Case Reference: 3257625

Appeal Decision
Inquiry Held on 22-25 and 30-31 March and 1 and 20-21 April 2021
Site visit made on 19 March 2021
by P W Clark MA(Oxon) MA(TRP) MRTPI MCMI
an Inspector appointed by the Secretary of State
Decision date: 1st June 2021
Appeal Ref: APP/G1630/W/20/3257625
Land off the A38, Coombe Hill, Gloucestershire
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for outline planning permission.
• The appeal is made by Bovis Homes Limited & Robert Hitchins Limited against
Tewkesbury Borough Council.
• The application Ref 20/00140/OUT, is dated 11 February 2020.
• The development proposed was originally described as residential development (up to
150 dwellings), associated infrastructure, ancillary facilities, open space and
landscaping. Construction of a new vehicular and pedestrian access from the A38 and
pedestrian access to the A4019.
Decision
The appeal is allowed and outline planning permission is granted for residential
development (up to 95 dwellings), associated infrastructure, ancillary facilities,
open space, landscaping and construction of a new vehicular and pedestrian access
from the A38 and pedestrian access to the A4019 on Land off the A38, Coombe
Hill, Gloucestershire in accordance with the terms of the application as amended,
Ref 20/00140/OUT, dated 11 February 2020, subject to the twelve conditions
appended to this decision.
Procedural matters
Some time before the opening of the Inquiry, the appellant sought to amend the
description of the scheme. The description would change, replacing “up to 150
dwellings” by “up to 95 dwellings”. The appellant advertised the intention for an
appropriate period as widely as the Council had itself consulted on the original
application. For that reason, and because the descriptive quantity “up to 95” is
contained within the descriptive quantity “up to 150”, I am satisfied that nobody
would be prejudiced by considering the appeal on the basis of the revised
description of development, which is what I have done.
The application form states that the application was made in outline with all
matters reserved. At the opening of the Inquiry, the appellant advised that the
way the Town and Country Planning (Development Management Procedure)
(England) Order 2015 (the Order) defined access had caused confusion and had led
to an inaccurate completion of the application form. In the Order, the definition of
“access”, in relation to reserved matters, means the accessibility to and within the
site, for vehicles, cycles and pedestrians in terms of the positioning and treatment
of access and circulation routes and how these fit into the surrounding access
network. The appellant intended that most details of access to and within the site
should remain as reserved matters but, as part of the submitted Transport
Assessment, had included a detailed drawing of one pedestrian and vehicular
access from the A38 into the site and had intended that that access should be
given detailed consideration at this stage.
The Borough Council had not understood that to be the intention of the appellant
but acknowledged that, had it correctly inferred the appellant’s intention, it would
have relied on the advice of the highway authority in coming to a conclusion on the
acceptability of the details. The highway authority, which had been consulted by
the Borough Council on the application, acknowledged that it had treated the
application as though detailed consideration was to be given to the access in
question and had given that detailed consideration and advised that the access
would be acceptable. From third party comments on file, it appears that members
of the public had also considered the application to be made in the way understood
by the highway authority and intended by the appellant and have commented
accordingly. I therefore take the view that nobody would be prejudiced if I now do
the same.
No request for an EIA screening opinion was made, nor was any given. Instead the
appellant elected to submit an Environmental Statement following a Scoping
Opinion sought and issued. The Environmental Statement includes two parameter
plans (subsequently amended in accordance with the revised description of
development) covering Land Use, Access and Movement and Building Heights. In
accordance with decisions of the courts1 these parameter plans 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 be otherwise required to make the development
acceptable (condition 4).
The appeal has therefore been considered as an application made in outline with all
matters reserved except for details of one access onto the A38. Other details of
access, appearance, landscaping, layout and scale remain to be considered at a
later date (condition 1).
An informal, unaccompanied site visit was made before the Inquiry opened. By
agreement at the Inquiry, no further accompanied visit was made.
Main Issues
At the time the appeal was made, seven issues could be identified;
• Whether the appeal site would be an appropriate location for new
residential development of the scale proposed.
• The effect of the quantity of development proposed on the character and
appearance of the area.
• The effects of the proposal on the Coombe Hill Canal SSSI and the
Severn Estuary SPA (including the adequacy of on-site mitigation and
ecological enhancements).
• The effects of the proposal on flooding on and off the site.
• The effects of the proposal on the supply of market and affordable
housing.
• The effects of the proposal on the demand for, and provision of, Schools.
1 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)
• The effects of the proposal on the demand for, and supply of, open
space, outdoor recreation, sports and community facilities.
An eighth matter, viability, was identified as a possible issue consequent on the
sixth and seventh issues but, in the event, was a matter of little dispute at the
Inquiry.
By the time the Inquiry had opened, agreement had been reached on the fourth
issue (the effects of the proposal on flooding on and off the site) and a believed
betterment of the existing position at the site is provided for within a submitted
Unilateral Undertaking. A degree of agreement had also been reached on the
provision of affordable housing, enshrined in a Unilateral Undertaking and so
debate on the fifth issue during the Inquiry concentrated on the degree to which
the Council fell short of a five-year housing land supply.
Two planning obligations by way of Unilateral Undertakings were submitted during
consideration of the appeal. Regulation 122(2) of the Community Infrastructure
Regulations (CIL) sets out three tests with which planning obligations must comply.
Subject to my certifying compliance with the CIL regulations, the undertakings
would provide the County Council with index-linked financial contributions of;
• £32,000 to enlarge the culvert under the A4019 road,
• £18,620 for library facilities in Tewkesbury,
• £107,050 for pre-school facilities,
• £397,980 for primary school provision,
• £224,069 for secondary school provision,
• £38,657 for sixth form provision and
• for the authority’s technical charges and monitoring fees.
The undertakings would provide the Borough Council with;
• 40% of the number of dwellings as affordable housing, split 60:40
between affordable renting and shared ownership,
• £73 per dwelling for the provision of recycling and waste bins,
• arrangements for the maintenance of public open space,
• £100,000 for the benefit of the Gloucestershire Wildlife Trust’s Coombe
Hill Canal and Meadows Reserve,
• £4,750 for the preparation and distribution of Household Information
Packs and
• £54 per dwelling for one year’s membership of the Gloucestershire
Wildlife Trust for each dwelling,
• together with the authority’s technical charges and monitoring fees.
Nevertheless, other than the provisions for dealing with flooding, the Unilateral
Undertakings do not resolve any other issues which were the subject of dispute
during the Inquiry. I report upon compliance with the CIL regulations as I consider
each issue in turn.
Reasons
Appropriate location
At present, Coombe Hill is a tiny hamlet of about 50 dwellings (some say 42,
others say more). Yet it benefits from surprisingly frequent2 bus services in three
directions to Gloucester, Cheltenham and Tewkesbury, all reached within about
fifteen minutes. Within the hamlet is a public house and a petrol filling station with
convenience store. A well-provisioned farm shop and café is on the northern edge
of the hamlet. A little way outside the hamlet is the Knightsbridge Business Centre
with further retail facilities amongst other employment uses.
Hardly surprising then that the Gloucester, Cheltenham and Tewkesbury Joint Core
Strategy (JCS), adopted in December 2017, identified Coombe Hill as a Service
Village in its Settlement hierarchy (table SP2c). Policy SP2, clauses (4) and (5),
assert that at least 7,445 dwellings will be provided to meet the needs of
Tewkesbury Borough through existing commitments, development at Tewkesbury
Town itself and smaller-scale development at Rural Service Centres and Service
Villages and that Service Villages will accommodate in the order of 880 new
homes, to be allocated through the Tewkesbury Borough Plan and Neighbourhood
Plans. According to JCS policy SP2 (6), policy SD10, referred to in the Borough
Council’s putative reasons for refusal, would apply in the remainder of the rural
area but it does not say “only” so I deduce that JCS policy SD10 is also intended to
apply within the Service Villages, as indeed, its internal content implies.
The Housing Background Paper to the emerging Tewkesbury Borough Plan 2011 to
2031 disaggregated the 880 new homes to be provided between the twelve defined
service villages to suggest an allocation of 22 dwellings at Coombe Hill. But, in
addition to that “top down” approach, it also recommended that a “bottom up”
process of considering the availability of sustainable sites at each settlement will
also be a factor in determining a distribution of development. Two such sites were
identified at Coombe Hill. One is a site on the west side of the A38, next to The
Swan public house. That has since received planning permission for 25 dwellings
and was under construction at the time of my site visit. The other is the appeal
site.
The Housing Background Paper identified the capacity of the appeal site as
between 50 and 80 dwellings. Paragraph 11.12 of the Housing Background Paper
suggested that capacity be limited to 50 with significant opportunities for
landscaping and open space. That recommendation was carried forward into the
emerging Local Plan submitted for examination in May 2020 in which policy RES1
allocates site COO1 (the appeal site) for 50 dwellings.
But the policy includes a note to the effect that all site capacities are an
approximation and that detailed design proposals may indicate that more or fewer
dwellings can be accommodated on a site. Moreover, notwithstanding the
provision of emerging policy COO1 that the density of development be relatively
low, adopted policy SD10(6) requires residential development to seek to achieve
the maximum density compatible with good design, the protection of heritage
assets, local amenity, the character and quality of the local environment and the
safety and convenience of the local and strategic road network.
There are several representations to the effect that the proposal would be
disproportionate to the size and function of the existing village (a criterion in JCS
policy SP2(5)) but it is clear from the Borough Council’s Housing Background Paper
and from emerging policy COO1 that the two sites being allocated in Coombe Hill
are intended to create a new character for the settlement. Charming though the
2 Even when reduced during the pandemic occurring at the time of my site visit
hamlet is at present, I do not demur from the analysis of the Housing Background
Paper that the village lacks a cohesive form and does not have a well-defined
village character.
The aim of the settlement boundary (which would result from the two allocations)
is to create a well-defined nucleated village and establish a sense of place, rather
than exacerbating the already dispersed nature of the village. The combined figure
of 75 additional dwellings proposed in the emerging plan would be transformative
in the context of an existing settlement of about 50 dwellings. The addition of a
further 45 dwellings would break no greater threshold of character change than
transformative.
The Council has already resolved to grant planning permission for up to 40
dwellings on a small part of the site (described as Part Parcel 0120). In an e-mail
of 19 March 2018 an officer of the Council, having discussed that earlier application
with senior colleagues, invited a single application for the whole site in line with the
Borough Plan (Housing Background Paper) consideration of 80 dwellings, so as to
allow for a village focus and a sense of place which that previous scheme did not
deliver. I concur with that view.
Nothing in the evidence before me suggests that the figure of 50 dwellings
proposed in the emerging Local Plan is arrived at following a feasibility study or
detailed analysis of the criteria itemised by JCS policy SD10(6). Rather, the
evidence points to the selection of a nominal or even arbitrary figure to be given
greater and more refined consideration in a pragmatic way during the
consideration of a planning application.
During the consideration of this appeal, the emerging Leigh Neighbourhood Plan
was passing through its regulation 14 consultation stage. Shortly after the
conclusion of the Inquiry, it was approved for submission in accordance with
regulation 15. Although the emerging NP is a material consideration, it remains at
an early stage in the plan making process. No party sought to place any particular
reliance on the emerging Neighbourhood Plan as part of its case in this appeal. In
any event, the emerging Neighbourhood Plan anticipates that the site will be
allocated for development through the emerging Tewkesbury Local Plan and so I
have taken the latter plan into greater account in determining this appeal.
The appellant concedes that there is a nominal conflict between the proposal and
both JCS policies SP2 and SD10 because no adopted plan has ever been
subsequently produced designating non-strategic sites for development in
Tewkesbury. Nevertheless, I conclude that the appeal site would be an appropriate
location for new residential development in accordance with JCS policy SP2 and
that the scale should be determined pragmatically by a consideration of the criteria
set out in that policy and in JCS policy SD10(6). These are largely covered by the
other issues in this appeal, to which I now turn.
Character and appearance
The Council’s case, in relation to this issue, was more a criticism of the supporting
Design and Access Statement (DAS), than of the development proposed. Because
the proposal is for a number of dwellinghouses greater than ten, it is defined in the
Town and Country Planning (Development Management Procedure)(England) Order
2015 (the DMPO) as a major development.
Article 9 of the DMPO requires an application for major development to be
accompanied by a DAS. A DAS is intended;
• to explain the design principles and concepts that have been applied to
the development,
• to demonstrate the steps taken to appraise the context of the
development and how the design of the development takes that context
into account,
• to explain the policy adopted as to access, and how policies relating to
access in relevant local development documents have been taken into
account,
• to state what, if any, consultation has been undertaken on issues
relating to access to the development and what account has been taken
of the outcome of any such consultation and
• to explain how any specific issues which might affect access to the
development have been addressed.
The application was made in outline as a proposal in principle only. All matters,
namely access (except for one pedestrian and vehicular access to the site),
appearance, landscaping, layout and scale are reserved, to be submitted later, in
the event that outline permission is granted. The Borough Council has powers,
under Article 5(2) of the DMPO, to require details to be submitted of any reserved
matter, if it considered that the application could not be determined without them.
The Borough Council made no such requirement in the present case. The
application was validated without details of any reserved matter other than for the
main vehicular access.
The submitted DAS does not include a design code but there is no requirement in
the DMPO, or in adopted JCS policy or emerging Local Plan policy that it should.
JCS policy SD4 states that a masterplan and design brief may be required but
clause (2) of the policy makes it clear that they are optional and the application
was registered and validated without a design brief being required. Nor is the
submitted DAS specific to a scheme for a fixed number of dwellings but that is
hardly surprising as the number of dwellings is not fixed; as submitted the
application was for any number up to 150 dwellings and as amended, it is for any
number up to 95 dwellings. Neither of those points impair its validity.
Not all outline applications have all matters reserved but, where a matter is
reserved, a DAS can do little more in relation to that matter than explain the
obvious, namely that the design principles and concepts to be applied to the
development have yet to be formulated and will be explained at reserved matters
stage. Nevertheless, the submitted DAS does in fact go further than that.
A comparison with the requirements of the DMPO shows that an extensive section
2 in the DAS demonstrates the steps taken to appraise the context of the
development and how the design of the development will take that context into
account. In section 4 it sets out a series of Design Principles and Design Proposals,
explaining at paragraphs 4.14, 4.19 and 4.20 the policy adopted as to access, at
paragraphs 4.15 and 4.20 how policies relating to access in the government’s
Manual for Streets (rather than the JCS) have been taken into account and at
paragraph 4.17, summarising the consultation which had taken place with the
highway authority and its outcome. I therefore find that the DAS complies with the
requirements of the DMPO.
Turning from an appraisal of the DAS to an appraisal of the development proposed;
the emerging local plan policy COO1 sets requirements, compliance with most of
which could only be demonstrated at reserved matters stage. The master plan
which accompanies the appeal is illustrative only. Nevertheless, in the next three
paragraphs, I consider its provisions in relation to the requirements of emerging
policy COO1.
The masterplan does demonstrate a continuity of active frontages along the A38
north of the petrol filling station. If followed in the reserved matters application(s),
these, in conjunction with the development now under way on the opposite side of
the road, would link several of the currently dispersed elements of the settlement
to help create a nucleated village in the way described in the Housing Background
Paper.
As recorded in a later section of this decision, the quantity of open space proposed
(which is required to be provided by paragraphs 1.26, 5.2 and Schedule 3 of the
Unilateral Undertaking to Tewkesbury Borough Council) would be sufficient to
provide for use by the wider community. The Borough Council’s contribution to
Inquiry Document 17 confirms that the open space could contribute to the wider
Green Infrastructure (GI) network envisaged in the supporting text to JCS policy
INF3. There is no dispute that biodiversity net gains on the site itself would be
delivered (the dispute, which I consider below, relates to residents’ recreational
effects on biodiversity off site, in relation to the Severn Estuary SPA). A later
section of this decision concludes that mitigation of recreational pressure on the
SSSI would be achieved. The design requirements for enhanced pedestrian
connectivity can also be required by conditions (6(ii)) and (10(i)).
The illustrative masterplan indicates that public open space would address the
A4019 frontage and the prominent corner location at the junction of the A38 and
A4019 and so demonstrates how a reserved matters application could feature a
landmark (albeit not a building) as envisaged by the emerging policy. It shows
landscaped open space surrounding the development which demonstrates how the
detailed layout could be landscape-led. At about 20 dwellings per hectare, the
density of development would be relatively low.
Insofar as the Council makes any substantive comment on the character of the
development proposed, the Council’s urban design officer observes that the
illustrative layout shows almost every dwelling to be a terraced property and
expresses doubt that that would be in keeping with the character of the area. It is
true that terraced properties do not dominate the existing character of the area,
although there are some at the Wharf and a pair of semi-detached properties to
the north of the graveyard and former chapel. Nevertheless, I note that Leigh
Parish Council, in its representations to policy COO1 of the emerging local plan
comments that a village survey recorded the need for smaller 2 and 3 bedroomed
accommodation and for social housing. It follows that, if the illustrative layout
were to be followed in the reserved matters applications then it is likely that an
acknowledged deficiency in the character of the settlement would be made good.
The Council’s evidence to the Inquiry commented on the storey heights implied by
the parameters plan, commenting that although there are examples of 2.5 storey
dwellings in the settlement, these are few and far between. But in fact, section 2
of the appellant’s DAS shows several examples of taller buildings, including Walton
Grange to the north of the site and the former police station at the crossroads. The
appellant’s Response to the Urban Design Officer’s response shows several three
storey buildings to be present in Coombe Hill. The Council’s evidence also
commented on the parameter plan’s implication of cut and fill to provide a level
building platform but on my site visit, I observed that this was characteristic of
existing buildings to the east of the A38 in the hamlet.
Without prejudice to consideration of detailed reserved matters applications, I
conclude that there is nothing in the material before me to demonstrate that the
effect of the quantity of development proposed on the character and appearance of
the area need be anything other than acceptable. The proposal would therefore
comply with those elements of JCS policy SD10(6) which require compatibility with
good design and with the character and quality of the local environment.
Ecology (the SSSI and the SPA)
There are two parts to this issue. One is concerned with the possible adverse
effects of the development proposed upon the integrity and conservation objectives
of the Severn Estuary Special Protection Area and Ramsar Site (the SPA) either
through hydrological effects in functionally linked watercourses on migratory fish
species or through recreational effects on birds using Functionally Linked Land
(FLL) in the vicinity of Coombe Hill (which may, or may not, be coterminous with
Gloucestershire Wildlife Trust’s Coombe Hill Canal and Meadows Reserve). The
second is concerned with possible adverse effects upon the Coombe Hill Canal SSSI
and on Gloucestershire Wildlife Trust’s Coombe Hill Canal and Meadows Reserve in
general. I deal with the SPA concern first.
The Habitats Regulations 2017 (as revised) require that before any planning
permission is given for a project which is likely to have a significant effect on what
is known as a European site (in this case the Severn Estuary SPA), an appropriate
assessment must be made of the implications of the project in view of the SPA’s
conservation objectives and that I must ascertain that the project would not
adversely affect the integrity of the SPA. I can take account of conditions which
may be imposed. This is a two-stage process; first of all establishing a likely
significant effect and then secondly making an appropriate assessment of that
likely significant effect.
The possible effects on fish may be swiftly disposed of. No party contests the
findings of the appellant’s submitted Environmental Statement that best practice
methods and effective engineering solutions to ensure contaminated run-off is
prevented from entering the local watercourses would ensure a minor beneficial
effect. Natural England, which is the government’s adviser on these matters,
agrees that adverse effects on water quality in functionally linked watercourses
including the Rivers Chelt and Severn are unlikely to occur provided that the
proposed sustainable drainage measures are secured by condition. I have no
reason to disagree. Condition (8(iv)) requires details of drainage to be submitted,
at which point the Council can ensure that they include the matters described in
paragraph 3.7 of the Ecology Statement of Common Ground.
For birds, the SPA’s 1993 citation included six elements or qualifying features;
• An internationally important wintering population of Bewick’s swan
• A wetland of international importance supporting in winter over 20,000
waterfowl (wildfowl and waders)
• Supporting in winter internationally important numbers of five species of
migratory waterfowl; European white-fronted goose, shelduck, gadwall,
dunlin and redshank
• A nationally important wintering population of ten species; wigeon, teal,
pintail, pochard, tufted duck, ringed plover, grey plover, curlew,
whimbrel and spotted redshank
• During passage periods, nationally important numbers of ringed plover,
dunlin, whimbrel and redshank
• A nationally important breeding population of lesser black-backed gulls
A Natura 2000 Standard Data Form for the SPA dated December 2015 includes
entries for Bewick’s swan, European white-fronted goose, shelduck, gadwall, dunlin
and redshank and for a waterfowl assemblage. Advice given by the Countryside
Council for Wales and Natural England in June 2009 lists the internationally
important assemblage of waterfowl as Bewick’s swan, European white-fronted
goose, dunlin, redshank, shelduck, gadwall, wigeon, teal, pintail, pochard, tufted
duck, ringed plover, grey plover, curlew and whimbrel.
The concern that the development proposed on the appeal site might be likely to
have a significant effect on the SPA arises from the concept that the residents of
the proposed development would use the surrounding countryside for recreational
walking. During that recreational activity, particularly if dog walking, they could
disturb the birds which represent qualifying features of the SPA when they also use
the surrounding countryside in a way which identifies it as Functionally Linked Land
(FLL). That could prejudice both the extent and distribution of the habitats of the
SPA birds and also their population, the maintenance of which are among the site
conservation objectives for the SPA.
The concept of Functionally Linked Land is endorsed in paragraph 27 of RSPB v
SofSCLG [2014] EWHC 1523 (Admin), 2014 WL 1976410; “while no particular legal
status attaches to FLL, the fact that land is functionally linked to protected land
means that the indirectly adverse effects on a protected site, produced by effects
on FLL, are scrutinised in the same legal framework just as are the direct effects of
acts carried out on the protected site itself.” FLL is defined in a 2016 report
NECR207 commissioned by Natural England; Functional linkage: How areas that
are functionally linked to European sites have been considered when they may be
affected by plans and projects - a review of authoritative decisions. It refers to the
role or function that land beyond the boundary of the SPA might fulfil in terms of
supporting the population for which the SPA was designated.
FLL does not include all land which the designated species use; “Sometimes, the
mobility of qualifying species is considerable and may extend so far from the key
habitat that forms the SAC or SPA that it would be entirely impractical to attempt
to designate or classify all of the land or sea that may conceivably be used by the
species.” Instead, the specific birds which form the population using the SPA have
to use the other land in question for it to be identified as functionally linked.
Moreover, there is an additional requirement for land to be identified as
functionally linked. “In practice, therefore…supporting habitat in areas beyond the
boundary of a SAC or SPA which are connected with or “functionally linked” to the
life and reproduction of a population for which a site has been designated or
classified should be taken into account in a Habitats Regulations Assessment
(HRA).” I take this to mean that a simple demonstration that land is used by birds
of the same species as listed in the SPA designation would not justify the
identification of FLL; what is needed is a demonstration not only that the land is
used by the same individual birds as use the SPA land but also that they use it in a
way which is necessary to their life and reproduction.
For this reason, explored further in the following paragraphs, I am not entirely
convinced by the conclusions of the report to Natural England by Link Ecology
dated September 2020, entitled “Identification of Land with Proven or Possible
Functional Linkages with the Severn Estuary SPA Phase 5 (Gloucestershire and
Worcestershire)”, (the FLL report) (although endorsed by the advice of Natural
England). This states that that ten sites (including land at Coombe Hill) “appear to
be or have been Functionally Linked to the Severn Estuary SPA as shown by
regular or intermittent movements of individual birds and for identifiable flocks in
the past ten years.”
The report itself immediately qualifies its finding in respect of Coombe Hill and two
other sites by stating “The Functional Linkage between this complex of sites and
the SPA must therefore be considered, on the basis of evidence to date, to be
diminishing for two of the main species and is at best unproven for most other SPA
Interest Species that occur within them”. In addition to that, the reason for my
scepticism is that, with the exception of Black-tailed godwit (which is not a listed
SPA species) and curlew (which is a listed SPA species as part of the important
assemblage of waterfowl) the conclusions are mostly based upon what appear to
be opportunistic uses of the ten sites by SPA birds on occasions when the sites’
condition presents an optional alternative to use of the SPA itself, rather than
usage essential for the SPA species to complete its life cycle in circumstances
where the SPA land itself cannot offer that usage.
There are analogies in human life where a location (be it a park, restaurant or
music venue) is famed for attracting large numbers of users. The fact that some
individuals amongst those users may also attend other locations at other times
does not prove that those other venues are functionally linked to the main venue;
the other locations are simply used as a matter of choice in parallel with the use of
the famed attraction; their use is not essential for the desired experience.
But, for the Black-tailed godwits, fattening themselves up for their migration, for
which the SPA does not provide enough resource, I accept that the land identified
in map 20 of the FLL report, including land in the vicinity of Coombe Hill, does
represent FLL although Black-tailed godwits are not an SPA listed species.
Likewise, for the curlews, needing to breed away from their winter residence on the
SPA I accept that the land identified in map 19 of the FLL report, including land in
the vicinity of Coombe Hill, represents FLL in that land suitable for breeding is
essential for the species to complete its life cycle and thus to maintain its
population within the SPA. Curlew as a species is known to be sensitive to
disturbance and as a ground-nesting species, its breeding success is known to be
sensitive to the presence of dogs. For that reason, I accept that there may be a
likely significant effect on the SPA from the development proposed and that an
appropriate assessment must be made.
Appropriate assessment
The Conservation Objectives for the Severn Estuary SPA are recently restated by
Natural England in a document published in February 2019. They are to ensure
that the integrity of the site is maintained or restored as appropriate, and to
ensure that the site contributes to achieving the aims of the Wild Birds Directive,
by maintaining or restoring;
• The extent and distribution of the habitats of the qualifying features
• The structure and function of the habitats of the qualifying features
• The supporting processes on which the habitats of the qualifying features
rely
• The population of each of the qualifying features, and,
• The distribution of the qualifying features within the site.
The SPA is also a European marine site for which objectives were stated by Natural
England and the Countryside Council for Wales in 2009. For the internationally
important assemblage of waterfowl these are to maintain the waterfowl
assemblage and its supporting habitats (Intertidal mudflats and sandflats,
Saltmarsh and Hard substrate habitats (rocky shores)) in favourable condition, as
defined below:
The interest feature waterfowl assemblage will be considered to be in
favourable condition when, subject to natural processes (the dynamic
physical process within the estuary), each of the following conditions are
met:
(i) the 5 year peak mean population size for the waterfowl assemblage is no
less than 68,026 individuals (ie the 5 year peak mean between 1988/9 -
1992/3);
(ii) the extent of saltmarsh and their associated strandlines is maintained;
(iii) the extent of intertidal mudflats and sandflats is maintained;
(iv) the extent of hard substrate habitats is maintained;
(v) extent of vegetation of <10cm throughout the saltmarsh is maintained;
(vi) the abundance and macroscale distribution of suitable invertebrates in
intertidal mudflats and sandflats is maintained;
(vii) the abundance and macroscale distribution of suitable invertebrates in
hard substrate habitats is maintained;
(viii) greater than 25% cover of suitable soft leaved herbs and grasses
during the winter on saltmarsh areas is maintained;
(ix) unrestricted bird sightlines of >500m at feeding and roosting sites are
maintained;
(x) waterfowl aggregations at feeding or roosting sites are not subject to
significant disturbance.
Of these conditions, item (i), the 5-year mean population size for the waterfowl
assemblage is the condition at risk from the recreational activity expected from the
appeal site. Items (ix) and (x) are relevant to a degree. Restricted bird sightlines
may lead to disturbance prejudicial to successful breeding in the vicinity of Coombe
Hill and so might affect the maintenance or restoration of the species’ population
size on the SPA. Nevertheless, the appeal development would make no difference
to the extent of bird sightlines at feeding and roosting sites in the vicinity of
Coombe Hill, because these are reported to be near the appeal site, not on it. The
issue is whether the residents of the development would cause disturbance with
the sightlines as they exist now at Coombe Hill.
The population size for the waterfowl assemblage as a whole is large. In the five-
year period 1988/9-1992/3 the average peak count was 68,026 (17,502 wildfowl
and 50,524 waders). In the 2015 Natura 2000 Standard Data Form, it was
reported as 84,317 for the five-year period 1991/2-1995/6. In an SPA review
carried out in 2001 it is stated that the area regularly supports 93,986 individual
waterfowl in winter.
In the 1993 SPA citation 3,096 were reported as curlew. That could be interpreted
to mean that the loss of the entire curlew component of the SPA’s assemblage
would mean an effect of 4.5% on the waterfowl assemblage as a whole but the
point of an assemblage is that it comprises a variety of species; the loss of a
component of that assemblage would reduce that variety and so could be
disproportionately harmful. For that reason, I focus on the population size of the
curlew alone in this assessment, rather than on the size of the assemblage overall.
All parties accept the FLL report as an authoritative study of the relationship
between birds using the SPA and those using various sites in Gloucestershire and
Worcestershire. The FLL report records that curlew has experienced a major
decrease in numbers in the last twenty or more years across northwest Europe.
Karen Colebourne writes in her evidence that between 1995 and 2008 the curlew
population in the UK declined by 42%.
In contrast, the five-year mean peak for curlew on the Severn estuary had
increased from 3096 in 1993 to 3398 by 2014/5-2018/9. Within that five-year
mean there has been substantial fluctuation; 3546 in 2013/4, 3696 in 2014/5,
peaking at 4203 in 2015/6, reducing to 2998 in 2016/7, increasing to 3411 in
2017/8 and reducing to 2680 in 2018/9, so it is by no means clear that the
population of curlew on the SPA is not being maintained or that it requires
restoration or that it is not contributing to the conservation objectives of the SPA.
Of these numbers, the FLL report records that some 30-35 pairs of curlew (i.e. 60-
70 birds) regularly attempt to nest in traditional hay meadows along the entire
Severn and Avon river system north of Gloucester (not just at Coombe Hill). Even
if all the nesting birds were to come from the SPA, that would represent just about
2% of the numbers of curlew using the SPA. The vast majority breed elsewhere
(Scotland, northern England, Wales, Northern Ireland, other parts of the English
lowlands, the Netherlands, Lower Rhine, Finland, Sweden and Eastern Poland are
all mentioned in the FLL report).
The area around Coombe Hill is important as a roost before and after the breeding
season but appears to be less important for breeding. Coombe Hill is reported as a
strongpoint for breeding curlews but it is only one of many sites (at least thirteen
are named in paragraph 4.690 of the FLL report) sharing the 30-35 pairs identified
as nesting in the Severn and Avon valleys, so numbers are small at each individual
site and at Coombe Hill.
The FLL report names the hay meadows along the Avon from Tewkesbury to
Eckington as the area with the highest number of breeding curlew. It notes that of
the 30-35 pairs of curlew nesting in its study area, some 20 pairs nest in hay
meadows along the Avon north of Tewkesbury and about 15 pairs nest along the
Severn between Gloucester and Worcester (the area which includes Coombe Hill).
Again, in contrast to the decline seen across northwest Europe, the FLL report
notes that this population seems to have remained stable for the last 40 years. It
speculates that this is because there has been little change in farming methods in
the area.
No more than three pairs of curlew are reported to use the area around Coombe
Hill for nesting (FLL report, paragraph 5.267). That represents less than 0.09% of
the curlew using the SPA as part of its winter assemblage of waterfowl. That figure
is well within what might be the expected range of annual natural variation and
also within the likely range of accuracy of the enumeration methods for counting
curlew.
Natural England advises (in section B3 of its report NECR207) that “the extent to
which an effect might ‘undermine the conservation objectives’ where it occurs
beyond the boundary of the European site will be influenced by the role or function
that the area serves and its importance to the maintenance of the population for
which the site has been designated, classified or listed” and (in section B1 of the
same report) that “assessment will need to determine how critical the area may be
to the population of the qualifying species and whether the area is necessary to
maintain or restore the favourable conservation status of the species.” Even if all
three of these pairs of birds were prevented from breeding at Coombe Hill as a
result of disturbance caused by residents of the development proposed (as
opposed to disturbance caused by pre-existing conditions), whether alone or in
combination with other developments in the area, it would have almost no effect
on the maintenance of the population for which the SPA has been designated and
so there would be no practical effect on the integrity of the SPA or its conservation
objectives, let alone any significant effect.
Moreover, even that figure of 0.09% exaggerates the effect which the development
could have on the integrity of the SPA and its conservation objectives because
there is no evidence in the material before me that the curlews nesting at Coombe
Hill are successful in breeding. Rather, the evidence points to the opposite.
Paragraph 8.17 of Karen Colebourn’s evidence on behalf of the Borough Council
reiterates without contradiction the information given in the appellant’s Information
to Inform a Habitats Regulation Assessment; curlew nests were recorded within
35-150m of public footpaths around Coombe Hill in 2013 and 2016 but they did not
breed successfully then, nor since. Paragraph 4.688 of the FLL report notes that
productivity is low at all the Severn and Avon nesting sites because of habitat
change, predation and early hay cutting. The three colour-marked birds which the
FLL report notes as clearly demonstrating the links between the SPA and the
Severn and Avon Vales, normally attempted to breed at Queenhill (outside the
report’s study area), Haslam Ham and Upham Meadow respectively, not Coombe
Hill. One of the three birds surprised observers by moving from Upham Meadow to
Coombe Hill in 2019 where it “attempted to breed, almost certainly unsuccessfully”
(indicated by its early departure from the breeding area).
Existing issues of disturbance to birds in the area around Coombe Hill are noted in
paragraphs 5.260 to 5.262 of the FLL report. The canal provides a convenient out
and back walk popular with dog-walkers, facilitated by the provision of a car park
intended to serve the Gloucestershire Wildlife Trust’s reserve but generally
available for other users of the unusually intense network of footpaths through the
countryside in the vicinity. During my site visit I observed several parties arrive by
car and set off with their dogs. I overheard one couple remark that as the canal
path was very muddy they would instead let their dogs run in the adjacent fields.
It is those adjacent fields, not necessarily within the GWT’s reserve, that are used
by the curlew during the breeding season as the appellant’s plan ECO1 revision B,
contained within its Shadow Habitats Regulations Assessment, demonstrates. The
FLL report also notes that frequent helicopter overflights are an additional source of
disturbance.
For all the above reasons, I doubt that the area around Coombe Hill presently
contributes as much to the integrity and objectives of the SPA through
maintenance of the population of curlew on the SPA as would be implied by even
the minimal numbers of curlew attempting to breed at Coombe Hill. Consequently,
the adverse effects of the development proposed, either alone or in combination
with other developments, would be even less significant than the minimal extent
identified earlier. They would be reduced still further by the offer of alternative
dog-walking facilities on site and by publicity for alternative circular walks confined
to the east of the A38 and so not affecting curlew breeding areas.
But the objectives of the SPA are not just maintenance of populations of wintering
waterfowl but also their restoration. Paragraphs 5.263, 5.264 and 8.3 of the FLL
report suggest ways in which the area could be enhanced for waterfowl, including
more scrapes, the creation of buffer zones, footpath diversion and/or screening,
fencing and planting. The Gloucestershire Wildlife Trust has also made suggestions
for the enhancement of its reserve, including a warden scheme, which would
benefit the wider area, though it would be wrong to conflate the GWT’s reserve
with the wider area within which curlew seek to nest.
The burden of seeking to restore the contribution which the Coombe Hill area could
make to restoring the integrity and objectives of the SPA does not fall to this
appeal development alone. The responsibility lies in combination with other
developments in the area whose residents are also likely to make visits to the area
and so disturb wildfowl unless their presence is properly managed. But the sum of
£100,000 which is offered through the Unilateral Undertaking meets all the
requests which the GWT has made and so I conclude that it represents a
proportionate contribution to be made from this development.
In concluding this appropriate assessment I take into account condition (10(vi))
and the unilateral undertaking to Tewkesbury Borough Council which would require
open space provision on site offering an alternative dog-walking facility, a
homeowners pack publicising alternative walking routes, and a financial
contribution to the GWT. I find that the proposal would have no significant adverse
effects upon the integrity and conservation objectives of the Severn Estuary
Special Protection Area and Ramsar Site (the SPA) through recreational effects on
birds using Functionally Linked Land (FLL) in the vicinity of Coombe Hill. It would
have a proportionate beneficial effect through its financial contribution to the
management of visitors to the part of the area which is controlled by the GWT. It
would therefore comply with JCS policy SD9 (2(i)) which requires European and
National protected species to be safeguarded in accordance with the law.
The SSSI
I turn now to the other element of this issue, namely the SSSI. The Coombe Hill
Canal SSSI is designated for its nationally rare and scarce invertebrates and
nationally scarce plants. The invertebrate interest centres on beetles but flies and
a diverse fauna from other invertebrate groups are also present. Several
nationally scarce plants such as golden dock, corky-fruited water-dropwort, greater
dodder and true fox-sedge are listed in the citation. The citation also mentions
that the SSSI is also locally important for its diverse breeding bird assemblage,
particularly resident and migrant warblers and waders such as curlew and snipe.
None of the material before me expresses any concern about the effects of the
development proposed on the nationally rare and scarce invertebrates or on the
nationally scarce plants. Paragraph 3.8 of the Ecology Statement of Common
Ground asserts that impacts from the scheme are unlikely to give rise to a
significant effect on the interest features for which the Coombe Hill Canal SSSI is
currently notified. Only the effects on the locally important breeding bird
assemblage is of concern.
What is known about the breeding bird assemblage in the area is derived from the
authoritative FLL report referred to in an earlier section of this decision. But, care
must be taken to recognise that the FLL report covers a much more extensive area
than the GWT’s Coombe Hill Canal and Meadows Reserve, which is in turn much
more extensive than the SSSI and so, comments made in the FLL report do not
necessarily apply with equal force to the GWT reserve or to the SSSI.
The FLL report notes that in spring the wet fields of riverside meadows traditionally
provided nesting sites for waders notably lapwing, curlew, redshank and snipe. In
relation to breeding birds at Coombe Hill, the report mentions mallard, shelduck,
gadwall, tufted duck (a diving duck rather than a wader; one or two pairs),
lapwing, redshank, oystercatcher and curlew, though the site only ranks of high
importance in spring to gadwall and mallard and of moderate importance to
shoveler, tufted duck, whimbrel and ruff. It notes that in overall terms the success
of nesting attempts by all wader species in recent years has been very poor but
also records that despite the declining numbers of birds involved, Coombe Hill
remains one of the most important sites for breeding waders in the Severn Vale.
The SSSI citation is for a breeding bird assemblage, which would occur in
springtime. But the FLL report also notes that Coombe Hill has always been an
important site for wintering waterbirds such as swans, geese, ducks and some
waders like lapwing. Information about wintering birds may be gleaned from Table
1 of the appellant’s submitted Information to Inform a Habitats Regulations
Assessment which summarises the British Trust for Ornithology’s Wetlands Bird
Survey wintering bird data (also used in the FLL report) for the period 2013/4 –
2017/8. In order of frequency, the species recorded with a significant presence are
wigeon, teal, canada goose, greylag goose and pintail. None met nationally
important threshold numbers. The FLL report also mentions shoveler and
lapwings. It records the site’s importance in winter as high for shoveler, gadwall,
wigeon, mallard, pintail, teal and lapwing.
A third category of interest is transitory migratory birds. Notable at Coombe Hill
are black-tailed godwit and whimbrel. The FLL report mentions other species in
smaller numbers.
Not all birds are disturbed by human presence. Although the black-tailed godwit
demonstrates a functional link with the SPA (though not an SPA designated
species), it is not considered further in Karen Colebourne’s evidence for the
Borough Council because, as she writes in paragraph 9.4 of her proof, there is
“evidence that this species may not be significantly affected if disturbed while
feeding.” Mallard are also notoriously tolerant of human presence.
In recent years, the GWT has deliberately enhanced the meadows for breeding,
feeding and roosting wetland birds so as to be more compatible with human
visitors, for whom it provides car parking, hides and information boards.
Paragraphs 8.18 and 8.19 of Karen Colebourne’s evidence and paragraph 5.258,
5.259 and 5.261 of the FLL report describe the works. The northern meadows of
the GWT’s reserve have been acquired, a circular walk has been laid out and
signposted from the canal towpath. Two viewing hides have been provided along
with information boards and signage requesting dogs to be kept on leads. Ditches
have been deepened to create a no-go area where birds are free from disturbance.
Land is managed to cut hay late. The FLL report suggests further enhancements,
such as a mechanism to retain water levels in the scrapes over summer.
These measures already taken by the GWT help to secure their reserve against the
effects of disturbance which, as the FLL report notes, is a problem at Coombe Hill
because of the number of footpaths and the popularity of the canal as an out and
back walk for dogs. Earlier passages of this decision record my on-site
observations of the effects of the GWT’s car park in facilitating this activity.
A letter from the GWT to the Borough Council dated 14 December 2020 records
that its membership recruiters who have been stationed at Coombe Hill when
permissible during 2020 report 50 visitor groups a day in autumn, with the car
park being full for most of the day during good weather. Visitors included a mix of
demographics. Around one-third were dog walkers. They included locals as well
as residents from Gloucester, Tewkesbury and Cheltenham.
It is therefore clearly not the case that the Reserve is managed so as to exclude or
even to deter visitors, with or without dogs, or to restrict them to locals only, or to
accredited ornithologists. It is open to all, including dogwalkers, and that sets a
context within which any potential impact of the development needs to be
measured so that it can be managed and mitigated. Although the GWT’s letter
warns that it would reluctantly have to consider closing its reserve to the public in
order to protect its biodiversity features if necessary, that clearly is not its
intention. Rather, what is sought is adequate mitigation, including measures to
divert recreational demand.
In order to establish the effects of the development, it is not necessary to have
carried out a visitor survey of the existing use of the SSSI or the GWT’s reserve.
Knowledge of the patterns of usage of visitors to the reserve from the wider area in
general and the distance they have travelled may well be of use to the GWT in
deciding how to promote to the public and manage the reserve for the future. But
that knowledge is not necessary in order to ascertain the likely recreational
demand from residents of the appeal site and to judge how likely that recreational
demand is to be met by facilities provided on the appeal site as opposed to on the
GWT’s reserve.
The information needed to assess the scheme is provided in paragraphs 4.29 and
4.30 of the appellants’ Shadow Habitats Regulations Assessment. This estimates
that the development would generate between 23 and 46 dog walking trips per
day. If all were to be walked on the GWT reserve (crossing the A38 road and
descending and ascending a narrow, shared surface country lane to and from the
Wharf) to the exclusion of all other options, then something approximating a
doubling of dog walking on the reserve would ensue. In my view, that degree of
use would be unlikely given the greater convenience of a dog walking route to be
provided on site. On the other hand, I do accept that the dog walking route to be
provided on the appeal site would be unlikely to draw existing users away from the
GWT’s reserve as it would be on the wrong side of the A38 for most existing
residents of the hamlet.
The mitigation measures proposed would publicise alternative circular walks, at
least one of which involves no crossing of any main road and gives fine, eastward
views. The attractions and detractions of these alternatives are fairly stated in
paragraph 10.23 of Karen Colebourne’s proof, except that I did not find the
footpath along the wide verge of the A38 in front of Walton Grange Farm to be
narrow (though it is somewhat overgrown). Nor is the footway narrow alongside
the A4019 from Knightsbridge.
In combination, I consider that the provision of the dog walking route on site as
proposed, together with the publicity given to other alternative walking routes on
the development’s side of the A38 would go a considerable way towards dissuading
residents of the development from walking their dogs on the GWT reserve.
Nevertheless, there would inevitably be some residual increase in use.
The GWT has put forward proposals to deal with this, in an e-mail of 4 January
2021, including setting up a volunteer warden scheme at a cost of £7,900 pa for
five years and identifying some infrastructure changes that would better define
public rights of way and restrict access to the most sensitive bird habitat at a cost
of around £50,000, using volunteers and spreading the work over five years, all of
which seem to me to be reasonable and likely to be effective. In its unilateral
undertaking, the appellant has agreed to fund the GWT to a degree commensurate
with the estimated costs of the measures which the GWT seeks to put in place.
That all seems both necessary and reasonable and compliant with the CIL
regulations.
Taking that into account, I conclude that the effects of the proposal on the Coombe
Hill Canal SSSI would be acceptable. The proposal would comply with JCS policy
SD9 (2(i)) which requires European and National protected species to be
safeguarded in accordance with the law and with JCS policy SD9 (2(iv)) which
encourages the creation, restoration and beneficial management of priority
landscapes, habitats and populations of priority species, for example by securing
improvements to Strategic Nature Areas as set out on the Gloucester Nature Map.
Flooding
A few weeks before the opening of this Inquiry, the parties (in this instance, the
appellants and the County Council as Lead Local Flood Authority) agreed a
Statement of Common Ground on matters relating to Drainage and Flooding.
Essentially, the site drains to a ditch on its east side, which in turn flows through a
300mm diameter culvert underneath the A4019. From time to time the limited
capacity of the culvert causes water to back up the ditch, extend over adjoining
land (including the lowest part of the site and an adjoining dwelling known as The
Bellows) and flood over the A4019.
As the appeal proposal was applied for in outline, drainage details are not supplied.
Condition (8(iv)) would require their submission. The appellant’s Flood Risk
Assessment and Flood Risk Assessment Addendum have now convinced the Lead
Local Flood Authority that it would be possible to design a drainage system with an
attenuation pond unaffected by flood levels which would attenuate peak run-off
from the development so as to be 20% less than in its undeveloped state. In
consequence, flood levels would be at least 20mm lower than if the site were to
remain undeveloped, even if no alterations were made to the culvert under the
A4019.
As originally submitted, no improvement works or increasing capacity to the
existing pipe under the A4019 was envisaged so as to ensure that flood risk
downstream of the development would not be increased. But further study showed
that enlargement of the culvert to reduce flooding at the Bellows and on the lowest
part of the site still further would not increase downstream flooding because it
would simply mean that peak flows of water in extreme events would flow through
the culvert rather than over the road. The attenuation measures envisaged for the
on-site drainage would reduce peak flows in any event and so reduce downstream
flood risk slightly.
The provision of drainage details for subsequent approval can be required by
condition (8(iv)). The unilateral agreement makes provision for a financial
contribution towards the cost of enlarging the culvert. These arrangements appear
to be both necessary and reasonable and would comply with the CIL regulations.
With these arrangements in place I am satisfied that the effects of the proposal on
flooding on and off the site would be beneficial. The proposal would comply with
JCS policy INF2 which, amongst other matters, requires development proposals not
to increase the level of risk to the safety of occupants of a site, the local
community or the wider environment and, where possible, to contribute to a
reduction in existing flood risk.
Housing
There was a putative reason for refusal concerning the absence of a commitment
to provide affordable housing in the proposal as submitted but that could have
been resolved by a condition requiring the submission of a scheme of affordable
housing had permission been granted. In the current appeal, a Unilateral
Undertaking provides for 40% of the number of dwellings as affordable housing,
split 60:40 between affordable renting and shared ownership. The undertaking
would be necessary to ensure compliance with JCS policy SD12(1(ii)) which
requires a minimum of 40% affordable housing. It complies with the CIL
regulations and so I have taken it into account.
The Borough Council would have preferred the rented element to have comprised
social renting rather than affordable renting based upon its Local Housing Needs
Assessment of September 2020. But, although that shows a greater need for the
former rather than the latter, it does not show that the latter is not needed.
Consequently, the provisions of the Undertaking would still serve to satisfy local
affordable housing needs.
The Borough Council also had concerns about accessibility standards applied to
both market and affordable housing but JCS policies SD4(vi) and SD11(2(ii)) which
require new development to provide access for all potential users, including people
with disabilities, and for housing to be accessible and adaptable will continue to
apply to any reserved matters application which may be made. There is nothing to
suggest that the current outline application which is before me would contravene
any of those policies.
The point at issue during this Inquiry does not arise from any putative reason for
refusal but from a dispute about the significance of the benefit which would arise
from the provision of housing. The government seeks to boost the supply of
housing, so any housing proposal must be regarded as providing a degree of
benefit to set against any harm which the development may cause. The
significance of the benefit is judged by reference to the Borough’s housing need
and its performance in meeting that need.
At its simplest, the provision of up to 95 dwellings would represent approximately
19% of the annual average housing requirement ascribed to Tewkesbury by the
JCS, or nearly 4% of its averaged five-year requirement, or just under 1% of the
total housing requirement for Tewkesbury for the plan period. At typical roll-out
figures, the development would probably be developed over two years, so it would
contribute about 10% of Tewkesbury’s annual average requirement for each year
of a two-year period, which in turn represents about 10% of the JCS plan period.
In straightforward numerical terms, whichever way it is looked at, that is a
significant contribution to the supply of housing in Tewkesbury and therefore a
significant benefit.
The courts have held that greater significance should be given to the benefits of
housing provision, in proportion to the size of shortfalls in housing supply. In this
case, both parties are agreed that there is both a plan period shortfall of allocated
sites and also that the Council cannot demonstrate a five-year housing supply. In
a statement of common ground on housing need and supply the parties agree that
there was a plan period shortfall of 2455 homes on adoption of the JCS (25% of
the requirement for Tewkesbury) which is currently a plan period shortfall of 1525
dwellings (15% of the requirement for Tewkesbury). Hopes of closing that gap
through the emerging local plan and a review of the Joint Core Strategy can only
be aspirational at the current time and depend in part on approval being given to
the allocation and development of the current appeal site. For the purposes of this
appeal there remains a substantial shortfall in the identified housing land supply for
the plan period. This adds significantly to the significant benefit which has already
been identified as accruing to the appeal proposal.
The parties differ over the size of the shortfall in the five-year housing land supply.
The calculation of a five-year supply is made by reference to an averaging of the
plan period requirement. But, that does not reflect a reality in which supply can
fluctuate wildly year by year. Thus, the trajectory for Tewkesbury contained within
paragraph 7.1.36 of the JCS predicted a cumulative shortfall in delivery for the first
four years of the plan period. This shortfall would be erased by year five (thus
demonstrating an anticipated 6.3-year supply, on adoption, as stated in paragraph
7.1.19). Subsequently, there would be a considerable cumulative surplus in supply
lasting until 2024-25. Thereafter, a cumulative shortfall would arise requiring ever
more demanding annual requirements if the housing requirement for the plan
period were to be met.
That prediction of a wildly fluctuating supply seems to have turned out in practice.
The expected cumulative shortfall for 2024-5, is now expected to occur a year later
than anticipated, according to the Council’s December 2020 Housing Land Supply
Position Statement. It is reflected in the Council’s calculation of its five-year
supply. The Council’s claim of a 4.35-year supply would have been even lower had
it looked only to the future and not taken account of past performance exceeding
the annual average of the plan’s requirement. That seems to me to be a just
approach, because it reflects reality, not a theoretical formula applied without
consideration of actual outturns. Nevertheless, it should not blind one to the
pressing need to identify land for housing for the remainder of the plan period.
As is usual in these matters, the appellant seeks to throw doubt on the accuracy of
the Council’s calculation of its five-year supply by challenging the delivery
programme of two of its component sites. The evidence for the deliverability of
these two sites is contradictory but, in truth, it matters little. Whether the Council
has an identified supply of 4.35 years or a lesser figure if the two sites in
contention are discounted, the fact is that it simply does not have a five-year
supply now. Unless further sites for development are identified, either through
emerging local plans or through the development management process, it is likely
to have an even lower identified supply in future.
Consequently, in addition to enhancing the value which is placed on the benefit of
providing housing, the shortfall means that paragraph 11(d) of the NPPF applies.
This deems the policies which are most relevant for determining the application as
out of date. It applies the presumption in favour of sustainable development. This
means granting permission unless NPPF policies to protect areas or assets of
particular importance provide a clear reason for refusal or unless any adverse
effects of so doing would significantly and demonstrably outweigh the benefits
when assessed against the polices in the NPPF taken as a whole. This NPPF
paragraph is not disapplied by NPPF paragraph 177 because the appropriate
assessment carried out earlier has concluded that the project would not adversely
affect the integrity of the Severn Estuary SPA.
Schools
It is accepted by both parties that the effect of the proposal on the demand for and
provision of schools should be ascertained with reference to Department for
Education guidance, Securing developer contributions for Education (November
2019).3 Paragraph 3 of this guidance advises that it is important that the impacts
of development are adequately mitigated, requiring an understanding of:
• The education needs arising from development, based on an up-to-date
pupil yield factor;
• The capacity of existing schools that will serve development, taking
account of pupil migration across planning areas and local authority
boundaries;
• Available sources of funding to increase capacity where required; and
• The extent to which developer contributions are required and the degree of
certainty that these will be secured at the appropriate time.
Pupil yield factors (also known as pupil product ratios) are used to estimate the
numbers of children that would arise from a development. They should be based
on up-to-date evidence from recent housing developments. In Gloucestershire the
most up to date evidence from recent housing developments is to be found in what
is known as the Cognisant Study of 2019, examining 8690 dwellings at seven
settlements.
JCS policy INF6 requires that, in identifying infrastructure requirements,
development proposals will also demonstrate that full regard has been given,
where appropriate, to implementing the requirements of the JCS Infrastructure
Delivery Plan (the IDP) of 2014. As the IDP pupil yield factors are based on a
2007 assessment, they are no longer the most up to date evidence from recent
housing developments and so it is no longer appropriate to use them as a basis for
estimates of the effects of development on the demand for and provision of
schools.
However, the use of the Cognisant Study is itself problematic and has been
opposed, although not technically challenged, by some of the very bodies which
commissioned its production. It has produced results which are startlingly high
3 By following this advice, I have no need to come to a view on the allegation of the adoption by the County
Council of a “new formulaic approach” denounced in national Planning Practice Guidance.
when compared with previous figures for the area and with other local authority
areas. The reasons remain not fully explained.
The Cognisant Study appears to be based on survey results weighted to correct the
balance of participating returns so as to correspond with actual mix of dwellings of
different sizes on the developments surveyed. The survey was by face to face
interviews with residents who agreed to participate, so was self-selecting. There is
no report of any check on whether participants were representative of those who
chose not to participate (perhaps because they had no children and so would not
have been interested in a survey intended to establish child product ratios) nor any
consequent weighting. Nor, as Mr Tiley points out, was any adjustment made for
second homes or vacant dwellings. It would be wrong to presume that new
developments are immune from the vicissitudes of life which cause dwellings to
become vacant. For both these reasons, the child product ratio identified by the
Cognisant Study will have been exaggerated. Nevertheless, it is the best and most
recent evidence available.
In translating its child product ratios into pupil product ratios, the advice of
paragraph 13 of the DfE advice is relevant. It does not require their moderation
with regard to their effects on the viability of a development but it does observe
that; “All education contributions are based on an assessment of probability and
averages, recognising that the precise mix of age groups and school choices cannot
be known before a development is built.”
By contrast, the County Council’s pupil product ratios take a fail-safe approach (or
worst case scenario as the County Council’s advocate described it in paragraphs
52, 56 and 57 of his closing submissions) of seeking to ensure provision for all
contingencies rather than an assessment of probability and averages.
Consequently, as Mr Tiley points out, no allowance is made for parents who may
choose to have their children educated outside of the state sector4. Paragraph 102
of the County Council’s previously adopted Local Developer Guide noted that child
yield was reduced to take account of these factors but the emerging Local
Developer Guide (now adopted) does not. This omission contributes to exaggerate
further the pupil product ratios used by the County Council5.
This particular cause of exaggeration would apply forcefully to early years
calculations where, although local authorities have a duty to ensure early years
childcare provision within the terms set out in the Childcare Acts and the DfE has
scaled up state funding of early-year places, many early years settings fall within
the private, voluntary and independent (PVI) sector, as paragraph 9 of the DfE
advice points out. But the exaggeration also applies, to a lesser degree, to the
primary and secondary sectors.
Finally, as Mr Tiley correctly points out, the County Council’s calculations of pupil
product ratios take no account of the fact that most house moves take place over
short distances with the result that many prospective child residents are already in
attendance at Gloucestershire schools and would not be new to the system. The
County’s view that such house moves would be backfilled by new residents with
equal demands on the school system is mistaken because, as is well known,
average household sizes nationally are falling as a result of the fragmentation of
families, delays in family formation and the greater longevity of elderly households
whose children have left home. Gloucestershire is not exempt from these
phenomena.
4 Although Mr Chandler, at paragraph 6.12 of his evidence, asserts that the Cognisant study only took account of
pupils educated in state schools.
5 I do not need to consider arguments about the status of the County Council’s Local Developer Guide. What
matters are the pupil product ratios themselves, not the vehicle in which they travel.
For all the above reasons, together with the County Council’s record of
overestimation of numbers of pupils in its forecasts6, I am not convinced by the
County Council’s calculations of the pupil demand likely to arise from the proposal.
I find Mr Tiley’s calculations more convincing, supported as they are by the “sense
check” of the NEMS Market Research survey and by comparisons with other Local
Education Authority areas. Nevertheless, in case I am mistaken, and to ensure the
robustness of my decision, for the purposes of the remainder of this section of my
decision, I use the “worst case scenario” of the County Council’s figures, as does
the appellant’s expert, Mr Tiley; 28.5 pre-school places, 39 primary school places,
19 secondary school places and 6.5 post-16 places.7
The second bullet point of the DfE advice is to examine the capacity of existing
schools that would serve the development. There is further DFE advice on how this
is to be done in the form of its School Capacity Survey 2019 Guide to forecasting
pupil numbers in school place planning. Projections of pupil numbers are to be
made for primary years (reception to year 6) and for secondary years (years 7 to
11 (or 13 where schools have sixth forms)) using one set of planning areas for the
primary projections and a second set for secondary years.
The planning areas should be mutually exclusive groups of schools that represent
admissions patterns and reasonable alternatives to one another. National Planning
Practice Guidance similarly refers to a need to consider school capacity within the
relevant school place planning areas. There is no suggestion that the examination
of capacity should be limited to only one primary and one secondary school to
serve the development, yet this is what the County Council has done in basing its
attitude towards the development on the view that Norton Primary School and All
Saints Academy secondary school lack the capacity to serve the development.
In fact, in the current case, even to base an assessment on school planning areas
rather than individual schools may be unrealistic because the site is located on the
cusp of three primary school planning areas (Churchdown/Innsworth school
planning area D35, Tewkesbury school planning area D10 and Hesters Way
Cheltenham school planning area D32) and two secondary school planning areas
(Tewkesbury D48 and Cheltenham D53). It lies within but close to the edges of
Churchdown/Innsworth primary school planning area and Tewkesbury secondary
school planning area.
The County Council seeks to justify its choice of examining capacity in a more
limited way with reference to the distance to be travelled (incurring less public
expenditure on transport costs) and the desirability, in terms of social cohesion, of
accommodating all the pupils deriving from the development at a single school. I
am not persuaded by these arguments for the following reasons.
Firstly, they do not appear to take account of parental choice. Secondly, in terms
of social cohesion, there is no evidence to suggest that all present child residents of
Coombe Hill attend the same primary and secondary schools together. Not all
parents would support such attempts at social engineering in any event. Thirdly,
Norton, at a distance of 2.9 miles from the appeal site may be the closest primary
school to the appeal site but that is still at a distance which primary school children
are unlikely to walk (although a footpath is provided the full length of the A38, it is
not continuously on the same side of the road and so would require crossing the
main road twice between Coombe Hill and Norton, an implausible proposition for
unaccompanied children of primary school age) and so motorised transport is
likely. If transported by car, the differences in distances involved (3 miles to
Tredington, 3.2 miles to the other options) are unlikely to figure largely in parents’
6 Demonstrated in amended figures 10.3 and 10.4 of Mr Tyler’s evidence
7 Paragraph 7.5 of Mr Chandler’s proof of evidence
choices. If transported by public transport, the greater frequency of bus services
to John Moore Primary School, even with a five minute walk to and from the bus
stop, is likely to make an accompanied round trip more convenient than using the
less frequent service to Norton. Fourthly, the difference in travel times and
distances between the two secondary schools in contention; All Saints Academy
(3.2 miles) and Tewkesbury School (4.7 miles) is again unlikely to be
determinative of parental choice.
For all the above reasons, I am persuaded more by the appellant’s approach to
analysis of school capacity available to serve the development than by the County
Council’s analysis. There is a further dispute between the parties as to whether
capacity means 100% occupancy of a school or (as the County Council argues)
95%. I accept the advice given in the Audit Commission’s publication Trading
Place: the Supply and Allocation of School Places that a sensible approach would be
to plan for a 95% occupancy rate at schools and accept some variation, say plus or
minus 10% around this target. That is to say that capacity means a figure of
between 85 and 105% occupancy. In practice, it does not make any difference to
the outcome in this case, when assessed across school planning areas or groups of
proximate schools.
For pre-school provision, I note that paragraph 2.23 of the Statement of Common
Ground on Educational Contributions acknowledges that “capacity may be available
to meet demand.” Nothing that I subsequently heard during the Inquiry causes me
to reach a different conclusion. The SOCG notes that the utilisation of that
capacity must be funded but that is an ongoing revenue cost. It is incurred
whether the capacity is used by residents of existing or new development. Insofar
as it is publicly funded, it is publicly funded from the taxes or rates of both new
and existing residents as a revenue cost. There should not be an expectation of
any capital contribution from new development on that account.
For primary schools, even using the County Council’s exaggerated pupil product
ratios, there would be sufficient capacity in 2023 within the Churchdown/Innsworth
primary school planning area in which the appeal site lies to absorb the demand
arising from the development without the need for expanding accommodation
(between 92 and 203 spaces available, 39 required, resulting in 89.8-96.7%
occupancy). Alternatively, looking across primary school planning areas to the
nearest primary schools to the appeal site, there would be sufficient capacity to
absorb the demand arising from the development without the need to expand
accommodation. Indeed, one school (Queen Margaret Primary School) could
accommodate all the children arising from the development without exceeding 95%
occupancy.
Similarly, for secondary schools and sixth form demand, even using the County
Council’s exaggerated pupil product ratios, there would be sufficient capacity within
the Tewkesbury Secondary School planning area in which the appeal site lies to
accommodate the demand arising both from the development and from other
committed developments, without any need for expanded premises. Tewkesbury
School itself is forecast to have a surplus capacity of at least 373 places in 2024/5,
more than sufficient to accommodate pupils expected to arise from other
committed developments (161.5) as well as those which the Council expects to
arise from the appeal proposal (19).
The Council argues that the capacity should be reserved for other allocations in its
emerging Local Plan but there is no guarantee that they would be found sound or
come forward, nor any reason why capacity should be reserved for those
prospective developments rather than for the appeal in hand. Appraisals of the
consequences of demand arising from new development are usually made on the
basis of actual proposals as applications are made, together with committed
permissions. On that basis, there would be no shortfall requiring the appeal
proposal to contribute to an expansion of capacity.
I therefore conclude that the effects of the proposal on the demand for and
provision of schools would be acceptable without the need for any provision of
expanded facilities. The appeal proposal would comply with Policy GNL11 of the
Tewkesbury Borough Local Plan to 2011 (adopted March 2006) and Policies INF4,
INF6 and INF7 of the Gloucester, Cheltenham and Tewkesbury Joint Core Strategy
2011 – 2031. Amongst other matters, these require that planning permission will
not be given unless the infrastructure and public services necessary to enable the
development to take place are available.
It follows that I do not need to consider the third and fourth bullet points of the DfE
advice on securing developer contributions for Education. It also follows that the
provisions of the Unilateral Undertaking for financial contributions to be made in
respect of Education contributions (the pre-school years contribution, the primary
education contribution, the secondary education contribution and the sixth form
education contribution) are unnecessary and so, do not meet the statutory tests of
the CIL regulations. I have therefore taken no account of them in reaching my
decision.
It also follows that I do not need to opine on a matter which took a considerable
amount of inquiry time. That issue was the propriety and reasonableness of
levying a CIL charge (apparently introduced and originally justified on the basis of
raising money to be spent on the provision of education but subsequently the
subject of a decision to divert the revenue to other causes) whilst simultaneously
seeking contributions to education capital expenditure through planning
obligations.
Open space, outdoor recreation, sports and community facilities
The County’s case for seeking a financial contribution towards the provision of
additional or improved library facilities in Tewkesbury to serve the development
was not contested and appears to be well-founded. The inclusion of a financial
contribution for this purpose within the Unilateral Undertaking would satisfy the
need to make such a contribution towards the provision of that particular
community facility. It appears to be necessary to make the development
acceptable in planning terms, directly related to the development and fairly and
reasonably related to it in scale and kind and so it would comply with the CIL
regulations.
Paragraphs 1.26 and 5.2 and Schedule 3 of the Unilateral Undertaking to the
Borough Council commit the developer to provide no less than 2.4ha of public open
space on site, designed in such a manner as to encourage recreation activity to be
diverted away from the Coombe Hill Canal SSSI, including a Locally Equipped Area
for Play (LEAP) and laid out prior to the first occupation of any dwelling on site.
The undertaking also makes provision for future maintenance of the open space.
These arrangements would exceed the requirements of policy RCN1 of the
Tewkesbury Local Plan to 2011 adopted in March 2006, which specifies a quantity
of open space to be provided on site in proportion to the expected population,
amounting to a total of 0.28 ha in this case. The proposals would comply with
policies INF4, INF6 and INF7 of the Gloucester, Cheltenham and Tewkesbury Joint
Core Strategy 2011 – 2031. Amongst other matters, these require that planning
permission will not be given unless the infrastructure and public services necessary
to enable the development to take place are available.
The quantity of open space proposed would also be adequate to serve the site
under development adjacent to the Swan public house at Coombe Hill and so the
arrangements would also comply with policy COO1 of the emerging local plan
which would require accessible open space to be provided on site for use by the
wider community, contribute to the wider green infrastructure network envisaged
by the JCS, deliver biodiversity net gains and mitigate against increased
recreational pressures on the Coombe Hill Canal SSSI.
These arrangements set out in the Unilateral Undertaking would be necessary to
make the development acceptable in planning terms, would be directly related to
the development and would be fairly and reasonably related to it in scale and kind.
They would therefore comply with the CIL regulations and so I have taken them
into account in making this decision.
Other matters
A built heritage statement submitted with the application identifies a minor degree
of harm to be caused to a Grade 2 listed building, Grange Farm Barn at Walton
Grange Farm, to the north of the site. This might be thought to trigger the
statutory duty set out at s66 of the Planning (Listed Buildings and Conservation
Areas Act 1990) to have special regard to the desirability of preserving the building
or its setting or any features of special architectural or historic interest which it
possesses.
There is no suggestion that the development would have any effect on the
preservation of the listed building but its setting does need to be considered. The
barn can be seen across the site from the A4019 but, in that view, it can be seen
that the barn is set within a huddle of buildings which comprise the farm complex
and which is itself a part of the group of buildings which comprises the
northernmost element of the scattered Coombe Hill settlement.
I do not demur from the opinion expressed in the appellant’s built heritage
statement that the primary experience of the listed building is in the immediate
setting of its surrounding farm complex. Although the appeal site currently makes
a minor positive contribution as a small part of the wider agricultural landscape
which surrounds the hamlet of which the barn and farm buildings are a part, the
essential character of the barn is that it is set within that hamlet and is not free-
standing within the countryside.
Similarly, I concur with the conclusion of the built heritage statement that overall,
the proposed development will likely result in a minor degree of harm to the
significance of the Barn through a change to the wider setting of the heritage asset
and the erosion of part of the wider agricultural context. Nobody other than the
appellants’ own consultant has commented on this matter and so I conclude that
the harm would be so much less than substantial as to be practically imperceptible.
Nevertheless, it is a harm to be weighed against the public benefits of the proposal
which I do in the concluding section of this decision.
Planning balance
As it turns out, subject to some of the Unilateral Undertakings and with the
conditions attached to this permission, the planning balance is almost entirely one-
sided. The site is an entirely appropriate location for new development of the scale
proposed. There is nothing in the material before me to demonstrate that the
effect of the quantity of development proposed on the character and appearance of
the area need be anything other than acceptable. There would be an almost
imperceptible degree of harm to the setting of a listed building. The proposal would
have no significant adverse effects upon the integrity and conservation objectives
of the Severn Estuary Special Protection Area and Ramsar Site. The effects of the
proposal on the Coombe Hill Canal SSSI would be acceptable.
The proposal would not increase the level of risk to the safety of occupants of the
site, the local community or the wider environment and would contribute to a
reduction in existing flood risk. The housing to be provided would make a
significant contribution to the supply of housing in Tewkesbury. Its benefit would
be enhanced when considerations of both the inadequacy of supply inherent in the
local plan and shortfalls in the current five-year housing land supply are taken into
account. The effects of the proposal on the demand for and provision of schools
would be acceptable without the need for any provision of expanded facilities.
Provision for open space, outdoor recreation, sports and community facilities would
meet and exceed development plan requirements. Overall, the public benefits of
the proposal would clearly outweigh any minor harm to the setting of the nearby
listed building and so the appeal should be allowed.
Conditions
The parties suggested thirty-six conditions which they felt might be necessary in
the event of my allowing the appeal. I have considered these in the light of
national guidance and the tests set out in the NPPF, preferring where appropriate
the model wording of the annex to the otherwise superseded circular 11/95, the
use of conditions in planning permissions.
The first three conditions are required by law. The fourth applies the decisions of
the courts in respect of parameter plans and is necessary to give effect to the
appellants’ request for the access to the site to be considered in detail. Condition
(5) is necessary because the effects of the development have been considered in
relation to a maximum number of dwellings.
Conditions (6), (7) and (8) are pre-commencement conditions necessary to secure
details (or the implementation of details) of matters which would not necessarily be
included in reserved matters. Some of these requirements (e.g condition 8(ii) are
recommended by the appellants’ consultants). Other requirements of these
conditions are necessary to comply with an aspect of development plan policy.
Conditions (9) and (10) are likewise intended to secure details (or the
implementation of details) of matters which would not necessarily be included in
reserved matters but which do not need to be pre-commencement conditions.
Condition 11 is necessary because Coombe Hill currently has no street lighting and
the Parish Council is anxious to retain that rural characteristic; the condition would
allow the Borough Council to give careful consideration to the characteristics of any
lighting scheme proposed.
I have not included a requirement for the submission of a design principles
document because I have found the previously submitted DAS to be adequate in
establishing principles of design. JCS Policies SD3, SD4 and SD6, which apply
design considerations, will continue to apply to reserved matters applications and
to applications for the discharge of conditions; approval of this outline application
does not override the need to comply with those policies when detailed applications
are made.
Nor have I included a requirement for the submission of precise details or samples
of external facing, roofing or hard surfacing materials because appearance is a
reserved matter, details of which are anyway required by condition (1). The
definition of appearance in the DMPO includes architecture, materials, decoration,
lighting, colour and texture.
Likewise, I have not included a condition requiring the submission of details of
boundary treatment because landscaping is also a reserved matter defined in the
DMPO as including screening by fences, walls or other means. For similar reasons,
other than the imposition of condition (7) applying the tree protection
recommendations of the appellants’ consultant, I have not included the suite of
suggested conditions relating to landscaping and landscaping management plans
because landscaping is a reserved matter, detailed submissions of which are
required anyway by condition (1) and which may obviate the necessity of the
additional conditions suggested. If the detailed submissions give rise to the need
for further conditions, they can be applied at that stage.
I have not included conditions requiring a survey of visitors to the Coombe Hill
Canal and Meadows nature reserve for reasons explained earlier or for the
preparation of a visitor management plan because that is best left to the discretion
of the Gloucestershire Wildlife Trust. I have not included conditions requiring the
provision of open space because that is required by the Unilateral Undertaking
given to the Borough Council. The provision of a LEAP is shown on plan 2 attached
to the Undertaking, forming part of the definition of On Site Open Space in
paragraph 1.26 of the obligation.
I have included condition 10(vi) because I am not entirely satisfied that the
provisions of the Unilateral Undertaking to Tewkesbury Borough Council which
would provide the Council with money to be used towards the preparation and
provision of household information packs for each dwelling would necessarily
ensure that each household would receive the packs containing the appropriate
material as intended. Much of the intended content of the packs would need to be
derived from material contained within the appellants’ consultants’ documentation
and it would be the appellants who would have knowledge of the intended first
occupation dates of each dwelling, so I do not think it would be sufficient simply to
devolve responsibility to the Council by means of a payment.
P. W. Clark
Inspector
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Meyric Lewis Of counsel, instructed by Jeremy Patterson of
Tewkesbury Borough Council
He called
Karen Colebourn Director and Principal Ecological Consultant at
BSc(Hons) FCIEEM Ecological Planning & Research Ltd (EPR)
Alice Goodall BSc MA Urban Design Officer, Tewkesbury Borough
MRTPI Council
Hannah Millman Joint Core Strategy Planning Policy
B.Sc.(Hons), MSc, Manager
MRTPI
Paul Hardiman Community Infrastructure Levy (CIL) Manager
LLB(Hons), PG Dip, for the three Joint Core Strategy (JCS) Councils
MBA, MSc, CMILT, of Cheltenham Borough, Gloucester
MRTPI City and Tewkesbury Borough
Rachel Hill and Gary Spencer took part in the discussion on obligations and
conditions
FOR THE COUNTY COUNCIL:
Douglas Edwards QC instructed by Bridgette Boucher, Senior Lawyer,
Gloucestershire County Council
He called
Stephen Chandler Place Planning Manager, Gloucestershire County
BSc(Hons) Council
Liz Fitzgerald BA(Hons) Barker Parry Town Planning
DipTP MRTPI
Bridgette Boucher and Stephen Hawley took part in the discussion on obligations
and conditions
FOR THE APPELLANT:
Paul G Tucker QC Assisted by Constanze Bell, of Counsel,
instructed by David Hutchison of Pegasus Group
He called
Tim Goodwin BSc(Hons) Director, Ecology Solutions
MSc MIEnvSc MCIEEM
Neil Tiley BSc(Hons) Director, Pegasus Group
AssocRTPI
Paul Harris BA DipLA Director, MHP Design Ltd
CMLI
David Hutchison Executive Planning Director, Pegasus Group
BSc(Hons) DipTP MRTPI
Robyn Evans took part in the discussion on obligations and conditions
INTERESTED PERSONS:
Colin Withers Coordinator of Leigh Parish Neighbourhood Plan
John Arkell Leigh Parish Council
Mike Smart Ornithologist
Andy Eagle Local resident
Additional DOCUMENTS submitted during the Inquiry
1 Notification letters of date, time and nature of Inquiry
2 Ecology Statement of Common Ground
3 Statement of Common Ground on Educational Contributions
4 Statement of Common Ground on Housing Need and Supply
5 Statement of Common Ground on Matters relating to Drainage
and Flooding
6 Planning Statement of Common Ground
7 Pre-Action Protocol letter from Robert Hitchins Group dated 15
March 2021 re Gloucestershire CC Local Development Guide
8 Response dated 22 March 2021 from Gloucestershire CC to Pre-
Action Protocol letter
9 Mike Smart; Comments on ecological issues
10 Letter dated 23 March from Dr Gareth Parry of Gloucestershire
Wildlife Trust
11 Gloucester County Council CIL Compliance Statement dated 9
February 2021 (150 unit scheme)
12 Submission from Andy Eagle dated 24 March 2021
13 Natural England clarification of differences between editions of the
Functionally Linked Land report
14 Gloucestershire County Council CIL Compliance Statement dated
24 March 2021 (95 unit scheme)
15 Natural England email confirming no material changes relating to
Curlew or to Coombe Hill between editions of Functionally Linked
Land report
16 Tewkesbury School Capacity
17 Borough Council CIL Compliance Statement
18 Report and Appendix B to Gloucestershire County Council Cabinet
24 March 2021 recommending adoption of revised Local
Development Guide
19 Joint Statement of Mr Chandler and Mr Tiley
20 Technical Note: Drainage and Flood Risk
21 E-mail dated 16 April 2021 attaching Pioneer Property Services
Briefing Paper: Affordable Housing Proposal
22 E-mail dated 18 April 2021 from Liz Fitzgerald confirming GCC’s
no comment on Technical Note: Drainage and Flood Risk
23 Inquiry Note; The potential regional park
24 JCS Green Infrastructure Strategy June 2014
25 E-mail from Borough Council concerning contaminated land
26 Appellant’s response to e-mail concerning contaminated land
27 Completed Unilateral Undertaking to Tewkesbury Borough Council
28 Completed Unilateral Undertaking to Gloucestershire County
Council
CONDITIONS
1) Details of access (other than that approved in condition (4) below),
appearance, landscaping, layout, and scale of each phase of development
(hereinafter called "the reserved matters") shall be submitted to and
approved in writing by the local planning authority before any
development of the relevant phase takes place and the development shall
be carried out as approved.
2) 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.
3) The development hereby permitted shall be begun either before the
expiration of five years from the date of this permission, or before the
expiration of two years from the date of approval of the last of the
reserved matters to be approved, whichever is the later.
4) The development hereby permitted shall be carried out in accordance
with the following approved plans: site location plan reference 100.P.1.2,
Land Use, Access & Movement Parameters Plan reference P20-1585_03
REV: A, Building Heights Parameters Plan reference P20-1585_04 and
unnumbered drawing included at Appendix D of the submitted Transport
Assessment by Wood Environment & Infrastructure Solutions UK Limited
entitled Access Junction and Visibility Splays.
5) The development hereby permitted shall provide no more than 95
dwellings.
6) No development shall take place until details of the following have been
submitted to and approved in writing by the local planning authority;
(i) the phasing of development and the numbers of dwellings of each size
and type to be provided within each phase of development.
(ii) off-site highway works, namely; widening of footway to 2m on A38;
bus stop improvements on A38; bus stop signage and marking
improvements and; informal crossing of A38.
(iii) a Construction Management Plan and Construction Waste
Management Plan and Construction Ecological Management Plan.
(iv) notwithstanding the submitted archaeological evaluation report by
Worcestershire Archaeology, a programme of archaeological work in
accordance with a written scheme of investigation which has been
previously submitted to and approved in writing by the local planning
authority.
The development shall be carried out in accordance with the approved
details.
7) No development on any phase of development shall take place until the
tree protection measures detailed in the arboricultural impact assessment
and tree protection plan, drawing number 19228.502, relevant to the
phase in question, included as Appendix 4 of the submitted Arboricultural
Survey, Impact Assessment and Protection Plan by MHP arboricultural
consultants have been put in place. The tree protection measures shall
be retained in place until the completion of the relevant phase of
development.
8) No development on a phase of development shall take place until details
of the following in relation to that phase have been submitted to and
approved in writing by the local planning authority;
(i) existing and proposed ground levels and finished floor levels above
ordnance survey datum.
(ii) mitigation measures to achieve compliance with BS8233:2014
recommended internal and external noise levels.
(iii) notwithstanding the findings of the submitted Preliminary
Geotechnical Design Report, any remedial measures which may be
identified following an examination (in accordance with a methodology
previously submitted to and approved in writing by the local planning
authority) of potential contamination (a) by polycyclic aromatic
hydrocarbons migrating from the adjacent petrol filling station and (b)
from two septic tank locations identified in the submitted Preliminary
Geotechnical Design Report.
(iv) Foul and surface water drainage.
(v) Construction and loading capacity of the highways.
The development shall be carried out in accordance with the approved
details.
9) No development above ground on a phase of development shall take
place until details of the following, in relation to the relevant phase, have
been submitted to and approved in writing by the local planning
authority;
(i) Facilities for the storage of waste, refuse and recycling materials for
each dwelling.
(ii) Secure and covered cycle storage facilities for each dwelling.
The development shall be carried out in accordance with the approved
details, which shall thereafter be retained for their intended use.
10) No dwelling shall be first occupied until the completion and bringing into
use of the following;
(i) The off-site highway works referred to in condition 6 (ii).
(ii) Its means of access for vehicles, cycles and pedestrians.
(iii) Its associated vehicle parking.
(iv) An associated electrical vehicle charging point.
(v) A full Travel Plan which shall have been previously prepared,
submitted to and approved in writing by the local planning authority.
(vi) A scheme of providing each dwelling with a Homeowner Information
Pack detailing the location and sensitivities of the Coombe Hill Canal SSSI
and the GWT’s Coombe Hill Canal and Meadows Nature Reserve and
alternative dog walking and recreational facilities.
11) No street lighting or other external lighting shall be installed without the
prior submission of details to, and written approval of, the local planning
authority. The development shall be carried out in accordance with the
approved details.
12) No more than 40 dwellings of the development hereby permitted shall be
occupied until the approved (as shown in PFA Consulting drawing ref
H605-0101D General Arrangement), or approved alternative, scheme for
the A40 Longford Roundabout has been implemented and is open to
traffic.