seem to be proportionate and
related to the residual risk which would remain after the implementation of the
EPEZ.
Education
336. The parties are agreed that the proposal would have the effect of needing
additional provision of pre-school, primary and secondary education. Provision
for the necessary additional accommodation is made in Schedule 7 of the
planning obligation [90, 179, 251] which appears to comply with the CIL
regulations. No contrary evidence is submitted. Therefore, this issue does not
provide a reason to dismiss the appeal.
Highway safety
337. The appellant and the two highway authorities are agreed that the proposal
would cause adverse effects on the operation of both the strategic and local
highway networks. Actions necessary to deal with these effects are included in
Schedule 6 of the planning obligation [91, 92, 93, 178, 248-250] which appears
to comply with the CIL regulations. Evidence presented by third parties does not
refute this conclusion [221, 234].
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Other matters
338. There is no evidence submitted to indicate that the appellant’s proposals for
dealing with the effects of the proposal on energy demand, air quality, noise and
vibration, ground conditions and heritage assets would be anything other than
acceptable [94-98].
339. There are some other matters raised in writing by third parties’
representations to the Council on the original planning application. These were
not taken forward by parties appearing at the Inquiry and do not appear to be
substantiated with evidence. My advice is that their consideration should not
alter the overall balance of considerations in this appeal.
Very Special Circumstances
(i) Housing supply
340. All parties are agreed that there is a housing crisis in York, with a wholly
inadequate identified Housing Land Supply [100, 181, 233]. The Council and
some third parties expect that the emerging Local Plan will resolve the issue and
identify an adequate five-year housing land supply [230]. Because of constraints
and the level of objections to sites included within the allocations of the emerging
local plan, the appellant’s belief is that the emerging Local Plan will not identify
an adequate five-year housing land supply without the inclusion of the site the
subject of the current appeal [104, 105, 106].
341. It is not for me to pre-judge the outcome of the current examination of the
emerging local plan. This report must be based on the current situation as set
out in the Housing Statement of Common Ground (Inquiry Document INQ5).
But, before making a final decision in this case, the Secretary of State will wish to
check on the outcome of the examination of the emerging Local Plan, since that
may supersede the conclusions of this section of my report.
342. Housing supply, of itself, does not represent very special circumstances for
permitting development harmful to the Green Belt. But, housing supply in the
face of a marked and intractable shortage of housing land supply, may do so.
The five-year housing land requirement is for 5,345 dwellings. The anticipated
undersupply (shortage) for the next five years is 2,500 dwellings. This proposal
therefore represents just under 10% of the total five-year requirement, or about
20% of the currently identified shortage. That is a considerable benefit which
could contribute towards a finding of very special circumstances.
(ii) Affordable housing supply
343. York has an affordability problem in both home ownership and rental which is
more acute than the national average [108, 109, 233]. Affordable housing
supply is well below need [110].
344. The proposal, in this appeal, to provide 35% of the dwellings as affordable
units is therefore of benefit. Although a very commendable benefit, the excess
over the record of the Council’s recent achievements (13.31%) [111] should not
amount to an argument in favour of a declaration of very special circumstances
because policy requires a benefit of 30% in any event.
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345. What can be considered towards a declaration of very special circumstances is
the 5% excess over policy. The Council’s disparagement of this excess should
not detract from its value in terms of national policy [112, 183], even though
there is a history in York of delivery falling short of promises [222]. It would
need to be secured by a planning obligation. Notwithstanding the Council’s
criticisms, Schedule 3 of the submitted obligation would meet the CIL regulations
and would fit the purpose, as would Schedule 8 for the provision of land for self-
build housing.
(iii) Net biological diversity gains
346. Government has consulted on a proposed mandatory 10% gain in biodiversity
[114]. Even after correcting for the Council’s criticisms of the appellant’s
calculations of the gain [186], this development would result in an 80% gain.
That would be a significant excess over what may become the policy requirement
and so may be accounted a contributory factor in any considerations of whether
very special circumstances apply, even though not as much as some parties
might wish [207].
(iv) Open space provision
347. Open space provided by the development would be well in excess of policy
requirement [116]. It would contribute towards the remedying of existing
deficiencies in the area, although care should be taken not to exaggerate that
effect [184]. As such, the excess may be accounted as a contributory factor in
any calculations of whether very special circumstances apply. Its provision would
need to be secured by condition or obligation. Schedule 4 of the Unilateral
Obligation would serve the purpose, subject to supplementary conditions to
secure an executive and funding organisation, and would comply with the CIL
regulations.
(v) Local centre and community facilities
348. Although a benefit, this element of the proposal does not meet a recognised
need, shortfall or policy requirement [117, 185], so I would advise against
considering this as an element contributing to a finding of very special
circumstances. For that reason, I consider that Schedule 5 of the Unilateral
Undertaking would not comply with the CIL regulations and should not be taken
into account as it is not necessary to make the development acceptable in
planning terms.
(vi) Clear urban edge
349. Although a benefit, good design appropriate to context is no more than is
required by policy and so ought not to be regarded as a factor contributing to a
finding of very special circumstances [118, 185].
(vii) Economic benefits
350. The economic benefits are proportionate to the development [119]. Whilst all
benefits should be taken into account in the overall planning balance, benefits
which are not disproportionate would be unlikely to contribute to a finding of very
special circumstances.
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The planning balance
351. For reasons previously explained, this report does not prejudge the outcome of
the examination into the City of York Local Plan. I write in terms of the current
situation. Before making a final decision, the Secretary of State will wish to
confirm the contemporary status of the emerging local plan as events may
invalidate the following paragraphs of my conclusions.
352. Planning Law requires that applications for planning permission should be
determined in accordance with the development plan unless material
considerations indicate otherwise. But, in this case, there is no development
plan.
353. I fall back on the advice of NPPF paragraph 11(d), which is a presumption in
favour of development. But clause (i) of that paragraph advises that it should
not apply where the application of policies in the Framework that protect areas or
assets of particular importance provides a clear reason for refusing the
development proposed. Policies that may fit that description include those in the
NPPF relating to sites designated as SSSIs and land designated as Green Belt,
namely NPPF paragraphs 143 and 144 for Green Belt and paragraph 175, clauses
(b) and (c) for the SSSI.
354. For Green Belt, inappropriate development is, by definition, harmful and
should not be approved except in very special circumstances. Those very special
circumstances will not exist unless the potential harm to the Green Belt by
reason of inappropriateness and any other harm resulting from the proposal is
clearly outweighed by other considerations. In paragraph 285 above, I have
already concluded that the degree of harm caused by the effect of the
development on Green Belt openness would be substantial rather than
overwhelming and so is open to being clearly outweighed by other
considerations.
355. To this must be added other harm. In paragraph 294, I conclude that the
effect of the EPEZ on landscaping considerations would be inconsistent with
national policy expressed by NPPF paragraph 170(b) and in paragraph 320 I find
that two separate effects of the attenuation ponds proposed within the EPEZ
would greatly reduce the contribution which the site as a whole makes to the
supply of base-rich nutrients to the area in the vicinity of the Askham Bog Drain
and so these effects would probably cause harm to the interests for which the
Bog is cited as an SSSI and to the deterioration of irreplaceable fenland habitat.
356. In paragraphs 340-350 above I have considered potential considerations
which might lead to a finding of very special circumstances. There would be a
considerable benefit from the supply of housing in a situation of crisis, a modest
excess contribution to the supply of affordable housing which may be given
disproportionate value because of the overall deficiency of supply, a significant
excess of net biological diversity gains and a substantial contribution to the
remediation of open space deficiencies in the local area. It might be thought that
these cumulative disproportionate benefits would clearly outweigh the combined
effect of the harm to the Green Belt and to the landscape of the site caused by
this proposal, if those were the only two adverse considerations. But they are
not.
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357. For the SSSI, development which is likely to have an adverse effect should not
normally be permitted. The only exception is where the benefits of the
development in the location proposed clearly outweigh both its likely impact on
the features of the site that make it of special scientific interest, and any broader
impacts on the national network of Sites of Special Scientific Interest. Moreover,
development resulting in the loss or deterioration of irreplaceable habitats (in this
case, the fen component of the SSSI) should be refused unless there are wholly
exceptional reasons, for example, infrastructure projects where the public benefit
would clearly outweigh the loss or deterioration of habitat. The development
proposal would not fall within this exception.
358. Although I conclude in paragraphs 324-330 and 334 that the greater ecological
isolation and urban fringe effects would be minimal, in paragraph 320 I find that
two separate effects of the attenuation ponds proposed within the EPEZ would
greatly reduce the contribution which the site as a whole makes to the supply of
base-rich nutrients to the area in the vicinity of the Askham Bog Drain and so
these effects would probably cause harm to the interests for which the Bog is
cited as an SSSI and to the deterioration of irreplaceable fenland habitat.
359. This reason alone would be sufficient to dismiss the appeal but, when it is
added to the Green Belt balancing exercise carried out in paragraph 356 above, it
is clear that the cumulative disproportionate benefits of the proposal would not
clearly outweigh the combined effect of the harm to the Green Belt, the harm to
the landscape and the harm to the SSSI and so I recommend dismissal of the
appeal on Green Belt grounds as well as the ground of harm to the SSSI.
Recommendation
File Ref: APP/C2741/W/19/3233973
360. I recommend that the appeal be dismissed.
P. W. Clark
Inspector
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Schedule of conditions
1) No development shall commence until a phasing and dwelling mix strategy
has been submitted to and approved in writing by the local planning
authority. The development shall be carried out in accordance with the
approved phasing strategy.
2) Details for each phase (or, in the absence of an approved phasing strategy,
for the site as a whole) of the access, appearance, landscaping, layout, and
scale, (hereinafter called "the reserved matters") other than those specified
in conditions 8, 9, 10 and 11 below, shall be submitted to and approved in
writing by the local planning authority before any development of a phase
(or in the absence of an approved phasing strategy, the site as a whole)
takes place and the development shall be carried out as approved.
3) Application for approval of the reserved matters shall be made to the local
planning authority not later than 3 years from the date of this permission.
4) The development hereby permitted shall take place not later than 2 years
from the date of approval of the last of the reserved matters to be
approved.
5) No removal of hedgerows, trees or shrubs or works to or demolition of
buildings or structures that may be used by breeding birds shall take place
between 1 March and 31 August inclusive in any year unless a competent
ecologist has undertaken a detailed check for active birds’ nests
immediately prior to the clearance of the vegetation or structure and has
provided written confirmation, copied to the local planning authority, that
no birds will be harmed and/or that there are appropriate measures in
place to protect nesting birds on site.
6) No development shall commence on a phase (or, in the absence of an
approved phasing strategy, the site as a whole) until:
a. details of a scheme or schemes for the provision on the site as a
whole of not less than 0.57ha children’s play space, 0.25ha
teenagers’ play space, 0.22ha of parks and gardens, 0.34ha of
allotments, 2.61ha of amenity green space, 2.53ha of natural/semi
natural open space, 4.54ha of natural/semi natural open space,
2.69ha of sports pitches and an associated combined sports pavilion
and changing facility have been submitted to, and approved in
writing by, the local planning authority.
b. a scheme or schemes for the provision of durable bird boxes and bat
boxes, on retained mature trees and for bird nesting features (e.g.
swift boxes and sparrow terraces) and bat roosting features (e.g.
bricks and access tiles) on selected buildings has been submitted to
and approved by the local planning authority.
c. a plan has been submitted to and approved in writing by the local
planning authority showing the location of existing trees and hedges
to be retained and protection measures for their retention. The
protection measures approved shall be retained for the duration of
the construction period
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d. details of Great Crested Newt Reasonable Avoidance Measures have
been submitted to and approved in writing by the local planning
authority.
e. a Construction Method Statement and Construction Environmental
Management Plan has been submitted to and approved in writing by
the local planning authority.
f. details of boundary fences have been submitted to and approved in
writing by the local planning authority.
g. details of external and street lighting have been submitted to and
approved in writing by the local planning authority.
h. details of foul and surface water drainage have been submitted to
and approved in writing by the local planning authority.
i. an assessment of the risks posed by any contamination, carried out
in accordance with the recommendations of paragraph 7.2 of the
appellant’s submitted Combined Phase 1 and Phase 2 Ground
Condition Assessment by Peter Brett Associates dated October 2018
and of British Standard BS 10175: Investigation of potentially
contaminated sites - Code of Practice and the Environment Agency’s
Model Procedures for the Management of Land Contamination (CLR
11) (or equivalent British Standard and Model Procedures if
replaced), have been submitted to and approved in writing by the
local planning authority. If any contamination is found, a report
specifying the measures to be taken, including the timescale, to
remediate the site to render it suitable for the approved development
shall be submitted to and approved in writing by the local planning
authority. The site shall be remediated in accordance with the
approved measures and timescale and a verification report shall be
submitted to and approved in writing by the local planning authority
before the occupation of any dwelling on the remediated land. If,
during the course of development, any contamination is found which
has not been previously identified, work shall be suspended and
additional measures for its remediation shall be submitted to and
approved in writing by the local planning authority. The remediation
of the site shall incorporate the approved additional measures and a
verification report for all the remediation works shall be submitted to
and approved in writing by the local planning authority before the
occupation of any dwelling on the remediated land.
The development shall be carried on in accordance with the approved
details. The natural/semi natural open space shall be completed in
accordance with the approved details before any of the dwellings to be
constructed on site are occupied. The sports pitches and associated pavilion
and changing facility shall be completed in accordance with the approved
details and made available for use before 50% of the dwellings to be
constructed on site are occupied. No dwelling shall be occupied until its
fencing and its drainage has been completed. The other matters listed in
this condition shall be completed in accordance with the approved details
and made available for before any of the dwellings to be constructed on the
relevant phase (or, in the absence of an approved phasing strategy, the
whole site) are occupied.
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7) No development in areas of archaeological interest within the EPEZ and
fields 22-24 shall take place until a written scheme of archaeological
investigation, Optically Stimulated Luminescence and Accelerator Mass
Spectrometry dating of sands and peats, public engagement, publication
and dissemination of results, has been submitted to and approved in
writing by the local planning authority. The development shall be carried
out in accordance with the approved details.
8) No dwelling may be constructed on site until details of the measures to be
taken to achieve at least a 19% reduction in Dwelling Emission Rate
compared to the target fabric energy efficiency rates required under Part
L1A of the Building Regulations 2013, a water consumption rate of no more
than 110 litres per person per day (calculated in accordance with Part G of
the Building Regulations) and a reduction in carbon emissions of at least
28% compared to the target rate required under Part L of the Building
Regulations 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.
9) No demolition shall take place until a written scheme of archaeological
building recording, analysis, publication, dissemination of results and digital
archive deposition with the Archaeology Data Service and City of York
Historic Environment Record of the original farm outbuildings surrounding
Marsh Farm has been submitted to and approved in writing by the local
planning authority. The demolition hereby permitted shall be carried out in
accordance with the approved scheme and with approved plan RG-M-52,
revision C.
10) The development hereby permitted shall be carried out in accordance with
the following approved plans: RG-M-47, revision J and RG-M-49 revision J
11) The principal accesses to the development hereby permitted shall be
constructed in accordance with the following approved plans:
29426/5501/003 revision F, 29426/5501/004 revision G, 29426/5501/005
revision D, 29426/5501/006 revision D
12) The ecological protection and enhancement zone (EPEZ) hereby permitted
shall be constructed in accordance with the following approved plans:
29426/2001/101 revision B, 29426/2001/102, 29426/2001/103,
29426/2001/104, 29426/2001/105, EDP2165_d090d
13) Notwithstanding the EPEZ Maintenance Plan appended to the Unilateral
Undertaking associated with the development, the construction of the EPEZ
shall not commence until a scheme for the funding and execution of the
Maintenance Plan has been submitted to and approved in writing by the
local planning authority. The development shall be carried on in
accordance with the scheme as approved.
14) The construction of the EPEZ shall not commence until details of additional
boundary fencing on its western boundary have been submitted to, and
approved in writing by, the Local Planning Authority. No dwelling on the
development hereby permitted shall be occupied until the approved
additional boundary fencing has been constructed.
15) The total number of residential units shall not exceed 516
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16) The total floorspace (including mezzanines) of the development hereby
permitted falling within classes A1, A2, A3 and A4 of the Use Classes Order
1987 as amended shall not exceed 200 square metres gross internal area.
17) The ground floor level of any building hereby permitted shall be constructed
at least 150mm above surrounding site ground levels.
18) No dwelling with off-street parking shall be occupied until it has been
provided with an electric vehicle recharge point (minimum 32A) within the
garage/parking area of each dwelling. The electric vehicle charging point
shall thereafter be retained in an operational condition.
19) Notwithstanding the Travel Plan submitted with the application, no dwelling
shall be occupied until a final Travel Plan has been submitted to and
approved in writing by the local planning authority. The development shall
be carried out in accordance with the approved Travel Plan.
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APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Stephen Morgan Of Counsel, instructed by Sandra Branigan,
Senior Solicitor, City of York Council
He called
Mrs Frances Harrison Development Officer, City of York Council
BA(Hons) MA MRTPI
Ms Esther Priestley Landscape Architect, City of York Council
BA(Hons) LA CMLI
Dr Aidan Foley PhD MSc Principal Hydrogeologist, Mott MacDonald Limited
BA(Hons)
Miss Nadine Rolls BSc Countryside and Ecology Officer, City of York
MALGE Council
Mrs Alison Stockdale Development Management Officer, City of York
BA(Hons) MA Council
Andrew Beddington, Housing Policy Officer, City of York Council; Helen Vergereau,
Principal Development Control Officer, City of York Council and Sandra Branigan,
Senior Solicitor, City of York Council spoke during the discussion on conditions and
the planning obligation.
FOR THE APPELLANT:
David Manley QC Instructed by Mrs Lizzie Marjoram of Bird Wilford
and Sale, Solicitors
He called
Richard Thomas BSc Senior Consultant, Peter Brett Associates
MSc ARSM CGeol FGS
Michael Parkinson Director, Peter Brett Associates
BSc(Hons) MICE MIHT
MTRSO
Tom Wigglesworth Director, Environmental Dimension Partnership
BSc(Hons) MSc MCIEEM Ltd
Duncan McInerney Director, Environmental Dimension Partnership
BSc(Hons) MLD CMLI Ltd
Andrew Crutchley Director, Environmental Dimension Partnership
BA(Hons) PGDip(Oxon) Ltd
MCIfa
https://www.gov.uk/planning-inspectorate Page 92
Gary Halman BSc FRICS Principal and Senior Director, Avison Young
FRTPI
Lizzie Marjoram of Bird Wilford and Sale solicitors spoke during the discussion on
conditions and the planning obligation
FOR THE YORKSHIRE WILDLIFE TRUST:
Emma-Louise Fenelon and Both of Counsel Of cou
Daragh Coffey
They called
Professor Sir John President of the Yorkshire Wildlife Trust
Lawton CBE FRS
Professor Alastair Fitter Trustee of the Yorkshire Wildlife Trust
CBE FRS
Alex Jones BSc MSc Senior Hydrogeologist, JBA Consulting
CGeol FGS
Louise Wilkinson, Conservation Policy and Campaigns Manager for the Yorkshire
Wildlife Trust spoke during the discussion on conditions and the planning
obligation.
INTERESTED PERSONS:
Janis Grant Local Resident
Stephen Fenton Ward Councillor
Ann Reid Local Resident and former City of York Councillor
https://www.gov.uk/planning-inspectorate Page 93
DOCUMENTS
Essential Supporting Documents
ESD 01 – Planning Application Form
ESD 02 – Schedule of Landowner and Tenant Notice
ESD 03 – Decision Notice
ESD 04 – Site Plan
ESD 05a(i) – Planning Application Covering Letter
ESD 05a(ii) – Supporting Planning Statement, including Appendices
Appendix I Schedule of Submission Documents
Appendix II Site Location Plan
Appendix III Barwood Publication Local Plan Representations
Appendix IV Consideration of the Proposals Against the Emerging Local Plan
Policies
Appendix V York Local Plan Inspectors’ Letter 24th July 2018
Appendix VI Secretary of State Decision APP/C2741/V/05/1189897 and
APP/C2741/V/05/1189885
Appendix VII Hatch Regeneris Report Review of City of York Proposed Local
Plan Housing Targets
Appendix VIII SHLAA 2018 Housing Trajectory
Appendix IX Ruddington Appeal Decision APP/P3040/W/17/3185493
Appendix X WWT Consulting Application Review of ecological and hydrological
strategies,
ESD 05a(iii) – Statement of Community Involvement
ESD 05a(iv) – Outline Energy Statement
ESD 05a(v) – Sustainability Statement
ESD 05a(vi) – Waste Management Strategy
ESD 05a(vii) – Framework Demolition and Construction Environmental Management
Plan
ESD 05a – Drawings; Site Boundary Plan (dwg ref. 23258 – RG – M – 44 Rev. G)
Outline and Full Application Boundaries (dwg ref. 23258 –
RG – M – 67 Rev. A)
Illustrative Masterplan (dwg ref. 23258 – RG – M – 54
Rev. H)
Proposed Site Access: Access 1 Western Access (dwg ref.
29426/5505/003 Rev. D)
Proposed Site Access: Access 2: Central Access
Proposed Site Access: Access 3 Eastern Access (dwg ref.
29426/5505/005 Rev. C)
Proposed Highway Works Moor Lane (1 of 3) (dwg ref.
29426/5501/008 Rev. B)
Proposed Highway Works Moor Lane (2 of 3) (dwg ref.
29426/5501/009 Rev. B)
Proposed Highway Works Moor Lane (3 of 3)
(29426/5501/010 Rev. B)
Proposed Site Access: Access 4 (dwg ref. 29426/5505/006
Rev. C)
Proposed Site Access – Improvements to Adopted Track
(dwg ref. 29426/5505/007 Rev. C)
Illustrative Landscape Strategy Plan (dwg ref.
EDP2165_d089c)
https://www.gov.uk/planning-inspectorate Page 94
Landscape Design of Ecological Buffer (dwg ref.
EDP2165_d090d)
Landscape Design of Ecological Buffer – Sheet 1 of 7 (dwg
ref. EDP2165_d090d)
Landscape Design of Ecological Buffer – Sheet 2 of 7 (dwg
ref. EDP2165_d090d)
Landscape Design of Ecological Buffer – Sheet 3 of 7 (dwg
ref. EDP2165_d090d)
Landscape Design of Ecological Buffer – Sheet 4 of 7 (dwg
ref. EDP2165_d090d)
Landscape Design of Ecological Buffer – Sheet 5 of 7 (dwg
ref. EDP2165_d090d)
Landscape Design of Ecological Buffer – Sheet 6 of 7 (dwg
ref. EDP2165_d090d)
Landscape Design of Ecological Buffer – Sheet 7 of 7 (dwg
ref. EDP2165_d090d)
Surface Water Strategy Plan (dwg ref. 29426/2001/100
Rev. D)
Proposed Buffer Zone: Attenuation Plan and Longsection
(dwg ref. 29426/2001/101 Rev. B)
Proposed Buffer Zone Bund Longsection (dwg ref.
29426/2001/102)
Proposed Attenuation and Bund Cross Sections (dwg ref.
29426/2001/103)
Proposed Buffer Zone Attenuation Details Sheet 1 of 2
(dwg ref. 29426/2001/104)
Proposed Buffer Zone: Attenuation Details Sheet 2 of 2
(dwg ref. 29426/2001/105)
Water Course Proposals Plan (dwg ref. 29426/2001/106)
Site Access Management and Maintenance Plan (dwg ref.
edp2165_d106c)
Parameter Plan - Building Heights (dwg ref. 23258 – RG –
M – 40 Rev. J)
Parameter Plan – Demolition Plan (dwg ref. 23258 – RG –
M – 52 Rev. C)
Parameter Plan Land Use (dwg ref. 23258 – RG – M – 47
Rev. J)
ESD 05b – Schedule of Plans, Drawings and Documents submitted to the Local
Planning Authority at Submission
ESD 05c – Schedule of Plans, Drawings and Documents in which the Local Planning
Authority based their decision
ESD 06a – Avison Young response to City of York Council (dated 12th April 2019).
Includes (Appendix 1) PBA Technical Note dated 29 March 2019 Combined response
to CYC Drainage comments and consultation responses from Natural England and
Yorkshire Wildlife Trust (YWT)545 and the YWT-commissioned report by JBA
Consulting, (Appendix 2) Ecology Technical Note edp2165_r032b – Response to NE
Consultation Comments, (Appendix 3) Heritage Technical Note edp2165_r033a -
Response to HE Consultation Comments.
545 Duplicated at CD087
https://www.gov.uk/planning-inspectorate Page 95
ESD 06a – Peter Brett Associates Technical Note 5 (Ref. 29426 – 5506 – TN05)546
ESD 06a – Peter Brett Associates Technical Note 6 (Ref. 29426/5506/TN06)547
ESD 06a – Peter Brett Associates Technical Note 7 (Ref. 29426/5506/TN07)548
ESD 06a – Peter Brett Associates Technical Note 8 (Ref. 29426/5506/TN08)549
ESD 06a – Peter Brett Associates Technical Note 9 (Ref. 29426/5506/TN09)550
ESD 06b - Schedule of Plans, Drawings and Documents which did not form part of
the original application
ESD 07 – Design and Access Statement
ESD 013 – Schedule of ES Documents
ESD 013 – Environmental Statement; Non-Technical Summary
Chapter 1: Introduction
Chapter 2: Approach
Chapter 3: Site Description
Chapter 4: Alternatives
Chapter 5: The Proposed Development
Chapter 6: Planning Policy Context
Chapter 7: Socioeconomics
Chapter 8: Landscape and Visual
Chapter 9: Ecology and Nature Conservation
Chapter 10: Archaeology and Heritage
Chapter 11: Land Contamination and Stability
Chapter 12: Hydrology, Groundwater and
Surface Water Quality
Chapter 13: Drainage and Flood Risk
Chapter 14: Transport and Access
Chapter 15: Air Quality, Dust and Odour
Chapter 16: Noise and Vibration
Chapter 17: Agricultural Land
Chapter 18: Cumulative Effects
Chapter 19: Summary of Mitigation and
Residual Effects
Appendix 1.1: EIA Team Competencies
Appendix 1.2: Inspector Examination of the
City of York Local Plan
Appendix 2.1: EIA Scoping Report (June 2018)
Appendix 2.2: Consultee Responses to
Scoping Report
Appendix 8.1: Landscape and Visual Baseline
(and associated annex)
Appendix 8.2: Landscape and Visual
Supporting Figures
Appendix 8.3: Landscape and Visual Effects
During Construction
Appendix 8.4: Landscape and Visual Effects
During Operation
546 )
547 )
548 ) Duplicated as Appendices to ES Addendum
549 )
550 )
https://www.gov.uk/planning-inspectorate Page 96
Appendix 8.5: Arboricultural Impact
Assessment
Appendix 9.1: Baseline Ecology Report (See
CD079)
Appendix 9.2: EPEZ Landscape Management
Plan (See CD080)
Appendix 10.1: Historic Environment Baseline
Appendix 11.1: Phase I and II Ground
Conditions Assessment
Appendix 12.1: Hydrological Baseline
Summary Report
Appendix 13.1: Flood Risk Assessment (See
CD081)
Appendix 14.1: Transport Assessment
Appendix 14.2: Travel Plan
Appendix 14.3: Traffic Flows – Technical Note
Appendix 15.1: Details of Existing Proposed
Receptors
Appendix 15.2: Verification
Appendix 15.3: Model Inputs and Results
Processing
Appendix 15.4: Traffic Data
Appendix 15.5: Road Transport Emissions
Factors – Future Years Modelling
Appendix 15.6: Background Concentrations
and Adjustment
Appendix 15.7: Road Traffic Predicted Results
Appendix 16.1: Traffic Flow Data
Appendix 16.2: Railway Movement Data
Appendix 16.3: Sound Time History Graphs
Appendix 17.1: Natural England 1999
Agricultural Land Classification Survey
Appendix 18.1: Landscape and Visual
Cumulative Effects during Construction and
Operation
Environmental Statement Addendum: Submitted August 2019
ES Addendum
Appendix 1: Site Boundary Plan (Dwg No. 23258 – RG – M – 44 Rev. G)
Appendix 2a: LVIA Addendum – Photo Viewpoints (dwg no. edp2165_ed109c)
Appendix 2b: LVIA Addendum – Visual Receptors (dwg no. edp2165_d108a)
Appendix 3: WWT Consulting - Review of Consultation Reponses (June 2019)
Appendix 4: Peter Brett Associates Note TN002 Water Balance Calculations (19th June
2019)
Appendix 5: Peter Brett Associates Technical Note 5 (Ref. 29426 – 5506 – TN05)551
Appendix 6: Peter Brett Associates Technical Note 6 (Ref. 29426/5506/TN06)552
551)
552) Duplicated at ESD 06a
https://www.gov.uk/planning-inspectorate Page 97
Appendix 7: Peter Brett Associates Technical Note 7 (Ref. 29426/5506/TN07)553
Appendix 8: Peter Brett Associates Technical Note 8 (Ref. 29426/5506/TN08)554
Appendix 9: Peter Brett Associates Technical Note 9 (Ref. 29426/5506/TN09)555
Appendix 10: Capacity Improvement Chaloners Road / Moor Lane Mini Roundabout
Highway Works (dwg no. 29426/5501/020)
Core Documents
Appellant’s core documents
Planning
CD001: City of York (2019) Planning Committee Report for 18/02687/OUTM at OS
Fields 5475 7267 and 8384, Moor Lane, Acomb, York
CD002: Barwood (February 2014) Land at Moor Lane Delivery Statement
CD003: City of York (2003) The Approach to the Green Belt
CD004: City of York (April 2005) Draft Local Plan Incorporating the Fourth Set of
Changes of Development Control Local Plan and proposals maps
CD005: City of York (June 2013) Local Plan Preferred Options (relevant extracts
only)
CD006: City of York (September 2014) Local Plan Publication Draft (relevant
extracts only)
CD007: City of York (February 2018) Local Plan Publication Draft and Policies Map
(south)
CD008: City of York Council (June 2019) Proposed Modifications
CD009: City of York (September 2014) Local Plan Site Selection Addendum Paper
CD010: City of York (June 2013) Local Plan Preferred Options Sustainability
Appraisal and associated appendices (relevant extracts only)
CD011: Communities and Local Government (May 2008) The Yorkshire and
Humber Plan – Regional Spatial Strategy to 2026
CD012: Department for Communities and Local Government (2019), Planning
Practice Guidance: Healthy and Safe Communities
CD013: Department for Communities and Local Government (2019), Planning
Practice Guidance: Housing and Economic Land Availability Assessment
CD014: Department for Communities and Local Government (2016), Planning
Practice Guidance: Natural Environment
CD015: Department of Housing, Communities and Local Government (February
2019) National Planning Policy Framework
CD016: John Hobson QC (January 2015) Advice in the matter of the preparation
of the York Local Plan
CD017: Inspector Simon Berkeley and Inspector Andrew McCormack (July 2018)
Letter in relation to the Examination into the Soundness of the City of
York Local Plan
CD018: Inspector Simon Berkeley and Inspector Andrew McCormack (December
2018) Letter in relation to the Examination into the Soundness of the City
of York Local Plan
553) Duplicated at ESD 06a
554)
555)
https://www.gov.uk/planning-inspectorate Page 98
CD019: Inspector Simon Berkeley and Inspector Andrew McCormack (February
2019) Letter in relation to the Examination into the Soundness of the City
of York Local Plan
CD020: Inspector Simon Berkeley and Inspector Andrew McCormack (May 2019)
Letter in relation to the Examination into the Soundness of the City of
York Local Plan
Landscape
CD021: Landscape Institute and Institute of Environmental Management and
Assessment (2013) Guidelines for Landscape and Visual Impact
Assessment, Third Edition
CD022: Natural England (2012) National Character Area Profile: 28 Vale of York
(NE367)
Ecology
CD023: (See CD074) Chartered Institute for Ecology and Environmental
Management (2016) Guidelines for Ecological Impact Assessment in the
United Kingdom and Ireland 2nd Edition
CD024: Collins, J (ed) (2016) Bat Surveys for professional ecologists: Good
Practice Guidelines. (Third Edition) Bat Conservation Trust, London
CD025: Rylatt, F., Garside, L. and Robin, S. Yorkshire Wildlife Trust (2017).
Human Impacts on Nature Reserves – The Influence of Nearby
Settlements. CIEEM In Practice. September 2017
CD026: (See CD075) City of York Biodiversity Action Plan (May 2013)
CD027: (See CD076) City of York Council. Local Plan Evidence Base: Open
Space and Green Infrastructure Final Report (September 2013)
CD028: Consultation response of City of York Ecology and Countryside Officer,
Nadine Rolls (07 May 2019)
Heritage
CD029: City of York Council (January 2011) City of York LDF: Historic Character
and Setting Technical Paper
CD030: City of York Council (November 2011) York Central Historic Core
Conservation Area Appraisal
CD031: City of York Council (June 2013) City of York Historic Character and
Setting Technical Paper Update
CD032: City of York Council (May 2014) City of York Historic Environment
Characterisation Project
CD033: City of York Council (September 2014) City of York Heritage Topic Paper
Update
CD034: City of York Council (May 2018) City of York Local Plan Topic Paper TP1:
Approach to defining York’s Green Belt
CD035: City of York Council (March 2019) City of York Local Plan Topic Paper
TP1: Approach to defining York’s Green Belt Addendum and Annexes
(with additional pages submitted during the Inquiry)
CD036: Historic England (December 2017) Historic Environment Good Practice
Advice in Planning Note 3 (Second Edition): The Setting of Heritage
Assets
https://www.gov.uk/planning-inspectorate Page 99
Hydrogeology
CD037: Ove Arup & Partners Ltd. Askham Bog Restoration Project, Technical
Report. Job Number 58326, March 2003. For Yorkshire Wildlife Trust.
CD038: British Geological Survey. Vale of York 3-D Borehole Interpretation and
Cross-Sections Study. Commercial Report CR/03/251 N. 2003.
CD039: Wildfowl & Wetlands Trust (Consulting) Limited (WWT Consulting).
Investigating the hydrological relationship between the Moor Lane site
and the Askham Bog SSSI. October 2013. (For Barwood)
CD040: Allied Exploration and Geotechnics Ltd. Preliminary Ground
Investigation, Moor Lane, York. Final Factual Report. Contract No. 3967,
August 2014. (For Barwood).
CD041: PBA, Land at Moor Lane, Woodthorpe, York. Hydrogeological Review.
August 2014. (For Barwood).
CD042: PBA, Moor Lane, York. Technical Note TN013 – Baseline Summary (on
Groundwater and Surface Water Monitoring). October 2015. (For
Barwood). Includes all Piper Plots.
CD043: Alcontrol Laboratories, Moor Lane York, Field Monitoring Reports, July
2014 – September 2015.
CD044: Alastair Fitter and Clifford Smith (edited by). A Wood in Ascam – A
Study in Wetland Conservation. November 1979.
Hydrology
CD045: Environment Agency (2016) National Planning Policy Framework Flood
Risk Assessments: Climate Change Allowances
CD046: Department for Communities and Local Government (2016), Planning
Practice Guidance – Flood Risk and Climate Change
CD047: Commission of the European Communities (1998) Groundwater
Directive and Groundwater Regulations
CD048: Commission of the European Communities (2000) Water Framework
Directive
CD049: HSMO (1991a) The Water Resources Act
CD050: HSMO (2003) The Water Act
CD051: HSMO (2010) The Flood and Water Management Act
CD052: City of York Council (undated), Local Flood Risk Management Strategy
CD053: City of York Council (2013), Strategic Flood Risk Assessment
CD054: City of York Council (2011), Preliminary Flood Risk Assessment
CD055: EA (2009) River Ouse Catchment Flood Management Plan
CD056: EA (2015) Proposed Update to Humber River Basin Management Plan
(RBMP)
CD057: Department for Environment, Food and Rural Affairs (2015) Non
statutory technical standards for sustainable drainage systems
CD058: CIRIA (ref C735) (2015), The SuDS Manual
CD059: WRc (2012) Sewers for Adoption (7th Edition)
CD060: British Standards (2008) BS EN 752:2008 Drain and Sewer Systems
Outside Buildings
CD061: Building Regulations (2006), Approved Document Part H
CD062: West Yorkshire Combined Authority (undated), SuDS Guidance to
Developers
https://www.gov.uk/planning-inspectorate Page 100
Transport
CD063: Department for Communities and Local Government (2016), Planning
Practice Guidance – “Travel Plans, Transport Assessments ND
Statements in decision-taking”
CD064: City of York Council Local Transport Plan (LTP3) (2011)
CD065: York Central Transport Assessment, produced by Arup for planning
application ref: 18/01884/OUTM
Yorkshire Wildlife Trust Core documents
CD066: Proof of Evidence by Mr A. Jones 2019
CD067: Wheeler, B.D., Shaw, S., & Tanner, K. 2009 A wetland framework for
impact assessment at statutory sites in England and Wales Integrated
Catchment Science Programme Science Report.
CD068: Morgan-Jones, W. Poole, J.S, Goodall, R, (2005), Characterisation of
Hydrological Protection Zones at the Margins of Designated Lowland
Raised Peat Bog Sites, JNCC Report 365, ISSN 0963-8091. Foreword.
CD069: Prosser M and Wallace H (2011). National Vegetation Classification
Survey. Askham Bog 2011. Ecological Surveys, Bangor
CD070: Hogg P, Squires P, Fitter AH (1995). Acidification, nitrogen deposition
and rapid vegetational change in a small valley mire. Biological
Conservation 71: 143-153
CYC Core documents
Landscape
CD071: York Landscape Character Appraisal (1996) by Environmental
Consultancy University of Sheffield (ECUS) for CYC.
CD072: PPG Guidance on the Green Belt 22 July 2019
CD072a: CYC Green Corridors Technical paper (January 2011)
Ecology
CD073: Government Circular: Biodiversity and geological conservation –
Statutory obligations and their impact within the planning system:
ODPM circular 06/2005
CD074: Updated CD023: Chartered Institute for Ecology and Environmental
Management CIEEM (2018) Guidelines for Ecological Impact Assessment
in the UK and Ireland: Terrestrial, Freshwater, Coastal and Marine
version 1.1.
CD075: Updated CD026 - City of York Biodiversity Action Plan (May 2017)
CD076: Updated CD027 AMEC Environment & Infrastructure UK Limited. City of
York Council Local Plan Evidence Base: Open Space and Green
Infrastructure Final Report. September 2014
CD077: Mott MacDonald Ltd. Moor Lane, Woodthorpe Planning Application
Technical Review. April 2019 (for City of York Council).
CD078: Consultation response of Natural England (20th February 2019).
CD079: ESD 013 Environmental Statement Appendix 9.1: Baseline Ecology
Report
https://www.gov.uk/planning-inspectorate Page 101
CD080: ESD 013 – Appendix 9.2: EPEZ Landscape Management Plan
CD081: ESD 013 – Environmental Statement Appendix 13.1: Flood Risk
Assessment, Appendix F Surface Water Drainage Strategy
CD082: Askham Bog Site of Special Scientific Interest citation (Natural England)
CD083: Guidance on the identification and risk assessment of groundwater
dependent terrestrial ecosystems (2004, updated 2009) UK Technical
Advisory Group on the Water Framework Directive
CD084: Floyd, L., Underhill-Day, J. C. (2013). Literature Review on the effects of
cats on nearby protected wildlife sites. Unpublished report by Footprint
Ecology for Breckland Council.
CD085: The Fen Management Handbook, (2011), Editors A. McBride, I. Diack, N
Droy, B. Hamill, P.Jones, J. Schutten, A. Skinner, and M. Street.
Scottish Natural Heritage, Perth (Relevant Extracts Only)
CD085a: The SuDS Manual (Defra) s26.7, pp565-576
CD086: Natural England Commissioned Report NECR012 Scientific research into
the effects of access on nature conservation: Part 1: access on foot,
2009 (Relevant Extracts Only)
Hydrogeology
CD087: PBA Technical Note of 29th March 2019 entitled “Combined response to
CYC drainage comments and consultation responses from natural
England and Yorkshire Wildlife Trust (YWT) and the YWT-commissioned
report by JBA consulting
CD088: Avison Young (25th July 2019). Land at Moor Lane, Woodthorpe, York,
Application ref. 18/02687/OUTM. Planning Appeal by Barwood Strategic
Land II LLP Statement of Case on behalf of the Appellant
CD089: Yorkshire Wildlife Trust (4th February 2019). Letter to Alison Stockdale
from Sara Robin
CD090: British Geological Survey. 1:50,000 Series, England and Wales Sheet
71, Selby. Bedrock and Superficial Deposits. NERC 2008
CD091: British Geological Survey. Geology of the Selby district, a brief
explanation of the geological map Sheet 71 Selby. NERC 2008
CD092: British Geological Survey. Field Guide to the Glacial Evolution of the Vale
of York. Internal Report IR/04/106. 2004
CD093: Peter Brett Associates Technical Note TN001 (Ref. 29426/5506/TN001)
CD094: Peter Brett Associates Technical Note TN002 (Ref. 29426/5506/TN002)
CD095: Peter Brett Associates Technical Note TN003 (Ref. 29426/5506/TN003)
CD096: Peter Brett Associates Technical Note TN004 (Ref. 29426/5506/TN004)
CD097: Peter Brett Associates Technical Note TN010 (Ref. 29426/5506/TN010)
CD098: Peter Brett Associates Technical Note TN011 (Ref. 29426/5506/TN011)
CD099: Peter Brett Associates Technical Note TN012 (Ref. 29426/5506/TN012)
CD099a: Environmental Statement Addendum Appendix 3: WWT Consulting( June
2019) - Review of Consultee Reponses
CD099b: Environmental Statement Addendum Appendix 4: Peter Brett Associates
(19th June 2019) Water Balance Calculations.
CD099c: JBA Consulting Report (2nd February 2019). Askham Bog review.
Document reference 2019s0135.
Transport
CD100: CIHT, Buses in Urban Development, Jan 2018
https://www.gov.uk/planning-inspectorate Page 102
CD101: City of York Council’s “Checklist for Strategic Transport Assessments”
CD102: VOL.1 – 2019-08-30 TA Addendum Moor Lane York (EIA)
CD103: VOL.2- 2019-08-30 TA Addendum Moor Lane York (EIA)
Education
CD104: Education Supplementary Planning Guidance 2015 v4 June 16
Planning
CD105: Ministerial Statement by Brandon Lewis 01/07/13
CD106: Ministerial Statement by Rt. Hon Eric Pickles MP 2013 -01-29
CD107: Letter from Housing Minister to Broxtowe 2 October 2019
CD108: Yorkshire and Humber SI 2013 No. 117
CD109: APP/C2741/W/16/3149489 land off Avon Drive, Huntington, York YO32
9YA Decision 21 April 2017
Policy
CD110: City of York Local Plan Publication Draft Schedule of Minor Modifications
to 25th May 2018 (LP Examination Submission CD003)
CD111: Strategic Housing Land Availability Assessment (2018) - (LP
Examination Submission SD049A)
CD111a: Strategic Housing Land Availability Assessment Appendices (2018) - (LP
Examination Submission SD049B)
CD111b: Strategic Housing Land Availability Assessment Appendix 8 – Site 1:500
(2018) - (LP Examination Submission SD049C)
CD111c: Strategic Housing Land Availability Assessment Appendix 8 – Map Site
501 989 (2018) - (LP Examination Submission SD049D)
CD112: Strategic Housing Land Availability Assessment (2017) - (LP
Examination Submission SD053)
CD112a: Strategic Housing Land Availability Assessment Annexes(2017) - (LP
Examination Submission SD054)
CD113: Site Selection Paper 2013 Main Report (LP Examination Submission
SD072A)
CD114: Site Selection Paper 2013 Annexes (LP Examination Submission
SD072B)
CD115: Further Sites Consultation Report (June 2014) - (LP Examination
Submission SD015A)
CD116: Further Sites Consultation Appendices (June 2014) - (LP Examination
Submission SD015B)
CD117: Further Sites Consultation Proposal Maps (June 2014) - (LP Examination
Submission SD016)
CD118: Preferred Sites Consultation document (2016)- (LP Examination
Submission SD018)
Appellant’s additional core documents
CD119: Groundwater control: design and practice, second edition. CIRIA 750.
CIRIA 2016
CD120 Remedial Targets Methodology. Hydrogeological Risk Assessment for
Land Contamination. Environment Agency 2006.
https://www.gov.uk/planning-inspectorate Page 103
CD121 Assessing the Scale and Impact of Urban Run-Off on Water Quality.
WCA Environment Ltd 2013.
Inquiry documents
INQ1: Yorkshire Water – Second Stage investigation of the I5 Driver in the
AMP Final Determination
INQ2: BRE – Soakaway Digest 65
INQ3: CIL Compliance Note (CYC) with nine annexes
INQ4: CIL Compliance Statement (Appellant’s comments)
INQ5: Housing Statement of Common Ground (with twelve annexes)
INQ6: Transportation and Highways SOCG with CYC
INQ7: BWS s106 Obligation draft version 9
INQ8: Council’s comments on INQ 7
INQ9: YWT comments on planning conditions and s106 obligation
INQ10: CYC suggested planning conditions
INQ11: Appellant’s comments on suggested conditions
https://www.gov.uk/planning-inspectorate Page 104
https://www.gov.uk/planning-inspectorate Page 105
www.gov.uk/mhclg
RIGHT TO CHALLENGE THE DECISION IN THE HIGH COURT
These notes are provided for guidance only and apply only to challenges under the
legislation specified. If you require further advice on making any High Court challenge, or
making an application for Judicial Review, you should consult a solicitor or other advisor or
contact the Crown Office at the Royal Courts of Justice, Queens Bench Division,
Strand,London,WC2 2LL (0207 947 6000).
The attached decision is final unless it is successfully challenged in the Courts. The Secretary of
State cannot amend or interpret the decision. It may be redetermined by the Secretary of State only
if the decision is quashed by the Courts. However, if it is redetermined, it does not necessarily follow
that the original decision will be reversed.
SECTION 1: PLANNING APPEALS AND CALLED-IN PLANNING APPLICATIONS
The decision may be challenged by making an application for permission to the High Court
under section 288 of the Town and Country Planning Act 1990 (the TCP Act).
Challenges under Section 288 of the TCP Act
With the permission of the High Court under section 288 of the TCP Act, decisions on called-in
applications under section 77 of the TCP Act (planning), appeals under section 78 (planning) may
be challenged. Any person aggrieved by the decision may question the validity of the decision on
the grounds that it is not within the powers of the Act or that any of the relevant requirements have
not been complied with in relation to the decision. An application for leave under this section must
be made within six weeks from the day after the date of the decision.
SECTION 2: ENFORCEMENT APPEALS
Challenges under Section 289 of the TCP Act
Decisions on recovered enforcement appeals under all grounds can be challenged under section 289
of the TCP Act. To challenge the enforcement decision, permission must first be obtained from the
Court. If the Court does not consider that there is an arguable case, it may refuse permission.
Application for leave to make a challenge must be received by the Administrative Court within 28 days
of the decision, unless the Court extends this period.
SECTION 3: AWARDS OF COSTS
A challenge to the decision on an application for an award of costs which is connected with a
decision under section 77 or 78 of the TCP Act can be made under section 288 of the TCP Act if
permission of the High Court is granted.
SECTION 4: INSPECTION OF DOCUMENTS
Where an inquiry or hearing has been held any person who is entitled to be notified of the decision
has a statutory right to view the documents, photographs and plans listed in the appendix to the
Inspector’s report of the inquiry or hearing within 6 weeks of the day after the date of the decision. If
you are such a person and you wish to view the documents you should get in touch with the office at
the address from which the decision was issued, as shown on the letterhead on the decision letter,
quoting the reference number and stating the day and time you wish to visit. At least 3 days notice
should be given, if possible.