Case Reference: 3259868

Costs Report to the Secretary of State for
Communities and Local Government
by Mrs J A Vyse DipTP Dip PBM MRTPI
an Inspector appointed by the Secretary of State
Date: 7 July 2021
TOWN AND COUNTRY PLANNING ACT 1990 (AS AMENDED)
APPEAL MADE BY
A C GOATHAM AND SONS
AGAINST
MEDWAY COUNCIL
Inquiry opened on 15 February 2021
Pump Lane, Rainham, Gillingham ME8 7TJ
File Ref(s): APP/A2280/W/20/3259868
https://www.gov.uk/planning-inspectorate
File Ref: APP/A2280/W/20/3259868
Pump Lane, Rainham, Gillingham ME8 7TJ
• The application is made under the Town and Country Planning Act 1990, sections 78 and
320, and the Local Government Act 1972, section 250(5).
• The application is made by Medway Council for a partial award of costs against A C
Goatham and Sons.
• The Inquiry was in connection with an appeal against the refusal of planning permission
for redevelopment of land off Pump Lane to include residential development comprising up
to 1,250 residential units, a local centre (with final uses to be determined at a later stage)
a village green, a two form entry primary school, a 60 bed extra care facility, an 80 bed
care home and associated access (vehicular, pedestrian, cycle).
Summary of Recommendation: That the application for a partial award of
costs be granted in the terms set out below.
Documents handed up to the Inquiry (Inquiry Documents) are listed at
Annex B below and are prefixed with ID. Core Documents, listed at Annex C,
are prefixed with CD. Both sets of Documents can be accessed via the
electronic Inquiry library https://rapleys.com/lower-rainham-appeal/
1. The Submissions for Medway Council1
Introduction
1.1 This application is procedural in nature, based upon the Appellant’s unreasonable
behaviour of proposing multiple, substantive additional off-site highways
mitigation part-way through the Inquiry, which necessitated a lengthy
adjournment. That behaviour directly caused the Council to occur unnecessary
and wasted costs in the appeal process.
1.2 In general terms, they cover the additional costs incurred in assessing, and
responding to the additional highways mitigation, the wasted costs of earlier MAM
assessments which were effectively superseded, and the additional costs of the
adjourned Inquiry.
Relevant Factual Background
1.3 As is confirmed in the Addendum Highways Statement of Common Ground
(AHSoCG)2 the Transport Assessment (TA)3 submitted with the planning
application in June 2019 proposed three separate instances of off-site highway
mitigation (the original mitigation). That comprised:
• widening of Lower Rainham Road at the roundabout with Yokosuka Way
and Gads Hill (Dwg No 20230-10A);
• an additional lane on the A2 eastbound at the signalised junction with Bloors
Lane and PlayFootball (Dwg No 20230-09A); and
• signalisation of Pump Lane under the railway (drawing 20230-05A).
1 ID47
2 ID42
3 CD5.25
https://www.gov.uk/planning-inspectorate Page 1
1.4 The applicant relied on the introduction of these off-site mitigation works to
contend that the potential impact of the development proposals on the local
highway network would be “sufficiently alleviated.”4
1.5 The original mitigation constituted the entirety of the off-site highway mitigation
works proposed by the Appellant throughout both the application and appeal
processes until additional mitigation was proposed mid-way through the Inquiry.5
The Council assessed the impact of the scheme on the local highway network,
taking account of the original mitigation. In particular, as is again agreed within
the AHSoCG,6 the Council took account of the original mitigation in every
iteration of their Medway Aimsum Modelling (MAM) assessments of the scheme,
namely:
• Lower Rainham Site Sensitivity Tests (December 2019)7
• Pump Lane and Lower Rainham Transport Impact Appraisal (Impact
Appraisal) (October 2020)8
• Impact Appraisal Addendum (December 2020)9
• Impact Appraisal Addendum 2 (January 2021)10
1.6 In addition, the Council’s evidence to the Inquiry (specifically the proofs of
evidence of Messrs Jarvis and Rand,11 as well as the rebuttal proof of Mr Jarvis12)
proceeded on the basis that the original mitigation was exhaustive of the off-site
highways mitigation proposed by the Appellant, and it was the Appellant’s case
that this level of mitigation was considered adequate to sufficiently mitigate the
impacts of the proposal (a contention with which the Council has always
fundamentally disagreed).
1.7 The same is true of the Appellant’s own evidence. In his original proof, Mr
Tucker specifically relied on the original mitigation,13 and went as far as to state
that “[t]he scheme is demonstrably sufficient. Indeed, it will exceed what is
required in so far as it will clearly give rise to net improvement.”14
1.8 However, on the afternoon of 23 February 2021, in the second week of the
Inquiry and the day before the highways evidence was due to begin, the
Appellant submitted to the Inquiry a document entitled ‘A2 Junction Review.’15 As
Mr Tucker accepted in cross-examination, this document was submitted without
any forewarning to the Council.
4 See Planning Statement [CD5.11], para 6.80 and the TA (CD5.25) paragraphs 1.5, 6.2.4, 6.2.14-15
5 No further off-site highways mitigation works were proposed in Technical Notes 1-4 (CDs 6.2, 6.7, 6.11 and 12.6
respectively) or elsewhere.
6 ID42 paragraph 1.3
7 CD12.10
8 CD12.1
9 CD12.3
10 CD12.2
11 CD10.9 and CD10.10 respectively
12 CD10.16
13 Appendix ST5 set out the Off-site Junction Mitigation proposed, which included drawings 20230-09A and 20230-
10A. It is assumed that drawing 20230-05A was omitted from ST5 in error.
14 Mr Tucker PoE (CD10.4) paragraph 6.7.5
15 ID39
https://www.gov.uk/planning-inspectorate Page 2
1.9 Notwithstanding the title, the document in fact (as is agreed in the AHSoCG)16
proposed additional off-site mitigation works, namely:
• mitigation work at Bowaters Roundabout - configuration of the Toucan
crossing east of the roundabout and additional lane capacity as shown
on drawing 20230-17;
• mitigation work at Will Adams Roundabout - Lane markings & additional
lane capacity as shown on drawing 20230-18.
1.10 Once it became apparent that the Appellant was seeking to propose additional
off-site mitigation works which had not previously been the subject of MAM
assessment, the Council confirmed that there were two potential ways forward:
either to withdraw the A2 Junction Review and proposed additional off-site
mitigation (and proceed on the basis of the original mitigation, which had been
subject to assessment) or alternatively, that an adjournment would be required
to enable the Council to assess the impact of the additional off-site mitigation
works.17
1.11 After taking instructions, Counsel for the Appellant confirmed that his client
wished to rely on the additional off-site mitigation works.18 The Inspector
accepted the Council’s submission that this meant an adjournment was
necessary, and that this would necessitate hearing all of the highways evidence
at the resumed Inquiry at a date to be arranged.19
1.12 As is recorded in the AHSoCG, the additional off-site mitigation works proposed
by the Appellant developed yet further following the adjournment:
• Firstly, at a meeting between the highways experts on 24 February 2021,
further mitigation was proposed by the Appellant in the form of revised signal
timings for Bowaters Roundabout;20
• Secondly, in an email from Mr Tucker (the Appellant’s highways witness) dated
28 February 2020,21 there were the following proposals (referred to hereafter
as the ‘additional mitigation’:22
i) revised proposals for the mitigation work at Bowaters Roundabout and
Will Adams Roundabout;23
ii) signal timings for Otterham Quay Lane/A2/Meresborough Road (in
addition to Bowaters Roundabout as discussed on the 24th); and
iii) Lower Rainham Road/Yokosuka Way roundabout – a revision to the
appellant’s original proposed mitigation works at the Lower Rainham
Road/Yokosuka Way roundabout (drawing 20230-10A).24
16 ID42 paragraphs 1.4 and 2.1
17 Rightly rejecting the Appellant’s suggestion that the additional mitigation issue could be ‘hived off’. See Day 6
YouTube video at 5:55:00-5:59:15
18 See Day 6 YouTube video at 5:01:00 – 5:05:40. See also 5:37:00-5:46.50
19 See Day 6 YouTube video at 5:48.00-5:51:0
20 ID42 paragraph 2.2. For Bowaters Roundabout drawing 20230-17B replaced drawing 20230-17 attached to the A2
Junction Review. For Will Adams Roundabout drawing 20230-18B replaced drawing 20230-18 attached to the A2
Junction Review
21 ID42 Appendix B
22 ID42 paragraphs 2.3-2.5
23 Notwithstanding that this additional mitigation had only been first proposed less than a week earlier
24 For the reasons set out in Mr Jarvis Addendum proof (ID52), the Council was not aware that this further
amendment was being proposed until after the Impact Appraisal Addendum 3 was produced (ID34a). Nevertheless,
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1.13 During the adjournment, the Council assessed the impact of the scheme taking
account of the additional mitigation (together with the original mitigation to the
extent that it was not amended) and updated its case to reflect the amended
proposal. It did so by producing further MAM scenarios for both the 2037 and
2028 assessment years (as was agreed with the Appellant)25 which resulted in
four further scenarios having to be modelled;26 producing a third Addendum to
the Impact Assessment to report the outputs of that modelling (together with the
detailed appendices);27 producing microsimulation videos; and drafting further
proofs of evidence from Mr Jarvis and Mr Rand.28
1.14 The resumed Inquiry (sitting from 19-23 April, with closing submissions on 28
April) assessed the impact of the proposal on the local highway network, taking
account of the additional mitigation. The focus of the evidence, from both sides
has been on the residual cumulative impacts of the scheme on the road network
with the additional mitigation in place.
Submissions
Unreasonable Behaviour
1.15 The planning appeal process is not designed to allow a scheme to be evolved.29
The evolution of this scheme has had a number of dimensions.30 However, the
one which the Council contends is particularly unreasonable – and which has led
it to incur unnecessary and wasted costs – is the evolution of the additional off-
site highway mitigation proposed.
1.16 During the entirety of the application and appeal processes, until the afternoon
prior to the highways evidence was due to be given, the Appellant sought to rely
on the original mitigation only. Throughout this 19-month period these were the
only off-site mitigation works being offered by the Appellant.
1.17 It was the Appellant’s case throughout this period that the original mitigation
was sufficient to make the scheme acceptable in terms of its impact on the local
highway network. Indeed, in a proof submitted only three weeks prior to the
opening of the inquiry, its highway witness was contending that the original
mitigation was demonstrably sufficient.
1.18 The Council, acting entirely reasonably, assessed the proposal that was before it
(in four separate MAM assessments) and responded to the case that was being
advanced by the Appellant (both when refusing permission, and in its evidence to
the inquiry).
1.19 It was undoubtedly unreasonable of the Appellant to introduce additional offsite
mitigation works - and seek to rely on the additional mitigation – for the first
the Council has modelled the effects of the amended mitigation, and the results were provided in Mr Jarvis
Addendum proof.
25 ID42 paragraph 3.6
26 ID42 paragraph 3.6 – scenarios 2A, 3A, 5A and 6A
27 ID34a
28 ID35 and ID52 respectively
29 See PINS Procedural Guide (March 2021), para M.2.1 which states: “M.2.1 If an appeal is made the appeal process
should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially
what was considered by the local planning authority, and on which interested people’s views were sought.”
30 Including, but not limited to, the introduction of new detailed access plans from Pump Lane at the appeal stage;
and the amendment of the building height parameters plan mid-way through the Inquiry, after the landscape and
heritage evidence had been heard.
https://www.gov.uk/planning-inspectorate Page 4
time in the middle of the Inquiry. That unreasonableness was only exacerbated
by the fact that it was produced at the very last minute, and without forewarning.
1.20 This was not simply a case of introducing fresh and substantial evidence at a
late stage necessitating an adjournment – which in itself, would have been
unreasonable. It was a case of introducing fresh and substantial new highways
mitigation at the very latest stage necessitating an adjournment.
1.21 It would be no answer to this charge to contend (as the Appellant might) that
the additional mitigation was only proposed in response to the Council’s written
evidence, and proffered only in the event that the Inspector considered it
necessary:
• First, and most importantly, the onus lies on the applicant (at application
stage) and Appellant (at Appeal stage) to set out clearly, precisely and in a
timely manner, the development proposal which it advances, including any
necessary mitigation, and its case in respect of that proposal.
• Second, the additional mitigation relates to junctions (Will Adams, Bowater,
Yokosuka Way/Lower Rainham Road roundabouts and Otterham Quay
Lane/A2/Meresborough Road) and on corridors (A2 and A289) about which
the Council has repeatedly, and throughout the application/appeal process,
raised significant concerns.
• Third, notwithstanding its distinct limitations, the Appellant’s own
modelling, when based on the original mitigation, indicated that there
would be considerable issues to at least some of the junctions for which it
now proposes the additional mitigation.31 Mr Tucker accepted in cross-
examination that at least part of the rationale for the additional mitigation
proposed was due to the issues identified with certain junctions in his own
modelling.32
Unnecessary Costs
1.22 The very late introduction of the additional mitigation, and the adjournment
which it necessitated, has directly caused the Council to incur unnecessary and
wasted expense in the appeal process. This includes the following:
(1) The costs of producing Impact Appraisal Addendum (December 2020)33
and Impact Appraisal Addendum 2 (January 2021).34 These were produced
by the Council in an attempt to narrow down the issues between the
parties (in particular the differences in relation to trip generation). They
were based on the original mitigation proposed, and therefore, as a result
of the additional mitigation, have in effect been superseded by Addendum
3.35 It is telling that no time was spent examining them at the Inquiry.
This was a significant wasted expense.
31 See Mr Rand Proof, paragraphs 4.19-4.29
32 This was consistent with his explanation in the A2 Junction review note, particularly in relation to the mitigation
proposed at Will Adams roundabout
33 CD12.3
34 CD12.2
35 ID34a
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(2) The costs of modelling the additional mitigation, extra scenarios and
producing Addendum 3. Had the additional mitigation been proposed by
the Appellant during the application process – or indeed any time in the 12
months after the Decision Notice was issued – it would have been taken
account of in the October 2020 Impact Appraisal.36 It is the very late
introduction of the additional mitigation which has required Addendum 3 to
be produced. This was unnecessary expense.
(3) The costs incurred during the adjournment. Further meetings and
conferences between highway experts, council officers and counsel have
been necessary during the adjournment to consider the additional
mitigation and the outcomes of the further modelling. These additional
meetings and conferences would not have been required had the additional
mitigation been proposed in a timely manner.
(4) Additional proofs. The costs of two further proofs of evidence (Mr Rand
and Mr Jarvis) which would not have otherwise been necessary.
(5) The costs of the resumed Inquiry. The Council has had to instruct and pay
for counsel, its highway witnesses (and their supporting teams) and its
planning witness, to attend a further 5 or 6 days of Inquiry sitting days.
This is a considerable extra cost over and above the costs which had been
incurred for the original Inquiry dates.
(6) The costs of this costs application. Which would not have been necessary
had the additional mitigation not been proposed, or had it been proposed
in a timely manner.
Conclusion
1.23 One of the purposes of the costs regime is to encourage all participants in the
appeal process to behave in a reasonable way and follow good practice.37 Where
the impact on the local highway network is one of the main issues between the
parties, it was wholly unreasonable and antithetical to good practice for the
Appellant to have to introduced a substantive change to the highway mitigation
proposed at the very last minute. This necessitated an adjournment of the
Inquiry and caused the Council to incur substantial unnecessary and wasted
costs.
2. The Response by the Appellant38
2.1 There is no proper basis to make the partial award when the background to the
coming forward of the Appellant’s further transportation mitigations, is
understood.
2.2 The Appellant has made every effort to engage proactively and openly with the
Council on all highway matters from inception, and especially with regard to its
Medway Aimsum Modelling (MAM). Regrettably this was not reciprocated. The
detail of discussions, and attempted discussions, is set out in Mr Tucker’s proof.39
36 CD12.1
37 PPG paragraph: 028 Reference ID: 16-028-20140306
38 ID49 as added to orally at the Inquiry with reference to paragraphs 209-213 of the Appellant’s closing submissions
(see paragraphs 6.191-6.195 of the main Report)
39 CD 10.4 Section 2
https://www.gov.uk/planning-inspectorate Page 6
2.3 Following submission of a scoping report in November 2018, with the exception
of a single ‘draft response’ from the Council received in August 2019 (which
happened only to speak to traffic generation issues) no detailed feedback was
provided on the transport evidence base already before it. Various meetings
were subsequently held, initiated by the Appellant, through which the Appellant
proactively scoped future common ground, leading ultimately to the submission
of further Technical Notes in October 2019.40 Regrettably, no positive response
was then received from the Council on these documents, despite these explicitly
and directly responding to all queries then raised by the Council.
2.4 In December 2019, the Appellant received a brief PowerPoint presentation of the
headline outputs of the MAM,41 although no adequate explanation was given as to
what was included within the MAM modelling. Indeed, Mr Jarvis (in cross-
examination) was unable to confirm the relevance of the sensitivity tests, which
is symptomatic of the wider inability (or unwillingness) of the Council to explain
the inputs and outputs of the MAM. The December outputs42 incorporated, at the
time, the correct mitigation, but not the correct access strategy. As a
consequence, the resultant outputs of the MAM 2 modelling remained uncertain
on their face (and unreliable) from the Appellant’s perspective. That was an
entirely reasonable, if not inevitable, reaction. This error was in fact not
corrected until the Transport Impact Appraisal Addendum (2037 Results) was
received by the Appellant on 4 January 2021.43
2.5 The Appellant then undertook, in agreement with the Council, further modelling
based on the MAM-derived traffic flows. These were reported in Technical Note 3
dated March 2020 (TN3).44 No response has ever been received on these.
2.6 The Appellant then raised significant concerns about the validity of the MAM
generally, including both inputs and outputs, leading to formal requests for
further information on the modelling (on 7 and 23 July 2020). A response was
not received to these points until 14 December 2020, following the Inquiry case
management conference. That response was partial only and despite further
requests45 disclosure has never been made of the full detail of the MAM outputs,
including how it was optimising individual junctions, and no explanation of
specific junction operation and causality of any queue has been forthcoming, so
that the specific issues of impact (if any) may be properly understood from a
MAM perspective.
2.7 Aside from the MAM, the Appellant’s letter dated 23 December 2020 requested
confirmation from the Council that it agreed with the modelling paragraphs
adopted in the DTA individual junction assessments. The first ever comments
received on this came through Mr Rand’s first proof of evidence.46
2.8 It has been communicated to the Council, clearly and throughout, that the MAM
modelling outputs were considered unreliable, and that MAM inputs were not
agreed. All references made to the Appellant considering impacts, as described
40 CDs 6.2 and 6.7
41 CD12.10
42 CD12.10
43 CD 12.3 Transport Impact Appraisal Addendum 2 (2028 results)
44 CD6.11
45 latterly on 28 February 2021 - email from DTA to the Council (Appendix to ID42)
46 CD10.9
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in the Transport Assessment, derive from the Council’s own conclusions arising
from the Appellant’s own modelling (in the complete absence of any clarity on the
appropriateness of the MAM modelling). The Appellant’s position has been
consistent throughout.
2.9 The additional modelling had in fact arisen as a direct consequence of new
information coming forward from the Council,47 whereupon further detail of local
model validation was provided. In turn, this evidence reasonably gave the
Appellant room to address its concerns regarding model outputs, unrelated to
baseline validation, and which disclosed inaccuracies within the model run itself,
and in terms of junction modelling. The very first time that the Appellant was
provided with any visual outputs of any queuing data from the MAM, was in Mr
Jarvis’s PoE.48 This was responded to in headline terms in Mr Tucker’s rebuttal.49
2.10 However, it was not until the validation issue was adequately clarified by the
Council, belatedly, that it reasonably became apparent to the Appellant that
further mitigation might be worth considering, based on solely on the MAM
outputs. This mitigation was sensibly advanced at the Inquiry, in order to best
assist the Inspector in order to more fully understand the differences of the
outputs, in the expectation of narrowing issues at Inquiry. This was therefore a
responsible way forward. Mr Tucker’s letter of 28 February 202150 sought to
further aid this process by requesting a comparison of model outputs for the
Inspector’s benefit, but this has not been forthcoming from the Council.
2.11 The approach adopted by the Appellant leading up to the adjournment could,
and would, have been avoided had the Council been adequately transparent, and
at a sufficiently early stage, regarding the way the MAM was ‘generating’ the
queuing it suggests might occur. However, this was not so and this approach is
yet to be adequately explained.
2.12 The mitigation proposal is substantial. It could not reasonably have been
conceived at the time of the application. At that stage, all that the Appellant had
been provided with was a very headline, inadequate, PowerPoint presentation.51
Technical Note 352 had been prepared by the Appellant on an approach that had
been agreed with the Council. At the meeting on 22 January 2020, the Council
undertook to respond on that assessment. No response has ever been received
by the Appellant. This is in fact representative of the approach taken by the
Council throughout the application, which has regrettably meant that helpful (and
reasonable) discussion, on all issues relating to the application, has been made
far more difficult, indeed, if not impossible, by the Council’s election not to
engage, or at least engage fully and promptly.
2.13 The additional time taken up at Inquiry has been two days only. Originally,
transportation matters had been programmed for three days, as a broad
‘guesstimate’ (with the possibility of four days). In the result, transportation did
occupy four days, reasonably. This was the most likely window for the
47 see section 2 of Mr Jarvis’ rebuttal (CD10.16)
48 Mr Jarvis PoE figure 3 and 4: pages 35-36 (CD10.10)
49 Mr Tucker rebuttal paragraph 6.4 page 10
50 ID 42 Appendix B
51 CD12.10
52 CD6.11
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transportation session in any event, even had the original Inquiry timetable been
proceeded upon.
3 Council’s Counter Response53
3.10 The Council does not accept that the Appellant’s account54 of the liaison
between the parties about the highway modelling is accurate. An overview of the
correspondence between the Council and the Appellant’s highway consultants
(DTA) is set out in Appendix I to the proof of Mr Rand.55 It is noticeable that this
account was not challenged by the Appellant in cross-examination. By way of
example only:
• It is not correct that the Appellant was only provided with the December
2019 outputs/PowerPoint56 prior to determination of the application.
Shortly after that presentation was provided, DTA requested specific
information concerning the MAM inputs, which was provided to them on
19 December 2019.57
• It is not correct to suggest that no response was received in respect of
TN3. TN3 was discussed within a meeting on 22 January 2020, with
further responses being provided by email in February 2020.58
3.11 In any event, the accusations that the Council failed to adequately liaise with
the Appellant are entirely irrelevant to the issue at hand. Even if they were
accurate (which they are not) this provides absolutely no justification for the
Appellant’s decision to propose substantial59 additional off-site mitigation mid-
Inquiry, let alone the day before the highway evidence was due to be heard.
3.12 Third, the suggestion that the additional mitigation was only proposed as a
response to MAM’s identification of queuing and, in particular to Figures 3 and 4
in the proof of Mr Jarvis60 should be rejected. It is demonstrably false for the
following reasons:
(a) The Appellant’s central case is that the MAM outputs are not accurate. It
is therefore wholly inconsistent for the Appellant to suggest at the same
time that the catalyst for the additional mitigation was the outputs of the
MAM;
(b) Mr Jarvis’ Figures 3 and 4 illustrate queuing on the A2, yet the additional
mitigation includes proposed amendments to the Lower Rainham
Road/Yokosuka Way roundabout. Therefore, the suggestion that these
figures were the catalyst for the additional mitigation is a non-sequitur.
Further, even on the Appellant’s case, there is no explanation as to why
the additional mitigation was proposed some four weeks after Mr Jarvis’
proof was served;
53 ID53
54 Made in the costs response, as well as the Appellant’s closing submissions at paragraphs 209-213 of ID51
55 CD10.9 pages 230-236
56 CD12.10
57 Mr Rand Appendix I page 232
58 ibid pages 232-234
59 As the Appellant accepts is the case, see paragraph 2.12 above
60 CD10.10
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(c) As Mr Rand explained in his proof,61 the Appellant’s own modelling in TN4
of January 202162 highlighted that a number of the junctions which
became the subject of the mitigation were operating at, or over, capacity.
Thus, even on its own case, at this stage the Appellant knew – or at least
ought to have known – that additional mitigation was required.
3.13 The suggestion that little, if any, by way of unnecessary or wasted costs were
incurred as a result of the additional mitigation being proposed at a very late
stage is simply wrong. The additional mitigation did not simply result in extra
Inquiry sitting days, it also led to the substantial wasted and unnecessary costs
outlined in paragraph 1.22 above.
4. Inspector’s Conclusions
4.1 The Planning Practice Guidance advises that, irrespective of the outcome of an
appeal, costs may be awarded against a party who has behaved unreasonably
and thereby caused the party applying for costs to incur unnecessary or wasted
expense in the appeal process.
4.2 Appellants are required to behave reasonably in relation to procedural matters on
the appeal, for example by complying with the requirements and deadlines of the
appeals process. As set out in the Planning Practice Guidance, an example of
unreasonable behaviour by an appellant giving rise to an award of costs is
introducing fresh and substantial evidence at a late stage necessitating an
adjournment, or extra expense for preparatory work that would not otherwise
have arisen.63
4.3 It is suggested that the evidence of the Council that led to the further substantial
mitigation measures being submitted was not known by the Appellant until
receipt of the evidence of Mr Jarvis, in particular his Figures 3 and 4. Even were
that the case, that evidence was submitted on 25 January 2021, three weeks
before the Inquiry opened, some four weeks before the highways evidence was
due to start being heard. There was no mention in Mr Tucker’s subsequent
rebuttal statement that any revised mitigation was being considered in response
to that. I recognise that in responding to section 2 of Mr Tucker’s proof, Mr
Jarvis’ rebuttal (also referred to) included additional validation data. However,
the Appellant was in receipt of that a week before the Inquiry opened, some
three weeks before the highways evidence was due to begin. Moreover, whilst
the additional mitigation was ostensibly in response to Mr Tucker only then
becoming aware of potential blocking back issues on the A2, as pointed out by
the Council, the Appellant’s own evidence to the Inquiry appears to recognise
that as a potential issue, suggesting that mitigation may have been required.64
4.4 At no stage before the programmed date for examining the highways evidence
had the submission of any substantial additional mitigation measures been
foreshadowed by the Appellant. Whatever difficulties the Appellant may have
had in dealing with the Council’s highway officers over preceding months, there is
no doubt in my mind that submitting significant new highways evidence so late in
61 Mr Rand proof paragraphs 4.19-4.24
62 CD12.6
63 Paragraph: 052 Reference ID: 16-052-20140306
64 Mr Rand PoE especially paragraph 4.21 (CD10.9)
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the proceedings, on the day before the highways evidence was programmed to
begin, was unreasonable behaviour.
4.5 The Appellant made it clear that it wished to rely on those additional measures.
That required the MAM to be re-run with that mitigation, necessitating a lengthy
adjournment.
4.6 As a direct consequence of the Appellant’s behaviour, the Inquiry did not sit as
planned on 24 and 25 February. In order to make best use of the programmed
Inquiry time, we resumed on 1 March and sat for three days to deal with
planning conditions and the planning obligation (but excluding any highways
related matters) and we also heard the evidence of the respective planning
witnesses. I brought forward the planned date of the site visit and carried that
out on 4 March. The Inquiry resumed very briefly on 5 March (20 minutes) to
deal mainly with the revised Building Heights Parameter Plan that had been
submitted by the Appellant and corresponding notes,65 after which I adjourned
the Inquiry for six weeks, being the minimum time necessary for the Council to
run the model and for the relevant reports to be generated. The respective
witnesses also needed to time to interrogate the results and provide addendum
proofs dealing with that. The Inquiry resumed on 19 April.
4.7 Highways evidence was heard on 19-22 April. On 23 April we sat for just one
hour and 20 minutes to deal mainly with additional documents that the Appellant
wished to rely on relating to affordable housing delivery66 and the weight to be
afforded to Local Plan policy T1.67
4.8 The highways evidence was originally scheduled over three days (23-25
February). Once we resumed in April, the highways evidence took four full days.
The Inquiry was originally programmed to sit for a total of 13 days.68 Putting to
one side the two very short days mentioned above which did not discuss matters
relating to the later highways evidence, the Inquiry sat for 14 days. Additional
expense would have been incurred by the Council in relation to that extra day
(not the 5-6 days referred to in the application) expense that would not have
been incurred were it not for the appellant’s unreasonable behaviour. The
consequence of the Appellant’s behaviour in this regard is on all fours with the
example given in the Planning Guidance as behaviour that may give rise to an
award.
4.9 In preparing its evidence for the Inquiry, and in discussion with the Appellant, the
Council had modelled additional scenarios over above those originally modelled,
based on what is referred to by the Council above as the ‘original mitigation’
measures. Those reports, comprising the Pump Lane and Lower Rainham
Transport Impact Appraisal Addendum 2028 results (December 2020)69 and
Addendum 2 2037 (January 2021),70 informed the highways evidence that was
prepared for the Inquiry. The new report that was produced over the
adjournment, Addendum 3 (Additional A2 mitigations results)71 effectively
65 ID29 and ID30
66 ID45
67 ID45
68 15-18 February, 22-25 February, 1-4 March and 12 March
69 CD12.3
70 CD12.2
71 ID34a
https://www.gov.uk/planning-inspectorate Page 11
negated the work involved in those two earlier reports and much of the evidence
based on them. I consider that the Council incurred wasted expense in this
regard
4.10 Clearly, the costs of modelling the additional mitigation and producing Addendum
3 will have involved the Council in expense. However, those costs would have
been incurred in any event had the measures now relied on been proposed at the
time. That the model was run late on in the proceedings does not alter the
necessary expense incurred. I find no wasted expense in this regard.
4.11 Unsurprisingly, additional meetings and conferences between highway experts,
council officers and counsel were necessary during the adjournment, in order to
consider the additional mitigation and the outcomes of the further modelling.
That led in turn to the production of further proofs from the Council’s highway
witnesses.72 Those additional meetings and conferences, and addendum proofs
would not have been required had the additional mitigation been proposed in a
timely manner. I consider that the Council incurred unnecessary expense in
these regards.
4.12 The Planning Practice Guidance confirms that a full award of appeal costs means
the party’s whole costs for the statutory process, including the expense of
making the costs application.73 I see no reason why the same principle should
not apply to a successful application for a partial award since, if the unreasonable
behaviour had not resulted in unnecessary costs, then an application would not
have been necessary. Since I have found that the Council incurred unnecessary
or wasted costs in relation to all but one of the component parts of the
application, I consider that this aspect of the application should also succeed.
5. Recommendation
5.1 I recommend that the application for a partial award of costs be granted, but that
it be limited to those costs incurred in producing the Pump Lane and Lower
Rainham Transport Impact Appraisal Addendum 2028 results (December 2020)74
and Addendum 2 2037 (January 2021), the costs incurred during the
adjournment, including the production of further proofs of evidence from Messrs
Rand and Jarvis, the costs incurred in the additional sitting day and the costs of
making the costs application.
Jennifer A Vyse
INSPECTOR
72 ID35 (Addendum proof of Mr Rand) and ID52 (Addendum proof Mr Jarvis)
73 Paragraph: 040 Reference ID: 16-040-20140306
74 CD12.3
https://www.gov.uk/planning-inspectorate Page 12


Duncan Parr Our ref: APP/A2280/W/20/3259868
Rapleys Your ref: MC/19/1566
33 Jermyn Street
London
SW1Y 6DN
3 November 2021
Dear Sir
TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 78
APPEAL MADE BY [APPELLANT]
LAND OFF PUMP LANE, RAINHAM, KENT
APPLICATION REF: MC/19/1566
1. I am directed by the Secretary of State to say that consideration has been given to the
report of Mrs JA Vyse DipTP DipPBM MRTPI, who held a public local inquiry on 15-18
and 22-23 February, 1-3 and 5 March, 19-23 and 28 April 2021 into your client’s appeal
against the decision of Medway Council to refuse your client’s application for planning
permission for redevelopment of land off Pump Lane to include residential development
comprising up to 1,250 residential units, a local centre (with final uses to be determined
at a later stage) a village green, a two form entry primary school, a 60 bed extra care
facility, an 80 bed care home and associated access (vehicular, pedestrian, cycle), in
accordance with application No MC/19/1566, dated 3 June 2019.
2. On 17 November 2020, this appeal was recovered for the Secretary of State's
determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town
and Country Planning Act 1990.
Inspector’s recommendation and summary of the decision
3. The Inspector recommended that the appeal be dismissed.
4. For the reasons given below, the Secretary of State agrees with the Inspector’s
conclusions, except where stated, and agrees with her recommendation. He has decided
to dismiss the appeal. A copy of the Inspector’s report (IR) is enclosed. All references to
paragraph numbers, unless otherwise stated, are to that report.
Environmental Statement
5. In reaching this position, the Secretary of State has taken into account the Environmental
Statement which was submitted under the Town and Country Planning (Environmental
Department for Levelling Up, Housing and Communities Tel: 0303 444 5374
Mike Hale, Decision Officer Email: PCC@communities.gov.uk
Planning Casework Unit
3rd Floor Fry Building
Impact Assessment) Regulations 2017. Having taken account of the Inspector’s
comments at IR1.9-1.10, the Secretary of State is satisfied that the Environmental
Statement complies with the above Regulations and that sufficient information has been
provided for him to assess the environmental impact of the proposal.
Matters arising since the close of the inquiry
6. On 20 July 2021 a revised National Planning Policy Framework (the Framework) came
into force. However, as the changes do not affect the main issues in this inquiry, the
Secretary of State does not consider that the revised Framework raises any matters that
would require him to refer back to the parties for further representations prior to reaching
his decision on this appeal, and he is satisfied that no interests have thereby been
prejudiced.
7. On 15, 22 and 29 October 2021, you, on behalf of your client, shared additional
information with the Secretary of State in relation to the emerging Local Plan timetable,
which they viewed as relevant to his decision. The Secretary of State has given
consideration to this additional information, though does not consider that it represents a
material change in circumstances such that a referral back to parties would be
necessary. The information is included at Annex A of this decision letter. Copies of all
representations received may be obtained on request to the email address at the foot of
the first page of this letter.
Procedural matters
8. An application for a partial award of costs was made by Medway Council against the
Appellant (IR1.1). This application is the subject of a separate decision letter.
Policy and statutory considerations
9. In reaching his decision, the Secretary of State has had regard to section 38(6) of the
Planning and Compulsory Purchase Act 2004 which requires that proposals be
determined in accordance with the development plan unless material considerations
indicate otherwise.
10. In this case the development plan consists of saved policies of the Medway Local Plan
(2003). The Secretary of State considers that relevant development plan policies include
those set out at IR4.2-IR4.29. He notes that the Local Plan is of a considerable age, and
agrees with the Inspector’s assessment at IR12.226-12.237 about the extent to which
development plan policies are in accordance with the Framework. He has taken this
assessment into account when reaching his conclusions on this case.
11. Other material considerations which the Secretary of State has taken into account in
addition to the National Planning Policy Framework (‘the Framework’) and associated
planning guidance (‘the Guidance’), include the relevant documents and guidance set out
at IR4.32-IR4.35. For clarity, the Framework references within this letter have been
amended from those in the IR to reflect the revised Framework paragraph numbering
where necessary.
12. In accordance with section 66(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990 (the LBCA Act), the Secretary of State has paid special regard to the
desirability of preserving those listed buildings potentially affected by the proposals, or
their settings or any features of special architectural or historic interest which they may
possess.
Emerging plan
13. The emerging plan comprises a new Local Plan covering the period to 2037. The
Secretary of State notes that at the time of the Inquiry, the emerging plan was proposed
to cover the period to 2035.
14. Paragraph 48 of the Framework states that decision makers may give weight to relevant
policies in emerging plans according to: (1) the stage of preparation of the emerging plan;
(2) the extent to which there are unresolved objections to relevant policies in the
emerging plan; and (3) the degree of consistency of relevant policies to the policies in the
Framework. The Secretary of State notes that preparation of the new Local Plan is still at
an early stage. He notes that as of September 2021 Regulation 18 consultation on the
new Local Plan has been undertaken but Regulation 19 consultation has not yet been
undertaken. Consequently, a full draft plan has not yet been published, meaning there
has not yet been an opportunity to consult on draft policies.
15. For the reasons given at IR4.36, the Secretary of State agrees with the Inspector with
regard to the emerging new Local Plan that in light of its early stage, no weight is
afforded to it.
Main issues
16. For the reasons given at IR12.2, IR12.196 and at paragraph 1.1 of IR Appendix E, the
Secretary of State agrees that the main issues are those set out by the Inspector at
IR12.2.
Character and appearance of the surrounding area
17. The Secretary of State agrees with the Inspector at IR12.3 that the appeal site is located
outside any settlement boundary as shown of the Local Plan Proposals Map and lies
within open countryside for planning policy purposes. He also notes that the site also
forms a significant part of the Gillingham Riverside Area of Local Landscape Importance
(ALLI) as defined by Local Plan policy BNE34 (IR12.4), is a valued landscape in
Framework terms (IR12.5) and that it is a matter of agreement between the parties that
the development proposed would give rise to adverse landscape and visual effects
(IR12.6).
18. The Secretary of State agrees with the Inspector’s analysis of landscape context at
IR12.7-IR12.19, of visual context at IR12.20-IR12.21, of landscape effects at IR12.22-
IR12.36, of visual effects at IR12.37-IR12.53, and of the Gillingham Riverside ALLI at
IR12.54-IR12.68.
19. For the reasons given there, the Secretary of State agrees with the Inspector that overall,
the appeal scheme would have a substantial adverse landscape and visual impact, with
corresponding harm to the character and appearance of a wide swathe of countryside
between Lower Rainham Road and Twydall/Rainham. Like the Inspector, he considers
that the degree of harm would be significant and has come to this view having had regard
to the status of the site, lying as it does within a valued landscape as recognised by its
designation as an ALLI in the Local Plan and the harm that would be a consequence not
only to its landscape importance, but also to its functions, particularly that as a green
buffer (all at IR12.69).
20. The Secretary of State agrees that those conclusions bring the development into conflict
the Framework (IR12.70). The Secretary of State considers that this harm attracts
substantial weight against the proposal.
Heritage assets
21. The Secretary of State agrees with the Inspector’s analysis of heritage impacts at
IR12.72-IR12.133 and IR12.217-12.220. For the reasons given there, the Secretary of
State agrees with the Inspector’s assessment of harms at IR12.131 that there would be
no harm to the heritage significance of York farmhouse, or the listed outbuildings within
the Bloors Place complex. He further agrees with the Inspector’s conclusion at IR12.131
that the harm to Pump farmhouse, Bloors Place, the listed walls and Lower Twydall
Conservation Area would be at the lower end of the less than substantial range, with the
harm to Chapel House and Lower Rainham Conservation Area in the middle of the
spectrum. He further agrees that there is very limited/minor harm to the non-designated
asset that is the Oasts.
22. For the reasons given at IR12.127-IR12.130, the Secretary of State agrees that the
historic landscape does not here merit treating as a non-designated heritage asset
(IR12.132). He further agrees with the approach taken by the Inspector in IR12.219.
23. The Secretary of State agrees with the Inspector at IR12.219 that the heritage harms
should be given considerable importance and weight. He further agrees with the
Inspector that would be conflict with policies BNE14 and BNE18 (IR12.133). He agrees
that Paragraph 202 of the Framework requires such harms to be weighed against the
public benefits of the scheme and Paragraph 203 of the Framework requires to harm to
the non-designated asset to be taken into account (IR133). This balancing exercise is
undertaken below at paragraph 49.
Agricultural land
24. The Secretary of State notes that around 96% of land at the appeal site is classified as
either Grade 1 (excellent quality) or Grade 2 (very good quality), with the remainder
comprising Grade 3a (good to moderate quality) (IR12.135) and that there are no current
development plan policies relating to agricultural land and so national policy and
guidance form the principal consideration (IR12.136).
25. For the reasons given at IR12.137-IR12.154 the Secretary of State agrees with the
Inspector that on the evidence before him, there is a good prospect for the land to be
farmed in such a way that it realises a reasonable profit (IR12.153).
26. The Secretary of State has considered the Inspector’s analysis at IR12.222-IR12.225 and
IR12.235 regarding the extent of BMV land in the District and the availability of non-BMV
land in the District. While he notes that there is no requirement in the Framework for a
formal agricultural land balance to be carried out, for the reasons given, he agrees that
there is at least the possibility of locating strategic development, such as that proposed
here, on land that whilst comprising BMV is potentially of poorer quality/usefulness than
that of the appeal site, albeit that that may be some years off if it was to be delivered as
part of that emerging Plan (IR12.223).
27. Overall, the Secretary of State agrees that the loss of this significant area of BMV land,
and the orchards, would have a negative effect on the provision of such land in terms of
economic and other benefits, bringing it into conflict with paragraph 174b) of the
Framework (IR12.224). He further agrees with the Inspector that this harm attracts
moderate weight (IR12.235).
Highways
28. For the reasons given at IR12.155-12.160, the Secretary of State agrees with the
approach taken by the Inspector, namely that it is appropriate to focus on the areas of
greatest potential traffic impact in order to assess the scheme against the relevant
policies (IR12.158). The Secretary of State agrees with the Inspector at IR12.161 that the
local highway network, including key arterial routes, is already heavily congested,
particularly during the AM and PM peaks. He notes that the Appellant has proposed a
number of mitigation works, identified at IR12.161, as amended during the Inquiry, to
which he has given consideration.
29. The Secretary of State notes that there were two competing appraisals before the Inquiry
that deal with traffic impacts (IR12.162) and that the results of each assessment are
significantly different (IR12.165). For the reasons given at IR12.162-IR12.172 and IR191,
the Secretary of State agrees with the Inspector at IR12.191 that in terms of the highway
modelling evidence, on balance, the outputs of the Council’s more holistic Medway
Aimsum Model (MAM) approach (which models the interaction between junctions, links
and journey times) are to be preferred over the Appellant’s isolated junction modelling
approach.
30. For the reasons given at IR12.173-IR12.178 and at IR12.192 the Secretary of State
agrees with the Inspector that the residual cumulative impacts on subnetwork 2 would be
severe, particularly during the AM and PM peaks (IR12.192). Like the Inspector, the
Secretary of State recognises that those impacts are largely confined to peak hours and
that the subnetwork forms only a part of the wider network. However, the Secretary of
State also agrees with the Inspector that that does not mean that the impacts cannot be
considered as severe in their context (all at IR12.192).
31. Overall on highway matters, the Secretary of State agrees with the Inspector that the
appeal scheme would have a severe residual cumulative impact on the local highway
network and that there would be conflict in this regard with Local Plan policy T1 and
paragraphs 110 and 111 of the Framework (IR12.192). The Secretary of State considers
this harm attracts substantial weight against the appeal scheme.
32. For the reasons given at IR12.189, he agrees with the Inspector’s finding of no harm in
terms of highway safety (IR12.190). He further agrees with the Inspector’s conclusions at
IR12.93.
Benefits
33. The Secretary of State notes that the housing land supply range identified by the parties
is between 1.78-3.03 year, and that whichever figure is used, the parties are agreed that
as a minimum, the shortfall is significant. The Secretary of State considers that the
weight to be afforded to the delivery of housing in the light of the housing land supply
shortfall is substantial (all IR12.201). Similarly, the Secretary of State agrees at IR12.202
that for the reasons given there is an acute need for affordable housing and in light of
that, the delivery of at least 25% of the residential units as affordable accommodation
attracts substantial weight.
34. The Secretary of State agrees with the Inspector at IR12.203 that the development would
contribute to employment provision and that future residents would also contribute to the
economy through local expenditure. For the reasons given at IR12.203, the Secretary of
State agrees that the weight to be given to employment provision is substantial.
35. For the reasons given at IR12.204, the Secretary of State agrees that the development
would result in significant improvements in terms of ecology and biodiversity. Like the
Inspector, he considers that the benefits secured in this regard attract substantial weight.
36. For the reasons given at IR12.205-IR12.206 the Secretary of State agrees with the
Inspector at IR12.206 that signalisation of the section of restricted carriageway beneath
the railway at the southern end of Pump Lane is a benefit which attracts only limited
weight in favour.
37. For the reasons given at IR12.207-208, he agrees that opening up pedestrian access to
the site from the southern end of Lower Twydall Lane and financial contributions towards
bridleway improvements attract limited weight. For the reasons given at IR12.209 he
further agrees that the planning obligation which includes a contribution towards interim
assistance to support bus service provision is a consideration that attracts moderate
weight.
38. With regard to the school proposed on the site, for the reasons given at IR12.211 the
Secretary of State agrees that its provision attracts limited weight. For the reasons given
at IR12.211 the Secretary of State also agrees that provision of the two care facilities
attracts limited weight.
39. The Secretary of State further agrees with the Inspector’s conclusions with regards to
matters at IR12.200, IR12.210, IR12.212, IR12.213 and IR12.214 for the reasons given
there.
Other matters
40. The Secretary of State notes that the Medway Estuary and Marshes Special Protection
Area (SPA), Ramsar and Site of Special Scientific Interest (SSSI), a European Protected
site, lies approximately 250m to the north of the appeal site (IR12.195). For the reasons
given at IR12.196, he agrees that ecological impact is not a main consideration.
41. For the reasons given at IR12.197 the Secretary of State agrees that an Appropriate
Assessment under the terms of the Conservation of Habitats and Species Regulations
2017 (as amended) is required should the appeal be allowed.
42. The Secretary of State is the Competent Authority for the purposes of the Conservation
of Habitats and Species Regulations 2017. The Secretary of State agrees with the
assessment and findings in Annex E of the IR. However, he does not consider that
carrying out an Appropriate Assessment would overcome his reasons for dismissing this
appeal, and has therefore not proceeded to make an Appropriate Assessment in his role
as the Competent Authority on this matter.
Planning conditions
43. The Secretary of State has given consideration to the Inspector’s analysis at IR10.1-
IR10.20, the recommended conditions set out at the end of the IR and the reasons for
them, and to national policy in paragraph 56 of the Framework and the relevant
Guidance. He is satisfied that the conditions recommended by the Inspector comply with
the policy test set out at paragraph 56 of the Framework. However, he does not consider
that the imposition of these conditions would overcome his reasons for dismissing this
appeal and refusing planning permission.
Planning obligations
44. Having had regard to the Inspector’s analysis at IR11.1-IR11.4, the planning obligation
dated 14 May 2021, paragraph 57 of the Framework, the Guidance and the Community
Infrastructure Levy Regulations 2010, as amended, the Secretary of State agrees with
the Inspector’s conclusion for the reasons given in IR11.4 that the obligation complies
with Regulation 122 of the CIL Regulations and the tests at paragraph 57 of the
Framework. However, the Secretary of State does not consider that the obligation
overcomes his reasons for dismissing this appeal and refusing planning permission.
Planning balance and overall conclusion
45. For the reasons given above, the Secretary of State considers that the appeal scheme is
not in accordance with development plan Policies T1, BNE14, BNE34 and BNE47,
BNE18 and BNE25, and considers that overall, the proposal is not in accordance with the
development plan. He has gone on to consider whether there are material considerations
which indicate that the proposal should be determined other than in accordance with the
development plan.
46. As Medway Council is unable to demonstrate a five year supply of housing land,
paragraph 11(d) of the Framework indicates that planning permission should be granted
unless: (i) the application of policies in the Framework that protect areas or assets of
particular importance provides a clear reason for refusing the development proposed; or
(ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits,
when assessed against policies in the Framework taken as a whole.
47. Weighing in favour of the proposal are the delivery of housing in the light of housing
supply shortfall, and the delivery of affordable housing, biodiversity improvements and
employment provision. Each carries substantial weight. Public transport improvements
attract moderate weight, while highways improvements, improvements to pedestrian
access and contributions toward bridleway works, and the benefits arising from the
school and care facilities each attract limited weight.
48. Weighing against the proposal are significant landscape harm which attracts substantial
weight, and severe residual impacts on the local road network which also attract
substantial weight. Loss of BMV land attracts moderate weight. In line with statute and
policy, the ‘less than substantial’ heritage harms attract considerable weight in the
planning balance.
49. Paragraph 202 of the Framework requires heritage harm to be weighed against the public
benefits of the scheme. The Secretary of State agrees with the Inspector for the reasons
given at IR12.217-12.220 that the very substantial benefits of the appeal scheme are
sufficient to outweigh the identified heritage harm both individually and collectively
(IR12.220). He considers that the balancing exercise under paragraph 202 of the
Framework is therefore favourable to the proposal.
50. Consequently, under limb (i) of the test at Framework paragraph 11(d) the Secretary of
State considers that there are no protective policies which provide a clear reason for
refusing the development proposed. However, for the reasons given in this decision
letter the Secretary of State considers that limb (ii) of the 11(d) test is met, i.e. the
adverse impacts of granting permission would significantly and demonstrably outweigh
the benefits when assessed against the Framework as a whole. The presumption in
favour of sustainable development is therefore disapplied.
51. The Secretary of State takes the age of the Local Plan and the significant shortfall in
housing land supply very seriously. However, on the particular facts of this case, he
considers that the material considerations indicate a decision in line with the development
plan – i.e. a refusal of permission.
52. The Secretary of State therefore concludes that the appeal should be dismissed.
Formal decision
53. Accordingly, for the reasons given above, the Secretary of State agrees with the
Inspector’s recommendation. He hereby dismisses your client’s appeal and refuses
planning permission for redevelopment of land off Pump Lane to include residential
development comprising up to 1,250 residential units, a local centre (with final uses to be
determined at a later stage) a village green, a two form entry primary school, a 60 bed
extra care facility, an 80 bed care home and associated access (vehicular, pedestrian,
cycle), in accordance with application No MC/19/1566, dated 3 June 2019.
Right to challenge the decision
54. A separate note is attached setting out the circumstances in which the validity of the
Secretary of State’s decision may be challenged. This must be done by making an
application to the High Court within 6 weeks from the day after the date of this letter for
leave to bring a statutory review under section 288 of the Town and Country Planning Act
1990.
55. A copy of this letter has been sent to Medway Council, and notification has been sent to
others who asked to be informed of the decision.
Yours faithfully
M A Hale
Mike Hale
This decision was made by the Minister of State for Housing on behalf of the Secretary of
State, and signed on his behalf
Annex A Schedule of representations
General representations
Party Date
Rehman Chishti MP 6 October 2021
Duncan Parr, Rapleys LLP 15 October 2021
Peter Canavan, Carter Jonas 22 October 2021
Duncan Parr, Rapleys LLP 29 October 2021
Report to the Secretary of State for
Housing, Communities and Local
Government
by Mrs J A Vyse DipTP DipPBM MRTPI
an Inspector appointed by the Secretary of State
Date: 7th July 2021
TOWN AND COUNTRY PLANNING ACT 1990 (AS AMENDED)
APPEAL MADE BY
A C GOATHAM AND SONS
AGAINST
MEDWAY COUNCIL
Inquiry opened on 15 February 2021
Pump Lane, Rainham, Gillingham ME8 7TJ
Appeal Ref: APP/A2280/W/20/3259868
https://www.gov.uk/planning-inspectorate
CONTENTS PAGE
1. Procedural and Background Matters 3
2. The Site and its Surroundings 6
3. The Proposal 7
4. Planning Policy and Guidance 8
5. Agreed Matters 13
6. The Case for A C Goatham and Sons (the Appellant) 13
7. The Case for Medway Council 75
8. The Case for other persons appearing at the Inquiry 136
9. Written Representations 145
10. Conditions 146
11. Planning Obligations 148
12. Inspector’s Conclusions 150
13. Recommendation 198
ANNEXES PAGE
Annex A Appearances 199
Annex B Documents submitted during the Inquiry 200
Annex C Core documents 202
Annex D Recommended conditions should permission be 207
granted
Annex E Information to assist the Secretary of State’s Habitats 218
Regulations Assessment
https://www.gov.uk/planning-inspectorate Page 2
File Ref: APP/A2280/W/20/3259868
Pump Lane, Rainham, Gillingham ME8 7TJ
• The appeal is made under section 78 of the Town and Country Planning Act 1990 against
a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Medway Council.
• The application No MC/19/1566, dated 3 June 2019, was refused by a notice dated
12 June 2020.
• The development proposed comprises redevelopment of land off Pump Lane to include
residential development comprising up to 1,250 residential units, a local centre (with final
uses to be determined at a later stage) a village green, a two form entry primary school, a
60 bed extra care facility, an 80 bed care home and associated access (vehicular,
pedestrian, cycle).
Summary of Recommendation: That the appeal be dismissed.
Documents handed up to the Inquiry (Inquiry Documents) are listed at Annex B
below and are prefixed with ID. Core Documents, listed at Annex C, are
prefixed with CD. The Core Documents plus the Inquiry Documents can be
accessed via the electronic library https://rapleys.com/lower-rainham-appeal/
1. PROCEDURAL AND BACKGROUND MATTERS
1.1 At the Inquiry, an application for a partial award of costs was made by Medway
Council against the Appellant.1 That application is the subject of a separate
Report.
1.2 By letter dated 17 November 2020, the appeal was recovered by the Secretary
of State for his determination on the grounds that it ‘involves proposals for
residential development of over 150 units, or on sites of over 5 hectares,
which would significantly impact on the Government's objective to secure a
better balance between housing demand and supply and create high quality,
sustainable, mixed and inclusive communities.’
1.3 The Inquiry opened on Monday 15 February 2021 and sat on a total of 16 days
(15-18 and 22-23 February, 1-3 and 5 March, 19-23 and 28 April).2 With the
assistance of the Council, the Inquiry sitting days were live streamed3 to allow
members of the public to view the proceedings. I undertook the site visit on
an accompanied basis on 4 March 2021, following an extensive and
comprehensive itinerary prepared by the parties, with input from Councillor
Potter. I closed the Inquiry on 28 April 2021.
1.4 The application was submitted in outline, with only access to be considered at
this stage. Matters relating to appearance, landscaping, layout and scale are
reserved for future consideration.
1.5 The description of development as set out on the planning application form
referred, among other things, to ‘approximately’ 1,250 dwellings. The term
‘approximately’ is ambiguous and I was mindful that the evidence, in various
1 ID47 (Council’s application), ID48 (Appellant’s rebuttal) and ID53 (Council’s response)
2 Although recorded as sitting days, we resumed for just 20 minutes on 5 March to deal mainly with the revised
Building Heights Parameter Plan (see paragraphs 1.11-1.13 below) and corresponding notes (ID29 and ID30) and on
23 April we sat for just one hour 20 minutes to deal mainly with ID45 (affordable housing delivery) and ID46 (policy
T1 and paragraphs 108-111 of the Framework).
3 The recordings are available online (Medway Inquiry)
https://www.gov.uk/planning-inspectorate Page 3
places, refers to ‘up to’ 1,250 dwellings. With the agreement of the parties,
the description of the development proposed was amended accordingly and is
reflected in the header above.
1.6 A total of nine reasons for refusal are set out on the Council’s Decision Notice.4
Subsequent to determination of the application, the Appellant provided
additional information in relation to some of the concerns raised, together with
revised plans. The material submitted essentially provides additional
information and clarity on some points, as opposed to changing the nature of
the development for which permission is sought. Nevertheless, in order to
ensure that no interests would be prejudiced were a decision to be made on
the basis of that material the Appellant, working with the Council, undertook a
consultation exercise. I am satisfied that the additional material does not
offend the Wheatcroft principles5 and the Inquiry proceeded on that basis. I
confirm that in making my recommendation, I have taken account of all the
representations received in response to that re-consultation exercise, in
addition to the large body of representations made at the application and
appeal stages.
1.7 The appeal was accompanied by a draft deed of agreement under the
provisions of Section 106 of the Town and Country Planning Act 1990 (as
amended) setting out a range of obligations, covenants and undertakings.6
The provisions secured are a material consideration and are dealt with in more
detail later on in this Report. With the agreement of the parties, a completed
version of the document was submitted shortly after the close of the Inquiry.7
1.8 At my request, a number of Statements of Common/Uncommon Ground
(SoCGs) were prepared by the main parties to inform the various proofs. As
set out in the General Matters SoCG,8 in light of the more detailed information
now submitted and the planning obligations anticipated as being secured, the
Council did not pursue those reasons for refusal (RfRs) relating to effects on
the Medway Estuary and Marshes SSSI, Special Protection Area and Ramsar
site (RfR1); effect on the strategic road network (RfR4); effect on highway
safety (RfR6); insufficient details in relation to the Pump Lane access points
(RfR7); and necessary infrastructure/related financial contributions (RfR9).
1.9 The planning application was accompanied by an Environmental Statement
(May 2019)9 which was followed by a Supplementary Environmental Statement
(March 2020).10 A further Supplementary Environmental Statement was
prepared in September 2020 to accompany the appeal.11 A Consolidated
Environmental Statement and accompanying Non-Technical Summary
(September 2020) represents the combining of both the original Environmental
Statement and its Non-Technical Summary, and the two Supplementary
Environmental Statements and their respective Non-Technical Summaries
(subject to the amendments and deletions as referenced in the two later
4 CD7.1
5 Bernard Wheatcroft Ltd v SSE [JPL 1982 P37]
6 ID22
7 ID55
8 SoCG on General Matters (CD11.1)
9 CDs 5.18-5.45
10 CD6.11
11 CDs 8.4 and 8.5
https://www.gov.uk/planning-inspectorate Page 4
documents).12 It is a composite document put together for ease of reading and
reference.
1.10 On 12 January 2021, the Planning Inspectorate (on behalf of the Secretary of
State) confirmed that the Environmental Statement was satisfactory in terms
of Schedule 4 of the Town and Country Planning (Environmental Impact
Assessment) (England and Wales) Regulations 2017. I have taken all the
environmental information into consideration in my assessment and
recommendation.
Building Heights Parameter Plan
1.11 During the third week of the Inquiry, after all the evidence on heritage,
landscape/visual impact and agricultural land had been heard, the Appellant
sought to submit a revised Building Heights Parameter plan.13 The plan that
had informed the evidence already given to the Inquiry in relation to heritage
and landscape matters (Plan No 11047 PL004 Rev B)14 showed development of
up to 12 metres in height across the whole site, other than for the areas for
the proposed school and village centre, where the maximum height was set as
10 metres. In broad terms, the amended plan (Plan No 11047 PL011 Rev B)15
shows a maximum building height of 12 metres across the northern part of the
site (save for the areas for the school and villages centre where the maximum
height is shown as 10 metres) and a maximum building height of 10 metres
across the southern part of the site.
1.12 The Council was provided with the opportunity to provide a response to the
amended plan, as was Historic England. Historic England confirmed that the
changes did not fundamentally alter its original conclusions and that its formal
position remained as set out in its response to the Council dated 1 August
2019, namely that it continues to have concerns regarding the application on
heritage grounds and considers that the application fails to meet the
requirements of the Framework in particular paragraphs 190 and 194.16 The
Council’s response also confirmed that the revised building heights parameters
would not give rise to likely significant environmental effects any greater than
those already assessed within the Environmental Statement(s) and through
the evidence given to the Inquiry, on the basis that it reduced the maximum
building heights across part of the site.17 The Council’s response also included
confirmation from its respective witnesses, Mr Etchells (landscape) and Ms
Wedd (heritage) that, whilst limiting the height of buildings within the higher,
southern part of the site would reduce the likely landscape, visual and heritage
effects slightly, that was not to the extent that it led to any material change in
the category of effect of the development and its overall impact.
1.13 Shortly before the end of the Inquiry, the Appellant submitted a further Note
which included, among other things, a review of the Council’s response
above.18 It sets out that the revisions would reduce the impact of the
development proposed, and confirms that the overall assessments set out in
12 CD8.3
13 ID29
14 Appendix 6 to the Appellant’s Statement of Case (CD8.1)
15 Appended to ID29
16 ID33
17 ID30 (Comprises initial response plus addendum note)
18 ID38
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the evidence and conclusions of the Appellant’s respective witnesses, Mr
Hughes (landscape) and Ms Stoten (heritage) remain largely unchanged.
Highways Mitigation
1.14 Part way through the Inquiry, on the day before the highways modelling
evidence was due to be heard, and notwithstanding its case that the original
mitigation proposed was, in its view, sufficient, the Appellant submitted new
mitigation proposals in relation to the configuration of the Toucan crossing to
the east of Bowaters roundabout and additional lane capacity, plus revised
lane markings and additional lane capacity at Will Adams roundabout.19
1.15 The proposed alterations relate to the performance of the local highway
network, as opposed to any changes that might have a material impact in
terms of visual amenity or which would materially change the nature of the
scheme for which permission is sought. On that basis, although I had to
adjourn the Inquiry in order to allow the Council to factor the additional
mitigation into its Medway Aimsum Model to assess the impacts of the revised
arrangements, I am satisfied that there was nothing to be gained by
undertaking any wider re-consultation on the material submitted. I am
content that no-one’s interests have been materially prejudiced in this regard.
1.16 The additional mitigation measures are the subject of an Addendum Highways
Statement of Common Ground.20 As set out in that Addendum, at a
subsequent meeting between the parties on 24 February 2021 to discuss and
clarify the intended measures to be modelled, the Appellant proposed
additional mitigation measures comprising revised signal timings for Bowaters
roundabout. A follow up email from Mr Tucker (for the Appellant) dated 28
February 2021 further amended the proposed mitigation schemes, including a
revision to the original proposed mitigation works at the Yokosuka Way/Lower
Rainham Road roundabout, together with revised signal timing files for the
Otterham Quay Lane/Meresborough Road signalised junction.21
1.17 With the exception of the revised mitigation works at Yokosuka Way/Lower
Rainham Road roundabout,22 the Council undertook a new modelling
assessment incorporating these additional mitigation works, the outcome of
which is presented in the Sweco Lower Rainham Report Addendum 3.23 The
Council also requested a Stage 1 Road Safety Audit, which was subsequently
received.24
2. THE SITE AND ITS SURROUNDINGS25
2.1 The appeal site sits within a broadly rectangular area of countryside to the east
of Gillingham and Chatham, northwest of Rainham. To the north-west, the
site is bounded by agricultural fields between the site and the hamlet of Lower
19 ID39
20 ID42
21 Appendix B to ID42
22 ID42 paragraph 3.5
23 ID 34 and ID 34a (the latter corrects annotations to some of the tables)
24 ID 40
25 More detail can be found in, inter alia, the Design and Access Statement (CD5.10), the Appellant’s Planning
Statement (CD5.11) the revised LVIA (CD8.3 Appendix 11.1a) the proofs of evidence for Messrs Hughes and Etchells
(CDs 10.3 and 10.8) and Messrs Parr and Canavan (CDs 10.1 and 10.6) and the General Matters SoCG paragraphs
3.1-3.9 (CD11.1).
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Twydall/Lower Twydall Lane. To the north and northeast, it is bounded partly
by the buildings that comprises the small settlement of Lower Rainham and by
the B2004 Lower Rainham Road. Both Lower Twydall and Lower Rainham are
designated Conservation Areas. Beyond the main road to the north are further
agricultural fields and paddocks alongside the Medway River Estuary, which lie
within the Riverside Country Park.26 The long distance Saxon Shore Way
footpath runs along the coastline at this point. To the north of the Estuary is
the low ridge of the Hoo Peninsula.27
2.2 To the southeast, the site is adjoined by allotments and Lower Bloors Lane,
beyond which is the Bloors Lane Community Woodland and the urban area of
Rainham. To the southwest, the site is separated from the built up area of
Twydall by the Gillingham to Sittingbourne railway line, which is elevated
above the landscape of the appeal site on a slight embankment.
2.3 Covering some 51.5 hectares, the site itself extends for some 1.2km from
Lower Twydall Lane in the west to Lower Bloors Lane in the east, and for some
0.7km from the railway line in the south to Lower Rainham Road in the north,
sloping gently down from southwest to northeast towards the Estuary. The
site comprising two farms, Pump Farm (the western half of the site) and Bloors
Farm (the eastern half) which are separated by Pump Lane, a narrow country
lane, approximately 4m wide. The lane, which is generally excluded from the
site boundary (although extensive works are proposed to the lane as part of
the appeal scheme) runs roughly north/south, from Lower Rainham Road,
passing beneath the railway and extending to Beechings Way within the urban
area beyond.
2.4 The site is currently planted as commercial apple orchards, with tall windbreak
hedges surrounding around the site boundaries and separating some individual
orchard blocks in places within the site. A couple of buildings used for storage
and other uses in connection with the orchard use are located on the western
half of the site, accessed off Pump Lane, together with a number of seasonal
workers’ caravans. A bridleway (No GB6a) extends south-eastwards from
Pump Lane, bisecting the Bloors Farm part of the site, to join with Lower
Bloors Lane. Its route is largely enclosed by tall conifer hedging although
there are views out from the route at field gates, and along stretches where
the hedge on the opposite side of the route to the conifer hedge is lower or has
some gaps.28
3. THE PROPOSAL29
3.1 The illustrative masterplan30 shows a residential-led scheme of up to 1,250
dwellings, together with a range of additional uses to support a new village
settlement. At the heart of the development would be a village green,
26 See Figure 3 in Mr Hughes proof Volume 2 (CD10.3)
27 ID18 shows the location of the appeal site in its wider context. The appeal site is site 1 on that map.
28 Mr Etchells photos 23-3 (CD10.8) and Mr Hughes Volume 2 photoviewpoints 14a, 14b and 15
29 More detail can be found in, inter alia, the Design and Access Statement (CD5.10), the Appellant’s Planning
Statement (CD5.11) the revised LVIA (CD8.3Appendix 11.1a) the proofs of evidence for Messrs Hughes and Etchells
(CDs 10.3 and 10.8) Messrs Parr and Canavan (CDs 10.1 and 10.6) the General Matters SoCG (CD11.1) and on the
submitted plans appended to the Appellant’s Statement of Case (CD8.1).
30 Dwg 11047 PL009C (Appendix 5 to the Appellant’s Statement of Case (CD8.6) as amended by the plans at ID20
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adjoined to the south-east and east by residential development, and to the
north by a new local centre.
3.2 The housing would comprise a mix of dwelling types and sizes, including a
proportion of self-build/custom build plots. The local centre includes a
strategic community hub comprising up to 1,000 square metres of retail,
business and community space, a two form entry nursery/primary school and
a care facility comprising a 60 bed extra care unit and an 80 bed care home.
Residential use would also form part of the local centre, with flats above the
commercial uses.
3.3 As noted above, the revised Building Heights Parameters Plan31 shows a
maximum building height of 12 metres across the northern part of the site,
closer to Lower Rainham Road (save for the areas for the school and village
centre where the maximum height is shown as 10 metres) and a maximum
building height of 10 metres across the slightly more elevated southern part of
the site towards the boundary with the railway line.
3.4 The main point of access would be via a new T-junction onto Lower Rainham
Road, which would be widened on its southern side at that point to allow for a
ghost island for right turning traffic entering the site. An internal estate road
would loop through the western part of the site, crossing Pump Lane towards
its southern end (to the north of the existing railway bridge/underpass) into
the eastern part of the site, crossing the bridleway before returning to cross
Pump Lane at a point to the north of Pump Farm. The arrangement would
allow existing residents continued north-south access along Pump Lane, albeit
realigned in places and with new junctions where it would be crossed by the
estate loop road.32 Off-shoot roads from the main loop within the site would
serve the local centre and residential areas.33
3.5 Whilst landscaping is a reserved matter, the latest iteration of the Appellant’s
Landscape and Visual Impact Assessment, dated September 2020,34 includes
an illustrative Landscape Framework Plan.35 The proposed landscaping and
public open space includes a village green and a landscape buffer zone around
the perimeter of the appeal site and along the internal loop road, in addition to
landscaping between the various development parcels. The open space
includes community orchards36 along sections of Pump Lane and around the
rear of Russett Farm (a small development of residential properties adjacent to
Pump Farm) three equipped children’s play areas, dog walking routes and
improvements to the existing bridleway.
4. PLANNING POLICY AND GUIDANCE
4.1 In addition to the National Planning Policy Framework (the Framework) and the
Government’s Planning Practice Guidance, reference was made to policies in
the development plan, which includes saved policies from the Medway Local
Plan (2003).
31 ID29
32 ID20 shows the new junction arrangements in more detail.
33 See the Movement Parameter Plan (Dwg No PL007 Rev D appended to ID20)
34 CD8.3 Appendix 11.1a (section 6) See also Figure 8 in volume 2 of Mr Hughes evidence (CD10.3)
35 Mr Hughes Volume 2 figure 8 see also his proof paragraph 4.5 and Dwg Nos 11047/PL/009C and /005B
(Appendices 5 and 6 to CD8.6)
36 Dwg 11047 PL009C (Appendix 5 to the Appellant’s Statement of Case (CD8.6) and ID26
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4.2 The Local Plan identifies a number of strategic objectives to guide the strategy
for Medway. These include:
• New development should follow sustainable development principles
through its relationship to transport infrastructure, the location and mix of
uses and the use of natural resources.
• The emphasis should be on creating an urban renaissance, through the
redevelopment of brownfield sites within the urban area in preference to
continued outward suburban expansion. The development of greenfield
sites should be restricted to those well related to the structure of the urban
area and avoiding visual intrusion into the surrounding countryside,
particularly the valuable urban fringe.
• The environmental quality and image of the area should be upgraded
through the highest urban design and landscape standards being pursued
in new development and regeneration.
• The widening of transport choices and accessibility, and a reduction in the
reliance on the private car by improvements to facilities for cycling,
walking and public transport.
• Firm protection for the Green Belt, the best and most versatile agricultural
land, sites of international, national and other strategic importance for
nature conservation and landscape.
• Identifying the built heritage of Medway as an important historical and
cultural resource.
4.3 The defined objectives inform a number of strategic development principles,
which in turn, are reflected in the detailed policies of the Plan. These include:
4.4 Policy S1: Development Strategy, which prioritises re-investment in the urban
fabric, including the redevelopment and recycling of under-used and derelict
land within the urban area. Land use and transport would be closely
integrated, with priority given to a range of new and improved transport
facilities. In recognition of their particular quality and character, long-term
protection is afforded to areas of international, national or other strategic
importance for nature conservation and landscape, and the historic built
environment. Outward peripheral expansion onto fresh land, particularly to
the north and east of Gillingham is severely restricted.
4.5 Policy S6: Planning Obligations sets out how the Council will apply conditions
on planning permissions, or seek to enter into a legal agreement with
developers, to provide for new physical infrastructure, social, recreational and
community facilities (including education facilities) and environmental
mitigation or compensation measures where mitigation is impossible or
inadequate on its own.
4.6 Policy BNE1: General Principles for Built Development requires that the design
of new development is appropriate in relation to the character, appearance and
functioning of the built and natural environment by:
i) being satisfactory in terms of use, scale, mass, proportion, details,
materials, layout and siting; and
https://www.gov.uk/planning-inspectorate Page 9
(ii) respecting the scale, appearance and location of buildings, spaces and
the visual amenity of the surrounding area; and
(iii) where appropriate, providing well structured, practical and attractive
areas of open space.
4.7 Policy BNE2: Amenity Protection seeks to ensure appropriate living conditions
for future occupiers and to protect those of nearby and adjacent properties.
4.8 Policy BNE12: Conservation Areas reflects the statutory duty set out at Section
72 of the Planning (Listed Buildings and Conservation Areas) Act 1990,
requiring that special attention be paid to the preservation and enhancement
of the character and appearance of Conservation Areas.
4.9 Policy BNE14: Development in Conservation Areas requires that development
within Conservation Areas, or affecting their setting, should achieve a high
quality of design which would preserve or enhance the area’s historic or
architectural character or appearance.
4.10 Policy BNE18: Setting of Listed Buildings reflects the statutory duty set out at
Section 66 of the Planning (Listed Buildings and Conservation Areas) Act,
resisting development that would adversely affect the setting of a listed
building.
4.11 Policy BNE21: Archaeological Sites seeks to ensure that potentially important
archaeological sites are assessed at the earliest possible stage where they
might be affected by development. On such sites, it requires that a field
evaluation is carried out before any decision is made on the planning
application.
4.12 Policy BNE24: Air Quality resists development where unacceptable effects
would be imposed on the health, amenity or natural environment of the
surrounding area, taking into account the cumulative effects of other proposed
or existing sources of air pollution in the vicinity.
4.13 Policy BNE25: Development in the Countryside is permissive of development in
the countryside only where it maintains, and wherever possible enhances, the
character, amenity and functioning of the countryside, where it offers a
realistic chance of access by a range of transport modes, and where it is either
on a site allocated for that use or meets one of a number of other specified
criteria. Countryside is defined as that land outside the urban and rural
settlement boundaries shown on the Proposals Map.
4.14 Policy BNE34: Areas of Local Landscape Importance is permissive of
development within defined Areas of Local Landscape Importance only where it
would not harm the landscape character and function of the area , or where
the economic and social benefits are so important that they outweigh the local
priority to conserve the landscape of the area. Development within an Area of
Local Landscape Importance should be sited, designed and landscaped to
minimise harm to the landscape character and function of the area.
4.15 Policy BNE35: International and National Conservation Sites confirms the sites
to which long-term protection will be given. Among other things, development
that would materially harm, directly or indirectly, the scientific or wildlife
interest of those sites is not permitted unless the development is connected
with, or necessary to, the management of the site’s wildlife interest.
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4.16 Policy BNE36: Strategic and Local Nature Conservation Sites gives long term
protection to the sites identified as such on the Proposals Map.
4.17 Policy BNE37: Wildlife Habitats resists the loss, either directly or indirectly, of
important wildlife habits or features not protected by other policies, other than
in certain circumstances.
4.18 Policy BNE38: Wildlife Corridors and Stepping Stones requires that
development should make provision for wildlife habitats as part of a network of
wildlife corridors or stepping stones.
4.19 Policy BNE39: Protected Species resists development that would harm
statutorily protected species and/or their habitat.
4.20 Policy BNE47: Rural Lanes is only permissive of development served by and/or
affecting important rural lanes defined on the Proposals Map where there
would be no adverse effect upon the value of the lane in terms of its
landscape, amenity, nature conservation, historic or archaeological
importance. Where alterations to the carriageway definition/boundaries of
rural lanes is necessary, the use of locally distinctive materials such as grass
banks, stone setts and hedging would be required. The use of urbanising
features such as raised concrete kerbstones, fencing and walls should be
avoided unless these are absolutely essential for structural or safety reasons.
4.21 Policy H3: Affordable Housing requires that, where a need is identified,
affordable housing will be sought as a proportion of residential developments
of a substantial scale as defined by the policy.
4.22 Policy H10: Housing Mix sets out that on sites larger than one hectare, where
residential development is acceptable in principal, the provision of a range and
mix of house types and sizes will be sought.
4.23 Policy L4: Provision of Open Space in New Developments requires that, where
there is a proven deficiency, development schemes shall make open space
provision in accordance with specified criteria.
4.24 Policy CF2: New Community Facilities is permissive of such development
subject to criteria relating to size and scale, its impact on the countryside,
residential amenity, landscape or ecology, with regard to be had to its
accessibility by a variety of means of transport.
4.25 Policy T1: Impact of Development is permissive of development proposals
provided that, when assessing the highways impact:
i) the highway network has adequate capacity to cater for the traffic which
would be generated by the development, taking into account alternative
modes to the private car; and
ii) the development would not significantly add to the risk of road traffic
accidents; and
iii) the development would not generate significant H.G.V. movements on
residential roads; and
iv) the development would not result in traffic movements at unsociable hours
on residential roads that would be likely to cause loss of residential
amenity.
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4.26 Policy T2: Access to the Highway sets out a general expectation ensuring safe
access and egress to and from a development site.
4.27 Policy T3: Provision for Pedestrians requires that development proposals
provide attractive and safe pedestrian access, and maintain or improve
pedestrian routes related to the site.
4.28 Policy T4: Cycle Facilities requires that major trip attracting development
proposals should make provision for cycle facilities related to the site. Secure
cycle parking and associated facilities are also sought in accordance with the
council’s adopted cycle parking standards.
4.29 Policy T6: Provision for Public Transport requires that where development is of
sufficient scale, provision shall be made for access by public transport.
4.30 Although the Council’s Decision Notice includes reference to policy BNE48:
Agricultural Land, this is not a saved policy and it was confirmed as being cited
in error. The policy does not form part of the current development plan.
4.31 Other relevant documents and guidance include:
4.32 Medway Landscape Character Assessment (2011):37 this is a landscape
planning guidance document for use when considering the appropriateness and
sensitivity of new development proposals within the countryside and the
urban-rural fringe areas of Medway. It supports and informs the Council’s
landscape planning policies.
4.33 Medway Guide to Developer Contributions and Obligations (2018):38 this
provides advice on how to determine contributions and includes technical
details for services for which contributions may be sought.
4.34 Strategic Assessment Management and Mitigation – Medway Council Interim
Policy Statement (November 2015):39 this sets out the Council’s position on a
strategic approach to managing and mitigating the potential impact to the
protected habitats of the Thames, Medway and Swale Estuary and Marshes
Special Protection Areas and Ramsar sites, in advance of adopting an
appropriate policy in the emerging Local Plan.
4.35 Local Transport Plan 4: Delivering Growth without Gridlock 2016-2031:40 the
Plan identifies the County Council’s transport priorities and the investment
required to support growth.
4.36 The Council is preparing a new Local Plan to set out how the area would
develop to 2035. It is still at an early stage - Regulation 18 consultation has
been undertaken, but it has not yet reached Regulation 19 stage. The Local
Development Scheme schedules submission of the Plan for Examination in
December 2021, anticipating adoption in December 2022. In light of its early
stage, no weight is afforded to it. As set out in the SoCG on General Matters,
the Council takes no issue in terms of prematurity in this regard.41
37 CD3.4
38 CD3.1
39 CD3.2
40 CD3.6
41 CD11.1 paragraph 4.26
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5. AGREED MATTERS
5.1 As confirmed in the SoCG on General Matters,42 the five year housing land
supply range argued by the parties ranges from 1.78-3.03 years. The SoCG
also confirms that, by the time of the Inquiry, the main areas of difference
between the main parties had been refined as landscape and visual impacts;
the degree of harm to a range of heritage assets and how any harm weighs
against public benefits of the scheme; the level of effect on the capacity of the
local highway network and the residual cumulative impact; and the weight to
be given to the loss of some 51.5 hectares of best and most versatile
agricultural land, the loss of the existing agricultural production on the site,
and the financial viability of continued agricultural use of the land.
5.2 At my request, a number of topic specific statements were prepared in relation
to Heritage, Landscape, Transport and Agricultural Land. 43 In addition, I asked
for a Position Statement setting out the parties’ respective positions in relation
to the various policies engaged by the development proposed, including
whether or not they can be considered as up to date, whether they should be
considered as one of the most important policies for determining the appeal,
and the weight that should be afforded to any conflict with them.44
6. THE CASE FOR A C GOATHAM AND SONS (THE APPELLANT)
This section is based on the closing submissions for the Appellant.45
Introduction
6.1 The appeal site is sustainably located within accessible proximity to the centres
of Rainham, Twydall and employment sites, and integrates very well with
sustainable transport options. The appeal scheme accords with the
development plan when considered as a whole, and is in accordance with
national policy. As such, the proposal should be approved on application of the
tilted balance. Alternatively, it should be approved even absent the tilted
balance, and even as a ‘departure’ from the development plan (if it were ever
conceived to amount to a departure, which it is not).
6.2 The development would make a highly important contribution to the Council’s
chronic housing shortage, to be viewed against its own under-
acknowledgement of a significant housing land supply shortfall. A troubling
shortfall in affordable housing provision46 further echoes the clear and ongoing
strategic plan and development management failures of the Council to approve
and deliver housing, District-wide. No plan-led resolution to this delivery crisis
is within sight - the Council’s timetable for adopting a new Local Plan is just
42 CD11.1
43 SoCG on Heritage (CD11.2); SoCG on Landscape Matters (CD11.3) which is in two parts, the second part
comprising a video clip of views of the appeal site from the train; SoCG on Transport Matters (CD11.5); SoCG on
Best and Most Versatile Agricultural Land (CD11.5). During the Inquiry, I received an Addendum Highways SoCG
(ID42)
44 CD11.6 INSPECTOR’S NOTE: Mr Canavan (for the Council) verbally corrected some of his entries on the table.
The weight to be afforded in his view to policy BNE25 (page 2) was confirmed as limited (instead of medium); the
weight in his view to be afforded to policy BNE48 (page 4) was confirmed as none (as opposed to limited); and the
weight he considered should be afforded to policy S1 (page 5) was confirmed as limited (as opposed to full). In
addition, the Appellant revised its position in relation to policy T1, as set out in ID46
45 ID 51
46 ID45
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shy of two years from now. The Council is, in truth, pointing to ‘plan-led’
delivery under this new plan from 2025 or later. That is no plan whatsoever.
6.3 The appeal proposal also comes at a unique time of the UK entering a massive
economic slump. The clear, significant economic and social gains that would
be delivered through the appeal scheme at local, regional and indeed national
level, are the more striking ahead of, and during, what will be a much
protracted, if presently masked, period of downturn and slow recovery.
Housing
6.4 The starting point remains the Council’s understated characterisation of a
significant undersupply of housing land. Its reported annualised requirement
is 1,662 dwellings per annum. Meeting the requirement figure has
demonstrably posed an unmet challenge. Against this background, the scale
of housing contribution from this development holds tremendous importance in
both economic and social terms at a time of pressing and urgent crisis.
6.5 In addition to open market housing, the affordable housing contribution
presents another major social and economic benefit. Any quantum of
affordable housing is routinely accorded substantial weight in recovered appeal
decision-taking, with a view to meeting a communities’ assessed need and
reducing the backlog of households awaiting affordable housing, in addition to
newly forming households, as a central plank of national planning policy.
6.6 There is also real justification in scrutinising the Council’s unfounded optimism
against the Appellant’s realism regarding future housing delivery, given the
Council’s poor track record. The Council places broad reliance on high level
AMR evidence, as opposed to any forensic analysis of supply, still less any site-
specific evidence showing any actual assessment, in support of its claim of
3.03 years supply.
6.7 The development is brought forward against the background of an aged Local
Plan, where the ‘most important’ policies are out of date, by virtue of the lack
of a five year supply of deliverable housing sites within the local authority area
and delivery (based on Housing Delivery Test) being less than 75% of the
housing requirement over the previous three years. Moreover, the policies in
the aged Local Plan47 fail to reflect the national policy approach to
sustainability. Much is out of date by virtue of inconsistency with the National
Planning Policy Framework (the Framework) (eg policy T148) even if it was not
by virtue of the Council’s housing land position. The local plan-making process
is so far off, with emerging policy not in sight, that no weight may properly be
attached.
6.8 Consequently, the very significant extent of housing shortfall would continue to
go unmet, both in market housing and affordable housing terms. The shortfall
is so chronic, and the Council’s steps too late and insufficient, that the weight
can, at best, only be limited. The strategic vision for housing delivery set out
in the Local Plan has failed.
47 CD10.1 Mr Parr PoE 6.7
48 ID46
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6.9 Evidently, there has been a chronic and long-established failure of the
development plan, reflected by Council’s decision-taking, to deliver housing for
the District.49 This provides important background to the consideration of the
development, alongside all most important policies relevant to determination
being treated as out of date, by virtue of paragraph 11 of the National
Planning Policy Framework (the Framework).
6.10 The scheme is in accordance with the development plan. This is especially so
when it is understood that compliance includes broad compliance and does not
require compliance with every single relevant policy. Material considerations,
including compliance with national policy, weigh further in favour of approval.
6.11 Policies relevant to determination are set out in the SoCG on General
Matters.50 It is seemingly agreed by the Council that the basket of policies
cited in the remaining reasons for refusal are ‘most important’ policies in the
determination of the appeal, save for acknowledging the Council’s confirmation
that policy BNE48 is not a saved policy and carries no weight.
6.12 This plainly holds local, regional and national importance: the lives of a huge
number remain negatively affected by an inability to access housing suitable to
meet their needs. The national policy emphasis for ramping up supply,
improving affordability and widening housing choice, is purposeful. For
Medway, the 20% buffer is to be applied due to the significant under delivery
over the previous three years against the Housing Delivery Test (HDT). In
HDT scoring terms, this Council falls within the top ten worst performing
authorities within the country. Moreover, the five year supply figure is only an
absolute minimum figure to be achieved in the context of the Government’s
ambition to significantly boost the supply of housing.
6.13 The agreed housing supply range, being no higher than 3.03 years51 on the
Council’s own case – but, in reality being below two years - is coupled with the
equally sobering rate of historic under delivery of housing throughout the Local
Plan period.52 This is also replicated in the supply and delivery of affordable
housing. This sustained and significant shortfall has remained despite the
preparation of action plans by the Council, echoing the decision-taking as well
as policy failures. The historic delivery picture means that new housing
remains well below the annual requirement.
6.14 The extent of the shortfall is material even in a case, as here, where the
housing position is disastrous.53 On any case, the Council’s wholly aspirational
ceiling still merits the conclusion of the uppermost substantial weight. There is
absolutely no requirement on an applicant even to show that there is any
shortfall in the five year housing land supply in order to secure permission,
including for larger schemes.
6.15 The Council’s contended best supply figure of 3.03 years takes no account of
historic shortfall.54 Whatever reliance is placed on the affordability ratio, the
49 Housing table ID 32
50 CD11.1 General SoCG Paragraph 4.5 page 7
51 CD11.1 SoCG paragraph 5.1.7
52 ID32 Medway Housing table
53 Shropshire v SSCLG [2016] EWHC 2733 (Admin) at [28]-[30], refined in Hallam Land v SSCLG and Eastleigh BC
[2017] EWHC 2865 (Admin) at [22]-[23]
54 ID32
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reality of the extent of unmet need remains. The standard methodology is not
intended to be so formulaic as to leave no room for discretion where there is
exceptionality. The situation in Medway provides ample exception. National
policy is not intended to excuse persistent and chronic under-delivery. So, the
fact that the numbers involved are so high, so persistent, and so far-reaching,
provides a pertinent lens through which the coming forward of up to 1,250
units should be considered.
6.16 The Appellant has submitted a detailed analysis of housing supply and
delivery, justifying a finding of 1.78 years.55 No challenge has been made to
the figures or methodology56 save, principally, for the inclusion of shortfall.
6.17 In that context, very substantial weight (at the uppermost end of ‘substantial’)
should be given to the contribution of the appeal scheme in market housing
and affordable housing terms. Mr Canavan’s laboured contention57 that the
Council is making significant steps to boost housing supply defies belief and is
a further symptom of a deeply failing planning function. The contended
measures in this regard are indeed standard for any Authority, with no further
toolkit being deployed to even rescue the HDT position. The list of consents
cited by Mr Canavan58 do not portray any enhanced drive to deliver on
housing.
6.18 The affordable housing provision set out by the Appellant59 is unchallenged by
the Council, bar overarching observations. It shows a shortfall of 5,029 homes
between 2012-2017 equating to 1,006 per annum. There is nothing to
suggest that this pattern of significant under supply has changed in
subsequent years and the Table in ID45 confirms that the level of affordable
delivery is low.
6.19 The back-dated, annualised target figure of 204 units bears no justification and
is plainly far too low. The figure is also less than 30% of the 744 annual need
figure stated in Medway’s Strategic Market Assessment 2015. Even when
viewed as a guide, the Council has only met the 204 figure within six of the
last nine years. This consolidates its failure to take steps to address another
chronic annual deficit in affordable housing. This invites very substantial
weight (or substantial at the uppermost end) in favour of the appeal scheme.
6.20 There is no live issue engaging the proposition in Kings Lynn and West Norfolk
v Secretary of State for Communities and Local Government [2015] EWHC
2464 (paragraphs 32-37). It is not advanced by the Appellant that national
policy requires LPAs to meet their affordable housing needs in full, but there is
plainly every significance in the Council doing so, and every significance in the
Council not doing so, given its housing land position. Hence, the material
consideration arising is no less significant for the absence of a requirement.
6.21 Against the historic under supply and delivery, the Council seemingly points to
two factors,60 that it is now improving, and the plan-led system with reliance
55 CD5.12 Housing Report
56 SOCG Paragraph 5.1.7 CD11.1
57 CD10.6 Paragraph 6.22 – 6.23
58 ibid paragraphs 6.25-6.26
59 addressed at paragraphs 8.23 – 8.31 of Mr Parr’s PoE (see also Chapters 10-14 of Rapley’s Housing report)
60 CD10.6 Mr Canavan Paragraph 6.57- 6.59
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on the future Local Plan. The extent of the Council’s housing record and
minor, and most recent, only uptick (even accounting for some approvals since
2015) offers no confidence of any meaningful and sustained improvement.
The future Local Plan is so distant, that even the Council invites that very little
(ie no) weight be attached. Future housing delivery under a new Local Plan
cannot logically be given any more weight. So, pointing to the plan-led system
defies both logic and rows flatly against clear national policy emphasis for
boosting housing delivery. The Local Plan, as well as Council decision-taking
pursuant to it on housing proposals, has so evidently failed lamentably.
6.22 Given the Council’s own position, the emerging plan can be addressed shortly.
The process has been subject to continued slippage. The Regulation 18 stage,
alone, spanned January 2016-June 2018. The Council contention that the
Regulation 19 consultation will commence in Spring 2021, is again unrealistic,
with background evidence gathering remaining ongoing.
6.23 The Council’s exclamation of the Housing Infrastructure Fund (HIF), of which
no detail (including of triggers or individual asset viability or asset
deliverability, etc.) is before the Inspector, in merely potentially enabling
supporting infrastructure for up to 12,000 homes, is a complete red herring in
this appeal. The HIF award is ultimately part of a wider toolkit, inevitably
activated only well after the new Local Plan process is completed, that would
not be called upon until significantly post-plan adoption. HIF (even if anything
of detail was actually known of the award) would not speed up that process at
all. It also provides no justification for stalling on the imperative to boost
housing supply, now. If anything, it further signposts the Council’s disastrous
housing position.
6.24 The Council’s Spring 2020 consultation Planning for Growth on the Hoo
Peninsula,61 which does not even purport to assess capacity generally, or
specific sites, echoes the fact. It can attract no weight. Nonetheless, the bald
claim of this scale of strategic housing delivery lacks all depth. This ‘vision’ is
also bound to face monumental opposition at Examination. The 12,000 homes
figure stems from a high level assessment in the Strategic Land Availability
Assessment 2019, which gives indicative figures only for Medway
development. Similarly, the January 2021 issue of ‘New Routes to Good
Growth’ HIF Project consultation,62 presents only a very high level, road and
rail investment, and fails to anticipate any detailed, physical, policy, procedural
and timing delivery issues.
6.25 Moreover, whilst a Strategic Environmental Management Scheme (SEMS),
identified as ‘an innovative vision to capture aspirations for landscape
biodiversity/access and long term management and engagement’ has been
produced,63 it provides no detail as to how it would be possible to achieve
substantial development without undermining the significant international,
national and local environmental constraints of the Hoo and adjacent estuary.
6.26 So, the Council’s consultation exercises over recent years give no confidence
that any significant level of development can be delivered on the Hoo
61 CD6.8 Appendix 8
62 CD1.4
63ibid pages 49-62
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Peninsula. But the issue can be looked at as narrowly as the timing of
delivery. The Council’s timescale for adoption of the Local Plan is plainly over-
optimistic.64 Summer 2025 is a much more realistic date for adoption, with the
necessary applications to deliver housing to follow, and then build out. This
process would not therefore deliver any housing for at least five years. This is
far too long to wait against the backdrop of the current chronic housing
situation. The Inspector in the Brompton Farm (June 2019) appeal rightly
noted then that ‘…the housing situation needs immediate action, and it is
evident timescales are progressively slipping with the Local Plan…’65
6.27 The need to avoid further slippage gains even greater importance in this time
of (if presently masked) unprecedented economic downturn. More than ever,
development which would deliver substantial housing at an early stage with
myriad, important, in/direct economic benefits is required.
Policy
6.28 There is largely agreement between the principal parties on the relevant
development plan policies, and some agreement on the weight to be attached
to them.66
6.29 Policy S1 (Strategic Development) directs development to urban areas and
previously development land which is generally a sustainable approach. It
does not prevent development in the countryside, as Mr Canavan notes.67 The
Council has also granted permission on greenfield sites to boost housing
supply. The Council’s view that this should attract full weight as it seeks to
protect green land and encourage green development, falls flat against its own
recognition that some District BMV land must make way for future housing.
Medway cannot begin to meet its housing need without development on
greenfield sites. As Policy S1 evidently restricts housing delivery, it is to be
treated as out of date, and in the circumstances, should carry very limited
weight.
6.30 Neither policy BNE12 nor BNE14 (Conservation Areas) directs refusal if harm
to a designated heritage asset is identified. The development causes much
less than substantial harm to the setting of the Conservation Areas, and this
must be balanced against the public benefits of the development. It is
submitted that the benefits very substantially outweigh the limited harm.
6.31 On BNE18 (Listed Buildings) it is agreed that the development would cause
less than substantial harm to the setting of listed buildings. In directing
refusal if there is any harm, there is conflict with the approach at paragraph
196 of the Framework, which requires a balance against public benefits. The
policy is out of date and should carry limited weight. Again also, the much less
than substantial harm is clearly outweighed by the benefits.
6.32 The proposition in City & Country Bramshill Limited v Secretary of State for
Housing, Communities and Local Government [2021] EWCA Civ 32068 is not
64 ibid paragraph 6.54
65 CD4.3 paragraph 73
66 Position Statement on Policy Matters (CD11.6)
67 CD10.6 paragraphs 6.22-6.26
68 Paragraphs 87-89
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engaged in this appeal. Neither principal party is arguing the elevation of
development plan policy on heritage over the Framework on heritage. The
Framework disposes of the heritage question. On the application of the
Framework, the parties’ common ground on less than substantial harm is
agreed. The Appellant claims very substantial benefits, to be assessed in the
usual way. In this context, whether BNE18 is, or is not, out of date, changes
nothing.
6.33 On BNE25 (Development in the countryside), a blanket restriction on
development in the countryside that restricts housing delivery is out of date
and should carry no weight.
6.34 Other policies such as BNE34, which control development of valued
landscapes, can carry no or little weight at best. As identified with policy S1,
the Council has permitted countryside development contrary to this policy on
housing supply grounds. As with Policy S1, the Council cannot sustain an
objection in principle to the development proposed on the basis of protecting
greenfield land.
6.35 The degree of impact on the locally designated landscape is in dispute. Whilst
it is not a general restraint on housing delivery, it does restrict housing in
locally valued landscape areas. The outcome of Framework paragraph 11 in
the circumstances of this appeal, mean that it should carry little weight.
Inspectors (Land at Station Road and Orchard Kennels)69 have accepted
protection of the ‘valued local landscape’ should be given weight, and have
also accepted that the second criterion, which invites the balancing of
economic and social benefits, must be applied. Given that these Inspectors
took different views on the weight to be given to the landscape protection aims
of the policy, the view observing the significance of the Council’s housing
position should be preferred here. The Council’s own recognition of future,
sizeable development on BMV land, viewed against the dire housing picture,
lends further endorsement for this.
6.36 Further, any conflict with BNE34(i) is outweighed by compliance with
BNE34(ii). This allows for the situation that ‘the economic and social benefits
are so important that they outweigh the local priority to conserve the area’s
landscape.’ The benefits in this case clearly outweigh the local landscape
priority.
6.37 Policy BNE47 (Rural Lanes) was belatedly added by the Council. This is a local
designation only, one which is highly equivocal in its application, and one
which does not add any level or different protection to Policy BNE34, since the
Area of Local landscape Importance (ALLI) fully encompasses it. No
assessment was undertaken of Pump Lane’s characteristics when designating it
as important. The Lane itself has a mix of built and open frontages and this
character would not be altered by the appeal scheme.70 Even if conflict with
this policy arises, which it does not, and if it is concluded that some harm does
occur, it must be balanced against economic and social benefits. That conflict
would pale.
69 CDs 4.2 and 4.4
70 ID 20
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6.38 Policy T1 (Impact on development) is not consistent with Framework
paragraphs 108-111.71 It cannot be treated as up to date given that the policy
only addresses (in so far as relevant to the appeal) at criterion (i), traffic
capacity generated by the development. Against this factor, T1(i) does not
reflect the threshold or high bar of residual, cumulative severity. Additionally,
policy T1 does not even account on its face, for the consideration of residual or
cumulative traffic impacts. It also does not import any obvious consideration
of the wider traffic-related considerations arising under paragraph 108.
6.39 The comparatively far broader scope of Framework paragraphs 108–111 is
intended to encourage, to an appropriate level, the promotion of sustainable
transport modes, giving priority to pedestrian, cyclists and use of public
transport (Framework paragraph 110a) and c)). It also identifies the need to
plan for the needs of the less mobile (paragraph 110b)) servicing/ emergency
vehicles (paragraph 110d)) and electric vehicles (paragraph 110e)).
Paragraph 111 advises on travel plans. Policy T1 does not incorporate or
notably reflect any of these positive elements which allow for a residual
cumulative assessment of traffic impacts.
6.40 In the Appellant’s view, the appeal scheme only conflicts with policies S1,
heritage policies BNE12 and BNE14, and countryside policy BNE25, none of
which carry significance in the overall planning balance, taking account of the
outcome of paragraph 11 of the Framework for out of date ‘most important
policies’ in this appeal.
6.41 In the 2018 Cliffe Woods Appeal,72 the Secretary of State decided that policies
S1 and BNE25 ran counter to the objective to significantly boost the supply of
houses and the weight to be attached to them should be reduced. This
reflected the advice of the reporting Inspector.73
6.42 So, the scheme is in accordance with the development plan, especially when it
is understood that the policies of any development plan pull in different
directions and that broad conformity (there being no need for full compliance)
gives rise to accordance. As below, these conflicts are strongly offset by
housing delivery and the host of other, significant benefits of the scheme.
Appeal scheme delivery
6.43 Based on realistic, not over optimistic assumptions, housing could start to be
delivered on site by Summer 2023, allowing for some 250 houses (131dpa) to
be delivered as part of the five year supply. Assuming the Council’s more
cautious delivery figure of 107 dpa,74 some 210 homes would be delivered,
35% of which would be affordable. In cross-examination, Mr Canavan
accepted that these timescales were possible and that even if they slipped
significantly, would still deliver in excess of 100 houses. In any of these
scenarios, a substantial contribution would be made to the five year supply.
6.44 The need to address archaeological conditions might affect the delivery of
housing if important remains are found on further physical investigation. This
71 ID46
72 CD4.9 Paragraph 23
73 Ibid paragraphs 100 and 133
74 Mr Canavan’s proof of evidence, paragraph 6.34 (CD10.6)
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would have more impact on the location/distribution of houses than timing of
their delivery. The Appellant is naturally keen to progress development as
soon as planning permission is granted. There are no substantive issues
preventing prompt delivery of housing on site, which would be well in advance
of delivery through the emerging Local Plan as advocated by the Council.
LANDSCAPE
Landscape Character and Visual Context
6.45 The appeal site is strongly influenced by the urban development and urban
fringe context within which it is sited. Impacts on Pump Lane are limited to
those confined impacts associated with the introduction of the new junctions,
and with the replanting of hedgerows along Pump Lane which does not affect
the character of the central section of the Lane as it passes through the site.
6.46 The site is well contained by mature vegetation, including woodland and tall
hedgerows which significantly limit the available views and extent of visibility.
There are limited, publicly available views into and across the site, with some
views from adjoining lanes, from Pump Lane that passes through the site and
from the bridleway which runs across its eastern part.75 Views from the
Estuary shoreline to the north are screened by trees and vegetation along the
Saxon Shore Way, with any views limited to those from the promontories of
Horrid Hill and Motney Hill.
6.47 Views across the site from trains passing to the south are also largely screened
and conspicuously filtered by trackside trees and vegetation. Outward views
across the site are glimpsed through breaks in vegetation and are fleeting,
with some clear views during the winter months.76
6.48 The land across the majority of the site is managed for commercial orchards,
set within medium to large scale fields defined by tall coniferous hedges and
windbreaks. Commercial orchards, even if treated as being at all characteristic
of the Kent fruit belt are, nonetheless, far from a rare or unusual feature
within the area and are unremarkable in their character. As Mr Hughes
explained, supported by his robust LVIA, the orchards are indeed a perfectly
common feature within the wider Kent Fruit Belt.
6.49 The appeal site has little variety in land use, land cover or pattern. The
surrounding area includes fields of varying sizes, including both pasture and
arable land with areas of remnant traditional orchards and marshland and the
Medway shoreline to the north, beyond Lower Rainham Road. The variety of
land uses within the immediate area is recognised in the Medway Landscape
Character Assessment (MLCA) of the Lower Rainham Farmlands LCA which
identifies the area as comprising “Flat, small to medium scale mixed farmland
– orchards, arable, rough grazing”.77
6.50 The MLCA identifies the general area between Lower Rainham and Lower
Twydall as being in generally good condition, reflecting the management of the
orchards and field boundaries. The commercial orchards, even if treated as a
75 CD11.3, point 7 (page 4)
76 ibid, point 8 (page 4)
77 CD3.4 Page 68, Characteristics, first bullet
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characteristic of the area, do not reflect the traditional historic pattern,
character or varied agricultural land uses present in the landscape. The
management of commercial orchards also underscores their lower biodiversity
and wildlife value. This is reflected by the MLCA, in identifying the potential to
restore traditional orchards and strengthen and enhance biodiversity
opportunities78.
6.51 The appeal site is situated within the urban fringe, bounded by the urban edge
at Twydall to the south and contained by linear development which extends
along Lower Rainham Road between Berengrave Lane and to include Lower
Rainham to the north and east. Houses on the edge of Lower Rainham extend
south along Pump Lane on the edges of the site, with Pump Farm, the
residential development at Russett Farm and properties opposite Pump Farm
towards the centre of the site.
6.52 Whilst the land use within the appeal site is predominantly agricultural,
including features and characteristics that are typically rural in nature, the
larger context which encompasses the site, viewed in relation to the urban
area, development and also infrastructure (roads and railway) nonetheless
strongly influences the context and perception of the landscape and appeal site
within the urban fringe. This is recognised within the MLCA, in identifying the
Lower Rainham Farmland LCA as having a “transitional urban fringe character”
which is influenced by Lower Rainham Road.79
6.53 Lower Rainham Road, and development along it, extends the urban fringe
influence and forms an appreciable barrier to the north of the site, separating
it from the Riverside Marshes and Shoreline to the north. The urban fringe
influence of Lower Rainham Road upon the local landscape is identified by the
MLCA as a characteristic of the Riverside Marshes LCA,80 which is situated to
the north of Lower Rainham Road beyond the appeal site and extends as far as
the shoreline of the Medway Estuary.
6.54 Given these factors, it is clear that the site forms part of a wider area that is
influenced by development and is of urban fringe character, being contained by
urban development and Lower Rainham Road to the north and situated
adjacent to the edge of Twydall along the railway line to the south.
6.55 Assertions made in cross-examination of Mr Hughes that the LVIA, and/or his
proof of evidence, lack a full appreciation of the MLCA assessment of land
within the appeal site being essentially rural in character, altogether fail to
acknowledge that the MLCA identifies the urban fringe character and urban
influence Lower Rainham Road as characteristics of both the Lower Rainham
Farmland LCA and Riverside Marshes LCA. Both the LVIA and his proof amply
acknowledge the characteristics and features present within the appeal site,
including the orchards, hedgerows and farmland, and the contribution these
make to the landscape. This is also recognised within the intrinsic assessment
of effects and is also reflected well as part of mitigation measures incorporated
as part of the development.
78 ibid Page 69, Issues, third bullet
79 ibid Page 68 Character - second bullet
80 ibid Page 32, Characteristics, second bullet
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6.56 The influence of the urban form and containment of the site by development
and vegetation is also clearly apparent in inland views from the promontories
of Motney Hill and Horrid Hill. As agreed in the Landscape SoCG (LSoCG),81 in
these views, the appeal site is set beyond vegetation and trees to the
shoreline, as well as development and hedgerows along Lower Rainham Road.
The urban edge at Twydall forms a developed backdrop on the rising land to
the south, with the urban area of Rainham and Gillingham beyond.82
6.57 Within the local landscape, there are commercial developments that influence
the character and perception of the area as being within the urban fringe
context. This is recognised in the MLCA by the classification of the area as
being situated within the ‘Urban fringe with urban/industrial influences’
landscape type, which is described as land which is ‘either significantly
degraded by adjacent intrusive urban or industrial areas (sometimes
characterised by an abrupt urban/rural transition) or contains features which
significantly intrude upon or detract from its once rural character.’83
6.58 As conveyed in Mr Etchells’ proof and as described during his evidence in chief,
he considered that, at the time of the assessment of the Kent Thames
Gateway Landscape Assessment in 1995, Bloors Wharf was in industrial use
and would have influenced the area.84 However, the description of the area
contained in the MLCA also describes the present-day context within which the
site is situated, with an abrupt urban edge with Twydall to the south and the
urban area on the rising land beyond strongly influencing the character of the
area. Other detractors within the local landscape include industrial/commercial
uses at Motney Hill, the Mariners Farm boatyard and industrial units at Owens
Way, on the edge of Gillingham. As recognised by the MLCA, these urban and
industrial areas intrude on the local landscape and detract from the character
of the area, including the appeal site. This context can be experienced in
views towards the shoreline from Horrid Hill, Motney Hill and the estuary.85
6.59 Whilst recognising the situation of the appeal site within the locally designated
Gillingham Riverside ALLI, the LVIA assesses the site and local landscape
within the Lower Rainham and Lower Twydall Fruit Belt as being of a Medium
Sensitivity to the Development.
6.60 As examined through a site-specific landscape character assessment within the
LVIA, the landscape alongside the estuary north of lower Rainham Road is, for
a variety of reasons, of a higher value than that of the Site, and of land within
the Lower Rainham and Lower Twydall Fruit Belt. It is therefore more
sensitive. It is important to recognise that, as the LSoCG confirms, the
development would have no direct impact upon these areas north of Lower
Rainham Road, including the Country Park, protected biodiversity sites and
public rights of way associated with the proposed development.86
6.61 Land north of Lower Rainham Road is of a higher value and sensitivity due to
the recreation and amenity associated with the Riverside Country Park, Saxon
81 CD11.3
82 Ibid point 9 (page 4)
83 CD3.4, page 121 (Appendix B)
84 CD10.8 paragraph 3.4.11 (p-age 16)
85 CD10.3 Volume 2 Figure7: Photoviewpoints 2 and 4 and CD10.8 Appendices: photographs 32, 34 and 35
86 CD11.3 point 7 (page 7)
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Shore Way, expansive attractive views across the estuary, and its wildlife/
conservation importance associated with areas of nature conservation. As the
LSoCG confirms, the development would not directly impact upon these areas.
6.62 The detailed character assessment within the LVIA sub-divides the Riverside
Marshes LCA into two Local Landscape Character Areas (LLCAs) so allowing for
a differentiation between areas along the shoreline and farmland in respect of
character, value and experiential factors, including views across the estuary.
As Mr Hughes emphasised in his proof, the most significant difference between
the MLCA and Tyler Grange’s LVIA, relates to the integral links between the
Riverside Marshes and Lower Rainham Farmland combining to form a generous
buffer between the urban areas and estuary.87 Lower Rainham Road and
associated development and vegetation provide physical and visual separation
between the two areas, as agreed between the Council and Appellant.88 It is
not at all clear why then land within both these areas should be provided as a
buffer to protect the biodiversity or recreational resources along the shoreline.
This is not explained or justified within the MLCA or under Local Plan policy
BNE34 in relation the ALLI functions as a green buffer. The Council’s evidence
also offers no justification.
6.63 As recognised by both Mr Hughes and Mr Etchells, the containment of the
appeal site limits the area from which the site, and the development proposed
could be seen, and therefore also, the extent of both landscape and visual
effects to the area within the visual envelope of the development.89 This
represents an area that is tightly drawn around the appeal site with restricted
visibility beyond the roads and lanes bounding the site. Views from Motney
Hill and Horrid Hill are identified from the north, where the land rises
sufficiently for views to be obtained over the shoreline vegetation inland
towards the appeal site. The landscape and visual effects of the development
would therefore be localised in nature and extent.
Informing design principles
6.64 As detailed in the Design and Access Statement (DAS), the development has
been informed by design principles90, including:
• creation of a village character with village green in the centre of the site
adjacent to development on Pump Lane;
• incorporation of historic orchard use within parts of structural
landscaping;
• maintenance of existing landscape structure at the edges of the site with
significant areas of open space around the perimeter;
• retention of existing bridleway and extend it across the western site
area;91 and
• enhancement of connectivity through creation of a pedestrian link to
Lower Twydall and countryside walk around the perimeter of the site.
87 CD10.8 paragraph 3.12 (page 17)
88 CD11.3 point 6 (page 4)
89 CD10.8 paragraph 3.4.18 (page 18) and Landscape Appendices – Figure 4 ‘Visual Envelope and Photoviewpoints’
90 CD5.10 Section 5.0 Design Principles
91 INSPECTOR’S NOTE: the plans do not show any extension of the bridleway into the western part of the site
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6.65 The landscape strategy for the development as set out in the DAS, also
includes the following principles, attributing a clear emphasis:
• additional landscape screening and separation for existing residential
properties in addition to existing high hedges and trees;
• a structural landscape around the perimeter of the development and
loop road to allow development to blend with the landscape; and
• a significant area of open space for recreation incorporating swales and
ponds as part of the Sustainable Drainage Strategy.
6.66 These landscape principles are incorporated into the areas of Green and Blue
Infrastructure as shown on the parameter plans92 and illustrative masterplan.93
An illustrative Landscape Framework plan has been prepared by Tyler Grange
as part of the appeal submission to fit with the revised parameters, increasing
the landscape and Green Infrastructure buffers to Lower Twydall and Lower
Rainham, respecting their setting and identity as well as visual amenity of
residents and providing additional landscape buffers and recreation areas.94
6.67 The Landscape Framework sets out landscape principles which include creation
of open space and green infrastructure containing community orchards, village
green, recreation routes and landscape mitigation and structure planting. As
the LSoCG confirms,95 these areas also provide improved connections for
residents within the scheme and to the wider countryside including the
Riverside Country Park, and Saxon Shore Way as well as to the wider urban
area, in addition to Lower Rainham and Lower Twydall landscape buffers.
6.68 The development would deliver substantial new areas of publicly accessible,
attractive open space, including the village green (1.12 hectares) and areas of
multifunctional green and blue infrastructure (15.69 hectares). Together,
these areas combine to significantly cover a third of the site area.
6.69 The strategic buffer planting and linear green spaces within the development,
including trees and woodland, would break up the built form and provide a soft
green backdrop to the site when viewed from the estuary. The effectiveness
of that in softening views from the north is agreed in the LSoCG.96 Character
Areas (section 6 of the DAS)97 illustrate the substantial set-backs, as well as
the opportunities for effective mitigation in addition to the varied character and
edge treatments, capable of delivery throughout the development.
Height Parameters
6.70 The appeal submission originally included height parameters for development
of up to 12 metres in height across areas of residential development, with
heights of 10 metres at the school and local centre.98 As part of the EIA, the
LVIA assessed the 12 metres height across the residential areas as a worst-
case scenario.99 However, as had plainly been explained in the DAS, the
92 CD8.1 Appendix 5 Green and Blue Infrastructure Parameter Plan
93 ibid Revised Site Masterplan
94 CD10.3 Volume 2, Figure 8
95 CD11.3 point 6 (page 6)
96 Ibid point 10 (page 4)
97 CD5.10 Section 6, Design Development
98 CD8.1 Appendix 6 – Building Heights
99 CD8.4 Technical Appendix 11.1a, paragraphs 2.7 and 2.8, page 4
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intention had always been for individual feature and focal buildings only to be
of a height of up to 12 metres (3 storeys) in height. It was never the
intention, true to the DAS, for anything approaching blanket development
across the appeal site to be three storeys/up to 12 metres high. Indeed, the
clear majority of development would be no higher than two storeys.100
6.71 The Appellant’s production of a revised heights parameter plan (Dg No
11047/PL/011B) so reducing the areas of heights with parameters of up to
12 metres to areas within the southern part of the site and those associated
with the care home,101 illustrates the same reality of the development, evident
from the DAS. The significance of likely landscape and visual effects, and
related mitigation measures arising, remains unaffected. There would arise a
minor reduction in effects associated with the reduction in height parameters,
given the broad categories of effect in both Mr Etchells’ evidence and the LVIA,
ultimately, no change would arise in the category of overall effect,102 as
confirmed by Mr Hughes in conjunction with the Appellant’s note on building
heights of 5 April 2021.103 Similarly, Mr Hughes’ assessment remains robust.
6.72 The lowering of heights would reduce the impact of the proposed development
on views from Pump Lane at the site entrances, and as viewed from Motney
Hill and Horrid Hill to the north. The mitigation planting would also be
effective within a shorter time period. By retaining a parameter of up to
12 metre heights for properties fronting the village green, and in proximity to
the village centre, there would continue to be important opportunities to
provide focal buildings in these central spaces. Despite the localised
reductions in effects resulting from the revised height parameters, these would
not materially change the assessment of the residual landscape and visual
effects of the development.
6.73 There also remains scope to design the appeal scheme within the amended
height parameters, to ensure that the scale and character of development is
appropriate to the local context, and that taller buildings of up to 12 metres in
height are incorporated into the scheme sensitively to act as positive features.
Community Orchards
6.74 Following questions regarding the deliverability of the proposed community
orchards, ID26 ‘Community Orchard Implementation and Management’ was
produced, detailing The Orchard Project, supportive of the community creation
and management of new orchards. The ‘Community Orchard Model’ is used
and championed by the Orchard Project. This model reflects well the feasibility
of enabling residents of the development, and of the wider Rainham and
Twydall area, to be actively involved in the creation and stewardship of new
community orchards. A reported 95% tree survival rate across orchards
established and managed by The Orchard Project, alongside communities,
underscores the significance of this delivery. The focus is on community
involvement and taking ownership of the orchards, whilst providing training
and support for five years, aided by a co-created management plan. There is
100 CD5.10 Section 6.5 Scale and Appearance, page 29
101 ID29
102 ID30 Appendix B, paragraph 3, bullet(d)
103 ID38
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flexibility in the management of the community orchards by both volunteers
and management companies that would ensure the long-term orchard survival.
6.75 Areas of meadow planting amongst the community orchard areas would
further improve the biodiversity of the green spaces and also encourage cross
pollinating insects. As the Application Landscape Strategy Plan,104 and the
Landscape Framework Plan105 show, it is the intention to provide areas of
meadow grassland throughout areas of open space across the Development.
LVIA Assessment of Effects
LVIA Methodology and Approach
6.76 The Tyler Grange LVIA forms an independent assessment that was prepared to
assess the revised appeal scheme. As recognised by Mr Etchells for the
Council, the LVIA is a ‘reasonably thorough and detailed assessment following
a clearly stated methodology.”106 The LVIA was prepared in accordance with
the Guidelines for Landscape and Visual Impact Assessment107 and was written
by a Chartered Member of the Landscape Institute.
6.77 The photoviewpoints contained in the LVIA and which were used to inform the
assessment, were agreed with Mr Etchells.108 As reflected by the location of the
viewpoints, this reinforces the containment of the appeal site and localised
nature of the landscape and visual effects.109 As agreed by Mr Etchells, impacts
in views from north of the Estuary would be negligible. This is strongly
reinforced by his own viewpoints110 within the visual envelope of the
proposals.111 Clearly the focus is therefore on localised effects.
Landscape Effects
6.78 At the Local Landscape Character Area (LLCA) scale,112 the development would
result in residual moderate adverse landscape effects after maturation of
mitigation planting.113 This assessment reflects the loss of commercial orchards
and replacement with residential development that would change the character
of the landscape within the urban fringe context.114 Effects upon the wider
LLCA beyond the appeal site would be limited, due to the physical and visual
containment of the site by mature planting and shelterbelts to site boundaries.
6.79 Despite the scale of the development, the containment of the site within the
area of the LLCA and local landscape by woodland, trees and built
development, limits the extent of the effects. The additional planting to the
site boundaries and within areas of green infrastructure throughout the
proposal, would bolster the containment provided by the existing trees and
assimilate the development into the landscape.
104 CD5.10 Section 6 ‘Landscape Strategy’ page 27 and Illustrative Landscape Masterplan, page 28
105 Mr Hughes Volume 2 Figure 8 (CD 10.3)
106 CD10.8 Paragraph 6.7.1, page 53
107 CD13.5
108 CD8.4 11.1a, paragraph 2.7, page 4 and Appendix 1and CD11.5, paragraph 13 and Table
109 CD10.3 Volume 2, Figure 6
110 CD10.8 Appendices Figure 2
111 ibid Figure 4
112 Lower Rainham and Lower Twydall Fruit Belt LLCA Mr Hughes Volume 2 Figure 5 (CD10.3)
113 As assessed within the LVIA (CD8.4 Appendix 11.1a)
114 CD8.3 11.1a Section 7 - Landscape Effects, Lower Rainham and Lower Twydall Fruit Belt LLCA, At Completion –
Effects Incorporating Mitigation, first paragraph (page 60)
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6.80 There would be no direct landscape effects on the land north of Lower Rainham
Road. Minor adverse residual effects are identified by the LVIA for land within
the Medway Marshes LLCA and the Medway Shoreline and Riverside Country
Park LLCA. These relate to impacts on the green backdrop to the estuary and
perceptual qualities as experienced from within the Country Park and views
towards the Development from Motney Hill and Horrid Hill.
6.81 Upon completion, the appeal scheme would give rise to moderate/major
adverse site-wide landscape effects. The landscape mitigation maturation,
areas of open space including the village green, community orchards, informal
open space and strategic landscape planting would integrate the development
into the landscape and soften the built form, so providing additional screening
of the development at the interface with adjacent bult up areas and a soft
transition with the landscape to the north and northeast.
6.82 After 15 years, with the maturation of the landscape planting, the residual
effects of the development at the site-wide scale would reduce to moderate
adverse. The LVIA reaches this assessment on balance when considering that
there would be a high magnitude of change associated with the loss of the
commercial orchards across the site and a medium magnitude of change (and
localised moderate adverse effect) on the character of Pump Lane arising from
the implementation of new access roads, junctions and residential
development. Development is set beyond areas of open space and landscape
buffer including community orchards.
6.83 The substantial areas of multifunctional green and blue infrastructure
throughout the proposed development would provide improved access through
the site and connectivity with the adjacent urban areas and countryside, as
well as areas of open space containing community orchards, a village green,
informal recreation spaces and recreation routes. These include a swathe of
green space alongside Pump Lane, reflecting the character of the landscape
and the setting of the lane, including views of orchards and across the estuary.
6.84 As explained in ID30 regarding height parameters,115 the LVIA uses a broad
criteria threshold. The assessment of moderate adverse effects at a site-wide
scale is towards a higher end of this threshold than the moderate adverse
effects upon the local area.
6.85 As set-out at Appendix 2 of the LVIA116 the magnitude of change considers the
scale of the development, geographic extent and duration of effect. Whilst
there would be a highly noticeable change at the site-wide scale associated
with the development, the extent is localised to that of the site, reducing the
overall magnitude of change within the local landscape.
6.86 When assessed against the LLCA as a whole, moderate adverse effects relate
to the description contained within the LVIA,117 ‘to include the introduction of
elements that are distinct but may not be substantially uncharacteristic with
the surrounding landscape.’ The assessment recognises that the development
is not substantially uncharacteristic and has properly taken account of the
abrupt adjacent urban edge at Twydall, linear development at Lower Rainham,
115 ID30, Notes 1 and 2 Appendix A, paragraph 3(d)
116 CD8.4 11.1a Appendix 2 -Table 3 – Magnitude of Change: Landscape / Townscape receptors
117 CD8.4 11.1a Appendix 2 – Table 5. Level of Significance of Effect
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Pump Lane and along Lower Rainham Road and the urban fringe influence
across the site.
6.87 Both the LVIA and Mr Etchells’ assessment at the local area level identify
residual moderate adverse landscape effects. As set out above, the extent of
the area with the potential to be affected is tightly drawn around the site.118
There is therefore only a relatively small difference between the geographic
area that has been assessed for both the site-wide and local area scales.
6.88 Considering this, there appears only a small difference between the
assessments of Messrs Hughes and Etchells regarding the overall significance
of the landscape effects arising from the development at a localised and site-
wide scale.
6.89 The Council’s invitation to contrast Mr Hughes’ LVIA with the assessment of
landscape and visual effects as part of the Lloyd Bore LVIA submitted with the
planning application, are meritless. First, it is not uncommon for a further
LVIA to be undertaken at appeal stage, and no reliance is placed by the
Appellant on the Lloyd Bore LVIA – there is no need. Second, there is no
essential flaw in Mr Hughes’ approach or disclosed by the LVIA, or as to mean
that the Lloyd Bore LVIA bears any relative importance in the appeal. Third,
as explained in Mr Etchells’ evidence,119 the residual landscape effects at the
local area scale have nonetheless been assessed as ‘moderate adverse’ at year
15, by three independent assessments:
a) Lloyd Bore LVIA (planning application);
b) Tyler Grange LVIA (appeal scheme);
c) Mr Etchells (Council).
6.90 As recognised by the GLVIA, professional judgment is an important part of the
LVIA process, and even with qualified and experienced professionals, there can
be differences in the judgments made.120 Despite this, it is clear that the three
different LVIAs prepared to assess the development scheme broadly agree the
significance of effects on the local landscape. This is reflected in Mr Etchells’
comments on the Lloyd Bore LVIA assessment within the officer report, that
moderate adverse effects at a local level is a “reasonable assessment of the
likely landscape harm”.121
6.91 The narrative and explanation behind the assessment is of key importance.122
In accordance with guidance, the LVIA contains narrative setting out and
explaining the assessment and the judgments made. Mr Etchells considered
the Lloyd Bore LVIA to make a ‘reasonable assessment of harm to landscape
character,’ with residual moderate adverse landscape effects after 15 years at
the LCA scale (as referenced in application proposal in the Officer’s Report).
This reflects the Medway LCA (2011) Lower Rainham Farmland landscape
character area.
118 As identified CD10.8 Appendices Figure 4 ‘Visual Envelope and Photograph Viewpoints’
119 CD1.8 Appendices, Table 1 – Summary Comparison of Landscape Effects
120 CD3.15 paragraph 2.25 (page 21)
121 CD7.2 paragraph 3.54, page 15
122 CD3.15 paragraph 3.36
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Visual Effects
6.92 Given the limited extent of views towards the appeal site and the development
proposed, effects on publicly accessible views and visual amenity are largely
limited to those obtained from adjacent roads, including Pump Lane as it
passes through the site, as well as middle distance (500m-1km) views
obtained from Motney Hill and Horrid Hill, to the north.
6.93 The development would be screened by intervening vegetation in low-lying
views from along the shoreline, with shelterbelts, woodland and tall hedgerows
limiting views into or across the site from adjacent land beyond the lanes and
properties at Lower Twydall and Twydall.
6.94 Views from Motney Hill and Horrid Hill are expansive and include views across
the Estuary and wider shoreline. The situation of residential development on
the site, set within the well vegetated and treed backdrop, along with mature
mitigation planting to the site boundaries limit the extent and prominence of
the development and resulting magnitude of change.
6.95 The development would be contained by existing and mitigation tree planting,
providing a soft edge, retaining a green backdrop set beyond the woodland
and shelterbelts, tying-in with the woodland and trees that bound the site and
are situated within adjacent areas. Development on the rising land to the
south and along Lower Rainham Road would continue to frame views towards
the appeal site, with the urban form of Twydall on the rising land, to the south.
The expansive views from these locations across the estuary would not be
affected. Views and the visual amenity of people visiting Horrid Hill and on the
Saxon Shore Way at Motney Hill would result in residual localised, minor
adverse visual effects.
6.96 Users of local roads including Lower Rainham Road, Lower Twydall Lane and
Lower Bloors Lane, would experience residual localised and minor adverse
visual effects. The containment of the proposals within the strong network of
boundary vegetation formed by existing trees and hedgerows would be
strengthened by new planting which would, over time, mature to soften and
screen views, including views at the site entrance, off Lower Rainham Road.
Views to the north from the road would remain unaltered, with replacement
native hedgerows and trees to the landscape buffer and the setting-back of
development beyond generous landscape buffers providing a robust edge and
transition from the road to the development.
6.97 The areas of green infrastructure alongside Pump Lane would provide
improved pedestrian access across the appeal site north-south, within areas
free from vehicular traffic and passing through attractive areas of public open
space that connect with wider recreational routes within the scheme and
surrounding countryside. There would no longer be a need for people to walk
along the lane, which is narrow and has no footways to access the countryside
beyond the urban areas. For those users of the lane, there would be localised
minor/moderate adverse effects upon their visual amenity resulting from the
realignment and new junction arrangements to the north and south of the lane
and views of the Development. Retaining open space alongside Pump Lane,
including community orchards and the village green, would maintain the
character of the central section and minimise visual impacts.
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Users of the Bridleway
6.98 Users of the bridleway would benefit from improved accessibility and
connections with adjacent rights of way that are to be provided within the
scheme, including a new footway from lower Twydall Lane. This would join
with proposed footpaths and routes that run through areas of green
infrastructure, and the bridleway, providing links with Berengrave Lane as the
bridleway continues through the Bloors Lane Community Woodland and the
new housing currently under construction on the former Nursery site.
6.99 The bridleway is set within a green corridor, with existing trees alongside the
path to be retained and managed. Access from the bridleway to areas of open
space along the route, including wider recreational walks around the scheme
set within a variety of green spaces, allows for greater amenity uses, with
opportunities to retain glimpsed views towards the Estuary from existing
gateways, and the provision of a park providing informal recreational space,
structural native landscape planting and play areas. The bridleway would open
up into the village green, providing a destination and attractive environment
for residents and the wider local community for recreation and amenity use.
Pump Lane Character and Hedgerow Removal
6.100 Despite not being cited in support of a reason for refusal, the Council belatedly
introduced policy BNE47 ‘Rural Lanes’ in relation to Pump Lane. The policy
does not identify or attribute any importance, or explain any landscape or
amenity character of individual lanes, still less of Pump Lane. There is
similarly no supporting study or base evidence, from which to discern any
valued ‘attribute’ of Pump Lane, or assess such against the policy itself, or as
to assist in understanding any attribute the Lane may be said to have in any
appreciable context, including within the context of other lanes. It is even
unclear whether the Lane in whole or in part (or parts) is said to disclose
significance. The Council was seemingly unable to resolve these ambiguities
when deciding to omit this policy from its reason for refusal. It clearly
provides no, or no material support for the reason for refusal.
6.101 Nonetheless, policy BNE47 aside, Pump Lane discloses a distinctly varied
character as it passes through the appeal site, with properties fronting the
road south of Lower Rainham Road and at Russett Farm/Pump Farm
introducing a developed character. The hedgerows also include
uncharacteristic conifers, with gaps and breaks reflecting their limited species
and age structure. The Lane is also well used by local traffic and is further
influenced by trains using the railway line towards the south of the site. This
all very significantly reduces the landscape character and amenity of the Lane.
6.102 Indicative hedgerow removal and replanting associated with the site accesses
on Pump Lane and Lower Rainham Road, has been explained, demonstrating
how replacement hedgerows may easily come forward and compliment the
Landscape Framework, connecting appropriately with retained roadside
hedges.123
123 ID4
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6.103 The development includes the replanting of removed lengths of hedgerow and
provision of landscape buffers, incorporating new trees. It is also common
ground that the replanting could be undertaken early during the construction
phase to allow for establishment and maturation to reflect existing height
during construction.124 As must be widely acknowledged (including by Mr
Etchells) this replanting would offer valuable opportunities for improving the
species, structure and management of the hedge. As well as reinforcing
character, there would be clear biodiversity and wildlife benefits associated
with more diverse native hedgerows.
6.104 As Mr Etchells also confirmed125 that there would be no change to the
character of Pump Lane, between the northern and southern access points,
with changes to the character of the Lane being limited to those associated
with the new junctions. Community orchards, betraying a traditional
character, and the proposed village green, would provide an attractive
character alongside the road, preserving the setting to Russett Farm and Pump
Farm, and views across the orchards towards the estuary.
6.105 Further alteration of the alignment of the proposed access on Lower Rainham
Road has enabled the retention of the road alignment along the northern edge,
retaining the footway, hedgerows and trees to the north of the road.126 The
revisions also allow for the replanting of hedgerow early during the
construction phase and additional trees and landscape planting within the
landscape buffer.127 This planting would provide a robust landscaped edge
along Lower Rainham Road.
6.106 The details of indicative hedgerow removal and replanting set within the
Landscape Framework also does not alter the findings of the Tyler Grange LVIA
in respect of the impacts on the character of Pump Lane, assessed as localised
and moderate adverse. The assessment has taken account of the new
junctions and associated breaks in the hedgerow and replanting, and access
roads with views into the Site and residential development at these points, as
shown on the Landscape Framework Plan128.
Gillingham Riverside ALLI
6.107 The ALLI is a non-statutory, local designation which provides protection at
District level. The value attributed to these landscapes is therefore of local
importance only. In addition to protection of the landscape, ALLIs are also
designated for functions that do not relate to the character or quality of the
landscape. These functions include as buffers, separation between
settlements, wildlife corridors and for recreation and access.
Application of Policy
6.108 The ALLI is plainly not a restrictive policy,129 still less has it been applied in this
manner over recent years - a point which the Council well understands. Since
124 ID11.3, point 12 (page 5)
125 CD10.8, paragraph 6.4.1 (g), page 50 , stating that: ‘The central part of the lane would not change physically”
and in XX
126 ID20, paragraphs 2.1 – 2.6 and DTA drawing 2030-05-2F ‘Lower Rainham Road Proposed Right Turn Lane’
127 ID20, Tyler Grange drawing 13374/P17a ‘Lower Rainham Road’
128 ID10.3, page 62 ‘At Completion’ 5th paragraph and page 63 ‘Residual Effects’ Pump Lane
129 CD10.3, paragraph 2.17 (page 13)
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2015 there has been a clear and consistent trend of approving development,
including a total of 589 dwellings within the Gillingham Riverside ALLI north of
Twydall and Rainham.130 This includes development that would extend the
urban area of Rainham north, to Lower Rainham Road. Consented
development on the former Berengrave Nursery site is under construction,
adjacent to the railway line, east of the Community Woodland.131 That scheme
includes extending development to cover horticultural/greenfield land north of
the former glasshouses,132 incorporating the public right of way connecting
Berengrave Lane with Lower Bloors Lane.
6.109 The ALLI does not attract increased significance by virtue of these approvals.
It logically cannot. Similarly, ALLI functions, including buffer and settlement
separation are not enhanced by these approvals. The opposite is true. Plainly,
the significance of the buffer function etc, is shown to be limited in terms of
local importance. Moreover, it is not as if approving the development could be
treated as suddenly undermining this function, or materially so, where other
approved development has not.
6.110 As explained by Mr Hughes,133 ALLIs cover large areas of land within Medway
District, limiting the availability of land adjacent to the main settlements not
covered by the ALLI designation and which are in sustainable locations.
Functions of the Appeal site as a Green Buffer in the ALLI
6.111 A detailed and carefully considered assessment of the contribution that the
Local Landscape Areas make to the character and functions of the ALLI is
provided in the Tyler Grange LVIA.134 This informs an assessment of the value
of the area, and provides consideration of the contribution of the appeal site to
the functions of the ALLI and of the impacts the development upon these.
6.112 As agreed in the LSoCG, the function of the ALLI as a green buffer does not
relate to the quality of the landscape. It separates built up areas from the
areas of importance for nature conservation and recreation that are situated
along the Medway Estuary135 - something not offended by the development.
There would remain more than adequate separation. Within this context,
there is notably also no quantitative feature of this policy prescribing any
extent of physical separation, as a depth or width sufficient to fulfil this
function.136
6.113 It is also common ground that the development would have no direct impacts
upon the land north of Lower Rainham Road, including the Country Park,
protected biodiversity sites and public rights of way.137 The function of the
Riverside Marshes LCA as a green buffer between Lower Rainham Road and
the shore would not be affected.
130 Mr Etchells evidence Volume 2 Figure 3
131 Illustrated on CD10.3, Volume 2, Figure 3 ‘Planning Policy and Consented Development within the ALLI.
132 ID3 Aerial photo sequence (2003 – 2020)
133 CD10.3, paragraphs 2.31 – 2.33 (page 15)
134 CD8.4 - 11.1a, Section 4
135 CD11.3, point 1 (page 6)
136 CD10.3, paragraph 2.23 (page 14)
137 CD11.3, point 7 (page 7)
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6.114 Land north of Lower Rainham Road makes a high contribution to the function
of the ALLI as a green buffer, situated on the edges of the Medway Estuary
and Marshes SSSI, Ramsar Site and SPA. The Saxon Shore Way runs along
the seawall and the Riverside Country Park occupies land north of the road.
Belts of trees and vegetation along the shoreline provide physical and visual
separation from the marshes to the south and also provide a substantial part
of the green backdrop in views from the estuary, which is identified as a
function of the Gillingham Riverside ALLI.138
6.115 Land within the Riverside Marshes LCA and Medway Marshes Farmland LLCA
(as defined by the Tyler Grange LVIA)139 separates the shoreline from Lower
Rainham Road and serves as a green buffer with the shoreline.
6.116 The Medway LCA identifies the Riverside Marshes LCA140 as having long views
and an open character in views to the estuary, lending a stronger sense of
enclosure to the interior and serving to protect the Natura 2000/Ramsar site
and provide a valuable recreational and biodiversity resource and green
corridor. As is common ground also,141 Lower Rainham Road and associated
linear development, mature hedgerows and trees combine to provide physical
and visual separation between the appeal site and Riverside Marshes and
shoreline to the north.
6.117 The development would be contained south of lower Rainham Road and would
not extend beyond the built edge and linear development. Consented
developments within the Gillingham Riverside ALLI on Station Road and Lower
Rainham Road extend the northern edge of Rainham up to Lower Rainham
Road, albeit whilst retaining the land north of the road as a green buffer to the
shoreline and estuary.142
6.118 Whilst the proposed development would reduce the degree of separation with
the edge of Twydall and inevitably impact upon the physical extent of the
green buffer, it would offer enhancements to the functionality of the site in
terms of accessibility between the urban area of Twydall, wider rights of way
network and Riverside Country Park. This benefit of the development is
agreed by the Council.143 It also acknowledges that this would come through
areas of green infrastructure incorporating community orchards, a village
green and areas of public open space set within green corridors and landscape
buffers.
6.119 The swathe of green space running through the heart of the proposal,
alongside Pump Lane, would retain the function of the appeal site as part of an
accessible and functional green buffer. As illustrated on the Landscape
Framework, landscape buffers to the site boundaries, public open space, school
playing fields and care home ground provide separation with Lower
Rainham.144
138 CD10.3, paragraph 6.7 (page 450 and CD10.3 Volume 2, Photo viewpoints 2 and 4.
139 Illustrated on CD10.3 Volume 2 Figures 4 and 5.
140 C D3.4, pages 32 – 33 (5 Riverside Marshes Landscape Character Area)
141 CD11.3, paragraph 2.2, point 6 (page 4)
142 Illustrated on CD10.3, Volume 2 Figure 3
143 CD11.3, Point 6 (page 6)
144 MR Hughes Volume 2 Figure 8 Landscape Framework Plan
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Other ALLI Functions
Providing residents within an extensive urban area access to an attractive,
rural landscape
6.120 Dedicated public access across the appeal site is, at present, limited to the
bridleway, offering only limited recreational or visual amenity opportunity.
Pump Lane has no footway and there are also no connections or destinations
at the western end of the bridleway. As recognised by the Medway LCA, there
is poor connectivity between the edge of Twydall and the shoreline and
Riverside Country Park, to the north. Guidelines include for improving these
footpath links.145
6.121 The appeal scheme would provide much improved accessibility and recreation
walks within areas of green infrastructure connecting Twydall with Lower
Rainham Road and the Riverside Country Park, coinciding with improved
connectivity and openness in overall recreational experience.
Green Backdrop When Viewed from the Medway Estuary
6.122 As is also agreed in the LSoCG, the proposed tree belts and landscape buffer
planting to site boundaries and within areas of green infrastructure, would
mature to break up and soften the proposal.146 This would reinforce and
enhance the wooded backdrop formed by shelterbelts and Lower Bloors
Community Woodland.
HERITAGE
6.123 At its highest, and with regard to few individual assets only, any harm to the
significance of the heritage assets is clearly less than substantial and at the
lowermost end of the spectrum (or lower end, with regard to other assets).
Further, when cumulatively viewed, the harm is plainly unobjectionable in
national policy terms. Viewed overall, when performing the internal heritage
balance, the modest harm caused to heritage assets is very strongly
outweighed by the benefits of the appeal scheme. This is not a marginal case.
6.124 It is no surprise that designated heritage assets are present within the vicinity
of the site, like in so many cases involving sizeable development. In this
appeal however, the proximity of such assets does not engender any large
contribution to the heritage significance of assets to the site. Rather, it is the
experience of these assets that is the focus of consideration.
6.125 Immediately notable is that no heritage assets have clear, designed views over
the site. What intervisibility there is (which is notably limited) being
incidental, largely screened, and beyond greatly changed areas or to areas of
changed character. There is also no indication that the surrounds of any of the
assets was laid out in order to facilitate views out, in the direction of the site.
One clear example of this is Bloors Place, where views in the direction of the
appeal site from the rear of the building, and its immediate vicinity, are
purposefully enclosed at ground level by high garden walls, which are
themselves of some age, and are listed.
145 CD3.4 page 68 – Characteristics, 5th bullet and page 69 Guidelines, 2nd bullet
146 CD11.3, point 10 (page 4)
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6.126 Whilst significance is, of course, not limited to issues of intervisibility notably,
with regards to economic and social connections, not only have the ownership
and functional connections that once might have been present between assets
and the site, now plainly been severed but also, where such a connection was
ever present, the character of both the asset and the appeal site has changed
greatly. Any such connection therefore has considerably reduced, if not been
removed altogether. No appreciable historic illustrative relationship exists.
Clear examples of this include the residential and commercial character of the
now sub-divided Bloor Place complex, the wholly residential character of Lower
Twydall (where no farms are now present) and the change in character of the
site to modern, commercial orchard.
6.127 It is with surprise that acknowledging the unarguable change, over time, of the
economic and social aspects of assets, and the resultant change in their
experience, has featured as a key difference between the approach and
evidence of Ms Stoten and Ms Wedd. Ms Stoten’s assessment should plainly
be preferred. Strikingly but indicatively, Ms Wedd did not include any
consideration of the enclosure of the curtilage of Bloor Place in her evidence,
or separately, the subdivision of the complex and the conversion of the
outbuildings.
6.128 Another key difference has been the approach taken to the scale of less than
substantial harm. Ms Stoten carefully explained how she considered that the
uppermost end of that scale is defined by substantial harm, being described in
the Nuon147 judgment to be: ‘…harm that would ‘have such a serious impact on
the significance of the asset that its significance was either vitiated altogether
or very much reduced…’. Indeed this is agreed common ground,148 with the
less than substantial harm scale running from negligible harm up to just short
of substantial harm. In contrast, Ms Wedd’s apparent approach has employed
a separate scale for physical harm and harm through setting, an approach
which is clearly incorrect.
Asset by Asset approach
6.129 Another major difference in approach, and evidence, between the heritage
witnesses was the asset by asset approach taken by Ms Stoten - wrongly
rejected by Ms Wedd. In the first part of the related round table session at eh
Inquiry, Ms Stoten logically explained why hers was the correct approach.
Paragraphs 189 and 194 of the Framework are clear that harm to a heritage
asset results from an impact on, or loss of, its significance. In order to
understand the scale of any harm or loss, one must first understand:
• all of the significance of the asset, derived from both fabric and
setting;
• all of the setting of the asset;
• the relative contribution of the subject site to the significance of the
asset; and,
• what harm, if any, would be caused by change to the subject site.
147 Bedford Borough Council v Secretary of State for Communities and Local Government, Nuon UK Limited [2013]
EWHC 2847
148 CD11.2 paragraph 3.17
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6.130 The above strongly reinforces the basic need for a true understanding of the
significance of the asset, in order to fully understand how change may affect
its significance. This is entirely in conformity with Historic England’s Guidance
on Statements of Significance and is precisely the staged approach that Ms
Stoten followed in her evidence. Contrastingly, and critically, Ms Wedd merely
explored how the site contributes, in her view, to the significance of each
asset, but did not consider all of the significance and the setting of each asset.
Contribution of setting to the heritage significance and/or ability to appreciate
the significance of the following assets, and the effect of the development on
that significance:
York Farmhouse (GII):
6.131 The significance of York Farmhouse is primarily derived from its fabric as an
early 16th Century farmhouse, with later additions. It has experienced a large
degree of change, being converted to three residences and in wholly domestic
use, and with newly-built residences in close proximity in its former yard
areas. This has physically separated the asset from the wider landscape,
beyond multiple layers of domestic curtilage,149 and the cessation of the
complex for farming uses has severed the functional association. Reference to
historic documents150 demonstrates that its landholding was dispersed
historically – it never sat in the centre of a consolidated landholding that might
be legible from its proximity to the asset.
6.132 As such, those elements of its setting that contribute to its heritage
significance comprise the garden plots of the former farmhouse, the formerly
associated outbuildings which are now converted, and views to the asset from
Lower Twydall Lane, from where it can be understood as part of the Lower
Tywdall settlement.
6.133 The appeal site has only minimal intervisibilty with the upper elements of the
asset.151 The site and the asset are not readily experienced together. There
are no accessible routes between the two that are not circuitous. The site
does not contribute to the heritage significance of the asset, through setting.
6.134 The appeal scheme would be set back from the asset, beyond its gardens,
further gardens, a strongly vegetated boundary and public open space. No
harm to the heritage significance of York Farmhouse through changes in
setting may sensibly be anticipated.
6.135 In the related discussion at the Inquiry, Ms Wedd suggested that York
Farmhouse could be clearly seen from the footbridge over the railway to the
south, and also that Pump Farmhouse was visible in this view. As seen during
the site visit, these views are not possible due to intervening vegetation and
the buildings of Russet Farm. Ms Wedd also suggested that the view from the
footbridge gave a sense of isolation, yet the modern settlement at Rainham,
visible in close proximity in the other direction, unarguably precludes this.
6.136 It was also asserted that when the farmhouse was part of a farm, it would
have had direct access to the fields, so suggesting this engendered a
149 Ms Stoten PoE, Plate 4, page 13
150 ibid Plate 2, page 12 Tithe survey
151 ibid Plates 5 and 6, pages 14 and 15
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connection today. However, this simply demonstrates how the change in
ownership and use and resulting changes to the curtilage has considerably
altered how the asset relates to the wider area. Any such routes present
historically, are now blocked by the layers of domestic curtilage plainly present
in the vicinity of the farmhouse.
Pump Farmhouse (GII):
6.137 Again, the significance of this asset is primarily derived from its physical form,
with setting making a markedly lesser contribution. Similarly, this asset and
its setting have experienced an obvious and large degree of change. It is now
used for solely domestic purposes, and a large and dense development of 24
residences has been constructed adjacent to it, to the north and west (Russett
Farm) an outbuilding has been rebuilt as a residence to its south, and a large
modern outbuilding associated with the orchard use, and the access route to it,
lie to the north and east.152 These changes have clearly resulted in the
functional and, to a large degree, visual separation, of the asset from the
wider landscape.
6.138 The areas of adjacent former landholding, which was of mixed character
historically, are not readily visible from the asset. There is some intervisibility
between the asset and the modern commercial orchard, from a side
elevation,153 to an area that was not historically associated with the
farmhouse.154 The expanded garden of the farmhouse, and the vegetation
within it, prevent views to the wider landscape to the south from the primary
south-facing façade.
6.139 The element of setting that makes the greatest contribution to its significance,
is its garden plot, from where its architectural interest is likely to be best
experienced and understood. This area has been expanded from the narrow
plot, originally only present to the south-east of the asset, to encompass land
on all sides of the dwelling.155
6.140 The modern orchard within the appeal site makes no more than a minor
contribution to the heritage significance of the asset through setting. The
same goes for historic illustrative interest (although this contribution is in any
event minor, as the functional association has been severed). The modern
houses conspicuously screen views to a significant proportion of the land that
was historically associated, and further still, the land that is most visible from
the building to the east was mostly not historically associated with the asset.
6.141 The development would be visible in views east from the asset, from its side
elevation, although it would be set back behind open space and orchard. The
appeal scheme would in fact be sited much further from the asset than the
existing Russet Farm development, which is 15 metres away it its closest
point. The development would neither harm the fabric of the asset, from
where it derives most of its significance, nor the gardens of the asset, from
where it is best appreciated. The development would result in less than
substantial harm at the low end of the spectrum for this asset.
152 ibid, Plate 13, p24
153 ibid, plate 17, p27
154 ibid, plate 10, p22
155 ibid, plates 12 and 13, p23-4
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6.142 Ms Wedd was of the view that the farmhouse was of unusually ‘polite’ design –
but, ultimately, it is not disputed that this treatment was given to the primary
façade of the residence, rather than the elevation that has some intervisibilty
with the appeal site. The primary facade faced the road and was likely to have
been visible from it when the dwelling was first constructed. Demonstrably,
the focus of the architectural endeavours of the asset were focussed on the
façade that does not have intervisibilty with the site.
6.143 She also asserted that the harm to this asset would be less than substantial
and at the middle of that range. This is however untenable given that the asset
and the elements of its setting from which most of its significance is derived
would be unharmed by the development proposed.
Chapel House (GII):
6.144 The heritage significance of Chapel House is again primarily derived from its
fabric, with setting making a lesser contribution. Again, change is strongly
evident in the building itself and its setting. The functional association with the
wider landscape has been severed, and the building is now two private
residences. These residences face directly onto Pump Lane, from where the
asset can be best appreciated, and up to where the settlement of Lower
Rainham reaches. The asset has gardens or other curtilage on other sides.
6.145 Those elements of its setting that contribute to the significance of Chapel
House include the curtilage plots and Pump Lane, from where the architectural
interest of the asset can be best appreciated, and the settlement of Lower
Rainham. The immediately adjacent agricultural land, with which it has partial
intervisibility and which was part of the asset’s historic landholding, is
considered to make a contribution to the asset, albeit the functional
association between the asset and the wider landscape has ceased, and the
character of the landscape has changed to modern commercial orchard.
6.146 The asset has filtered intervisibility with the appeal site from the rear and sides
of the structure. Albeit this makes a contribution to the heritage significance
of the asset, this is minor only, since the functional association has been
severed, the intervisibility is filtered, and the building was clearly designed to
face in the other direction onto Pump Lane.
6.147 Notably, the appeal scheme would be set back from the rear of the asset. The
fabric of the structure, from where it gains most significance, would not be
harmed, nor would the gardens that it lies within, nor its relationship with
Pump Lane. The change of character of the site from modern orchard to
development beyond orchard, would result in less than substantial harm at the
low end of the spectrum to this asset.
6.148 Ms Wedd raised the potential impact of the road junction to the north on
Chapel House, but this is an asset that is sited in close proximity to an existing
road junction,156 which forms part of its existing setting.
497-501 Lower Rainham Road (GII) and The Old House (GII)
6.149 It is common ground between the witnesses that no harm would occur to the
heritage significance of either of these assets.
156 ibid plate 18, p32
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Bloors Place (GII*), outbuildings (GII) and garden walls (GII) Bloors Oasts
(Non-Designated Heritage Asset)
6.150 The Bloors Place complex, the residence of which is Grade II* listed, was
subdivided during the later 20th or 21st century, with the Wagon House,
Cartlodge and Oasts now forming separate residences, with a roofing company
also operating from the complex.
6.151 The house lies within its gardens, some of which are surrounded by high walls,
which gives the house and its immediate curtilage a secluded immediate
setting, in clear contrast to high status residences that have designed views
out over the wider landscape. It has been functionally severed from much of
its former landholding, which was of a large and dispersed nature, historically
encompassing several land uses and functions.157
6.152 The appeal site encompasses part of the former landholding, albeit of much
changed character of modern commercial orchard. There is virtually no
intervisibility with the house in the summer, and only filtered intervisibility with
its upper levels in the winter.158 The filtered views to the site are beyond its
gardens and orchard (the community orchard beyond the site) beyond that.
6.153 It is plain that the significance of the asset is primarily derived from its built
form, with setting making a lesser contribution. Those elements of the setting
that contribute to its significance include its immediate curtilage, including the
outbuildings and structures which give legibility to the phase of its history
when the complex was used for mixed farming, as well as the gardens and
settlement of Lower Rainham.
6.154 The appeal site, as part of the former landholding with which the asset has
filtered intervisibility in winter, also makes a contribution to the heritage
significance of Bloors Place through setting, but this is very minor given that
views of the site are heavily filtered and the functional connection has been
severed. The site is now modern commercial orchard, and the surrounds of
the asset have been laid out to enclose, rather than facilitate, views.
6.155 The development scheme would be set back from Bloors Place, beyond its
gardens enclosed by high walls, and the community orchard beyond, outside
the site. It would cause less than substantial harm, and at the lowermost end
of the spectrum, to Bloor Place.
6.156 With regards to the Grade II Listed outbuildings at Bloors Place, these have no
intervisibility with the appeal site, and have now been converted to separate
residences. As such, they have neither a current functional nor a visual
relationship with the site, and change to character within the site would cause
no harm to their heritage significance.
6.157 The Grade II listed walls at Bloors Place have filtered intervisibility with the
appeal site. However, they were designed to seclude the gardens. As such,
they were neither designed to be visible from the wider landscape nor offer
outwards views. Their setting comprises Bloors Place and its gardens. Change
within the appeal site would cause no harm to their heritage significance.
157 ibid paragraph 6.135, plate 28, page 47
158 Ibid proof plates 29-32, panes 48-9
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6.158 The Oast House south of Bloors Place is considered to be a non-designated
heritage asset by both parties. This has also been converted to residential use
and no longer has a functional association with the wider landscape. The
elements of its setting that make the greatest contribution to its significance,
are its immediate curtilage, from where its architectural interest can best be
appreciated, and the other buildings of the former Bloors Place group, which
have historic interest as they are illustrative of the origins of the Oast House
as part of the wider complex. At most, the appeal site makes a modest
contribution to the asset, as there are currently some filtered views to the
asset across the site. That said, whilst the development proposed has the
potential to block some views to the asset, it also has the potential to open up
new views to it from publicly accessible areas. Any harm to the heritage
significance of the asset would be very minor at most.
Lower Rainham Conservation Area:
6.159 With both the Conservation Areas, Lower Rainham and Lower Twydall,
consideration of the historic development of the areas is critical to
understanding the contribution that their setting makes to their significance,
given that this has affected the relationship of the structures and spaces within
the areas, with the wider landscape.
6.160 The historic development of the buildings and spaces in the Lower Rainham
Conservation Area has been carefully considered. The functional relationship
with the wider agricultural land has largely been severed. Of the few larger
agricultural complexes that were present historically, Bloors Place has been
subdivided by residential conversion and no longer has any functional
association with the wider area. A couple of the other smaller complexes have
had the once-present agricultural buildings demolished.
6.161 The settlement appears to have been sited to take advantage of a wider
economic base for this locality, with the largest historic landholding of Bloors
Place including a wharf, saltmarsh, woodland, meadow, orchard and arable in
the mid-19th century.
6.162 The Conservation Area has a stronger visual link with the River Medway and
adjacent land than land to the southwest, which is largely screened by strongly
vegetated boundaries and now has a ubiquitous modern commercial orchard
character.
6.163 As above, the development would have some intervisibility with Chapel House
and Bloors Place which lie within the Conservation Area, but would be largely
screened from historic buildings in the core which front onto Lower Rainham
Road. The experience of the Conservation Area from Lower Rainham Road,
from where both parties agreed that the historic character of the area was
appreciated from, would be largely unchanged. The development has been
designed to avoid coalescence. The change to some of the wider agricultural
surrounds of the area is anticipated to result in less than substantial harm, and
at the lowermost end of the spectrum, to the Lower Rainham Conservation
Area. Its character and appearance would be preserved.
Lower Twydall Conservation Area
6.164 The historic development of the Lower Twydall Conservation Area has been
considered. It is evident that the large degree of change to the function of the
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buildings within it has affected the relationship of the Conservation Area with
the wider landscape. Whilst many of the buildings of heritage significance
once had agricultural origins, these have all since been residentially converted,
with no remaining active farm complexes remaining. The historic buildings are
now separated from the wider landscape by domestic gardens, sometimes
forming a double layer of curtilages.159 The lack of functional connection has
also resulted in the absence of any ready access between the appeal site and
the Conservation Area.
6.165 The site has only glimpsed visibility with some elements of buildings within the
Conservation Area and their plots, albeit that the buildings are of changed
character from their historic uses, with the site lying beyond garden plots of
modern origin.
6.166 The proposed residential development on the appeal site would be set back
from the edge of the Conservation Area. Only less than substantial harm, and
at the lowermost end of the spectrum, would be caused to this asset.
Historic landscape:
6.167 A convenient starting point is the Inspector’s question over whether the
historic landscape was recorded on the Kent Historic Environments Record. Ms
Stoten confirmed that there were no discrete entries relating to any historic
landscape features within the appeal site.
6.168 The site is covered by the Kent Historic Landscape Characterisation, but this
covers the entirety of the county, dividing it into character polygons. There is
no coherent basis then for suggesting that this characterisation within this
study confers heritage asset status to any particular area, still less to the area
conceived by Ms Wedd for this appeal. This is the first time that conception
has been advanced and has been done so for the purposes of this appeal.
6.169 Without reference to the Kent Historic Landscape Characterisation Study, Ms
Wedd identified the ‘historic landscape’ within the appeal site as a heritage
asset, asserting the following sequence:160
Estuarine mudflats and saltmarsh crossed by Bloors Wharf Road; the name
derives from the historic connection with the listed buildings at Bloors Place
Lower Rainham, built on the first solid geology that could carry buildings
and the coastal road to Chatham
The undeveloped open farmland of the site, with widely dispersed
farmsteads and the hamlet of Lower Twydall
The railway line and embankment, a Victorian intervention in the landscape
that has provided a physical and psychological barrier to development
Suburban residential development south of the railway.
6.170 Her proof references the land within the appeal site as ‘the last remaining
piece of undeveloped open farmland in the sequence of historic landscape
159 ibid, plate 33, p58
160 Ms Wedd PoE, paragraph 5.17, page 12
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types.’161 A central flaw in this misconceived analysis is that if the last element
is removed (‘suburban residential development south of the railway’) – which
is of no interest – the sequence of estuarine flats and saltmarsh, then
settlement, farmland (with farmsteads) and railway is in fact, extremely
common for north Kent. This can be readily seen through reference to modern
aerial photographs. The backstop of 1960s suburban development does not
engender any significance to the area sufficient to make it a heritage asset.
6.171 Another significant flaw in this approach is the identifying of the landscape only
within the appeal site as a heritage asset. This is firmly contrary to how
heritage assets should be defined. They should be defined along boundaries
that relate to their intrinsic significance, not to areas of proposed change.
When challenged on this critical point by the Inspector, Ms Wedd changed her
case and proceeded to define the area that she considered the historic
landscape to comprise as broadly relating to the site but, inconsistently with
her own analysis, defined by features beyond its limits. Ms Wedd’s case then
changed again in response to further discussion, expanding the boundaries of
the asserted ‘asset’ further to include a slightly larger area again.
6.172 Taking any of the three ‘asset’ areas proposed by Ms Wedd, their character
has, nonetheless, significantly changed from a mixed farming and orchard
base to modern commercial orchard. The pattern of small-scale settlement
within this landscape is unremarkable and entirely indistinguishable from very
many locations, nationwide. There is absolutely nothing about the landscape
within the appeal site that would justify its consideration as a heritage asset.
6.173 The Inspector sought views on the difference between analysis of setting and
landscape assessment. Setting focusses on the heritage significance of the
asset, which is the key consideration in the policy tests of the Framework, and
how areas of landscape might contribute to this significance. It is informed by
a detailed understanding of the significance of each asset. Historic Landscape
Character Analysis is not a tool for assessing significance, but rather is a
broad-brush characterisation process, which seeks to divide an entire area
(here, the County of Kent) into character polygons on the basis of land use.
6.174 In order to inform the key policy tests, a detailed asset-by-asset assessment
of setting should be undertaken, rather than seeking to find heritage
significance in an arbitrarily-defined area between assets, and attempting to
define this as an asset in and of itself.
6.175 Yet, even if the landscape were considered to be a heritage asset, identifying
the appeal site (or correlating areas close to it) as an asset simply artificially
inflates harm, not least because proposed development would inevitably result
in a large degree of change within its own red line area.
Cumulative Harm
6.176 Ms Stoten explained why an ‘asset by asset’ approach is correct. In order to
assess relative loss of significance, if it does occur, the whole of the
significance of each asset must be understood. This cannot be rigorously
achieved by considering them together.
161 ibid, paragraph 5.25, on page 13
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6.177 Ms Wedd’s rejection of the ‘asset by asset’ approach is deeply unconvincing,
resulting in the flawed contention that a two-stage process must be employed
for considering harm, first identifying levels of harm relating to individual
assets,162 then inflating it as a collective ‘cumulative assessment’.163 There is
no support found in guidance for that approach.
6.178 Historic England’s GPA2 document164 makes reference to cumulative harm
being a consideration where development severs ‘the last link to part of the
history of the asset or between the asset and its original setting’. Similarly,
this does not advocate the addition of harms to different assets. The whole of
this paragraph in GPA2 reads:
‘The cumulative impact of incremental small-scale changes may have as
great an effect on the significance of a heritage asset as a larger scale
change. Where the significance of a heritage asset has been compromised in
the past by unsympathetic development to the asset itself or its setting,
consideration still needs to be given to whether additional change would
further detract from, or can enhance, the significance of the asset in order
to accord with Framework policies. Negative change could include severing
the last link to part of the history of an asset or between the asset and its
original setting. Conversely, positive change could include the restoration of
a building’s plan form or an original designed landscape.’ [emphasis added]
6.179 This is clear in contemplating situations where a number of small-scale
changes may harm an asset. The guidance does not suggest that cumulative
harm would occur through a single development alone causing an increased
level of harm to a particular asset because it may affect multiple assets.
6.180 Ms Wedd also made reference to Historic England’s Good Practice Advice Note
GPA3:165
‘The third stage of any analysis is to identify the effects a development may
have on setting(s) and to evaluate the resultant degree of harm or benefit
to the significance of the heritage asset(s). In some circumstances, this
evaluation may need to extend to cumulative and complex impacts which
may have as great an effect on heritage assets as large-scale development
and which may not solely be visual.’
6.181 This refers to cumulative issues as separately defined earlier in GPA3, with the
same phrasing as quoted from GPA2 above, and then makes reference to
‘complex impacts’, including non-visual considerations. Such impacts might
occur where there has been a particular designed landscape (such as a park or
garden or prehistoric ritual landscape) in respect of which processional routes
through the landscape and designed associations may be a consideration.
Nonetheless, this guidance in no way advocates the aggregation of impacts to
increase levels of assessed harm on individual assets.
6.182 A sense-check comes through scrutiny of Ms Wedd’s ‘aggregation exercise’,
when inverted, where she states:166
162 ibid, paragraphs 6.1-6.55
163 ibid, paragraphs 6.56-6.65
164 CD3.12 paragraph 28
165 CD3.17 paragraph 6.59
166 Ms Wedd’s PoE paragraph 6.65
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‘Taking into account the impact on the significance of each and all the
heritage assets, designated and non-designated, I conclude that the
cumulative impact of the proposed development would cause less than
substantial harm to heritage significance at the upper end of that range.’
6.183 Given that it is common ground167 that substantial harm would have such a
serious impact on the significance of the assets that its significance is either
vitiated altogether or very much reduced, it must logically follow that less than
substantial harm at the upper end of the range, is approaching this level of
harm. Taking York Farmhouse as but one example, a suggestion – indeed one
analogous to that advanced by the Council - that the development proposed
would result in such a level of harm when the fabric of the building, its gardens
and former outbuildings would all remain unaltered and open land would
remain between the building and built form, respectfully, lacks all credibility.
6.184 For the above reasons, as supported in evidence, the development gives rise
to no objectionable heritage harm, and no conflict with the development plan,
or with the Framework. This has importance for the tilted balance under
Framework paragraph 11. The presumption in favour of sustainable
development remains. In this appeal, the application of heritage policy comes
nowhere close to presenting a ‘clear reason’ – indeed, any reason – for
refusing the development within the operation of paragraph 11.
TRANSPORT
Transport Benefits
6.185 The appeal scheme demonstrates very clear transportation benefits in overall
terms. Transport planning policy, including section 9 of the Framework,
underscores the importance of securing high quality, accessible development.
Central to minimising the potential for vehicle trips to the development
proposed is the accessibility of local services and optimal public transport
provision. As amply explained in Mr Tucker’s Transport Assessment (TA)168
and as reinforced in the Highways Statement of Common Ground (HSoCG)169
the site clearly benefits from excellent locational advantages, being in close
proximity to a built up area. Indeed, it is agreed that Medway and the
settlement of Rainham benefit from excellent transport links including public
transport, with bus, foot and cycle links within the settlement obviously
connecting well to adjacent communities, with good road links also to the
principal road network.170
6.186 As part of the appeal scheme, the provision of a Travel Plan would also be
financed and would include sustainable travel information packs for every
household that forms part of the Development. This information pack would
satisfactorily provide site specific information of sustainable travel options
available to new residents, and would be secured prior to household
occupation. The Framework Travel Plan171 is agreed in principle, with final
details (welcome packs, with up-to-date public transport information and
167 Heritage SoCG CD11.2 paragraph 3.14
168 CD5.25
169 CD11.4
170 Ibid paragraph 4.11
171 CD5.26 Ref 20230-04b Framework Travel Plan – 23rd September 2019
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Travel Plan co-ordinator role) to be agreed post-approval. Even the Council’s
own assessment of traffic impacts (which should be rejected) when taking
account of the utility of the Travel Plan, does not discount the possibility of less
than residual cumulative severe impacts.172
6.187 The appeal scheme includes a local centre and primary school. It is agreed
that these would all be located within a reasonable walking distance of the site
and of all new occupants. The site is equally very well located in terms of
education accessibility. Moreover, retail, health and leisure accessibility has
evidently been well considered. Accessibility by all modes is notably very
good, with a convenient supermarket, shops, dentist surgery and a range of
services and facilities being located nearby. The development would also
make an important financial contribution to the extension of an existing bus
service, serving both the appeal site and existing residents.
6.188 Overall, given the extremely positive locational benefits of the site, it is
strongly the case that the development scheme fully accords with relevant
transport objectives under both development plan and national policy, and
would make an important, positive contribution to sustainable development
within the wider, Medway area. On this basis, and before turning to traffic
impacts, the development is shown to fully meet the requirements of the
Framework in terms of sustainable development. The Council further agrees
the Appellant’s position that the site is appropriate for residential development
in the context of accessibility.
Council liaison
6.189 The Appellant has made every effort to engage proactively and openly with the
Council on all highway matters from inception, and especially with regard to
the Medway Aimsum Modelling (MAM).173
6.190 Following submission of a scoping report in November 2018, with the
exception of a single ‘draft response’ from the Council received in August 2019
(which happened only to speak to traffic generation issues) no detailed
feedback was provided on the transport evidence base already before it.
Various meetings were subsequently held, initiated by the Appellant, through
which the Appellant proactively scoped future common ground, leading
ultimately to the submission of further technical notes in October 2019.174
Regrettably, no positive response was then received from the Council on these
documents, despite these explicitly and directly responding to all queries then
raised by the Council.
6.191 In December 2019, the Appellant received a notably brief PowerPoint
presentation of the outputs of the MAM175 and then undertook, in agreement
with the Council, further modelling based on MAM-derived traffic flows. These
were reported in Technical Note 3 dated March 2020 (TN3).176 No response
has ever been received on these.
172 Mr Rand Addendum PoE (ID35)
173 The detail of discussions is set out in Mr Tucker’s PoE, section 2
174 CDs 6.2 and 6.7
175 CD12.10
176 CD6.11
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6.192 Significant concerns were raised at that juncture about the validity of the MAM
generally, including both inputs and outputs, leading to formal requests for
further information on the modelling (on 7 and 23 July 2020). A response was
not received to these points until 14 December 2020, following the Inquiry
case management conference. That response was partial only and despite
further requests (latterly 28 February 2021 email from DTA to the Council),177
disclosure has never been made of the full detail of the MAM outputs, including
how the MAM was optimising individual junctions, and no explanation of
specific junction operation and causality of any queue has been
forthcoming, so that the specific issues of impact (if any) may be properly
understood from a MAM-perspective.
6.193 Aside from the MAM, the Appellant’s letter dated 23 December 2020 requested
confirmation from the Council that it agreed with the modelling paragraphs
adopted in the DTA individual junction assessments. The first ever comments
received on this came through Mr Rand’s first proof of evidence.178
Significance of uncontentious transportation matters
6.194 In relation to the no longer contested RfR4 and the position of Highways
England, the position is detailed in ID10.179 Highways England (HE) has now
agreed a scheme for Junction 4 of the M2 motorway to mitigate the impacts of
the development proposed, involving a contribution towards improvements at
the junction. That agreement between the Appellant and HE is entirely
separate from any MAM modelling. As Mr Tucker explained in his evidence in
chief, HE did not seek MAM outputs and based its decision wholly on the
technical work in conjunction with the TA180 and Addendum.181 This is despite
the junction in question being within the MAM area.
6.195 It is clear therefore, that HE has, justifiably, accepted in full the approach of
David tucker Associates (DTA) as being technically robust, and in the context
of assessing a development of this scale. This is an instructive endorsement.
6.196 Regarding RfR6 (highway safety) as Mr Tucker confirmed in his proof, further
assessment work has been undertaken in respect of wider highway safety
issues.182 On this basis it is now agreed that the application is consistent with
the requirements of the Framework paragraph 109 and Policy T1 in highway
safety terms.
6.197 Regarding RfR7, (site accesses) further detail was submitted on the access
arrangements as part of the TA Addendum.183
6.198 There are no outstanding issues raised by Medway in respect of highway safety
in terms of the wider network or lack of information about site access points.
No contrary evidence has been submitted, or examined, on this agreed
position.
177 Appendix B to ID42
178 CD10.9
179 ID10 - Position Reached with Highways England
180 CD5.25
181 CD8.3
182 see additional work reported in CD8.1
183 CD8.3
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The ‘highway network’ and ‘subnetworks’ as the network for assessing traffic
impacts
6.199 Policy T1 specifically relates to the need to assess the impact of a development
on ‘the highway network.’ As Mr Tucker explained, in the context of the
administrative area-wide remit of policy T1, consideration should be given to
the whole Medway Council area. That there are configured subnetworks does
not justify a discrete subnetwork approach to be taken to ‘the highway
network.’ Similarly, there is no basis in policy terms (or in explanatory text) to
‘carve up’ the network and overlook (that is, completely ignore) the sound
operation of other configured, neighbouring and wider subnetworks.
6.200 Beyond a point of pure policy construction and application, the Council has
failed to advance any clear rationale for having adopted a ‘network’
examination so obviously constrained by a select, few subnetworks (Nos 2, 3
and 7). Yet, the Council’s approach exceeds even this – it incorporates a
reconfiguration of subnetwork 7, alongside subnetworks 2 and 3.
6.201 From the beginning therefore, the Council’s assessment of the network
impacts has been skewed. Inevitably this has materially infected its overall
judgment on residual cumulative severe impacts, under national policy, as well
as capacity impacts under policy T1. The absent rationale for this approach
was echoed by Mr Rand’s confusion over how ‘the highway network’ had been
approached by the Council for policy T1 purposes. He presented two
irreconcilable versions during cross-examination. The importance lies in his
clear agreement in cross examination184 that the highway network should
properly be interpreted as the wider area beyond subnetworks 2, 3 and 7. He
confirmed also that his proof of evidence was silent on the impacts upon other
subnetworks, and silent also on the wider taking account of impacts on any
other subnetwork. With regard to these subnetworks, there has been no
consideration by the Council – despite Mr Rand’s appreciation of the global
network assessment. He confirmed, in terms, that he had not conducted the
test he considered correct with regard to policy T1.
6.202 The Council’s resiling (in re-examination) from those clear answers in cross-
examination is impeded by the further inconsistency with Mr Rand’s evidence
in chief regarding junctions and links. He then confirmed a need to consider
the links and junctions of all subnetworks (which was not confined to
subnetworks 2, 3 and 7 on that occasion) which may, in his view, have knock-
on impacts elsewhere, when considering residual impacts.
6.203 Mr Tucker agreed with Mr Rand’s first position, that residual cumulative impact
should be considered across the whole modelled area, both in policy T1185 and
Framework terms. For completeness however, Mr Tucker has also engaged
separately with an assessment of subnetworks 2, 3 and 7 alone. His evidence
makes that clear. His overall conclusions on residual cumulative severe
impacts remain the same.
6.204 Mr Tucker also confirmed186 his correct appreciation of the complimentary
acceptability test under Framework paragraph 108, and for residual cumulative
184 XX Mr Rand (Youtube recording @ 15.41 on 20/04/21)
185 EIC Mr Tucker (Youtube recording @ c12.30 on 21/04/21)
186 Inspector to Tucker (Youtube recording @ c16.40 on 22/04/21)
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severity under paragraph 109, properly recognising that there may arise
unacceptable impacts and attendant traffic harms, but ultimately, this may
prove less than severe.187
6.205 Contrastingly, the Council’s individual subnetworks 2, 3 and 7 appraisal is
entirely artificial. It is immediately shown not to be the case (a point
resounded by the fact that Mr Tucker’s assessment of subnetworks 3 and 7
impacts has not been challenged) that residual cumulative impacts within
these two subnetworks are severe. The importance of this recognition is
highlighted by the Council’s second position that the relevant ‘highway
network’ should include, not exclude, these two subnetworks (ie networks 3
and 7) viewed as a cumulative whole.
6.206 It is also clear, as Mr Tucker explained, that there is no policy harm arising
from the fact of congestion where this simply means that people would take a
little longer to travel to their destination point. To define this as harm
necessarily is unfounded. Separately, congestion of itself may indeed
positively influence future travel choices, promoting a switch away from use of
the private vehicle, which would have a positive impact and reflect
sustainability.
6.207 Finally, whilst a transport harm may still arise in principle if, when cumulatively
viewed, traffic impacts were found to be below the residual cumulative severe
threshold, then this negative would ultimately not prove significant enough to
support refusal of permission. This reflects the deliberate policy ‘bar’ of
‘severity’ presented by Framework paragraph 109.
Acceptability of Appellant’s assessment approach
6.208 Fundamentally, the position adopted in this appeal by Medway in respect of
traffic assessment of the appeal site is inconsistent with the only other
residential development example that MAM has been used for in Medway. This
is not a case then of a much tried and tested MAM model. This is also not a
case of consistency of approach by the Council on MAM. Nor is it simply a
concession to the fact that MAM is evidently not being taken up in the
promotion of sites, such is the guidance-permissible choice, ie the opportunity
consistent with the guidance either to elect to use MAM from inception, or to
pursue a different course.
6.209 In April, during the Inquiry adjournment, the Council determined a planning
application for land at East Hill. Mr Tucker’s subsequent note to the Inquiry188
confirms that this application was not refused on highways grounds. However,
the officer’s report sets out that the applicant undertook an approach of
considering MAM derived flows, providing a consideration of net changes in
traffic flows from the model, and then providing individual junction models
(Arcady and LinSig) of each junction.189 This approach is confirmed in the
Transport Assessment for that application.190
187 see Mr Tucker Rebuttal paragraph 2.6, page 3 (CD10.3)
188 ID37 see also Mr Jarvis PoE paragraph 4.3
189 ID37 pages 32-33
190 paragraphs 6.3.1 – 6.3.4 Extract attached to ID37
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6.210 The Council’s written191 and oral response is notably off-point. Mr Jarvis tried
to suggest in cross-examination192 that East Hill was distinguishable on the
basis that no ‘blocking back’ was evident and separately, because wider, net
transport betterment of the scheme had been shown (provision of link road
etc.).
6.211 First, the Council has never advocated that the functionality factor of ‘blocking
back’ (or, for that matter, any other functionality factor) is determinative of
the robustness of the approach to assessment. There is also no evidence
whatsoever that blocking-back was not an issue in East Hill, still less on
magnitude. Second, whether net transport betterment is achieved is wholly
irrelevant to the robustness of assessment in principle. Strikingly, East Hill
demonstrates that an approach to assessment (evidenced by the East Hill TA)
which is fully aligned with that of the Appellant, is robust - it has very recently
been accepted to be robust by the Council. That no coherent explanation has
been advanced by the Council for adopting a conceptually different approach to
assessment in this appeal (and that no attempt was made by the Council to
alert the Inquiry to the East Hill determination) is striking. The inescapable
fact is that the East Hill approval itself presents unequivocal confirmation of
the acceptability of Mr Tucker’s TA and overall assessment approach.
Distinctions in approach (e.g. baseline validation) + Table 1/Functionality
matters: updating
6.212 Despite an over-emphasis in cross-examination of Mr Tucker193 on the
validation of the base model, he has been clear, since rebuttal stage that, in
order to narrow the scope of meaningful issues and, subject to significant,
differentials regarding journey time assumptions made within the vicinity of
the appeal site, the Appellant was content to accept that the base model
validates to meet the Webtag guidance. Properly understood however, the
acceptance (through Mr Tucker’s rebuttal) in no way undermines the
Appellant’s assessment. For, base line validation aside, the Appellant’s
outstanding critique of journey times is significant in terms of the robustness
of MAM outputs. As Mr Tucker identified, and the Council still fail to explain,
some outputs are plainly irrational. There is no basis explained to confine
these outputs, which must mean that the robustness of MAM is considerably
undermined.
6.213 Nonetheless, the evidence base before the Inquiry is, any event, now
complete, and a conclusion aligned with the Appellant’s is properly founded
when using those elements of MAM which are arguably credible (ie objectively
with an appearance of soundness) in combination with the Appellant’s own
assessment, which suffers no irrational outputs. Both cross-examination of Mr
Jarvis and the evidence in chief of Mr Tucker explored in detail this transition in
the complete evidence base.194 Findings can be summarised as:
191 ID41
192 XX Mr Jarvis (Youtube recording @ c16.30 on 19/04/21)
193 XX Mr Tucker (Youtube recording @ c9.45 am 23/04/21)
194 Reference Table 1 Page 18, Jarvis PoE (CD10.9)
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Comparison between MAM and Isolated Junction modelling
Modelling Evidence before the Inquiry
Functionality
Spatial extent Agreed whole of Medway in detail and
external network
Diversionary impact Assessed in Macro in MAM195 and through
TN3196 - not disputed
Traffic routing based Assessed in Macro in MAM 197 and through
on congestion and TN3 which was not disputed
travel times
Blocking back at Assessed in MAM. Not accepted as an issue
junctions (impact of in TN3 or TN4198 - no signficant queuing
queuing on occurs
upstream junctions)
Flow metering Agreed assessed in MAM. Agreed assessed
(downstream effects at Bowaters roundabout – LinSig Assessment
of congested and outputs in Mr Tucker’s Second Rebuttal -
junctions) not challenged in cross-examination.
Individual vehicle Lane changes represented in LinSig and
lane changing allowed for in Arcady.
behaviour
Individual vehicle Assesed in MAM, but agreed to be of less
acceleration / signficance.
deceleration
Bus routes Assesed in MAM but agreed to be of less
signficance. All bus stops on A2 have full
laybys.
Corridor journey Assessed in MAM, but only reliable if junciton
time analysis capacity is reliable, which it clearly is not.199
Strategic traffic Agreed and outputs accepted. Shows all
operation outputs networks as within capacity.200
(i.e. V/C)
Strategic Road Agreed not relevant. Only assessment
Network impacts merge/weave is relevant to Highways
England network and impact based on
Appellant’s approach, agreed.
195 See ID34 Part 2 – Flows and VC Plots
196 CD6.11
197 See ID34 Part 2 – Flows and VC Plots
198 CD12.6
199 EiC Mr Tucker
200 ID36 paragraphs 3.10 – 3.12 (page 9–11)
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Distributional Agreed MAM and DTA approach both perform
analysis (select link this and outputs broadly similar.201
analysis)
Observed Traffic ✓
Demand Matrices
Observed Trip In both assessments. Appellant’s approach
Distribution based on indvidual journey purpose.202
Local Journey In both assessments. Appellant’s approach
Purpose Splits based on indvidual journey purpose.203
Traffic Signal co- In both assessments. Appellant’s approach
ordination and based on detail of linked junction within
optimisation Bowaters and LinSig based optimisation as
required by LTN 1/09.204
Merge/Weave Agreed not relevant. Only assessment
assessment merge / weave is relevant to Highways
England etwork and impact based on
Appellant’s approach - agreed.
Macro vs. Micro
6.214 The MAM outputs are provided at both the macro- and micro-level. There is
broad agreement205 that the macro outputs show very little impact on the
wider network. This is supported by the fact that the change in flows on most
links are modest and within the daily variation in flows.206 This is confirmed by
the Council’s own evidence.207, summarised at ID43. Where there are changes
in flows (Bowaters roundabout and routes to the east) and Lower Rainham
Road, these impacts have been fully assessed and found acceptable.
6.215 At micro-level, there is significant variation between the DTA and the MAM
outputs, to the point that the latter has shown to be irrational. No assessment
or cross check has seemingly been undertaken by the Council to support their
findings and the Inspector was (wrongly) invited simply to take the results at
face value. There has been no auditable assessment of those outputs.
Calibration and Validation of DTA assessments
6.216 The position in terms of junction calibration208 is agreed and was unchallenged
in cross-examination. There was further no challenge on the geometrical
inputs to any of the junction models submitted.
6.217 The Appellant’s validation of the LinSig modelling (Bowaters and A2/Otterham
Quay Lane in particular) was unchallenged.
201 ibid Paragraph 3.8 (page 8)
202 Transport Assessment (CD5.25 Section 5)
203 ibid
204 Mr Tuckers’ Second Rebuttal (ID36) Paragraph 3.23 page 12)
205 ibid paragraph 3.7 (Page 7) to paragraph 3.13 (Page 10)
206 XX of Mr Tucker (Youtube recording @ c14.30 on 23/04/21)
207 summarised at ID34a Pump Lane and Lower Rainham Transport Impact Appraisal Addendum 3
208 MR Tucker First Rebuttal Paragraph 7.2 and 7.3 (CD10.13)
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6.218 Mr Tucker explained that the validation of the two key roundabouts on which
he was challenged (Will Adams Way and Lower Rainham Road) was
appropriate and correct. He considered that the variation of queues needs to
be considered in absolute terms, not proportional change.209 Mr Jarvis
accepted this in cross-examination.
Trip rates: the outline case for preferring Scenario 6A; TN3 and TN4
6.219 The Council has provided a significant number of different scenarios in the run
up to the appeal and a number of review assessments were demonstrably
wrong (including the wrong access strategy being tested). Scenario 6A is to
be preferred. This includes a 2029 assessment which is consistent with
National Policy Guidance. It also includes the DTA derived trip rates. These
were subject to examination by Medway and the final adopted rates (at TN3)
which addressed all of the comments raised by Medway to ensure they were
site- and location- specific.
6.220 By contrast, the MAM adopts generic trip rates which includes a number of
sites from TRICS which the Council specifically requested DTA remove from
their assessment. The DTA trip rates are therefore clearly preferable and more
appropriate. This was not challenged by the Council. On that basis, the
appropriate outputs for testing the development impact should be a
combination of the macro outputs of MAM Scenario 6A, and TN3210 and TN4.211
Robustness of individual junction assessment: (i) Arcady; LinSig; constraints
of LoS criteria; (ii) why no Blocking-back concerns; (iii) Lane changing; (iv)
TAG-compliance; RFC and LinSig values (0.85, etc.)
6.221 Mr Jarvis agreed that the DTA models do not show significant issues at the
junctions. The Council’s principal concern about the DTA individual junction
modelling approach was clearly related to blocking back. This was confirmed
by Mr Jarvis in cross-examination where he confirmed it was one of the
important elements of the MAM. However he also confirmed that in terms of
overall capacity, the impacts are different in different locations.212 In that
regard it was suggested that east of Bowaters roundabout, the issue was link
capacity, whereas at Will Adams Way roundabout and Lower Rainham Road it
was primarily a junction capacity issue.
6.222 Mr Jarvis agreed that one of the principal causes of queuing on the A2 towards
Will Adams Roundabout starts with congestion at Bowaters Roundabout,
causing blocking back. He agreed also that if a junction is shown to be
operating within capacity and without significant queuing there can be no
blocking back effect. This is precisely what the Appellant’s evidence shows.213
6.223 Amidst the debate on what LoS/RFC214 or equivalent value should be adopted
in terms of considering harm, ultimately, Mr Rand agreed that the approach
adopted by Mr Tucker with regard to LinSig - which adopts 90% as a degree of
saturation - was appropriate. Notably, the output of those assessments is not
209 Mr Jarvis Addendum Proof paragraph 7.12 (ID52)
210 CD6.11
211 CD12.6
212 XX Jarvis (Youtube recording @ 15.50 on 22/04/21)
213 ID36 Tables 1, 2 and 3
214 level of saturation/ratio of flow to capacity (also V/C ratio – volume capacity ratio)
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challenged. It is also an agreed position that there is no guidance on
roundabouts (Arcady outputs).215
6.224 Mr Rand confirmed that for comparison with his assessment, an RFC over 0.85
equated to an LoS of E and an RFC over 1 equates to an LoS of F.216 This
defines an LoS of F as being the threshold for severe.217
6.225 All of the junction modelling that the applicant has put forward for the key
junctions shows an LoS, by Mr Rand’s own assessment, of less than LoS F -
and therefore applying his own definition, not severe.
Irrational junction outputs, unanswered: all subnetworks
6.226 The outputs of the MAM in terms of congestion are irrational. It is a basic,
fundamental requirement of the modelling process that the modeller gives
adequately detailed consideration to the robustness of the outputs of the
model - and not just inputs (ie Base Model Validation). Medway has
undertaken no critical review of the outputs or comparative assessment of its
findings with empirically derived outputs from Arcady or LinSig. The results are
significantly different.
6.227 In terms of Bowaters roundabout, the LinSig Modelling results at Table 3 of Mr
Tucker’s Second Rebuttal218 went unchallenged. The geometric inputs and
outputs of the Arcady modelling are also not challenged. In terms of the
subnetwork detail, his evidence is confirmation of the matters below.
6.228 On the Council’s closing,219 the 2035 reference case had been adopted because
that is what the Council had provided the Appellant with, and consistency was
maintained with TN3. This means higher, more robust trip rates because they
present an even later future year, incorporating the higher Medway trip rates.
At paragraph 166(2) of the Council’s closing, the contended ‘sizeable’ increase
in flows west of Bowaters roundabout is certainly not sizeable in the context of
the road network. In cross-examination, Mr Tucker confirmed that 100 v/h,
over two lanes is de minimis and well within daily variations. In relation to
paragraph 174(2) of the Council’s closings, Mr Tucker explained in cross-
examination that Arcady outputs total vehicle queues on a link, and that it is
not correct, in order to achieve any fair comparison, to add all queues, on all
lanes. The Council’s comparison here is factually wrong.
6.229 Subnetwork 2: being the largest subnetwork, principally comprising the A2 and
A289, being the main urban strategic distributor roads (all dual carriageway).
These are obviously the most appropriate routes on which the Council should
be focusing increased traffic movements.
6.230 The select link analysis from the MAM220 shows the distribution of traffic from
the appeal site. This confirms there would be nearly zero development
generated traffic on the A2 West of Bowaters roundabout or on the Yokosuka
Way, south of the Lower Rainham Road.
215 Mr Jarvis and MR Rand in XX
216 XX Mr Rand (Youtube recording c10.50 on 21/04/21)
217 Mr Rand PoE Paragraph 3.8 – 3.9 (Page 8) CD10.9
218 ID36
219 ID50 paragraph 166(1)(c)
220 ID36 Appendix REB2C
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6.231 The Appellant’s assessment also demonstrates, based on MAM derived
figures,221 that there is not material change in traffic along those routes. This
highlights another key irrationality of the MAM. Mr Tucker explained in
evidence in chief,222 that the change in flows on the A2 east of Bowaters
roundabout was less than 40 vehicles per lane, per hour, well within the
capacity of the link and well within the daily variation in flows. That could not
create the significant and step change in traffic queuing that the MAM
irrationally shows occurring along the A2 corridor between Bowaters and Will
Adams roundabouts. Where there are increases in flow (at Bowaters
roundabout and Lower Rainham Road) these junctions have been tested in an
appropriate manner and demonstrated to be operating within capacity.
6.232 The Appellant’s modelling output of the three main junctions shows them to be
working within capacity. On that basis, with reference to Mr Rand’s summary
table of impacts,223 the following corrected results apply - junction ID Nos 7, 9
and 12, are shown in Mr Tucker’s evidence224 to be operating at the equivalent
of LoS D or E (worst case) – i.e. suitably within capacity.
6.233 It was agreed in cross-examination of both Mr Jarvis and Mr Rand that the
congestion at junction ID Nos 8 and 10 were principally caused by blocking
back issues from preceding junctions (Nos 12 and 9, respectively). Given the
modelling shows no significant queuing at these junctions, no blocking back
can occur. It must therefore follow that these would also reduce to LoS D.
6.234 Clearly, journey times presented in the MAM must also be wrong, given the
fact the queues are significantly overstated and illogical. This would therefore
significantly affect the overall journey time outputs presented by the Council.
There would no longer be the severe impact it contends.
6.235 On that basis, and on Mr Rand’s own appraisal methodology, the impact could
not be residual cumulative severe on subnetwork 2. That is demonstrated,
even before turning to Mr Tucker’s assessment of this subnetwork, which
confirms the same, unobjectionable impact.
6.236 Subnetwork 3: Mr Rand confirms that ‘…the [revised] results show that the
mitigation works reduce the impact of the development on travel times along
this part of the A2 such that this is no longer in and of itself considered to
constitute a severe impact.’ This is agreed.
6.237 The Council’s conclusion of a significant overall impact only arises because the
MAM shows a significant delay on Meresborough Road. Mr Tucker explained in
evidence in chief that this was simply not credible. With reference to the
vehicle flow plots225 provided by the Council, the model is showing vehicle
flows on the side road of over 500 vehicles per hour. This road only serves 30
houses as cul-de-sac, so as a matter of fact, the value is significantly wrong.
If corrected, Table 2 shows the capacity of the junction would be comparable
with that provided to the Council in Mr Tucker’s email of 28 February,226 and
would be acceptable. This would, in turn, justify the significant readjustment
221 Ibid Appendix REB2C and Tables 4, 5 and 6 of First Proof of Evidence
222 XX Tucker (Youtube recording PM on 22/04/21)
223 ID35 Table 1 page 4
224 ID36 Tables 1, 2 and 3
225 CD34 Part 2 – Flows Tab Scenario 6a outputs
226 Appendix B to ID42
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of the overall journey time outputs presented by Council. There would, again,
applying their own assessed – when properly adjusted - no longer be a
residual cumulative severe impact. The suggestion of such an impact becomes
untenable.
6.238 By postscript, the 27 April 2021 Medway Note227 only serves to highlight a
fundamental flaw in the MAM. It is suggested that Moor Park Close is not
modelled as a cul-de-sac and therefore higher traffic flows are shown on that
link. But, as a matter of fact, the road is a cul-de-sac and therefore physically
could not begin to generate the level of traffic suggested in the
MAM. Otherwise put, point 2 of the Note suggests that traffic from other
residential areas to the south are assumed to route through Moor Park
Close. This cannot be correct in practice, and traffic should properly have
been loaded at a completely different location on the ‘network.’228 Link 14554
which has an observed flow of 20, is entirely consistent with the Appellant’s
survey. However, given that this node is one raised specifically as one of
concern, it is essential that the inputs are correct in order for weight to be
given to the outputs. The fact that MAM loads such a significant level of traffic
onto that point in the network where that traffic could not conceivably exist,
again highlights the fundamental error of approach and means no weight can
be given to findings within this location. This confirms the results in relation to
Subnetwork 3 from the MAM have no credibility.
6.239 Mr Jarvis’ note229 does not clear up the identified anomaly, or its scale. The
MAM outputs show 500 (not 300) v/h using Moor Park Close. Even if the Close
comprised 200 houses, the represented level of traffic is simply not credible.
As Mr Jarvis confirmed, MAM assumes all of this traffic must route to the A2,
via either Moor Park Close or Meresborough Road. This therefore means a
fundamentally erroneous level of traffic has been loaded onto Meresborough
Road/Otterham Quay Lane junction. Mr Jarvis’ final explanation only serves to
confirm the Appellant’s criticisms of MAM and the unexplained, unarguable
anomalies arising.
6.240 Subnetwork 7: Only one issue is raised by the Council regarding subnetwork 7
in Mr Rand’s evidence.230 This assessment is out of date in that it does not take
into account the additional mitigation proposed. Mr Jarvis’s Addendum
Evidence231 confirms that, with additional mitigation,232 the queue on Lower
Rainham Road is reduced. Mr Rand confirmed that this would reduce the
impact on that arm to less than severe. This is agreed, and to add, it is very
substantially less .
Journey Times: V/C233 and Wider impacts
6.241 At macro level, MAM outputs show several key data outputs which were not
actively promoted in the Council’s evidence, but form a key part of the
227 ID54
228 There is presumably a ‘typo’ in the 27 April Note as it refers to link 145554 which does not exist in the Model
Validation report. This is assumed as 14554 (p153).
229 ID54
230 ID35 Paragraph 2.2 and 2.3.
231 ID35 Paragraph 4.5 page 32
232 Drawing 20230-10B
233 Volume/Capacity ratio – measures level of congestion on a roadway by dividing the volume of traffic by the coded
capacity of the roadway
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evidence base.234 These show traffic flow plots and VC plots (the ratio of flow
to capacity, both in terms of links and junctions) for the reference case and
with development scenarios.
6.242 The MAM modelling shows no significant changes in the overall number of links
on the network (Medway-wide) that operate with a VC of over 1. This includes
all three sub networks considered in detail. Mr Jarvis confirmed in cross-
examination235 that the VC plots were determined by COBA236 speed flow
curves. By definition therefore, a VC of less than 1 means that vehicle flows
are within capacity as a matter of fact. The wider impact of the development
cannot therefore be residual cumulative severe.
Other
6.243 In cross-examination, Mr Tucker confirmed his use of Aimsum software on two
other sites, principally in Sheffield, confirming that the situation there was
analogous to the process adopted in the appeal case, whereby the model was
used alongside a standard TA approach (at the then request of Sheffield). In
that case Highways England did not accept the findings of the Aimsum work,
and its principal concern had been J34 of the M1, as concluded through a
combination of LinSig work and Aimsum. No implications for Mr Tucker’s
approach taken in this appeal therefore arise.
6.244 In terms of baseline validation of MAM, Mr Tucker accepted it was
comprehensive and in line with DfT requirements, save for key outputs in
relation to journey times. These are particularly important given the
significant concerns about the outputs of the MAM in terms of journey times
for the development testing scenarios on subnetwork 2.
6.245 To add, in light of the lack of an audit of the model, it is clear that subnetwork
3 is wrong. In turn, this is illustrative of the need to critically appraise all
model outputs, which has not been done by the Council, and casts
considerable doubt over the Council’s assessment.
6.246 Mr Tucker confirmed that in terms of the principle of identifying the impact of a
specific development site that the model has been used for, the outputs have
not enabled the identification of mitigation measures. He further confirmed
that he had not received full details of the MAM validation until he received Mr
Jarvis’ rebuttal,237 despite a request for all model validation reports from
8 December 2020. Indeed, it remains the case that full auditable outputs of
that work have not been provided.
6.247 In relation to the DTA approach to modelling, Mr Tucker explained the model
calibration.238 This was not challenged. On validation, he explained that the
queues were consistent with observations and consistent with his conclusion
that it is most unlikely that there is systemic bias, given that the majority of
234 These are presented at CD ID34 (Part 2) in full and in partially summarised form in ID43/44 and Mr Tucker’s
evidence.
235 XX Mr Jarvis (Youtube recording AM 20/04/21)
236 Cost Benefit Analysis - estimates the effects of highway improvements in terms of travel time, vehicle operating
and accident costs on users of the road system.
237 CD10.16 Section 2
238 CD10.13 Paragraph 7.1-7.3 Page 11
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junctions are on dual carriageways where the ahead-traffic can use either
approach lane.239 The risk is low.
6.248 With respect to model geometry, the Council expressed no concerns and these
elements were not challenged. In any event the point is moot, because for the
two junctions concerned (Will Adams roundabout and Lower Rainham Road)
mitigation has been proposed which changed the model structure in any event,
meaning that base line validation would not change the outputs of the
assessment. Those outputs have also not been challenged.
6.249 Mr Tucker acknowledged that the MAM validation had been accepted by
Highways England, but confirmed that this was not relevant because its
position in respect of the appeal scheme was based on the Appellant’s TA
approach and was not reliant on the output of the MAM modelling. He also
agreed that individual junction modelling did not provide details of wider
journey time but confirmed his view that as the junction models showed them
to working within capacity the impact on journey times would be limited.
6.250 It is agreed that lane change behaviour is dealt with in the MAM and can affect
junction capacity. However LinSig allocates movements to lanes and the
approach in the LinSig was not challenged.
6.251 Mr Tucker also explained that Arcady has an entry capacity for a given width,
but there is a way to look at unequal lane usage.
6.252 In terms of the outputs, the Will Adams Way mitigation allows for a better
balance of lanes at the approach for traffic through the junction. Mr Tucker
confirmed that the intention of the mitigation is to redress the balance and
allows for the filter lane to be used. Therefore capacity is not worsened and
has a significant benefit to the operation of the critical arms of the junction.
Third Party Matters
6.253 From a comprehensive review of the objections, none raises any specific issue
not otherwise addressed, or concern regarding the technical detail of the
access arrangements and none raised issues of design or detail. In relation to
the wider development, the concerns may be categorised as follows.
6.254 Access arrangements and adequacy to serve development - junction capacity
testing has been undertaken in the submitted Transport Assessment240 and in
Technical Note 4.241 A link capacity assessment is set out in Mr Tucker’s
evidence.242 This demonstrates the access strategy is wholly appropriate to
serve the Site.
6.255 The MAM modelling confirms that there are no issues at the site access
junction on Lower Rainham Road.243 It is agreed common ground with the
Highway Authority that the site access arrangements are suitable and would
operate within capacity.244
239 ibid paragraph 7.4
240 CD5.25
241 CD12.6
242 Mr Tucker PoE Tables 4, 5 and 6, plus ID36 Paragraph 3.10 and 3.11
243 CD12.2 Table 17 and 18 (Pages 22 and 23 confirm this).
244 CD12.4 Paragraph 7.3 and 7.4
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6.256 Public Transport is clearly addressed in the TA and is summarised in Section
4.3 of Mr Tucker’s evidence. Appendix A of the HSoCG clearly shows the
excellent connectivity of the appeal site to the local and wider area. A high
quality 10 minute bus service (No 182) running to the south of the site would
fall within a reasonable walking distance of 80% of the houses within the
development.
6.257 Chatham Station is considered to be the most likely to be used by new
residents of the development as it provides frequent high speed travel to
London as well as local services. It would be accessible from the site by both
the existing services (182 and 101) and the proposed extension to Service 1.
On the basis of the parking costs at Rainham station, public transport access
to the stations would be more preferable than new residents driving and
parking. Accordingly, there would not be significant parking demand
generated by the appeal site.
6.258 As set out in the TA, pedestrian/cycle access to the proposed development
would be achieved through a number of connection points, as indicated on the
illustrative masterplan including via the proposed vehicle access from Lower
Rainham Road, via a series of footpath links to the site including from Lower
Rainham Road (north), Lower Bloors Lane (east), and Lower Twydall Lane)245
to the (west), and via the proposed vehicle access from Beechings Way and on
to Pump Lane (south). These connections to the north, east, south and west
would provide a good level of connectivity to the local area and nearby
facilities.
6.259 In relation to the independent Road Safety Audit,246 all recommendations have
been accepted and it is common ground with the Council and the local
Highway Authority that access is acceptable.247
6.260 Traffic impact clearly is raised numerous times by local residents and the main
answer to that is set out above because it is also the key, and only issue being
raised by the Council on highway matters.
6.261 Air quality related to traffic levels is also raised - an air quality assessment has
been undertaken by Peter Brett Associates which has assessed the impact of
the proposed development on air quality.248 This is not affected by discussions
on trip rates because the Appellant adopted a robust approach to AADT (24
hour flows) which went into Mr Tucker’s model.
6.262 Regarding transportation therefore, the appeal proposal is supported by a
Transport Assessment, underscored by a sound methodology, technical work,
best available data, and sensitivity testing. It is robustly concluded that
national policy and development plan transport policy is met. There are no
objectionable highway safety or traffic impact issues. For example, the alleged
queuing time/delays would not pass the threshold into severity for the
purposes of the Framework.
245 See ID12
246 CD8.1 part 1 Appendix G (Page 297)
247 CD12.4 Paragraph 7.4
248 CD5.28 and CD6.4
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6.263 There is also no outstanding objection from Highways England, subject to
appropriate mitigation coming forwards in respect of M2 Junction 4, the
principle of which is agreed, as are the mechanisms for securing this.
BEST AND MOST VERSATILE AGRICULTURAL LAND (BMV LAND)249
6.264 The development upon BMV land gives rise to no conflict with development
plan policy – there is no relevant development plan policy. The BMV land
debate only engages paragraph 170(b) of the Framework.
6.265 The Framework-centred discussion is also heavily contextualised by the
Council’s driven admission that significant residential development will, in the
foreseeable future, need to come forward on BMV land, not merely agricultural
land, within the District in any event, such is the enormity of unmet housing
need.250 That is the same foreseeable future that the Council wishes to portray
the Local Plan in. It can’t have it both ways. The Council tries to impress that
the Local Plan will deliver up some housing sooner than 2025, but then it must
also recognise Mr Canavan’s concession. That admission also takes account of
future Local Plan development. So the principle, in complete alignment with
the appeal scheme coming forward now, is something which the Council
readily acknowledges and, in fact, should properly be taken to welcome.
6.266 It is notable also that the Council has neither argued nor evidenced any
intrinsic value, either in ‘economic’ or ‘other benefits’ (Framework) terms of
this BMV land that is, over and above the mere fact that it is BMV land, in
comparison with, or in contrast to, other BMV land sites, whether within or
outside the District. The appeal site discloses no comparative value in either
terms. Indeed, the Appellant’s case goes further. The appeal site holds very
little or no ‘economic’ value. This is clearly significant given the emphasis in
the Framework, which should not be applied as if blanket-assuming that all
BMV land holds this, or equivalent value. That would be to wrongly extend
paragraph 170(b).
6.267 Further to the Council not arguing any discrete value, it is not even suggested
that other BMV land sites within the District should, or would under the
eventual Local Plan, come forward for development ahead of the appeal site.
This is separately important in the context of the Council’s in principle
admission of the acceptability of residential development of sizeable BMV land
within the District. It was no suggestion of Mr Canavan that the inevitability of
development of BMV land in the future would be constrained to land the size of
this site, or smaller.
6.268 The Council’s own case is that no more than moderate weight could properly
be given to the complete ‘loss’ of BMV land through the appeal development.
Even this recognition is incomplete for paying no objective regard (there
having plainly been no assessment) to the extent of the Council’s housing land
shortfall and very distant plan-making exercise, across a District within which
so much BMV land today exists, undeveloped.
6.269 This context alone justifies attributing modest weight to the loss of BMV land in
Framework paragraph 170(b) terms, even before undertaking a fuller
249 Best and most versatile agricultural land
250 XX Mr Canavan and PoE Mr Canavan
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exploration of the site’s specific characteristics, viewed in a commercial
agricultural/analogous context, which strongly bears out why its BMV land
status is much less significant with regard to its particular physicality, the
ongoing (or other future) agricultural use and the productivity of the site, the
development scheme and the Council’s catastrophic housing supply position.
6.270 A flawed criticism is levied at the Appellant’s evidential presentation of
unviability, or alternatively, of an inability for the site to return a reasonable
future level of sustainable profit (‘no reasonable profit’) being the two separate
thresholds advanced by the Appellant. The criticism is unfounded. First, no
challenge is actually made to the confidentiality of the relevant viability (or no
reasonable profit related) material, or to the fact that it has been considered
by an expert, Mr Pelham, on behalf of the Appellant. Commercial
confidentiality is rightly ascribed. Second, no challenge is made to Mr
Pelham’s professional expertise in his assessment, and financial reporting
upon, that material.
6.271 The Council ignores the reality that an assessment by the Inspector of
unviability (or ‘no reasonable profit’) could not properly be undertaken without
full, public disclosure of all commercially confidential documentation. The
Appellant well appreciates this, but cannot waive this confidentiality. Whilst
therefore, procedurally, it is acknowledged that there is some (albeit limited
and very often, not full appraisal) allowance for a confidential appraisal by a
local planning authority of viability material in determining an application, this
has no application to decision-making by an Inspector, whether or not in a
recovered appeal. As such, the confidentiality of relevant information not
being in question, all commercially possible disclosure has come forward.
6.272 Ultimately, neither the Inspector nor the Secretary of State are hindered. Mr
Pelham explained the comprehensive assessment and all central conclusions
within a framework that can be readily understood on the evidence, without
admitting confidential source documents. His checklist of the information
reviewed, reinforces this.
6.273 Ultimately therefore, it is in no way undermining of the Appellant’s case that
the Council might not have resisted the unviability (or no reasonable profit)
case, had it been able to receive other confidential source documents. Indeed,
basic but fundamental errors conceded in the Council’s assessment, including
on basic industry pricing, casts particular doubt on the Council’s professional
ability in the viability (or no reasonable profit) assessment, had even there
been confidential disclosure. There is, respectfully, clear disparity in industry
and practical experience between the relevant witnesses.
6.274 Separately, it is no good point against the Appellant’s unviability (or no
reasonable profit) case - and it has never been a point made by the Council -
that no marketing information has been made available in relation to the
appeal site. There is no reason why this should have come forward. The
Planning Practice Guidance on viability also has no direct application in this
instance, and no evidential requirement (or adverse inference) can properly
arise as such.
6.275 Framework paragraph 170(b) specifically enquires of the particular economic
or other benefit of the BMV land in question. That question is not simply
answered by reference to the apportionment or particular grading of
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agricultural land. Paragraph 170(b) is wider than that. Furthermore, given
the site-specific assessment, it is far from being a necessary corollary of Mr
Pelham’s analysis that all sites comprising BMV land are unviable or unable to
return a reasonable profit. The evidence has been site-specific.
6.276 Lastly is the suggestion that historic due diligence undertaken by the
Appellant, and discrete investments undertaken historically in respect of the
appeal site, is somehow circumstantial evidence that the site is viable today.
This does not compare like with like. Further, the Council is in no position to
gainsay the level of profitability at the date of the Appellant’s acquisition, and
the invited speculation by the Council is regrettable. Further still, as Mr
Pelham explained, many farm owners invest in sites (often for short periods as
satellite sites) which would be independently loss-making. The Council’s
remote, unevidenced, speculation, borne of a desk study review infected by
basic errors of assessment, including on pricing, that the appeal site could
draw a ‘healthy profit’, is baseless.
6.277 Turning to the viability assessment, Mr Pelham expertly framed the
increasingly challenging economics of UK farming. The indisputable, long-term
trend is that the profitability of UK farming continues in steady decline.251
Declining profitability, albeit with some seasonal variation, applies to all
agricultural and horticultural enterprises (including the farming of the appeal
site) is ultimately the consequence of static, sale prices and increasing costs of
production.252 The consequence of this financial ‘pincer’ is that the profits of
farming enterprises are diminishing. The circumstances of the site render it
especially vulnerable. The farming response to these deteriorating economics
has been the continued pursuit of improvements in productivity, most
significantly, changes to production methods (to secure improved yields) and
increases in scale of operations (to enlarge holdings).253
6.278 Mr Pelham explained that whilst nearly all farming costs increase over time,
there are some categories where inflation is greater than others, most
importantly for employment costs. Other examples include machinery, crop
protection products, seeds, plants and trees.254 Increasing employment costs,
in particular for seasonal employees, are most relevant to those enterprises
where labour represents a significant proportion of production costs, including
horticultural crops such as apples, pears, strawberries, raspberries, vegetable
and salad crops. Contextualising these increases for 2000-2020, wage rates
for seasonal workers have increased by some 200%.255 During 2016-2020, the
cost of seasonal employees for crop husbandry and harvesting has, for many
growers, exceeded 40%. These disproportionate wage rate increases over the
last five years, unmatched by improvements in sale prices, have radically
reduced the profitability of apple and pear crops and, therefore, the financial
viability of Pump and Bloors farms.256
6.279 Mr Pelham explained four key site-specific constraints of the Pump and Bloors
farm enterprises which have significantly restricted (and would restrict) the
251 ID6
252 Mr Pelham PoE p.12, paragraphs 4.1-4.3
253 ibid p.13, paragraphs 4.4
254 ibid p.13, paragraph 4.14
255 ibid p.13, paragraph 4.9
256 ibid p.15, paragraph 4.17-4.18
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capacity for profit, resulting from either reduced output (yield and/or price) or
increased costs:
(a) overall farm area and satellite operation (increased costs);257
(b) the size and layout of the orchards (reduced price and increased
costs);258
(c) the clones of Gala and Braeburn apples (reduced price and increased
costs);259 and,
(d) orchard age (reduced yield and increased costs).260
Overall farm area and satellite operation
6.280 With regard to the overall farm area, the Pump and Bloors cropped farm area
of around 43 hectares is no longer adequately sizeable to be run independently
and support the dedicated costs of a manager/operator and key machines (eg
a tractor and sprayer). It must be operated as a satellite of another farm site.
Satellite sites incur significant additional costs (transport of equipment, staff
and produce, and for management etc). These additional costs have been
shown to be proportionately higher for smaller areas of land than they are for
larger areas (say 100 hectares or more) typically in the range £20–50 per
tonne.261 Whilst some economies of scale may be gained as a consequence of
satellite operation (eg store manager at central site) these savings are
considerably less than the additional costs of operating a satellite unit.262
6.281 These additional costs of satellite operations have been shown to be
increasingly difficult to support in the face of radical recent reductions in the
profit of horticultural crops, with a high requirement for labour (such as apples
and pears). Under current and likely future economic conditions, expert
opinion identifies a minimum orchard farm area of 60 hectares required to
support the dedicated costs of a manager/operator, a three-row sprayer,
(whose lower costs of operation would be crucial in maintaining future financial
viability) and a scale suitable for future developments in the mechanisation of
apple harvesting.263
Size and layout
6.282 Site-specific constraints also exist, some being permanent and irremediable.
Pump and Bloors farms comprise nineteen orchards. Twelve of the orchards
are less than 2 hectares and were financially unviable in 2020 due to their
disproportionately high costs.264 Optimal orchard planting is with rows running
north/south, given that this reduces shading and increases crop yield and
quality (eg apple colour). Given that at Pump Farm, 13.75 hectares (or over
60% of the crop area) are planted south-east/north-west, their alignment
reduces their potential for profit.265
257 ibid PoE p.8-9, paragraphs 3.3-3.8
258 ibid page 9, paragraphs 3.9-3.13
259 ibid page 19-20, paragraphs 5.7-5.12
260 ibid page 19, paragraphs 5.4-5.6
261 ibid page 8, paragraph 3.6
262 EiC JP (Youtube recording c1.23 22/2/21)
263 Mr Pelham PoE page 24-25, paragraphs 6.21-6.24
264 ibid PoE page 9, paragraphs 3.10-3.11
265 ibid paragraphs 3.11-3.12
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6.283 At Pump Farm, the intrusion of both buildings and rented land into the
cropping area much restricts the ability to increase orchard size with the right
alignment, as does the 1.5 metre drop at the northern end of Blocks 15 and
16.266 Bloors Farm effectively comprises two cropping areas separated by a
bridleway, which not only increases production costs, but also restricts crop
yield and quality, due to shading, in the neighbouring orchards to the north.267
Clones of Gala and Braeburn
6.284 Some 32.98 hectares, equivalent to 87% of the combined Gala and Braeburn
area at the appeal site are planted to the Gala Mondial and Braeburn Hilwell
clones. Both clones are becoming obsolete, due to their lower value and
higher costs of production, as a result of poorer colouration than newer
alternatives, and are now only capable of small profits, even with good
yields.268 All of the 32.98 hectares of Mondial and Hilwell at Pump and Bloors
farms requires replacement in the near future.
Orchard age
6.285 Some 6.36 hectares of the orchard area (some 15% of the total Pump and
Bloors cropped area) are over fifteen years old and are becoming too old for
commercial production. These orchards are financially unviable and require
replacement in the very near future.269 The combined area of superseded
Gala/Braeburn clones and old orchards represents the clear majority of the
cropping area of Pump and Bloors. In the assessment of future financial
viability, the replacement of all of the Pump and Bloors farms orchards have
been properly factored into account.
Potential future profits: apple production
6.286 The orchards at Pump and Bloors farms would require replanting in the near
future as a consequence of their existing size, layout, clone or age.270 The
financial viability of new orchard plantings has therefore been considered. This
has been undertaken through the preparation of a lifetime financial forecast for
a new Gala apple orchard planted in 2024, on soils of equivalent quality to
those at Pump and Bloors farm.271 Reasonable assumptions have been made in
the preparation of the model, including that the Gala sale price remains
unchanged throughout the orchard’s sixteen-year life, but that costs of
production increase at identified rates.272
6.287 Mr Pelham (orally) identified the information sources provided to him by the
Appellant.273 This included information on the prices received from
supermarket customers, which he identified as being consistent with his
experience of those supermarket prices being achieved by other growers.
Those prices showed no increases over the period under review.
266 EiC Mr Pelham (Youtube recording c1.32 22/2/21)
267 ibid (Youtube recording c1.36)
268 Mr Pelham Poe page20, paragraphs 5.9-5.12
269 ibid p.19, paragraphs 5.4-5.6
270 EiC Mr Pelham (Youtube recording c2.13 22/2/21)
271 Mr Pelham PoE page21-22, paragraphs 6.1-6.8 and Appendix V
272 ibid PoE p.21, paragraph 6.3
273 EiC Pelham (Youtube recording c0.33 22/2/21)
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6.288 Mr Lloyd Hughes (proof of evidence and orally) had wrongly suggested that,
based on available DEFRA statistics, apple prices have, in fact, increased in
recent years.274 The DEFRA statistics are for the total volume (in tonnes) and
value (£ million) of UK dessert apple production for the period 2008-2019.
Using these figures, a calculation of the average apple value had been made
for the 2010 and 2019 years. The difference between the two calculated
figures has been described wrongly as a trend.275
6.289 Mr Pelham orally confirmed why the use of data for the calculation of changes
to apple price was unfounded, due not least to the significant changes in the
mix of varieties between the 2010 and 2019 years.276
6.290 Mr Lloyd Hughes’ Note to Inquiry277 confirms that his previous reliance upon
DEFRA’s figures to ascertain the wholesale value of home-grown Gala apples
for years ending October 2019-20278 was misconceived. This, in turn,
reinforces Mr Pelham’s confirmation that sale prices have substantially
remained static, and appreciation of the relevance of DEFRA apple wholesale
prices to the economics of UK apple production confirms that only a minor part
of the UK apple crop is sold.
6.291 The only information before the Inspector regarding pricing is the metadata,279
as addressed by Mr Pelham.280 Mr Pelham also subsequently observed that in
order to properly establish an actual trend, the expectation must be that all of
the data for the ten-year period 2010-2019 would be included and that simply
identifying a difference between the opening and closing years (mindful of the
seasonal variations that can occur with apple crops) of itself does not come
close to establishing a trend.281
6.292 The application of Mr Lloyd Hughes’ method of calculation282 to the intervening
years 2011–2018, identifies the average dessert apple prices as follows:
DEFRA DESSERT APPLE TONNAGE/VALUE
CALCULATED AVERAGE APPLE PRICE 2011-2018
Year 2011 2012 2013 2014 2015 2016 2017 2018
£ Million 68 70 73 75 77 98 89 126
Tonnes'000 128 116 131 148 160 171 165 207
Average
533 604 554 507 480 570 543 607
£/Tonne
6.293 These derivative calculations of Mr Pelham’s evidence show no consistent
upward trend in apple price during this period, with the calculated average
price decreasing in four out of the eight years (2013, 2014, 2015 and 2017)
274 Mr Lloyd-Hughes PoE page 13, paragraph 66 and Appendix RLH 07
275 EiC Lloyd-Hughes (Youtube recording c1.09 18/2/21)
276 ibid (Youtube recording c2.28)
277 ID48
278 eg paragraph 67 of Mr Lloyd Hughes’ PoE
279 Mr Lloyd Hughes Appendix RLH07
280 Mr Pelham Rebuttal paragraph 23-27
281 XX Mr Pelham (Youtube recording c7.00 22/2/21)
282 Mr Lloyd-Hughes PoE page 13, paragraph 66
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the calculated average price decreased. There has been no underlying upward
trend in sale price over this period.
6.294 The calculations of average price, based on the only relevant evidence before
the Inquiry, confirm a central assumption in the preparation of Mr Pelham’s
2024 Gala crop model, being that apple prices remain largely static, albeit with
some seasonal variations. In summary, the Gala crop model forecasts a
turnover over a sixteen-year life of £694,141. Profit is forecast at £16,585 per
hectare, equivalent to 2.39% of turnover.283
6.295 Mr Pelham identified that a ‘reasonable profit’ within the industry (one that
takes into account the significant investment and production risks of apple
production, required for a grower to consider an orchard investment) would be
in the range 5-8% of turnover.284 The forecast profit of the Gala model, at
2.39% of turnover, is below the range of ‘reasonable profit.’ As such, even if
there were no incidents of hail during the sixteen-year lifetime of a Gala
orchard planted in 2024, the forecast profit falls below the minimum level
required to make this a commercial investment. The forecast confirms that
such an investment would be financially unviable.
Hail
6.296 In the nine years since the acquisition of Pump Farm by the Appellant (2012-
2020) there have been incidents of hail in five separate years.285 Hail damage
reduces profit and undermines the financial viability of apple and pear crops
from both reductions in output (lost yield and reduced fruit quality) and
additional costs (mainly harvesting and packing). Hail also undermines the
financial viability of not only apple and pear crops, but also of other
horticultural crops, including tree and bush fruit, vegetables and salads. It
was confirmed that if the damage to apple crops is over 10%, it is likely that
the entire crop would be loss-making.286
6.297 The average incidence of crop damage from hail at Pump Farm for the nine-
year period 2012-2020, has been 10.4% per year. In the period since its
acquisition in 2016, Bloors Farm has experienced the same incidence of hail as
Pump Farm.
6.298 In order to understand the consequences of hail for the potential financial
viability of a new Gala planting, a re-working of the 2024 planted Gala lifetime
crop model incorporating the average annual hail damage of 10.4% suffered
by the Appellant at Pump Farm in the period 2012-2020, was prepared.287 In
summary, the revised Gala crop model ‘with hail’ forecasts a turnover over a
sixteen-year life of £629,031. A loss of £31,320 per hectare is forecast.288
6.299 Where the future incidence of hail mirrors the average of that experienced by
the Appellant at Pump Farm in the nine years 2012-2020, a future Gala
planting would generate a significant loss and is shown to be financially
283 Mr Pelham PoE page 22 Table 8 and Appendix V
284 EiC JP (Youtube recording c1.17 22/2/21)
285 Mr Pelham PoE page10 Table 1
286 ibid p.11, paragraph 3.21 and EiC Pelham (Youtube recording c1.47 22/2/21)
287 Mr Pelham PoE page 22-23, paragraphs 6.9-6.13 and Appendix VI
288 ibid page 23 Table 9 and Appendix VI
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unviable. The same conclusion can be drawn in respect of other dessert apple
varieties, including Braeburn.289
Future enterprises
6.300 A full assessment of the future economic viability of Pump and Bloors farms
has appraised not only the likely profitability of the existing apple and pear
enterprise, but also of all alternative farming and other uses to which the land
may hypothetically be put.290 No alternative farming or other use is shown to
be viable or attractive with a view to the land use achieving a reasonable level
of profit, even if use of the land was not practicably impeded in the first
instance. The financial assessment of these other enterprises has also taken
account of the initial capital cost of removing the existing orchards of between
£40-100,000.291
6.301 The Agricultural Land Classification identifies that the soils at Pump and Bloors
farms are suitable for growing a wide range of crops, including horticultural
crops whose production may be limited or impossible on soils of lesser quality.
The main categories of horticultural crops include tree fruit (mainly apples,
pears, plums, cherries) soft fruit (eg strawberries and raspberries) hops,
vegetables and salads. The requirement for BMV land for horticultural crops
has reduced significantly in the last 30 years as a result of improvements in
yields and changes to production methods (eg the widespread use of artificial
growing media for soft fruit production).292
6.302 The most recent DEFRA data (2016) confirms that there are some 15,000
hectares of soil-grown horticultural crops produced in Kent, whilst an indicative
calculation suggests that there are some 93,000 hectares of BMV land
available for the growing of these specialist crops in the county.293 These
figures confirm that only 16% of BMV land in Kent was being used for
horticultural crops in 2016.
6.303 The evidence suggests that there is considerably more BMV land available in
Kent than is needed for production of specialist horticultural crops such as
apples and pears, whose production is particularly suited to soils of this
type.294
Looking at the potential viability of the main alternatives to apples and pears:
6.304 Fruit: This category includes other tree fruit (cherries and plums) and soft
fruit. Like apples and pears, cherries and plums face continuing cost inflation
over an extended period with limited, if any, any prospect of sale price
increases (with cherries showing recent sale price deflation as a result of
significant expansion of the UK crop area). Neither crop is financially viable at
Pump and Bloors farms.295
6.305 The two main soft fruit crops, strawberries and raspberries, are now grown
almost exclusively under crop covers (polytunnels). Whilst the combined area
289 ibid p.23, paragraph 6.13
290 ibid p.27-34
291 ibid p.34, paragraphs 7.52-7.53
292 ibid p.27, paragraphs 7.4
293 ibid p.27, paragraphs 7.5-7.6
294 ibid p.27, paragraph 7.7
295 ibid p.28, paragraphs 7.10-7.11
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of Pump and Bloors farms is theoretically large enough to support an
independent soft fruit production unit, it is most unlikely that a soft fruit
producer would seek to establish a new operation at this site, for a range of
reasons.296
6.306 First, there would there be the significant cost of submitting a planning
application for both polytunnnels and worker accommodation. Second, there is
a considerable capital cost both for the initial investment (estimate £6 million)
and for working capital (a further £4 million).297 Finally there continues to be
considerable uncertainty over seasonal labour availability, with the very real
probability that it is not possible to adequately staff a new operation.
6.307 Vegetable and salad crops: Whilst the current apple crops are protected from
vermin by individual tree guards, specialist netting would be required to
protect the growing of vegetable and salad crops, at an estimated capital cost
of £30-45,000.298
6.308 The capital expense of protecting against vermin and the lack of modern
building facilities, together with the risk of hail, make the growing of vegetable
and salad crops at Pump and Bloors farms either distinctly unprofitable (and
significantly below the 5% - 8% threshold confirmed by Mr Pelham) or
financially unviable.299
6.309 Cereals and potatoes: The smallness of the unit (< 50 hectares) divided into a
number of small fields of irregular shape, means high costs of production for
both potato and cereal crops, exacerbated by the additional costs arising from
a lack of on-site storage and drying facilities.300
6.310 Whilst current evidence indicates that the growing of wheat would raise
(negligible) profit without subsidy, , this would only be possible every other
year. A break crop grown in the second year is likely to generate a loss that at
least offsets, and probably exceeds, the wheat profit from the previous year.301
As a consequence, the financial viability (and reasonable profitability) of cereal
crops such as wheat and barley, together with the other crops that are grown
with them in rotation (such as oilseed rape and beans) is highly dependent on
the Basic Payment subsidy, which is to be phased out by 2028. This renders
the future financial viability of these crops unlikely, and certainly
improbable.302
6.311 For husbandry reasons, potato cropping can only be undertaken one year in
five; it is most unlikely that a grower would wish to take on Pump and Bloors
farms for an annual area of potatoes of less than 10 hectares.303
6.312 Hops: Reducing profitability has seen a considerable decline in the area of
hops grown in the south-east. This crop currently has either limited, or no,
296 ibid p.28, paragraph 7.13
297 EiC JP (Youtube recording c7.17 22/2/21)
298 Mr Pelham PoE p.29, paragraph 7.18 (corrected)
299 ibid p.29, paragraph 7.30
300 ibid p.30, paragraph 7.25
301 ibid p.30-31, paragraphs 7.29-7.30 and Table 11
302 ibid p.31, paragraph 7.31
303 ibid p.30, paragraph 7.26
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capacity for profit. There are no indications that this would change. The
growing of hops is not financially viable at Pump and Bloors.304
6.313 Livestock: The combined area of Pump and Bloors farms is too small to
support an independent grassland-using enterprise. The farms also lack
appropriate buildings, fencing or drinking installations.305 The issues of smell
and the availability of land for the disposal of waste make the farms wholly
unsuitable for either pig or poultry enterprises.306
6.314 Non-food crops: Pump and Bloors are unsuitable for crops grown for either
biomass or pharmaceutical use for a range of reasons, including low
profitability, the high cost of fencing for vermin control, the absence of
specialist harvesting contractors and production risk.307
6.315 The ongoing agricultural enterprise at the appeal site has been shown to be
unviable. Even were this conclusion to be rejected, then it has been shown
that an incentivising reasonable level of profit is unachievable with regard to
all conceivable alternative uses of the site. This conclusion reduces further still
the weight capable of being given to the loss of this specific BMV land. No
more than modest weight, at best, should be given to that consideration.
BENEFITS
6.316 When viewed together, the benefits of the development proposed are highly
significant and wide ranging.308 They include demonstrable economic, social
and environmental benefits reflecting the three dimensions of sustainable
development. All represent obvious material considerations, balancing further
in favour of the development.
6.317 The derived housing gain, in both market housing and affordable terms, leads
the most significant benefits - and should attract the uppermost, substantial
weight. The relevant context here is stark given that the local and national
housing markets are nothing less than broken, and the Council’s delivery, over
a very substantial period, has been disastrous. A proposal seeking to
substantially improve Medway’s position, and at this time, serves an obvious,
purpose that cuts across all Framework dimensions, each attracting significant
weight. Substantial weight should be given to both (i.e. each) market housing
and affordable housing contributions. The Council’s argued deliverability of
sites within its supply does not improve the position. The Council’s claim of
substantial steps being taken, over the short term, whilst including sites within
the ALLI (considered not objectionable) bear upon the 2019/2020 year only.
Separately, the Council’s ambition to meet a plan period figure under one or
more future plan scenarios is an incredibly long way off.
6.318 The employment and training opportunities both during construction and on-
going should also attract considerable weight. Derivative benefits include the
release of funds from residential development on the site for reinvestment in
other agricultural business.
304 ibid p.31, paragraph 7.33
305 ibid p.31-32, paragraphs 7.35-7.36
306 ibid p.31, paragraphs 7.35-7.37
307 ibid p.32-34, paragraphs 7.38-7.51
308 Mr Parr PoE chapter 11 and paragraph 12.21 CD10.1
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6.319 There is also the prospect for significant environmental and ecological
betterment, significantly exceeding a future net biodiversity gain requirement,
introducing new, native species of provenance and maximising ecological
opportunities for species and overall value, including as part of new hedgerow
planting, etc (as Mr Goodwin explained) the important provision of open space,
a site accessible to both new residents and those already living in the location,
much improved connectivity, improved habitat diversity and enhancement
through both management of the existing boundary hedgerow and new
planting, and improvements to pedestrian routes, cycleways and public
transport enhancement.
6.320 The new school, recreational facilities and retail/business units in the heart of
the scheme are facilities which would be of clear community benefit to both
existing local residents and to new residents.
6.321 Other benefits to be weighed within the economic basket include indirect
expenditure from new residents, and other revenue streams, such as council
tax and New Home Bonus. The Development would bring direct construction-
related employment, in turn, meaning a construction impact in the supply
chain. There would be growth in the labour force, with the likely potential of
workers choosing to relocate to work closer to where they would be able to live
(adding that local employment would also be gained on the Site itself).
Additionally, there would be an increase in derivative household spend, and a
boost to the Council’s own income through Council Tax revenue. The local
economy, enhanced by localised benefits, would clearly be boosted
significantly. There is no good reason not to view these benefits as anything
other than significant.
6.322 The appeal proposal would provide substantial amounts of connected publicly
accessible green space including a village green, community orchards and
areas containing recreation routes and green infrastructure for informal
recreation with landscape, amenity, as well as wildlife benefits, etc. These
green corridors throughout the scheme would provide improved connectivity
between neighbourhoods and greater access to the wider countryside.
Infrastructure delivery should attract significant weight.
6.323 Then there is the stark economic and social context against which the
Government’s acknowledgment that development such as this should act as a
primary answer to the national housing crisis309 must be viewed. This failing,
satellite site can be ‘unlocked’ through considerable private sector investment,
within an obviously sustainable location, twinned with the reality of delivery by
a committed developer, within an area suffering from disastrous housing
delivery. If this site, within this area, does not merit coming forward for
residential development, then the Government’s programme for annual
housing delivery nationwide is surely massively unachievable.
PLANNING BALANCE
6.324 The appeal scheme accords with the development plan when considered as a
whole, meaning that permission should be granted as there are no material
considerations which indicate otherwise. As it happens, other material
309 See Budget Statement ID28
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considerations including the very substantial benefits of the development much
support the grant of permission.
6.325 The presumption in favour of sustainable development is engaged. The tilted
balance tilts in favour of approval. In the context of Framework paragraph 11,
various most important policies of the development plan are out of date for the
purposes of determining whether planning permission is granted. Little
weight, at best, should be given to these policies.
6.326 It is worth recalling, in the light of the tilted balance, precisely the purpose it is
intended to serve.310 In cases where there is no five year housing land supply,
there are sound reasons for reducing the weight of housing and also non-
housing policies. In that case, were considered environmental and amenity
policies and designations, and the concern was expressed that ‘the rigid
enforcement of such policies may prevent a planning authority from meeting
its requirement to provide a five-years supply.’311 He went on to say ‘If a
planning authority that was in default of the requirement of a five-year supply
were to continue to apply its environmental and amenity policies with full
rigour, the objective of the Framework would be frustrated.’ 312 The same
essential principle applies to the operation of the tilted balance under the 2019
iteration of the Framework in the context of development plan policies, today
6.327 With regard to Framework paragraph 11(d)(i), it is also not the case that the
application of policies in the Framework that protect areas or assets of
particular importance provide a clear reason (indeed, any reason) for refusal.
The only remaining relevant policies relate to heritage assets which are subject
to less than substantial harm. This does not provide a clear reason for
refusing planning permission and must also be balanced against the
benefits.313 The presumption in favour of sustainable development is therefore
not disengaged.
6.328 In application of Framework paragraph 11(d)(ii) therefore, the substantial
benefits of the development are not significantly and demonstrably outweighed
by any adverse effects in terms of landscape impacts, traffic effects, loss of
BMV land and/or heritage harm.
6.329 Even if paragraph 11(d)(ii) was not engaged, for the reasons given above, it
would remain the case that planning permission should be given for the
Development, such are the residual harms and impacts.
Landscape
6.330 Mr Hughes concludes that the development would have residual moderate
localised adverse effects on the landscape and the function of the site as part
of the Green Buffer. Whilst the Council argues the effects to be greater, it
nonetheless accepts they would be relatively tightly drawn around the site,
with no long distance views. These effects would not compromise the
objectives of the designation of the ALLI (policy BNE34). The development
310 see Suffolk Coastal v Hopkins: Richborough Estates v Cheshire East [2017] UKSC 37, per Lord Gill (in the context
of paragraph 14 of the 2018 iteration of the Framework)
311 Paragraph 79 of the judgement
312 Paragraph 83 of the judgement
313 Framework paragraph 196
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would also respond positively to the objectives of policy BNE34 by improving
access to the countryside and permeability. The green infrastructure
framework (Dwg PL005 Rev B) would respond positively to the landscape
character. Any conflict with policy BNE 34(i) must inevitably be judged in the
light of the fact that it considerably limits housing delivery (bearing in mind
what Lord Gill had to say in Suffolk Coastal) and should carry substantially less
weight as an out of date policy.
6.331 Policy BNE34 presents only a ‘local’ not national landscape conservation
designation and therefore, its protection must be appropriately assessed in the
balancing exercise. Evidently a national landscape designation would carry
greater protection than a local landscape. In this regard, the Appellant’s case
is that the development is in accordance with paragraph 170(a) of the
Framework when the impact on the landscape is assessed in a way
commensurate with it local status as defined in the development plan. In the
context of the very significant housing shortfall, the substantial housing
provision, including significant affordable housing is, by itself, sufficiently
important to outweigh the local landscape conservation priority. Moreover,
when other significant economic, social and environmental benefits of the
scheme are also considered the balance further weighs in favour of approval.
Transportation
6.332 Given the out of date characterisation, the material differences in policy, and
the relative focus of the parties on Framework paragraph 109, there is no
justification for giving policy T1 substantial weight.314 If there is conflict with
policy T1, it should be given modest weight only. There is additionally the
point that if the policy is a most important policy in the determination of this
appeal, it is one of the foremost development plan policies that would impede
an approval in the light of the Council’s housing position. No reasons have
been advanced in evidence as to why Policy T1 should be given substantial
weight in determining this appeal.
6.333 There are also no wider issues arising in connection with the harm the Council
argues derives from the capacity issue. In this appeal, the impact of issues
such as increased queuing and attendant delay should very much be
considered in terms of the broader balance of highway issues that is allowed
for under the Framework, but disallowed under Policy T1(i). Ultimately, it
should be assessed whether such increased queueing or delay in fact gives rise
to any identifiable harm, and moreover harm to such a degree that it is
severe, when viewed residually and cumulatively, or with consideration of the
appropriate network. As assessed by Mr Tucker, there is no basis for finding
that there would be conflict with policy T1. However, even were such a conflict
to arise, it should be given only modest weight.
6.334 In assessing whether the development would give rise to a residual,
cumulative severe impact, the matters under paragraph 108(a)-(c) of the
Framework have relevance. The appeal scheme encourages sustainable travel
and has safe and suitable access and therefore meets the requirements of
paragraphs 108(a) and (b). Paragraph 108(c) anticipates the impact of a
314 INSPECTOR’S NOTE: that is a different position from that set out in relation to policy T1 in the agreed Position
Statement on policy matters (CD11.6) as explained in ID46.
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proposal in terms of congestion and capacity, when mitigated. This resonates
also with paragraph 109. The Framework is purposely not constraining of how
mitigation is to be taken account of, such that appropriate mitigation could be
located adjacent to the development site or located within the wider network.
It is considered that the transport mitigation proposed, both directly in relation
to the development site, and in respect of the wider local network, would
ensure no ‘severe’ residual cumulative impacts on the road network. It is
considered that the level of any such harm arising would be significantly below
the threshold contemplated by paragraph 109 of the Framework. Even if the
Council’s approach to configuring the relevant ‘network’ were to be adopted,
the Appellant’s judgment is strongly reinforced by an appropriate, wider
consideration of traffic impacts, as advocated by the Framework, which are
shown not to arise in this appeal.
6.335 Accordingly, there is no basis for refusing permission on transportation
grounds. The development is therefore in accordance with Framework
paragraphs 108 and 109.
6.336 The Council’s position must also be seen within the context of Medway being a
constrained urban area and the need for it to provide 28,300 homes between
2020 – 2037. Even with the Council’s proposals for the Hoo Peninsula, as far
off as they are, significant numbers of these homes would need to utilise the
existing urban road networks and draw on its capacity. This, like many built
up areas, is congested particularly in peak periods, and queuing and
congestion can occur. If the permission is refused and more housing has to be
provided elsewhere, highways capacity issues are likely to be displaced rather
than prevented. Any highways capacity harm should only be given limited
weight when balanced against the overriding housing need, lack of other
significant harm and general sustainability of the appeal site.
Heritage
6.337 With regard to paragraph 11(d)(i) of the Framework, it is not the case that the
application of Framework policies that protect areas or assets of particular
importance provide any clear reason for refusal. In the context of the appeal
scheme, footnote 6 of the Framework requires the paragraph 193 evaluation.
The identified heritage assets are subject to far less than substantial harm.
This is even before the balancing of the benefits required by paragraph 196 of
the Framework. The tilted balance is therefore not disengaged.
6.338 Framework paragraph 193 requires the impact of a development on the
significance of a heritage asset to be assessed, with great weight given to its
conservation. In this case, it is the setting, not the assets themselves, which
are affected. In all cases, the scale of impact is low, or very low, within the
less than substantial range. Whilst the principle of conservation of the
heritage asset must be given great weight, the very minimal harm individually
and collectively to their setting should attract considerably less weight. Even if
this is wrong, again, this must be balanced against the public benefits of the
development clearly outweighing the impacts on heritage assets.
BMV
6.339 Release of the appeal site would also allow for investment in more appropriate
agricultural land, helping to underpin the agricultural economy and provide
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landscape and ecological enhancements. There is, as a result, no harm to
rural objectives or policies. The proposed housing would not be contrary to
Framework paragraph 170(b) or footnote 53. Moreover, whilst footnote 53
notes that release of poor grade land is preferred, it does not prevent the
release of higher grade land. The loss of the appeal site from agricultural use
is not therefore objectionable in principle.
6.340 If the ‘loss’ of the appeal site is considered harmful at all, this needs to be
considered in light of the alternative locations where the council propose to
promote housing development, particularly the Hoo Peninsula. Much of this is
agricultural land and is of similar grade to the appeal site. It is also subject to
other physical constraints such as flooding and protected designations such as
SSSIs. In order to deliver the necessary housing, substantial areas of high
quality agricultural land would have to be utilised in the District. These wider
considerations must therefore be borne in mind when deciding what weight
should be attributed to any harmful impact of the development proposed on
agricultural land. This is acknowledged by Mr Canavan.315 This residual harm
is offset by the benefits of the development and does not individually, or with
other factors, warrant refusal.
Third Party Objections
6.341 Detailed consideration has been given to all third party objections. The careful
formulation of the appeal proposal demonstrates that none of the concerns
ventilated by third parties, unsupported by the Council, are well founded.
CONCLUSION
6.342 When the impacts of the proposed development are fully and properly
assessed, they fall substantially short of the overriding benefits. The adverse
impacts do not come close to significantly and demonstrably outweighing the
very important and varied benefits when assessed against the policies in the
Framework as a whole. Permission for this sustainable development should
therefore be granted in accordance with paragraph 11 of the Framework, out
of which the tilted balance is itself a material consideration for s.38(6)
purposes.
6.343 Moreover, even were it the case that paragraph 11(d)(ii) was not engaged,
and the normal planning balance applied, planning permission should still be
given. This is a development plan-compliant scheme and so planning
permission should be granted without delay.
6.344 Separately also, this is indeed a case in which the development proposed could
and should be approved even if it were characterised as a departure from the
development plan (which it is not) on the basis that material considerations,
including the benefits, indicate otherwise.
6.345 Substantial new areas of multifunction green and blue infrastructure are also
embedded into the appeal proposal, incorporating new recreation routes and
connectivity throughout the appeal site, and externally between the existing
built environment and wider countryside. A village green and community
orchards would form an integral part of a centre at the heart of the proposal,
315 Mr Canavan PoE Paragraph 7.9 CD10.6
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linking with new and existing publicly accessible green spaces, to compound
benefits for new and existing local residents.
6.346 Moreover, any conflict found with deemed, or in substance, out of date (or any
other engaged) development plan policy, would naturally not present any
endpoint in analysing the development plan for the purposes of considering
‘accordance’ for the purposes of s.38(6), or with regard to identifying and
assessing the impressive wealth of material considerations arising in favour of
the appeal proposal. The many, conspicuous and very significant benefits
presented by the appeal proposal heavily underscores this.
6.347 The clear strength of the benefits demonstrated by the appeal proposal mean
that even were it to be concluded that it conflicts with given policies, planning
permission could and should properly be granted, whether applying the tilted
balance or not, in determining the appeal under s.38(6).
6.348 The Inspector is respectfully invited to recommend to the Secretary of State
that planning permission be granted.
7. THE CASE FOR MEDWAY COUNCIL
This section is based on the closing submissions for the Council.316
INTRODUCTION
7.1 That there is a significant need for housing in Medway is not in dispute. It is a
factor that the Council had at the forefront of its mind when considering this
application. However, the degree of housing need cannot obscure the
significant and demonstrable harms that this proposal would cause. Those
harms are multifaceted and irreversible. The evidence at this Inquiry has
demonstrated that these harms considerably and decisively outweigh the
benefits of this proposal, including the delivery of housing.
CHARACTER AND APPEARANCE OF THE SURROUNDING AREA,
INCLUDING THE GILLINGHAM RIVERSIDE AREA OF LOCAL LANDSCAPE
IMPORTANCE AND THE ROLE OF THE APPEAL SITE AS A GREEN BUFFER
Context
A Valued Landscape
7.2 It is common ground between the parties, and their respective experts, that
the appeal site is located within a ‘valued landscape’.317 National Policy affords
a greater level of protection to valued landscapes than it does to ‘ordinary’
countryside. Whereas the intrinsic character and beauty of all countryside is to
be recognised,318 it is valued landscapes which are to be ‘protect[ed] and
enhance[ed].’319
7.3 Because of this agreed position, relatively little time was spent at the Inquiry
in relation to this matter. But that we are dealing with a valued landscape
must not be forgotten. It is an important starting point. There is no dispute
316 ID50
317 Main SoCG (CD11.1) paragraph 5.1(12) Landscape SoCG (CD11.3) paragraph 2.2(3)
318 Framework paragraph 170(b)
319 Ibid paragraph 170(a)
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between the parties that the proposal would cause irrevocable harm to both
the landscape character and visual amenity of this valued landscape.320 The
difference is largely one of degree of that harm. That being the case, on any
analysis, the impact of this proposal would be contrary to the objectives of
national policy for such landscapes.
7.4 For the reasons given by Mr Etchells in his written and oral evidence, the
Council contends that the degree of harm to the landscape character, visual
amenity and functioning of this valued landscape would be significant.
An ‘essentially rural’ character
7.5 The Medway Landscape Character Assessment (MLCA)321 recognises that the
Lower Rainham Farmland Character Area (LRFCA) retains its ‘essentially rural
character.’322 Moreover, although it recognises that parts of the LRFCA have a
‘urban fringe character’, the MLCA explains that the ‘area between Lower
Rainham and Lower Twydall [is] in generally good condition with urban
influences less apartment.’323 It is this area in which the appeal site is located.
Indeed, due to its extent the appeal site constitutes almost the entirety of the
‘area between Lower Rainham and Lower Twydall’.
7.6 In neither his written nor oral evidence did Mr Hughes seek to suggest that the
MLCA’s assessment of the existing character of the area was wrong. To the
contrary, in cross-examination Mr Hughes agreed that the MLCA was a robust
and considered document.324 Furthermore, the Tyler Grange (TG) Landscape
and Visual Impact Assessment (LVIA)325 sought to draw upon elements of the
MLCA albeit, as is discussed below, selectively.
7.7 As is evident from the aerial photographs,326 and as Mr Hughes accepted,327
there have been no significant changes in the settlement patten, amount of
built form or land use which has materially affected the character of the local
landscape since the MLCA was published. This is also confirmed by Figure 3 in
Mr Hughes’ appendices,328 which illustrates that the built form which has been
consented in the LRFCA since the MLCA was published has been almost
exclusively confined to the east of Rainham urban extension.329 This area is a
significant distance from the Appeal site and, as Mr Etchells explained, has a
very different character.
7.8 The essentially rural character of the local landscape would also have been
experienced on the site visit. The Inspector would, of course, take into
320 Main SoCG, paragraph 5.1(15)
321 CD3.4
322 ibid p69 [CD3.4] Whilst the MLCA refers to the “landscape type” of the LRFCA as “Urban Fringe”, and the sub-type
as “Urban fringe with urban/industrial influences,” as Mr Etchells explains (his proof, paragraphs 3.4.10-11) this
simply repeated the classification of landscape types which was undertaken in the much older Kent Thames Gateway
Landscape Assessment (1995). At that time Bloors Wharf, to the north east of the site, was in industrial use (it was
used as a Ship breakers and scrap yard), such that the local landscape would have had a different appearance and
character. In XX Mr Hughes agreed with this analysis.
323 ibid, p69
324 XX Day 3
325 CD8.3
326 ID3
327 XX Day 3
328 CD10.3
329 The one exception is Berengrave Nursery which was already an existing brownfield site and which, in any event, is
separated from the Appeal site by a substantial area of woodland. It plainly does not affect the landscape character
of the immediate area in which the Appeal site is located.
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account the entirety of her comprehensive visit when assessing the existing
character of the area. However, two elements of that experience are worth
highlighting:
7.9 Firstly, when passing under the railway bridge on Pump Lane the change in
character from suburbia to rural is abrupt. The ‘clear physical and character
boundary330 which the railway line provides between the urban edge (to the
south) and the rural countryside (to the north) is not a phenomenon
appreciated on plan only. It is experienced, viscerally, on the ground.
7.10 Secondly, the experience of walking along the bridleway which traverses
Bloors Farm on the east of the Appeal site. This is, as Mr Etchells explains, ‘a
rural route, partly enclosed but with some open and attractive views across the
orchards…’.331 The MLCA recognises that parts of the LRFCA are tranquil332 and
none is more so than this bridleway. Mr Hughes volunteered in cross
examination that the bridleway was ‘in the countryside, away from that urban
edge’ and agreed that users would be aware that they were in the open
countryside, ‘having left the urban area’.333
7.11 The MLCA underscores the importance of retaining this type of landscape in
Medway. It explains that ‘Open countryside, particularly on the fringes of
urban areas has an important role to play in buffering, separating and
protecting the local identity of different communities…’ and explains that ‘[a]s
a general principle and in order to retain openness and respect rural character
in these buffer areas, major development proposals should be avoided.’334 In
relation to the LRFCA itself, the MLCA proposed action is to ‘conserve and
create,’ and one of its guidelines is expressly to ‘[r]esist further built
development’ in the area.335
Area of Local Landscape Importance
7.12 The importance of the local landscape in which the Appeal site is located is
derived not merely from the quality of its rural character. The landscape also
plays a number of important functions. This is underscored by the designation
of most of the LRFCA (including the Appeal site) as an Area of Local Landscape
Importance (ALLI), protected by Local Plan Policy BNE34. This designation
reflects both the quality of the landscape character, and also the important
functions that it plays, as is clear from the wording of the policy itself (‘it does
not materially harm the landscape character and the function of the area’
(emphasis added)) as well as its supporting text. 336
7.13 The supporting text sets out the six functions that the Gillingham Riverside
ALLI performs. The parties disagree about the extent to which the Appeal site
contributes to those functions and the corollary issue of how the proposal
would impact on those functions. This is a matter which would be considered
in detail below. However, there is no disagreement on the continuing
330 Mr Etchells Proof, paragraph 3.4.19
331 ibid paragraph 6.7.1(g)
332 CD3.4 p68
333 XX Day 3
334 CD3.4 p12
335 ibid p69
336 Mr Etchells PoE, paragraph 4.3.3
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relevance and validity of those functions, notwithstanding the age of the Local
Plan. In particular, it is important to note that:
i) The functions are supported by an objective evidence-base – the MLCA
specifically highlights the “benefits attached to this area retaining its
essentially rural character”. Those benefits reflect, almost precisely, the
functions identified in the supporting text to Policy BNE34. Thus, the
authors of the MLCA – having undertaken a comprehensive assessment
of the landscape character of Medway – were in 2011 reaffirming the
identification of this area as an ALLI and, specifically, confirming the
important functions that the landscape plays.
ii) The ALLI continues to perform the functions identified today – Mr
Hughes accepted in cross-examination337 that the functions originally
identified for the Gillingham Riverside ALLI continued to apply in 2021.
He also accepted that, if the Inspector were to find material harm to
those functions, this would be a matter which would weigh against the
proposal.
The Competing LVIAs
7.14 Somewhat unusually the Inspector and Secretary of State have the benefit of
three LVIAs before them. Each has been undertaken by a landscape
professional, and each considers, inter alia, the impact of the proposal on the
landscape character and visual amenity of the surrounding area. They are as
follows:
i) Lloyd Bore LVIA (April 2019) (LB) - this assessment was produced on
behalf of the Appellant, submitted with the original application and formed
the basis of the landscape chapter within the original Environmental
Statement (ES);338
ii) Tyler Grange LVIA (September 2020) (TG) – TG were first instructed
by the Appellant in June 2020, after the application was refused by the
Council. This LVIA was submitted for the first time as part of the appeal,
and now forms the basis of the landscape chapter within the consolidated
ES, replacing the original assessment.339
iii) Jon Etchells Consulting (Since 2019) (JE) – Mr Etchells has been
instructed by the Council on this matter since late 2019. He undertook a
short report on the LB LVIA prior to refusal, and then was commissioned to
undertake an independent and comprehensive LVIA as part of the
appeal.340
7.15 It is a striking feature of this appeal that the Appellant has not sought to offer
any explanation as to why it jettisoned the services of LB following refusal of
planning permission nor, perhaps more importantly, why the conclusions of
TG, in respect of both the landscape and visual impact of the scheme,
substantially diverge from those of LB.
337 XX Day 3
338 CD5.27 (chapter 11.1)
339 CD8.3 (chapter 11.1a)
340 CD10.8
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7.16 As Mr Etchells pointed out at the end of his questioning by Mr Lopez,341 it is
relevant for the Inspector, and ultimately the Secretary of State, to take
account of the fact that there are three LVIAs assessing the development
proposals, and that two of them (LB and JE) are generally in agreement,
whereas the TG LVIA is entirely out of step.
7.17 The conclusions of each assessment are summarised in Mr Etchells’ Appendix
D.342 In summary:
1) In terms of landscape effects on the local area -
i) Both the LB and JE Assessments conclude that the proposal would cause
moderate to major/high adverse landscape impacts (year 1). As Mr
Etchells explained in evidence in chief343, although the definitions employed
by LB and JE to describe the effects are different, the overall assessments
are pitched at a reasonably similar level.
ii) In contrast TG conclude that the landscape effects of the proposal would
be less significant than both LB and JE, causing moderate adverse
landscape impacts (year 1). It is noteworthy that TG conclude that there
would be a lower level of landscape effect than LB notwithstanding that LB
assessed the effects across the entirety of the LRFCA, whereas TG were
assessing the effects over smaller area.344 There was no attempt by Mr
Hughes to explain this obvious anomaly.
2) In terms of visual effects, the differences between LB and JE on the one
hand, and TG, on the other, are even more stark -
i) LB and JE concluded that receptors from a wide variety of locations
would experience moderate to major/high adverse visual effects. The only
slight difference between them is that whilst JE identifies high adverse
effects for users of the Bridleway, LB’s assessment is slightly lower, at
moderate to major adverse.
ii) In contrast TG’s assessment is that visual effects range between minor
and moderate adverse.345 The assessment is particularly out of kilter in
respect of users of the Bridleway, where TG suggest that there would be
minor beneficial effects.
7.18 The Council submits that the Inspector and Secretary of State should place a
significant amount of weight on the assessment undertake by Mr Etchells. He
is an experienced landscape professional and a Chartered Member of the
Landscape Institute. He has undertaken a comprehensive assessment which
follows a transparent methodology. That methodology is consistent with the
Guidelines for Landscape and Visual Impact Assessment, 3rd Edition (GLVIA
v.3)346 and was not criticised during his lengthy cross-examination. His
assessment is rigorous and supported by reference to published material. He
has drawn attention to all relevant parts of the MLCA, and has not sought to
341 XX Day 2
342 CD10.3
343 XX Day 1
344 What LB termed the Lower Rainham and Lower Twydall Fruit Belt. See Mr Hughes’ Appendices, Fig 5
345 Save for properties along Pump Lane, which would be moderate to major adverse.
346 Mr Etchells PoE paragraph 2.3.2
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selectively quote from that document.347 His conclusions are well-reasoned,
balanced and not overstated.348 That his conclusions are broadly consistent
with those of LB, only serves to underscore the robustness of his assessment
and judgment.
7.19 In contrast, there is good reason to question the robustness of the assessment
undertaken by TG/Mr Hughes, even before one considers the substance of its
content. In addition to being out of kilter with the other two LVIAs, the
assessment contravenes the guidance in GLVIA v.3 in a number of respects.
Failure to take account of the worst-case scenario
7.20 It is far from clear that TG/Mr Hughes assessed the impacts of the proposal
applying a reasonable worst-case scenario, as GLVIA v.3 emphasises is
appropriate.349 In cross-examination, he freely accepted that the TG LVIA had
proceeded on the basis that the development would be limited to 8-10meters
in height.350 This is consistent with the express assumption in the TG LVIA that
the height of the development would be limited to respect the existing built
form,351 an assumption which we are told had been taken into account when
assessing the susceptibility and sensitivity of the landscape to the proposed
development.
7.21 However, the Building Heights Paragraphs Plan (PL 004 Rev B) which was
being relied upon by the Appellant at the time of the TG LVIA and Mr Hughes’
evidence, originally allowed for development up to 12m in height throughout
the site, save for the school and village centre. It follows, therefore, that the
TG LVIA and Mr Hughes evidence did not take a reasonable worst case
approach to the assessment of landscape effects.
7.22 It is no answer to this criticism to suggest that the intention was to restrict the
height of the development to between 8-10m, even if that intention was
reflected in the Design and Access Statement (DAS). It is the paragraph plan,
and not the DAS, which is secured by condition. And it is the paragraph plan
which, as the name indicates, establishes the paragraphs for any Reserved
Matters application.352
347 It is to his credit, for instance, that he expressly acknowledged that the MLCA categorized the LRFCA as “Urban
Fringe” and explained why this was not an accurate reflection of the current landscape character of the area (see
Main SoCG paragraph 5.1(15)).
348 By way of example, see Mr Etchells’ conclusion that the long term (ie post Yr 15) landscape effects on the local
area would be “moderate”. He did not seek to escalate that assessment simply because it accorded with TGs. Rather,
he explained why moderate adverse effect on the local landscape character area over the long term should be
considered a significant adverse harm, having regard to: (i) the extent of the area affected; (ii) the fact that his scale
of effects accommodates all potential developments (including up to, say, nuclear power points; (iii) that the site –
which is sizeable of itself – would experience moderate to high adverse effects, even in the long run.
349 CD3.15 p 50, paragraphs 4.1-4.4
350 XX Day 3
Question (RW) - “You have in your assessment based the heights of development being limited to respect the
existing built form of 8-10m”
Response (Hughes): “Yes 8-10m, as the parameters shows for the development across the site….that is the
intention”
351 CD8.3 (chapter 11.1a) p54, paragraph 6.12
352 If, at Reserved Matters stage, a proposed building (or buildings) came forward at 12m in height in an area
identified on the parameters plan as permitting buildings of that height, the Council could not (acting reasonably)
refuse to discharge the application on the basis that the height of the buildings was inappropriate. They could not
point to the DAS and say that was not what was intended. Because the approval of the parameters plan at outline
stage would have already established the principle that buildings up to 12m in height in that location was acceptable,
and this could not be undermined at Reserved Matters stage.
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7.23 This does not mean that an assessment must assume, even on a reasonable
worst-case scenario, that buildings of 12m in height would come forwards
across the entirety of the area identified on the paragraphs plan for buildings
of that height. That would not be realistic, and the Council has never
suggested as much. But an assessment must, taking a reasonable worst-case
scenario, take into account that 12m high buildings could come forward
anywhere within this area (which on PL 004 Rev B was most of the Appeal
site). This was the approach taken by Mr Etchells in his assessment.353
7.24 In an attempt to meet this criticism during the Inquiry, the Appellant tabled an
amended Building Heights Paragraphs Plan (PL 011B), albeit only after the
landscape (and heritage) evidence had been given. For the reasons set out in
notes to the Inquiry,354 the Council did not object to the very late amendment
of the Parameters Plan.355
7.25 However, in an attempt to retrofit the proposal so as to be consistent with TG’s
assessment, the belated amendments to that Plan does not cure the problem.
It does not explain why TG/Mr Hughes failed to take a reasonable worst-case
approach in the first place and, in any event, as Mr Etchells explained,356 the
revised Plan still allows for 12m high/3 storey buildings across a large area of
the Appeal site, including in the northern, more rural part of the site.
Selective quoting of, and failure to explain departure from, the MLCA
7.26 One of the central purposes of GLVIA v.3 is to ensure that the basis for making
judgments on significance of effects ‘is transparent and understandable, so
that the underlying assumptions and reasoning can be understood by others.’
When assessing the baseline for landscape assessment, the guidance
recommends that, as a first step, there should be a review of existing
character assessments.357 In particular it stipulates that ‘[j]ustification should
be provided for any departure from the findings of an existing, established
LCA.’358
7.27 In contrast to Mr Etchells, TG’s LVIA failed to draw attention to – and justify
any departure from – elements of the MLCA which are of central relevance to
the assessment of the existing character and functioning of the local
landscape. Most notably the TG LVIA failed to recognise, let alone engage
with, with the judgment of the MLCA that the LRFCA has an ‘essentially rural
character,’ and that the specific area in which the Appeal site occurs is in
‘generally good condition with urban influences less apartment.’ This was a
highly relevant conclusion in the MLCA in circumstances where the TG LVIA
seeks to categorise the site and its surroundings as ‘peri-urban’ and (as is
addressed in greater detail below) this conclusion forms an important
component of their analysis of landscape effects.
353 Mr Etchells PoE paragraph 5.1.1(b)
354 ID30a and ID30b
355 ID30a also debunks the Appellant’s contention that it was as a result of the Council’s invitation that the Building
Heights Parameters Plan (PL 004 Rev B) permitted a large area of the site to have buildings up to 12m in height.
However, the question of who was responsible for the building heights shown on PL 004 Rev B is a complete
irrelevance. The short point is that any assessment has to be based on the parameters shown on those plans
356 See his notes attached to ID30a and 30b
357 Ibid pages78-78, paragraphs 5.12-5.15
358 Ibid pp78-78, paragraphs 5.13
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7.28 Mr Hughes accepted359 that it was an omission of the TG LVIA to fail to
mention the conclusions of the MLCA on this issue. This is to underplay this
serious failure and calls into question the robustness of the assessment. If, as
appears to be the case, TG/Mr Hughes’ judgment is that the local landscape
does not have an essentially rural character, they should have engaged
directly with the conclusions in the MLCA, explaining why they departed from
them. Instead, they chose to ignore it, selectively citing from those parts of
the MLCA which supported TG’s judgments.360
7.29 Mr Hughes also accepted361 that it was an omission of the TG LVIA to fail to
identify that the MLCA had concluded that there were a number of benefits of
the area retaining its essentially rural character, and that these benefits
reaffirmed the functions originally identified for the Gillingham Riverside ALLI.
In circumstances where the TG LVIA seeks, as part of its assessment, to
downplay the impacts of the proposal on those functions, this too was a
serious omission.
Hedgerow loss and approach to mitigation
7.30 Finally, GLVIA v.3 stipulates that ‘[i]t is essential to demonstrate that any
measures included as part of the mitigation proposed to respond to adverse
landscape and visual effects can be delivered in practice’362 and requires an
assessment of whether mitigation is ‘technically achievable, practically
deliverable, and likely to be sustainable in the future,’ as GLVIA v.3
requires.363
7.31 Contrary to that guidance, TG/Mr Hughes have relied heavily on proposed
mitigation when arriving at their conclusions on the impact of the proposal,
without any assessment (let alone rigorous assessment) of the efficacy of that
mitigation.
7.32 While by no means the only instance,364 the starkest example of the
Appellant’s approach concerns the landscape mitigation proposed on Pump
Lane. Both the TG LVIA and Mr Hughes’ proof of evidence placed significant
reliance on the retention of existing hedgerows, as well as the introduction of
new hedgerows to mitigate the effects of the development on Pump Lane, with
the LVIA concluding that ‘Ongoing maintenance and new hedgerows would
help retain the character of the lane.’365
7.33 However, as Mr Hughes accepted in cross examination,366 neither at the time
the LVIA was undertaken, nor even when the proof was drafted, had TG/Mr
359 XX Day 3
360 See, for instance, TG LVIA, page 59, paragraph 7.11 ‘As recognised with the MLCA...[there is] poor east to west
connectivity’
361 XX Day 3
362 Ibid, paragraph 4.38
363 CD3.15 page 64, paragraph 4.39
364 Significant reliance is also placed on the establishment of community orchards, without any investigation at the
time of the TG LVIA or Mr Hughes’ Proof how those orchards would be achieved, delivered or sustained. ID26 was
produced in a belated attempt to address this issue. This note can provide little comfort. First, there is no indication
of when Mr Hughes started discussions with The Orchard Project – the distinct impression is that it may have only
been after the Inspector raised a query about the implementation and management of the Orchards. Second, there is
no evidence from the Orchard Project themselves. Third, there is distinct a lack of detail in relation to how the
orchards would be implemented and, more importantly, sustained during the lifetime of the development. This is an
important issue, given the weight placed on them in TG/Mr Hughes’ analysis.
365 CD8.3 chapter 11.1a) p61. See also Mr Hughes PoE, paragraphs 4.5 and 5.62
366 XX (Day 3)
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Hughes calculated the extent of hedgerow that would be lost on Pump Lane to
accommodate the accesses and new road arrangements. This exercise was
only undertaken when Mr Etchells raised the issue prior to the Inquiry, in order
to secure agreement in the Statement of Common Ground about the
approximate extent of the loss.
7.34 Furthermore, and compounding the issue, as ID4 acknowledges, the
Landscape Framework Plan (on which the TG LVIA and Mr Hughes relied when
considering the effect of landscape mitigation) was based on the Green and
Blue Paragraph Plan, which pre-dated the detailed junction arrangements for
Pump Lane.
7.35 It follows that, as Mr Hughes agreed in cross examination, the conclusion in
the TG LVIA that ‘the hedgerows and banks along the lane would be managed
to retain the character of the lane’367 was made without even an approximate
calculation of the amount of hedgerow to be lost, or an understanding of the
detailed junction arrangements (and therefore, how far back replacement
planting would have to be set to accommodate sightlines etc).
7.36 Thus, the Appellant’s blithe conclusion that ‘the character of the lane would be
retained and enhanced’, can be given little, if any, weight. As discussed in
greater detail below, the character of Pump Lane would be irrevocably and
harmfully changed. However, the important point for now, is that the
Appellant’s cavalier approach to the effectiveness of the landscape mitigation
further serves to undermine the credibility of its assessment.
Landscape Impacts (including impact on Pump Lane)
Mr Etchells’ assessment
7.37 The Council relies on, and commends to the Inspector (and Secretary of State)
the assessment of Mr Etchells in respect of landscape impacts. This closing
does not seek to replicate the detailed analysis undertaken in Mr Etchells’
written and oral evidence. Instead, it simply highlights the key conclusions in
his analysis, together with cross-references to his evidence.
7.38 As a starting point, it is important to recognise the size of the appeal site, and
the extent to which it occupies the ALLI. The site itself is around 1.2km in
extent from Lower Twydall Lane in the west to Lower Bloors Lane in the east,
and 0.7km from the railway line in the south to Lower Rainham Road in the
north. As can be seen from Mr Etchells’ Figure 3, the site takes up a
significant proportion of the ALLI.368 Often there is a debate about the extent
to which a proposal would affect a designated landscape. Here, by virtue of its
size, the proposal would consume much of that designated landscape.369
7.39 As Mr Hughes’ Figure 5 illustrates clearly, the previously consented
developments in the ALLI are almost exclusively located to the east of the
Lower Rainham urban extension, which is physically and visually separate from
the main part of the ALLI ‘which has, and would continue to have, a rural
character.’370 If anything, the consented development to the east of the Lower
367 CD8.3 chapter 11.1a) p61
368 Particularly the main part, excluding the area to the east of the Lower Rainham urban extension which is
physically and visually separate.
369 Mr Etchells PoE, paragraph 3.4.25 and XIC Day 1
370 Mr Etchells XIC Day 1
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Rainham urban extension on the periphery of the ALLI, increases and
emphasises the importance of the retaining the remainder as open
countryside.371
7.40 Although the southern edge of the site is located next to the existing urban
area of Rainham, the ‘overwhelmingly dominant characteristic of the Appeal
site is that it is rural.’372 In particular this is because of: (a) the physical barrier
of the railway line; (b) the size of the appeal site, such that any urban
influence from Rainham is limited to the southern edge of the site; (c) the fact
that the settlement of Lower Rainham is a small village in the countryside, not
an urban area and Lower Rainham Road is not a particularly urban influence –
it is a moderately busy rural road.373
7.41 Perhaps unsurprisingly, given the proportion of the character area it takes up,
the appeal site exhibits many of the characteristics of the area identified in the
MLCA,374 most notably: (a) it makes a significant contribution to the farmland
in the area: (b) it provides virtually all of the “well managed areas of orchard”
within the character area; (c) due to its size, the site, is “tranquil in many
parts despite enclosure by road to the north and rail to the south” – as Mr
Etchells explains, it provides an ‘escape’ from the urbanising influences, for
instance on the bridleway which is “in the countryside and…relatively tranquil”;
and (d) the site provides an area of separation between the village and
Conservation Area of Lower Rainham and the urban area of Rainham.375
7.42 The landscape sensitivity of the appeal site and the local area is medium to
high. This is a function of the value of the landscape and its susceptibility to
the proposals. The landscape value is medium to high - which derives partly
from the landscape quality of the area, but also from the important functions
that the landscape plays. The susceptibility of the landscape of the proposed
development is also medium-high, reflecting inter alia the fact that proposals
would extend the urban area beyond the physical barrier of the railway line,
across much of the remaining area of currently open countryside between the
most the urban area to south and estuary to the north.376
7.43 The magnitude of change within the appeal site itself would be high, and for
the local landscape around the site would be medium to high.377 This
conclusion is based on a number of factors including:
i) As the development would take up a significant proportion of the ALLI, its
role as a ‘green buffer…would be fragmented and greatly reduced;’
ii) The proposal involves the removal of a large amount of orchard, ‘a locally
characteristic land use as noted by landscape assessments at all scales;’
iii)The proposed development would ‘leapfrog the existing boundary into an
area which presently has a largely rural character;’
371 Ditto
372 Ditto
373 Ditto
374 CD3.4, p68 ‘Characteristics’
375 Mr Etchells XIC Day 1
376 Mr Etchells PoE, paragraphs 3.5.1-3.5.6
377 Ibid paragraph 6.2.4
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iv) It would ‘effectively subsume the village of [Lower Rainham] into the
expanded urban area.’378 It is to be noted that LB shared this view
explaining that ‘[t]he proposed scheme would increase the settlement
envelope of the Twydall and Rainham urban area effectively merging the
settlement with Lower Rainham.’379 In a belated attempt to counter this
point, the Appellants, through Mr Hughes in evidence and Mr Lopez in
cross-examination, appeared to argue that Lower Rainham was already
part of the urban area, such that the proposal would not extend the urban
area any further north. With respect, this contention - which finds no basis
in the TG LVIA or Mr Hughes Proof380 - is nonsense.
v) Pump Lane would lose its presently rural character – a factor which is
addressed in greater detail below;
vi) The site would be visible for approximately 1.5km in each direction, and
within that area the development would be a ‘readily visible and locally
dominant feature.’
7.44 The effect on landscape character would be high adverse for the Appeal site
itself and moderate to high adverse for the local landscape area around it. As
Mr Etchells explained ‘the character of the local landscape would change
completely, from being a pleasant, largely rural area dominated by orchards to
a new residential area with an urban character.’381
7.45 These levels of effect are significantly adverse. Moreover, significant adverse
effects would continue in the long term, even when the mitigation planting is
fully grown out, even assuming it is effective. Although on Mr Etchells’
assessment, the effect on the landscape character of the site would reduce to
moderate to high adverse by year 15, reducing to moderate for the local area,
he explained in his evidence why these levels of effect should continue to be
considered significantly adverse.382 On his methodology,383 both moderate and
high adverse effects are considered to be significant. Contrast this with TG/Mr
Hughes approach, where only major effects are considered to be significant,384
leaving the anomalous result that a proposal which ‘would cause substantial
permanent loss or alternation of one or more key elements of the landscape’385
would be considered by TG/Mr Hughes to have insignificant landscape effects.
7.46 Although also part of the overall analysis of landscape impacts, the impact on
the character of Pump Lane is a separate issue in its own right, given its
designation in the Local Plan as an ‘important rural lane’ which has the
protection of Policy BNE47.
378 Mr Etchells explained that the areas of green ‘buffering’ which are now to be located adjacent to Lower Rainham
would be “small open spaces, in a large urban area”, and this would not prevent the urban area encompassing Lower
Rainham. (XIC Day 1)
379 CD5.27 (chapter 11.1) paragraph 11.6.168
380 Mr Hughes PoE repeatedly identifies the existing urban edge as being Twydall and Rainham, and treats Lower
Rainham as separate from that urban area. See, e.g. p6, paragraph 1.33(13), p17, paragraph 3.16, p17, paragraph
3.7. In XX Mr Hughes conceded that the existing urban edge was found at Gillingham to the west, Rainham to the
south, and Rainham extension to the east [XX Day 3]
381 Mr Etchells PoE, paragraphs 6.3.3-6.3.5
382 Mr Etchells XIC Day 1
383 Mr Etchells, Appendix E, Table 6
384 See CD8.3 (chapter 11.1a) Appendix 2, Table 5 – notation at the top of the hierarchy.
385 See TG’s definition of moderate adverse effect, CD8.3 (chapter 11.1a) Appendix 2, Table 5
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7.47 The new junctions being introduced on Pump Lane would require the removal
of around 175m of hedgerow.386 The layout of the southern junction is such
that it would require any replacement planting to be set back significantly.
The lane at this point would cease to be narrow, and would no longer be
enclosed by hedgerows. The impacts at the northern junction would, if
anything, be even more dramatic. The road would be realigned to incorporate
two T-junctions, with the effect that the road would cease to a be a ‘lane’. As
Mr Hughes’ agreed,387 at both junctions, drivers heading north or south would
have direct views into (and when turning would be looking directly at) built
development. As Mr Etchells explains ‘[a]t the moment Pump Lane is a
narrow, enclosed land with tall hedges to either side – after these works it
would be locally widened, with two new junctions and associated signages, and
would have the appearance of a residential access road within a short area.’388
In short, Pump Lane would no longer be a rural lane.
TG/Mr Hughes assessment
7.48 Quite apart from the issues of robustness discussed above, TG/Mr Hughes’
assessment of landscape effects is undermined by its reliance on three
assumptions, all of which are flawed: (i) that the appeal site and the local
landscape area has a ‘peri-urban’ character throughout; (ii) that the
commercial orchards are not typical of the traditional character of the fruit
belt; and (iii) that the area, including Pump Lane, has distinctive hedgerows
which would be retained.
7.49 As became clear during cross-examination,389 these three assumptions
informed every stage of the assessment within the TG LVIA. Each assumption
informed the Assessment’s conclusion that the landscape had medium
sensitivity,390 that the magnitude of change was medium,391 and the
significance of effect was moderate adverse.392 None of these assumptions
withstands any scrutiny.
7.50 On any fair analysis it is clear that, whilst the southern edge of the site has an
urban influence, it cannot be concluded that the entirety of the site, let alone
the entirety of the local landscape area, has a peri-urban character. This is
contradicted by the conclusions of the MLCA (‘an essentially rural character’)
with which the TG LVIA failed to engage; the conclusions of the LB LVIA (The
386 ID20
387 XX(RW) Day 3
388 Mr Etchells Proof, paragraph 5.1.1
389 XIC Mr Hughes Day 3
390 CD8.3 (chapter 11.1a)p26. When concluding on landscape value TG had regard to the “peri-urban context”; the
assumption that the “commercial orchards are not typical of traditional character of the fruit belt”; and noted the
hedgebanks as distinctive features (see Rarity, in relation to Pump Lane itself) (see p22, Table 1). When concluding
on landscape susceptibility it explained that the sites was “within a peri urban context”; and identified hedgerows as
one of the “key landscape sensitivities”
391 CD8.3 (chapter 11.1a) p58 where the magnitude of change to the landscape character was reduced because the
“LLCA [is] situated within a peri urban context”; because the “proposals would not remove characteristic areas of
traditional orchards from the local landscape within the fruit belt”; and because, “[e]xisting hedgerows….bounding
the site,…are to be retained”. AT p61 this final point is developed specifically in relation to Pump Lane, where it is
said that “[o]ngoing maintenance and new hedgerows will help retain the character of the lane”.
392 As the significance of effect is a function of landscape sensitivity and magnitude of change, it is inevitable the case
that these assumptions affected the overall judgement on significance of effect. However, lest there was any doubt
on p58 when concluding on the significance of impact the assessment reiterated that, in their view, the “Proposals
are situated within a peri urban landscape that is strongly influenced by adjacent urban areas and transport
infrastructure.”
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site ‘predominantly shares characteristics with the wider rural landscape…The
proposed residential development would be out of character for the majority of
the site’393) with which neither the TG LVIA not Mr Hughes engaged; and Mr
Etchells’ expert analysis.
7.51 The contention that the commercial orchards are not characteristic of the
North Kent Fruit Belt Area such that their removal would not result in the loss
of a key characteristic of the area, was plainly untenable. Indeed, in cross-
examination,394 Mr Hughes ultimately conceded that the orchards on the
Appeal site are characteristic of the area, both the LRFCA and the wider North
Kent Fruit Belt Area, and that the commercial orchards were a modern
manifestation of the same use which has been ongoing since the 18th Century.
His only caveat was that in landscape terms, the quality of commercial
orchards is not equivalent to that of traditional orchards. This concession was
undoubtedly correct. It accords with the judgment of the other experts who
have considered this matter.395
7.52 Since the TG LVIA was drafted, it has also become apparent that there would
be a significant loss of the distinctive hedgerows on Pump Lane and that,
contrary to the LVIA’s analysis, the existing rural character of the lane would
not be retained. Indeed, Mr Hughes conceded that Pump Lane would not have
a rural character where the new entrances are located. His suggestion that it
would, nevertheless, retain a rural character on the middle part of the lane
between the entrances is fanciful.
7.53 The obvious flaws in three of the key assumptions which permeated all stages
of the LVIA means that little, if any, weight can be given to the conclusions of
Mr Hughes in respect of the landscape impacts. Mr Etchells’ assessment,
which is broadly consistent with that of LB, is plainly to be preferred.
Visual Impacts
7.54 The Inspector will reach her own judgments on visual impacts of the proposal,
having regard to the photographic material before her and, more importantly,
her experience from the site visit. For this reason, the analysis of visual
impacts in these closings is far shorter than for landscape impacts.
7.55 The Council submits that the Inspector should prefer the analysis of Mr Etchells
in respect of the visual impacts of the scheme, which again is broadly
consistent to that of LB, to that of TG. It relies on Mr Etchells analysis in his
proof of evidence396 on which he expanded in his oral evidence.
7.56 TG/Mr Hughes repeatedly underplays the visual impacts of the scheme of this
magnitude. In respect of users of the bridleway the visual impacts are not
simply underplayed, they are mischaracterised as being beneficial.
393 CD5.27 (chapter 11.1), paragraphs 11.6.203-11.6.204
394 XX Day 3
395 The orchards were in commercial use when the MLCA was undertaken, and nonetheless the authors of the MLCA
plainly considered that the “well managed areas of orchard” were characteristic of the area. The LB LVIA referred to
the commercial orchards as being a “key characteristic” of the area. And, as noted above, Mr Etchells considers the
orchards to be a characteristic part of the local landscape.
396 Mr Etchells PoE, paragraph 6.2.1
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7.57 Currently, users of the bridleway are aware that they are in the countryside,
having left the urban area, as Mr Hughes accepted.397 Notwithstanding its
enclosed nature in parts, users experience close and pleasant views of the
orchards (particularly in summer), as well as, in places, longer attractive views
down to the Estuary. As Mr Etchells explained in his oral evidence, the
proposal would result in ‘significant harm for users of the bridleway because
their experience would change completely…It is [currently] clearly in overall
terms a rural experience, where you are walking through the
countryside…[following the development] you would be forcefully aware of the
fact that you were in an urban area.’398
7.58 The suggestion of TG that the visual experience of a user of the bridleway
would be enhanced by the introduction of housing on either side of the path for
its entire length; by built development replacing a swath of what is currently
open countryside; and by the construction of a new road over which users
would have to cross, is fanciful.
Impacts on the functioning of the Gillingham Riverside Area of Local Landscape
Importance, including the role of the appeal site as a green buffer
7.59 The local landscape derives its importance not simply from the quality of its
landscape character, but also the important functions it performs.
7.60 As Mr Etchells explains in his evidence,399 the proposal would have a significant
adverse effect on a number of the functions which both the Local Plan and the
MLCA identify the Gillingham Riverside ALLI performing. Indeed, such is the
scale of the proposed development relative to the ALLI (and, in particular, the
main, undeveloped, section of the ALLI) that it is not hyperbole to suggest
that, were the development to go ahead, the ALLI would cease to perform a
number of the functions. It is the Council’s case that the proposal would cause
a significant adverse effect to the following functions:
Important Green Buffer
7.61 This is a spatial function. Its objective is to maintain a buffer, in particular, a
‘green,’ ie a non-developed buffer, between the built-up areas of Twydall and
Rainham and the areas of international importance for nature conservation and
recreation along the Medway Estuary.
7.62 The appeal site forms a significant proportion of the ALLI – around 75% of its
depth from the edge of Twydall to the estuary at this point - and therefore
makes a major contribution to the green buffer function of the ALLI.400 The
proposed large scale of built development across the site, extending from the
railway line in the south to Lower Rainham Road, would significantly and
adversely affect this function.
7.63 As can be seen from Figure 3 in Mr Etchells’ proof, were the development to go
ahead, the green buffer between the urban edge and the estuary would be
substantially reduced. The remaining area between the urban edge and the
397 XX Day 3
398 Mr Etchells XIC Day 1
399 Mr Etchells PoE, paragraph 6.3.5
400 Mr Etchells PoE, paragraph 4.3.3
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Medway estuary would consist only of one field’s width (ie the field to the
north of Lower Rainham Road).
7.64 In answer to the Inspector’s questions, Mr Hughes accepted that if the Site
were developed as proposed ‘that green buffer, the physical green
buffer….would clearly be removed from being green on the site (apart from the
green infrastructure elements).’ This was a belated, but ultimately inevitable
acceptance by Mr Hughes that the Site would cease to perform the function of
a green buffer at all (the green infrastructure elements within the proposal
would provide areas of undeveloped land within an urban area. They may be
attractive areas. But they would not play a buffering role between the urban
edge and the estuary).
7.65 The separation between the urban edge and the SSSI areas – the green buffer
- is largely, if not entirely performed by the Appeal site. If the development
were to go ahead there would be virtually no green buffer left. It would cause
irrevocable and substantial harm to this function.401
Allowing attractive views from the river and railway (part of function 2) and
Forms a green backdrop when viewed from the Medway Estuary (function 6)
7.66 As Mr Etchells explained, views from both the estuary (in particular Motney Hill
and Horrid Hill) as well as views from the railway line would be significantly
harmed. Therefore this element of the second function would also be
adversely affected by the development.
Providing residents within an extensive urban area with access to an
attractive rural landscape
7.67 The proposal may increase access to the area of the appeal site (albeit note
the evidence of local residents that historically they have been free to walk
through the orchards). However, it would not be through an attractive, rural,
landscape. It would be through a housing estate which formed a continuation
of the urban area.
7.68 Given that one of only two public rights of way in the ALLI runs through the
appeal site (the bridleway) the ALLI would largely cease to perform this
function. The ALLI would provide little, if any, opportunity for residents of the
urban area to escape into the countryside.
Providing an attractive setting to the Lower Rainham and Lower Twydall
Conservation Areas
7.69 As discussed above, the proposal would, in the words of LB, ‘effectively
subsume the village of [Lower Rainham] into the expanded urban area.’ The
settlement of Lower Rainham would largely lose its present independent
identity and character. The attracting setting current provided by the ALLI to
the Lower Rainham Conservation Area would cease to exist.
401 The apparent suggestion in cross examination of Mr Etchells (not advanced in any of the proofs of evidence) that
there would be no harm to the green buffer function because the proposal would have no direct impact on the nature
conservation and recreation within the SSSI should be seen for what it plainly is: an advocate’s attempt to avoid a
conclusion which is obviously adverse to the scheme he is promoting. It is a bad point. The purpose of the green
buffer is not to directly enhance nature conservation or recreation within the SSSI. The purpose is to provide a green
buffer between the SSSI and the existing built up area.
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7.70 Whilst the ALLI would continue to provide some countryside setting to Lower
Twydall Conservation Area, this would be substantially reduced.
Contains Orchards
7.71 The proposal would – at one strike – result in the loss of almost all of the
orchards within the ALLI, a key characteristic of the landscape. The limited
areas of community orchards proposed – even if deliverable and sustainable –
would be negligible as compared to the vast loss of orchards.
Conclusions on functions
7.72 Each and every one of the important functions of the ALLI identified in the
Local Plan and MLCA would be significantly harmed by the development. In
respect of half of the functions - the green buffer; the attractive setting to
Lower Rainham Conservation area; and the provision of orchards – the ALLI’s
functioning would either cease, or be very substantially reduced.
7.73 Thus, quite apart from the significant adverse impacts they would cause to the
character and visual amenity of this valued landscape, the appeal proposals
would largely, if not entirely, eradicate the basis on which the landscape was
designated within the Local Plan.
AVAILABILITY OF BEST AND MOST VERSATILE AGRICULTURAL LAND,
INCLUDING THE LOSS OF THE ORCHARDS
Introduction
7.74 Virtually the entirety of the appeal site, some 51.5ha in total, comprises best
and most versatile (BMV) agricultural land. BMV land is considered to be the
‘most flexible, productive and efficient in response to inputs and which can
best deliver future crops for food….’402 96% of the BMV on the site is classified
as either Grade I (Excellent403) or Grade II (Good404).
7.75 The Environmental Statement405 concludes that the impact on BMV constitutes
a ‘direct, permanent substantial adverse effect, which is significant.406 The loss
of this extent of BMV land of the highest quality is plainly a consideration
which would ordinarily carry substantial weight against the proposal.
7.76 The Appellant’s main countervailing argument is to contend that the land is not
viable for agricultural purposes, either for the orchard use which is currently
ongoing, or for other agricultural purposes.
7.77 As both experts agreed,407 the burden of demonstrating that the land is
unviable for agricultural use falls on the Appellant. It is not for the Council to
402 CD7.8 TIN049, page 2
403 ‘no or very minor limitations to agricultural use. A very wide range of agricultural and horticultural crops can be
grown and commonly includes top fruit, soft fruit, salad crops and winter harvested vegetables. Yields are high and
less variable than on land of lower quality.” ALC Classification, p9 [CD7.7]
404 CD7.7 page 9 ‘Land with minor limitations which affect crop yield, cultivations or harvesting. A wide range of
agricultural and horticultural crops can usually be grown but on some land in the grade there may be reduced
flexibility due to difficulties with the production of the more demanding crops such as winter harvested vegetables
and arable root crops. The level of yield is generally high but may be lower or more variable than Grade 1.’
405 CD8.3 Main Text
406 Ibid, paragraphs 13.66, 13.77and Table 13.6 (pages 170-172)
407 Mr Lloyd-Hughes in XX); Mr Pelham in XX
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prove its viability. It is a burden that the Appellant does not come close to
discharging.
Context
7.78 The contention that over 50ha of Grade 1 and 2 BMV land cannot be viably
farmed for any purpose is remarkable. Mr Lloyd-Hughes described it as
‘unique’ – in all his years of experience this was the first time that it had been
suggested that a significant area of BMV land was not capable of being viably
farmed for any crop.408 Mr Pelham could not point to any previous example in
the planning arena where such a contention had ever been advanced, still less
accepted by a decision maker.409
7.79 The context in this case makes this argument all the more surprising:
1) [APPELLANT]s (Goathams) are a substantial and sophisticated
operator in the top-fruit market. They operate 29 farms in the North Kent
area, operating a ‘hub and satellite’ model with four of the farms being
hubs and the remainder – including the Appeal site – being the
satellites.410 They farm over 2,400ha of land for top fruit, growing over 350
million apples a year and 55 million pears.411 It can therefore be
reasonably assumed that they make investment decisions on an informed
basis.
2) Having regard to the following factors, Goathams plainly considered Pump
and Bloors Farm (which together comprise the appeal site) to be viable
prospects:
i) They purchased the freehold of Pump Farm in 2011. It is reasonable to
assume that, before purchasing the freehold of the farm (rather than
merely renting it), they would have only purchased the farm if they
considered it to be viable. They would have been aware of the
characteristics of the site (and its supposed limitations) including its
location, size (of the farm as a whole and orchards) orientation of the
orchards, and soil quality. As it was already operating as a commercial
orchard they surely would have enquired as to the yields it was
producing.
ii) Since purchasing Pump Farm, they have reinvested in the site by
replanting the orchards twice (4.45 ha in 2011, and 4.45 ha in 2017). Mr
Pelham accepted that the replanting costs are not insignificant, and that it
is reasonable to assume that Goathams would not have replanted had
they considered the orchards to be unviable.412
iii) Goathams also illustrated their confidence in the viability of the
orchard by purchasing the freehold of Bloors Farm in 2016, expanding
orchard production at the farm. At that time they had been operating
Pump Farm for five years. Therefore, they decided to purchase Bloors
Farm having had half a decade of experience of operations on the
408 XIC Lloyd-Hughes Day 4
409 XX Pelham Day 5
410 Mr Lloyd-Hughes Appendix RLH02, paragraph 4.10 and Figure 4
411 ibid, paragraph 4.1
412 XX Day 5
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neighbouring farm. It is highly unlikely that they would have made such
an investment had Pump Farm been operating at a loss (and no
alternative explanation has been given).
iv) It is notable that, on Mr Pelham’s evidence,413 both the replanting of
Pump Farm and the purchase of Bloors came after three seasons of hail
damage, including the worst year (2014) where apparently 35% of the
crop was damaged. This is of relevance given the importance Mr Pelham
places on hail damage in his viability assessment. It is inconceivable that
Goathams would have replanted Pump Farm and purchased Bloor Farm
had they considered that the incidences of hail were so severe as to
render orchard farming in this location unviable.
3) It is also highly relevant that Goathams have very recently sought to
invest in Gore Farm – and to facilitate its continued use as an orchard - by
way of an application for the erection of an agricultural building for secure
storage (April 2020).414 The Planning Statement for that application
explained that this building was necessary to ‘provide much needed secure
storage to support Gore Farm and the applicant’s expanding agricultural
enterprise….[and] would support the ongoing expansion and improved
efficiency of a business.’415 Gore Farm is approximately 3 miles east of the
Appeal site.416 In terms of its status as a satellite farm;417 overall size;418
cropping area;419 variety of top-fruit;420 yield;421 and orchard size,422 Gore
Farm shares very similar characteristics to Pump Farm. In neither his
rebuttal proof nor his oral evidence did Mr Pelham seek to explain why,
despite the proximity of Gore Farm and the similarity in characteristics, the
conclusions of his viability assessment were not equally applicable to Gore
Farm.
7.80 Set against this context, it would require very compelling evidence to
demonstrate that the use of the Appeal site for orchard farming is unviable.
The viability case
7.81 The Appellant’s viability evidence, far from being very compelling, was entirely
unconvincing. It is flawed in a number of respects.
7.82 First, despite Goathams having farmed the appeal site for a decade as part of
its top-fruit business, the company has produced no financial information
whatsoever as to the actual profitability or otherwise of the farm during that
time. There is no evidence of direct costs associated with Pump Farm; no
413 Mr Pelham PoE, page 10, Table 1
414 Mr Lloyd-Hughes Appendix RLH08
415 ibid, paragraphs 7.4 and7.5
416 Gore Farm is c.2-3 miles from the Appeal site (see Mr Lloyd-Hughes Appendix RLH08, F1 – Gore Farm)
417 Mr Lloyd-Hughes Appendix RLH02, Figure 4
418 Gore Farm is 50.4ha (RLH08, paragraph 1.3); Pump and Bloors farm is 51.5ha
419 Gore Farm is 36ha (RLH08, paragraph 1.4); Pump and Bloors farm is circa 44 ha (SoCG, paragraph 1.1and1.4)
420 Gore Farm produces - Gala, Braeburn, Reuben and Bramley (RLH08, paragraph 1.4); Pump and Bloors farm –
Gala and Braeburn
421 Gore Farm’s yield is 6000-7000 bins per annum (RLH08, paragraph 1.4); Pump and Bloors farm – 6,7000 bins per
annum (SoCG (CD11.5) paragraph 1.3)
422 Mr Pelham emphasizes that Pump and Bloors farm has a number of orchards which are 2ha or less. RLH04 shows
that Gore Farm has at least 6 individual orchards of less than 2 ha, three of which were replanted in 2018.
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evidence of actual overhead costs; no evidence of actual turnover; and no
evidence of actual profit or loss.
7.83 Given that the Appellant is seeking to argue that the appeal site is (and would
be) unviable for its existing orchard use, this omission is startling. Set against
the context outlined above, the lack of any actual financial information from
the operation of the site provides a basis alone for rejecting the viability case
being advanced.
7.84 It is no answer to this omission to contend that the financial information (or at
least some of it) is said to be commercially sensitive. As Mr Pelham accepted,
it is a well-recognised principle that viability assessments would be publicly
available.423 This is reflected in the PPG.424 However, if data is truly
commercially sensitive, then this can be provided to a decision maker on a
confidential basis. Again, this is reflected in the PPG.425 It is not unusual for
viability assessments to be published, with commercially sensitive data
redacted and available only the decision-maker. As Mr Lloyd-Hughes
explained, he not infrequently reviews viability assessments on behalf of local
planning authorities which contain financially sensitive information.426
7.85 Nor is it an answer to suggest that such information was not available because
the site forms part of a wider enterprise and cannot be disaggregated. Mr
Pelham explained in his evidence in chief that he is often asked by clients to
undertake a profit performance of individual farms in a wider enterprise.427
7.86 It is telling that, as confirmed in cross-examination, Mr Pelham had not been
asked to, nor had, undertaken an assessment of the profit performance of
Pump Farm. Most damning of all was his acceptance that whilst he
‘suspected’428 that Pump and Bloors Farm had not produced any profit in the
last ten years, he could not be confident of this because he had not
undertaken the relevant analysis.429
7.87 Second, the theoretical lifetime Gala orchard model on which Mr Pelham placed
great reliance is defective, and cannot be given any weight, for a number of
reasons:
1) It is purely hypothetical. In circumstances where actually, financial
information concerning the running of the farm was available, it is highly
anomalous for reliance to be placed on a theoretical model.
2) Apart from an assumption in respect of the soil quality, as Mr Pelham
confirmed none of the assumptions on which the model is based are site
specific to Pump or Bloors Farm.430 They would equally apply, he
accepted, to the replanting of any of the 29 Farms operated by
Goathams, including Gore Farm.431 Given that Goathams is not
contending that any of its other farms are similarly unviable (and quite to
423 XX Day 5
424 Should a viability assessment be publicly available? Paragraph: 021 Reference ID: 10-021-20190509
425 Ibid.
426 XIC Day 4
427 XIC Day 5
428 A term he repeatedly used in XIC in chief when describing the existing and historic viability of the Appeal site
429 XX Day 5 (Youtube recording 5:58:54)
430 XX Day 5 (Youtube recording 6:09:45)
431 XX Day 5 (Youtube recording 6:10:45) Subject to achieving a north/south alignment of the orchard
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the contrary, are investing in them), this immediately undermines the
credibility of the model.
3) Most significantly, the central assumption underpinning the model is
entirely unsubstantiated by the Appellant, and is contradicted by the
evidence produced by Mr Lloyd-Hughes:
i) The central assumption in the model is that the sale price of the
apples would remain ‘unchanged throughout the crop lifetime.’432 ie
that for the 16 year period of the model, the sale price achieved would
remain static. In contrast the model assumed that costs of production
increased annually.433
ii) If sale prices are assumed to remain static, and costs of production
are assumed to increase annually, at some point the model would show
costs exceeding turnover, and therefore a lack of viability.
iii) The assumption that the sale price of the apples would remain
unchanged, was said to be ‘consistent with past and current
evidence.’434 However, as Mr Pelham stated in examination in chief, he
is unable to produce any empirical evidence to support this contention.
In cross-examination he confirmed as much, agreeing that he was
asking the Inspector and Secretary of State to ‘take my word’ that this
assumption was correct.435
iv) The lack of any empirical evidence to support such an important
assumption renders the model devoid of any merit. Even if there were
no other evidence before the Inquiry on this subject, the model should
be rejected on this basis alone.
v) However, the central assumption is contradicted by evidence
produced by Mr Lloyd-Hughes. He produced evidence published by
DEFRA concerning the past and current trends in sale prices of apples,
including Gala apples.436 This evidence was criticised by the Appellant
because it does not directly represent prices paid by supermarkets.
The criticism is true in respect of the second set of data in RLH07, but
not the first set, which has been adjusted to reflect the ‘farm-gate’
price.437 But this criticism is entirely irrelevant. It is the only empirical
data before the Inquiry of the past and current trends of sale prices of
apples. And it demonstrates that sale prices rose between 3.33% per
annum and 5.12% per annum438 between 2010 and 2019.
vi) Mr Lloyd-Hughes’ evidence demonstrates that, assuming all other
assumptions are correct, even a very modest annual price rise of 2%
per annum would give rise to a healthy profit, applying Mr Pelham’s
model.439 Indeed, it would only require a rise in sale prices of 0.6% per
432 Mr Pelham PoE, paragraph 6.3
433 ibid
434 ibid page 21 paragraph 6.3
435 XX Day 5 (Youtube recording 6:36:00)
436 Mr Lloyd-Hughes Appendix RLH07
437 See the metadata in CD7.9a
438 See Mr Lloyd-Hughes PoE, paragraphs 66 and67 and ID16
439 Mr Lloyd-Hughes Rebuttal Proof.
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annum (well under historic price rises) to render the proposal viable,
again even assuming that all other assumptions are correct.440
7.88 Furthermore, even with these unevidenced assumptions, Mr Pelham’s model
shows that the orchard would be viable441 were it not for an assumption that
hail would result in 10.4% of the crop being damaged annually.442 Despite the
importance of this variable, Mr Pelham accepted that he was unable to opine
on whether this level of hail damage is likely to occur at the site in the future.
Nor was there any evidence to support his implication443 that the appeal site is
particularly susceptible to hail damage, or that it has any greater level of
susceptibility than any of the other 29 Kent farms own by Goathams.
7.89 Third, the six arguments advanced by Mr Pelham as to why the Appeal site
could not viably be farmed for any agricultural purpose444 were
comprehensively responded to in the written and oral evidence of Mr Lloyd-
Hughes. Those points are not addressed in any detail in these closings, and Mr
Lloyd-Hughes’ evidence is relied on in full. However, the short point that can
be made in respect of each of them is that, even if each of the arguments
individually had any merit (which they do not) they do not demonstrate a lack
of viability. At their very highest, they are characteristics of the site (and in
one case the market) which may affect productivity or costs associated with
production. They tell the reader nothing about the viability of the enterprise.
7.90 The Council therefore invites the Inspector and Secretary of State to reject the
Appellant’s viability case. It is patently unmeritorious.
Other considerations – potential need for BMV land
7.91 The Council accepts that a degree of BMV land may be required in order to
meet housing needs across Medway. The future potential need for BMV land is
a relevant consideration in the overall weight to be given to the loss of BMV
land in this case. However, this should not reduce significantly – and certainly
not eliminate - the weight to be given to this important issue. The Council
does not accept that allocated sites in the emerging Local Plan would inevitably
involve the loss of this extent of BMV land or this quality, and certainly not a
site in active agricultural use, as the appeal site currently is.
7.92 Furthermore, the allocation of sites would be the result of a comprehensive
comparison and balancing exercise, which can take account of government
policy to the effect that ‘areas of poorer quality land should be preferred to
those of a higher quality.’445 Indeed, as Mr Canavan explained in his evidence
in chief, the presence of BMV land is a constraint identified in the Medway
Strategic Land Availability Assessment (SLAA) which rules out several sites in
part on the basis that they are of Grade 1 or 2 BMV land quality.
440 Mr Lloyd-Hughes (XIC) Day 4
441 Mr Pelham PoE Table 8
442 ibid, paragraph 6.9-6.10 and Table 9
443 See Mr Pelham Rebuttal, paragraph 11
444 - Operation as a satellite to main hub centres (Flanders Farm, Hoo and Howt Green Farm, Bobbing).
- Size and layout of the existing orchard blocks.
- Lack of suitable buildings.
- Hail damage.
- Increasing costs of production vs ‘static’ prices.
- Orchard age and varieties.
445 Framework footnote 53
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7.93 Therefore, whilst the Council recognises that this context calls for a reduction
in the weight to be given to a loss of BMV land which would otherwise carry
substantial weight, this reduction should not be significant. It is for this reason
the Council considers that the loss should carry moderate weight in the overall
balance.
SIGNIFICANCE OF DESIGNATED AND NON-DESIGNATED HERITAGE
ASSETS, INCLUDING THE LOCAL HISTORIC LANDSCAPE
Context
Law and policy: the proper approach
7.94 Where harm is caused to the significance of designated heritage assets,
including listed buildings and conservation areas, it is not merely another
material consideration to be weighed in the balance. To the contrary, primary
legislation446 establishes a strong statutory presumption against development
which causes harm to the significance of either listed buildings or conservation
areas.
7.95 It is firmly established in the authorities – and is an agreed between the
parties447 – that this legislation requires decision makers, when carrying out
the balancing exercise - to give ‘considerable weight and importance’ to the
desirability of preserving the significance of listed buildings and conservation
areas.
7.96 That this approach is required must especially be remembered when a decision
maker is applying paragraph 196 of the Framework. This policy has been
described, rightly, as a ‘trap for the unwary’ because although it is expressed
as a straight balance between the heritage harm, on the one hand, and public
benefits, on the other, the balance is not ‘straight’. Whether applying the
paragraph 196 balance or broader planning balance under section 38(6) of the
Planning and Compulsory Purchase Act 1990, decision makers must apply the
statutory presumption, and give considerable weight and importance to the
desirability preserving of the significance of listed buildings and conservation
areas, in any circumstances where harm would be caused to the significance of
designated heritage assets.
7.97 Further, it has also been established in case-law – and is again agreed
between the parties448 – that treating a conclusion that there would be “less
than substantial harm” for the purposes of the Framework as being a ‘less than
substantial objection’ would amount to an error of law.449
7.98 Finally, a striking feature of this proposal is the number of designated heritage
assets that would be adversely affected (on either party’s case). Moreover,
these are not – as is sometimes the case – a collection of designated heritage
assets located at one property. As Ms Wedd explains the proposal would
446 S.66(1) and s.72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 in respect of listed
buildings and conservation areas respectively. These duties have consistently been described by the Courts as giving
rise to a “strong presumption” against granting permission for development that would harm the setting of a listed
building or the character or appearance of a conservation area. See eg Barnwell Manor Wind Energy Limited v East
Northamptonshire District Council [2014] EWCA Civ 137, discussed in the Heritage SoCG (CD11.2) paragraph 2.4
447Heritage SoCG (CD11.2)
448 ibid, paragraph 2.5
449 Barnwell Manor judgement [29]
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impact on a ‘constellation’ of designated heritage assets located throughout
the local landscape, including two separate conservation areas.
7.99 The parties are also agreed on the proper approach to paragraph 196 of the
Framework when, as here, harm is caused to the significance of multiple
designated heritage assets. As Mr Parr agreed in cross-examination450, a
decision maker should not apply the paragraph 196 balance to each
designated asset in turn. Instead, a decision maker should apply the
paragraph 196 balance once, taking account of the aggregate harm to all of
the designated heritage assets.451 Although there is no binding legal authority
on this issue, this must be the correct (and certainly lawful) approach. To do
otherwise would be to risk a ‘death by a thousand cuts’, because a decision-
maker would never test whether the public benefits arising from a single
proposal outweighed the totality of the harm to designated heritage assets
caused by the same proposal. To adopt this ‘asset by asset approach’ would
not be consistent with legislative or policy schemes.
A broad measure of agreement
7.100 There is a significant amount of agreement between the parties, and their
respective experts, as to the impact that the proposal would have on the
significance of designated heritage assets in the vicinity of the site. In
particular, it is agreed that:
• the proposal would cause material harm to the significance of a number of
designated heritage assets in the local area. Ms Stoten on behalf of the
Appellant accepts that harm would be caused to the significance of five
separate designated heritage assets,452 including the Grade II* listed
Bloors Place. The dispute in terms of whether any harm occurs at all
relates only to York Farmhouse and the outbuildings and Garden Walls at
Bloors Place.
• in respect of the five designated heritage assets to which it is agreed harm
would be caused, both experts agree that the harm would be less than
substantial for the purposes of the Framework. The dispute in terms of the
harm caused to these five designated heritage assets is one of degree
only. Even then, the dispute is relatively narrow. Whereas Ms Stoten
contends that the harm would be either at the lowest or low end of that
spectrum, Ms Wedd considers that the harm would be at the middle of the
spectrum.
• when assessing the degree to which a proposal which affects the setting
and significance of heritage assets, both parties agree that while issues of
intervisibility are important, it is also relevant to consider other factors,
including the economic, social and historical connections between the asset
and its surroundings.453 This is consistent with the guidance given by
450 XX Day 9
451 It is, of course, important not to factor in harm to non-designated heritage assets at this stage, as the paragraph
196 test does not apply to them
452 Pump Farm House (Grade II); Chapel House (Grade II)
453 Heritage SoCG, paragraph 3.12
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Historic England in GPA3454 and the approach set out by the Court of
Appeal in Catesby Estates Ltd v Steer [2018] EWCA Civ 1697.455
7.101 There is less agreement in relation to the impact on non-designated heritage
assets. That said, both experts agree that there would be harm to Bloors
Oasts, albeit less than substantial harm at the lowest end of the spectrum.
There is disagreement as to whether the local historic landscape should be
considered a non-designated heritage asset and, if so, the degree of harm
which would be caused.
Historic England’s advice
7.102 It is settled law that the views of Historic England (HE) must be given
considerable weight and that cogent and compelling reasons are needed if a
decision maker is to depart from them.456
7.103 Its letter of 1 August 2019457 should, of course, be read in full, but the
headline points from it are as follows:
i) The agricultural land of the appeal site forms the setting of the Lower
Twydall and Lower Rainham Conservation Areas and the listed buildings
within them, as well as isolated listed buildings, such as Pump Farmhouse.
ii) The ‘distinct settlement pattern of modest hamlets dependent on the
surrounding land’ evolved from the historic use of the land – including the
Appeal site - for farming. The settlement pattern, which was established in
the medieval period, continues to be evidenced today with “both Lower
Rainham and Lower Twydall surviving as modest historic settlements
surrounded by arable land.”
iii) Having expressly referred to the guidance in GPA3 to the effect that
“setting is not limited to visual connections and can include…historic
association, land use, functional relationships and aspects such as
tranquility”, HE explain that “[b]oth conservation areas and the listed
buildings within them thus derive some significance from their setting
which continues to illustrate a historic functional relationship to the
surrounding agricultural land and their character as modest rural hamlets”.
HE, therefore, considered that the contribution that the agricultural setting
makes to the significance of the assets is not limited to simply a direct
visual connection between the two.
iv) HE is firmly of the view that the proposal would cause harm to the
significance of both conservation areas, as well as the listed buildings
within them. It is worth setting out in full their explanation as to why such
harm would be caused:
454 CD3.17 See in particular, p2 which states: ‘The extent and importance of setting is often expressed by reference
to visual considerations. Although views of or from an asset will play an important part, the way in which we
experience an asset in its setting is also influenced by other environmental factors such as noise, dust and vibration
from other land uses in the vicinity, and by our understanding of the historic relationship between places. For
example, buildings that are in close proximity but are not visible from each other may have a historic or aesthetic
connection that amplifies the experience of the significance of each.’
455 CD4.6
456 This is trite law and has been confirmed in numerous cases. If citation is needed, see Regina (Hayes) v York City
Council [2017] EWHC 1374 (Admin) at [92]
457 In a letter dated 29 March 2021 Historic England confirmed that the amendments to the parameters plan did not
fundamentally alter their views, and that their position remained as set out in their letter of 1st August 2019 (ID33)
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“Building across large swathes of land which form the agricultural and
rural setting to both conservation areas and listed buildings within them
would have an impact on the significance these designated assets derive
from their setting. A sense of the rural setting afforded to both
conservation areas and to buildings like Bloor Place is still appreciable
from surrounding roads and pathways and from the train which passes
directly to the south of the site… Introducing a large amount of new
development would fundamentally alter the historic character of the
area. Such new development would inevitably have a presence in a
number of views, and change would also be appreciable increased
vehicular movements, noise and light pollution. An understanding of the
historic functional relationships between the historic hamlets and the
surrounding land which they were dependent on would also be
compromised. We can only conclude that this would cause harm to the
significance of both conservation areas through we think the greater
level of harm is to the Lower Rainham Conservation Area which is more
directly affected by the development.”
It is noticeable that, when considering the impacts on the significance of
the Conservation Areas and the listed buildings, HE considers not only
direct views from the heritage assets themselves, but also kinetic views
that are appreciated when travelling around the area, as well as the non-
visual considerations.
v) HE expressly disagrees with the Appellant’s assessment in its original ES
that there would only be minor adverse harm to the significance of the
conservation areas.458
vi) It also expressly disagrees with the Appellant’s assessment in its original
ES that there would only be moderate to negligible harm to the individual
listed buildings.459
vii) In terms of Bloors Place – which is afforded separate treatment,
presumably because of its Grade II* listing – HE explains that ‘its
relationship to the surrounding fields and its rural setting are important to
understand its historic use as a farmhouse and its origins as a rural
dwelling”. They conclude that the development would cause harm to the
significance of Bloors Place due to the fact that “the wider environs in which
the asset is experienced would be fundamentally altered by building across
it as associated noise and light pollution etc would also likely have an effect.'
viii) Ultimately, it reiterates its concerns regarding the application on heritage
grounds and concludes that the application fails to meet the requirements of
the Framework, including paragraph 194, which requires there to be clear
and convincing justification for harm to the significance of designated
heritage assets.
458 The replacement ES [CD8.3] increases the level of harm to the Lower Rainham CA to moderate adverse, but
maintains that the level of harm to the Lower Twydall CA would be minor adverse (see paragraphs 14.89-14.94 and
Table 14.5, p191)
459 The replacement ES [CD8.3] concludes that the level of harm to the individual listed buildings would be minor to
negligible adverse (see paragraphs 14.84-14.88 and 14.109, as well as Table 14.5)
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Harm to designated heritage assets
General Approach – Common themes in the Appellant’s analysis
7.104 As was evident from Ms Stoten’s proof of evidence, and as was underscored in
the heritage round table session at the Inquiry, there are several themes
running through her assessment which causes her to underassess the harm
that would be caused to the designated heritage assets. These including the
following:
(1) Undue emphasis on intervisibility – Ms Stoten’s assessment places
heavy reliance on the intervisibility between the asset and the setting
which leads her to underplay other ways in which the Appeal site
contributes to significance. A prime example of her myopic approach is
found in her assessment of York Farmhouse.460 She concludes that the
Appeal site does not contribute to the heritage significance of the listed
building at all, doing so primarily because (in her view) of the minimal
intervisibility between the two.461 In oral evidence Ms Stoten was at pains
to emphasise the degree of screening on the boundary of the York
Farmhouse site which, in her words, causes a “high degree of separation
from the wider landscape.’462
Even putting aside that this approach ignores the kinetic views in which
both York Farmhouse and the appeal site can be appreciated (such as from
walking across the footbridge over the railway)463, this is to entirely ignore
non-visual connections, including: (a) the functional relationship between
the two – historically there was a direct functional relationship between the
Appeal site and the asset, as Ms Stoten accepts;464 and (b) the associative
relationship – as HE point out, quite apart from the historic functional
relationship, ‘the survival of this historic farmsteads…[including] York
Farmhouse]” illustrates an “association with and dependence on the
surrounding land.’
It also ignores that the change from a rural to urban landscape would also
be experienced in ways other than direct views, such as by increased
vehicular movements, noise and light pollution. Given these factors, the
contention, contrary to the views of Ms Wedd and HE, that that the appeal
site, and the agricultural land which it occupies, fails to contribute at all to
the significance of York Farmhouse is untenable. So too is her conclusion
that the replacement of swathes of agricultural land with a large housing
estate would cause absolutely no harm to its significance.
(2) Modern Commercial Orchards – Ms Stoten repeatedly refers to the fact
that the appeal site has a modern commercial character,465 explaining in
her oral evidence that (in her view) the modern orchard had a
fundamentally different character from the historic use of the appeal
site.466 This conclusion has caused Ms Stoten to minimise the contribution
460 Although this flawed approach applied to all of the assets including, for example, Lower Twydall Conservation Area
461 Ms Stoten PoE, paragraph 6.27
462 Heritage Roundtable (Day 6)
463 As Ms Wedd drew attention to in the Heritage Roundtable (Day 6)
464 Ms Stoten PoEf, paragraph 67.28
465 This is mentioned 14 times within Ms Stoten’s proof of evidence
466 Heritage Roundtable (Day 6)
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that the site makes to the contribution of the heritage assets, on the basis
that it no longer exhibits its historic character. This approach is plainly
flawed. The appeal site remains in agricultural use - a land use which has
been ongoing since the medieval period and which, as HE explains, was the
very catalyst for the establishment of the modest historic settlements of
Lower Rainham and Lower Twydall, as well as the construction of the listed
buildings. The commercial orchard currently undertaken on the appeal site
is a modern manifestation of this historic orchard use, which has been
ongoing for centuries. It does not diminish the contribution that the site
makes to the significance of the heritage assets. Ms Wedd expressed this
point forcefully and eloquently in her oral evidence.467
(3) Focus on the existing functional association – Ms Stoten further errs
by focusing on the lack of any existing functional relationship between the
assets and the agricultural land on the appeal site. In her proof, she
repeatedly downplays the contribution that it makes to the significance of
the assets on the basis that any functional association has been severed.
The implications of this erroneous approach were illustrated in her oral
responses concerning Lower Twydall Conservation Area. Ms Wedd pointed
to, and agreed with, HE’s characterisation of Lower Twydall as a modest
historic settlement surrounded by arable land and its explanation that the
Conservation Area (as well as Lower Rainham) ‘derive some significance
from their setting which continues to illustrate a historical functional
relationship to agricultural land and their historical character as modest
rural hamlets’ (emphasis added). Ms Wedd’s point was that, as HE
recognised, this ‘historical functional relationship to agricultural land’ is still
appreciated today, notwithstanding that there is no longer any existing
functional relationship between the two.
Further, that the undeveloped natural of the appeal site plays a major
contribution in maintaining Lower Twydall character as a ‘modest rural
hamlet.’ Faced with this, Ms Stoten was forced into criticising HE’s
assessment, alleging that HE was wrong to claim that there is any
functional relationship between the agricultural land. But this is not what
HE was claiming. Their point – which Ms Stoten ignores, or at least
downplays – is that the historical functional relationship between the
conservation area and the surrounding agricultural land continues to be
illustrated by the Appeal site’s current, agricultural use.468
(4) Narrow focus ignoring the relationship between the widely spaced
assets – HE’s GPA3469 explains that setting can be influenced by ‘our
understanding of the historic relationship between places. For example,
467 Heritage Roundtable (Day 6), when discussing Bloors Place. She said in respect of the “modern commercial
orchard” issue that “Ms Stoten and I interpret this in 180 degree opposing ways. We know…that agricultural activity
in this area has been going on since the medieval period. We know from…. the Hasted description that there was
wheat, corn, apples and cherries being grown in this Parish. And we know that older orchards had been grubbed up.
So there was change in the 18th Century. We know from the appearance of the Oast houses…that there were hops
grown at some point. This is perfectly normal. Modern commercial orchard is the current manifestation of a long
history of agricultural uses. If you had asked any farmer since the agricultural revolution of the 18th Century: are you
farming in a modern commercial manner? He would have said, yes of course I am….so the fact that we have [a
modern commercial orchard] is interesting, it has changed the appearance of the…farmland…. But that does not
diminish the contribution that the open undeveloped farmland makes to the significance of the heritage assets.”
468 See also Ms Wedd PoE, paragraphs 5.13-5.14 where the same point is made.
469 CD3.17 Page 2
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buildings that are in close proximity but are not visible from each other
may have a historic or aesthetic connection that amplifies the experience
of the significance of each.’ Ms Wedd explains how the designated
heritage assets in question are not a series of random unconnected assets.
Instead, they form a ‘constellation of assets,’ and it is the undeveloped
farmland setting – of which the appeal site plays a major part – that
explains the sparse and scattered disposition of these listed buildings and
the modest rural hamlets.470 Ignoring this factor, as Ms Stoten does, is to
ignore an important contributor to the significance of the heritage assets.
In short, were the development to occur, the undeveloped farmland setting
would cease to exist, and with it the value it provides in illustrating the
historical basis for the disposition of those heritage assets.
Individual Harm
7.105 Having explored the main reasons for the difference between the two
assessments, the Council’s case can be addressed relatively briefly. The
Council continues to rely on, and commends to the Inspector and Secretary of
State, the carefully considered and compelling analysis that Ms Wedd set out
in her proof of evidence,471 as amplified in her oral evidence.
7.106 York Farmhouse (Grade II) – less than substantial harm, at the low
end of that range: As explained above, the farmhouse has a historical
association with and dependence on the surrounding agricultural landscape,
which includes the appeal site. This agricultural setting, if not entirely lost,
would be very much diminished by the proposed development. Furthermore,
whilst direct intervisibility is limited (although the buildings of the appeal site
are likely to be visible from the upper floors), the change in setting would be
appreciated in kinetic views and, in any event, through non-visual experiential
factors (noise, increased vehicle movements etc).
7.107 Pump Farmhouse (Grade II) – less than substantial, at the middle of
that range: As with York Farmhouse, Pump Farmhouse has a historical
association with and dependence on the surrounding agricultural landscape.
The impact on significance would be greater because of the direct visual
impact the proposal would have – replacing short and mid-distance views of
agricultural land,472 with a swathe of built development; and the fact that the
asset would be enclosed on all sides by built development.
7.108 Chapel House (Grade II) - less than substantial, at the middle of that
range: The impact would be of a similar magnitude to Pump Farmhouse given
the proximity between the asset and the appeal site and the potential
intervisibility. The construction and operation of the main entrance to the site
from Lower Rainham road to the rear of this property would particularly affect
its setting and significance.
7.109 Bloors Place (Grade II*) - less than substantial, at the middle of that
range: Bloors Place is a particularly important designed heritage asset: only
5.8% of listed buildings are Grade II*. Both Ms Wedd and HE explain how the
historic relationship with the surrounding farmland and its rural setting
470 See Ms Wedd Proof, paragraphs 5.9-5.15
471 Wedd Proof, paragraphs 6.4 – 6.34
472 See Ms Wedd, Appendices, Fig 9
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contribute to the understanding of its historic use as a farmhouse, and
therefore its significance. The proposal would eliminate that farmland and
rural setting – as with the settlement of Lower Rainham, Bloors Place would be
subsumed within the expanded urban area. This would cause considerable
harm to the significance of this important heritage asset. This is a good
example of where Ms Stoten’s assessment underplays the harm due to its
undue emphasis on direct visual connectivity,473 her focus only on existing
functional relationships,474 and her erroneous approach to the existing
character of the appeal site (the ‘modern commercial orchard’ point).475
7.110 Outbuildings and Garden Walls (Grade II) – less than substantial
harm, at the low end of that range: The listed outbuildings, together with
the walls, are part of the historic farmstead. Like the farmstead they would be
harmed by the loss of the historic, agricultural setting.
7.111 Lower Rainham Conservation Area - less than substantial, middle of
the range: As noted above, HE explains how the existing use of the appeal
site illustrates the historic functional relationship between the Conservation
Area and its agricultural surroundings, as well as helping to maintain its
historic character as a modest rural hamlet. Both elements would be
destroyed by the proposal, which would have the effect of encompassing the
Lower Rainham Conservation Area within the expanded urban area. There
would be little, if any, of agricultural surroundings left to explain the
settlement’s historical inception and it would no longer would it have a
character of a modest rural hamlet. In that context, Ms Stoten’s assertion that
the harm would be at the lowermost end of the spectrum - is simply
untenable. Indeed, her conclusions are undermined by the fact that the
Appellant’s own ES now concludes that the proposal would cause moderate
adverse effects to the significance of the Lower Rainham Conservation Area.476
7.112 Lower Twydall Conservation Area - less than substantial, middle of
the range: Whilst the impact may be slightly less dramatic, for similar reasons
to Lower Rainham, the heritage significance of the Lower Twydall would be
adversely impacted.
Aggregate Harm
7.113 Relying on Ms Wedd’s assessment, the Council considers that the aggregate
(or cumulative) harm to the significance of these designated heritage assets –
six listed buildings and two conservation areas – would be less than
substantial, in the middle of that range. For the reasons set out in her
evidence, and summarised above, the Council contends that this is the
appropriate level of harm for the Inspector and Secretary of State to apply
when undertaking the paragraph 196 and general planning balances.
7.114 We say that this conclusion accords with the assessment of HE, who expressly
rejected the suggestion that the harm to even individual designated heritage
assets could be characterised as minor.
473 Ms Stoten PoE, paragraph 6.146
474 ibid, paragraph 6.148
475 ibid, paragraph 6.151
476 CD8.3, see paragraphs 14.89-14.94 and Table 14.5, page 191.
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7.115 Ms Stoten fails to provide a level of aggregate harm. This is somewhat
anomalous given that Mr Parr, the Appellant’s planning witness, agreed that in
order to apply the paragraph 196 balance it is necessary to consider the
aggregate all of the harms designated heritage assets affected (and indeed,
this is the approach he purported to have taken in his proof of evidence).
However, even if, contrary to the Council’s case, the Inspector or Secretary of
State were to adopt Ms Stoten’s conclusions in respect of the individual assets,
on any logical approach the aggregate harm caused by the proposal to be
designated heritage assets must be greater than ‘less than substantial harm at
the low end of that range.’477
Harm to non-designated heritage assets
7.116 There is agreement between the heritage experts that Bloors Oasts is a non-
designated heritage asset and that the proposal would cause harm to the
significance of the asset, albeit that harm would be of a low scale.
7.117 The experts disagree as to whether the local historic landscape is non-
designated heritage asset, although they do agree, rightly,478 that landscapes
are capable of being a heritage asset. Ms Wedd explains,479 in cogent and
clear terms, why the historic sequence of river, wharfage and estuarine land
(to the north of the site) farmland and related development (of which the
appeal site forms an important part) and suburbia (to the south of the site,
and beyond the physical and psychological barrier of the railway line)
constitutes a heritage asset in its own right. She also describes how the
development would, in one fell swoop, eradicate that historical sequence and
‘erode the historical character of the landscape to the point at which it would
cease to be a heritage asset in its own right.’480
7.118 The suggestion by Ms Stoten in her oral evidence that Ms Wedd’s analysis was
undermined by her failure to identify specific boundaries to the asset is
misconceived. First, it is a false premise: there is nothing in guidance which
indicates that historic landscapes can only be considered heritage assets if
they have a precisely defined border. It is in the nature of landscapes (and
therefore in landscapes which amount to historic assets) that their edges are
often undefined, with one landscape blending into another. Second, and in
any event, when asked to specify the boundaries of the asset Ms Wedd was
able to explain what she considered the boundaries of the historic landscape to
be, with reference to physical features on the ground.
CAPACITY AND SAFETY OF THE LOCAL HIGHWAY NETWORK
Existing Context
7.119 There can be no doubt that parts of the local highway network are already
heavily congested. Representations from local residents, as well as from the
local MP, have emphasised as much. In his oral evidence Mr Tucker
(apparently in an attempt to down-play the traffic impacts of the proposal
477 If not, this would mean that the proposal would have been be assessed as causing the same level of harm if it
only affected, say, Pump Farmhouse, which Ms Stoten assessed as suffering from less than substantial harm at the
low end of that range. This would fail to acknowledge that the harm caused by this one proposal is not just to one
heritage asset – it causes (even on the Appellant’s case) harm to a multitude of designated heritage assets.
478
479 Ms Wedd PoE, paragraphs 2.19-2,21, and 5.16-5.25
480 ibid 6.38-6.47
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itself) appeared to accept that the existing conditions as being congested481,
and acknowledged that queuing already occurred at junctions.482 Moreover, the
2028 reference case – which the Appellant accepts is credible and accurate483
- shows that, even in the ‘without development’ scenario, a number of
junctions would be operating at, or over, capacity.484
7.120 Applying national policy,485 this alone would be capable of providing a reason
for refusing the development unless the development were to provide
mitigation to overcome the severity of the existing situation.486 It does not.
7.121 The proposal would generate a significant amount of additional vehicular traffic
on the local highway network. The Council contends that there would be an
additional 800 two-way trips in the AM and PM peaks (13 additional trips every
minute). On the Appellant’s figures, which are unrealistically low for a
development of this size – there would be almost 600 additional two-way trips
in the AM and PM Peaks (10 additional trips every minute).487
7.122 Even accounting for the off-site highway mitigation proposed (including the
additional highway mitigation proposed mid-way through this Inquiry) the
proposed development would significantly exacerbate the situation on the local
highway network, with a considerable worsening in the operation of a large
number of junctions; a significant deterioration in congestion on the highway
links; and substantial increases in travel times on corridors such as the A2,
A289 and Lower Rainham Road.
7.123 Moreover, it is of some significance that, as Mr Jarvis explained in his
evidence, the local highway network impacted by this development
incorporates two of the key east-west arterial routes in Medway: the A2 and
the A289 Pier Road. This is important in at least two respects. Firstly, it
means that the adverse impact of the proposal would be experienced on
routes, and junctions on those routes, which are of critical importance to the
functioning of the local highway network. Secondly, the limited options for
crossing the River Medway means that, should these routes become gridlocked
during peak hours – as the Council contends would occur if this development is
permitted – then there would be little, if any, opportunity for traffic to be
absorbed on alternative routes (as the microsimulation modelling
demonstrates).
Policy Approach
National Policy
7.124 Paragraph 108 of the Framework provides, as relevant:
‘In assessing…specific applications for development, it should be ensured
that:
….
481 See XIC Day 13 (Youtube recording 6:25:50 and 7:36:25)
482 XX Day 14 (Youtube recording 6:43:25)
483 XX of Mr Jarvis Day 11 (Youtube recording 5:35:00 onwards). Confirmed in XX of Tucker Day 14 (Youtube
recording 4:47:20)
484 See ID35 Table 1, which shows two junctions operating at LoS F in the reference case.
485 Framework paragraph 109
486 See CD4.8 Appeal Decision: Land at Kidnappers Lane, Leckhampton and the summary of Holgate J’s refusal to
grant permission to proceed with a judicial review challenge of the decision at Mr Rand’s Appendix C, pp51-53
487 See ID34a, p10 Table 2
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c) any significant impacts from the development on the transport network (in
terms of capacity and congestion), or on highway safety, can be cost
effectively mitigated to an acceptable degree.’
7.125 Paragraph 109 then provides:
‘Development should only be prevented or refused on highways grounds if
there will be an unacceptable impact on highway safety, or the residual
cumulative impacts on the road network would be severe.’
7.126 In Gladman Development Limited v Secretary of State for Housing,
Communities and Local Government [2021] EWCA Civ 104, Lindblom LJ
reminded us of the proper approach to interpretation of planning policy,
including that found in the Framework:
“Policy is not statute, and ought not to be construed as if it were. As Lord
Carnwath observed in Hopkins Homes Ltd. (at paragraph 24), not all planning
policies lend themselves to a rigorous judicial analysis. Where they do require
interpretation, this should be done objectively in accordance with the
language used, read in its proper context (see the judgment of Lord Reed in
Tesco Stores Ltd. v Dundee City Council [2012] P.T.S.R. 983, at paragraphs
19, 21 and 35). A sensible approach should be adopted in seeking the true
sense of the policy in question. The courts should not encourage
unmeritorious claims based on intricate arguments about the meaning of
policy. They should resist the over-complication of concepts that are basically
simple (see East Staffordshire Borough Council, at paragraph 50).’ (emphasis
added)
7.127 This approach holds true for the test of severity found in Framework paragraph
109. It is a basically simple concept which should not be over-complicated.
The Council submits that, in applying this test, the Inspector and Secretary of
State should approach that test having regards to the following principles:
• The test is plainly context specific. A delay or queue at a junction or on a
link which may be considered severe in one context, may not in another;
• Any invitation to draw bright-lines as to what is – and what is not –
capable of constituting a severe residual cumulative impact should be
resisted, when the policy itself does not define severity nor seek to draw
such lines;
• The term ‘residual’ indicates that the focus should be on the impact post-
mitigation: both that proposed as part of the scheme under consideration,
and that which has been secure elsewhere and is likely to come forward
within the relevant timeframe.
• As Mr Rand explained, the term ‘cumulative’ can be considered to have a
duality of meanings:
i) First, the decision-maker should not simply focus on the impact of the
development in isolation. That impact cannot be divorced from the
existing context into which it is to be inserted. It is the cumulative
effects of all expected development which must be considered, having
regard to that context. This principle was well-illustrated in the
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Leckhampton decision488 and the subsequent refusal by the High
Court to grant permission to challenge the decision.489
ii) Secondly, the decision-maker should have regard to all material
effects and determine whether, cumulatively, the impact is severe.
Thus, for example, a decision-maker might consider that a single
junction operating at or over capacity does not constitute a severe
impact (particularly if that junction is not of strategic importance), but
that, when considered cumulatively, with impacts at other junctions
and links, there is a severe impact.
• When paragraph 109 is read in context with paragraph 108(c) it must
follow that that network capacity and congestion are both relevant
considerations when applying the severity test.
• It is also clear from these paragraphs that impacts on the road network “in
terms of capacity and congestion” are treated separately from highway
safety and are plainly a concern in their own right.
7.128 The Appellant has advanced an approach to the severity test which should be
resisted. It is not hyperbole to suggest that adopting their approach would
amount to a misinterpretation of policy, and an error of law. It is flawed in a
number of respects.
7.129 Firstly, the contention that impacts on a highway network in terms of capacity
and congestion cannot, of themselves, trigger the severity threshold in the
Framework (ie unless they give rise to some other ‘harm’, such as in terms of
highway safety, amenity, or air quality etc) paragraph 109 is plainly wrong.
This is for the following reasons:
i) The wording of paragraphs 108 or 109 Framework provide no support for
the proposition. The Appellant’s approach would constitute an
impermissible re-writing of the policy. Had those drafting the Framework
wished to restrict the application of the severity test in such a manner,
they would have said as much;
ii) As Mr Tucker accepted in cross-examination,490 and is plainly correct,
effects on the network in terms of capacity and congestion can constitute a
significant impact in their own right for the purposes of Framework
paragraph 108. It is when this threshold is reached that consideration
must be given to providing cost-effective mitigation. It would be wholly
perverse if capacity and congestion on a network was capable, in and of
itself, to trigger the “significance” threshold in paragraph 108, but was not
488 See CD4.8 (Leckhampton) where the Inspector explained that the Framework referred ‘not to the additional
impact of the scheme, as the appellant asserts…but to residual “cumulative” effects, implying it is the cumulative
effect of all expected development which must be taken into account, rather than the individual contribution of each
development…’ at [223] and went onto note that ‘the existing or future “in any event” situation on the highway
network, is not an unrelated problem which evaluation of the proposed development should ignore. It is a related
problem which is highly pertinent to the evaluation of the current appeal proposal.’ [225]
489 Mr Rand Appendix C pages 52-53) where the judge is recorded as having observed ‘that it would be open to a
decision taker to rationally conclude that a given development could wash its own face in highway impact terms, but
due to existing over capacity, the residual cumulative impacts of the development could be severe.’ It is important
to remember that this taken from an article recording the comments of Holgate J at a permission hearing and must
be read in that context. The important point is that the principle being espoused is plainly correct.
490 XX Day 14
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capable in its own right of triggering the “severity” threshold in paragraph
109;
iii) Paragraph 109 establishes a separate threshold in terms of highway safety
(‘unacceptable’). As such, it cannot rationally be contended that capacity
and congestion can only give rise to severe impacts if they were to cause
highway safety concerns – because a different standard applies when
highway safety issues are in play.
iv) Contrary to the contention of Mr Tucker, Land at Pinn Court Farm491 does
not establish a general principle which is applicable to this case492:
• Firstly, and as ever, the specific factual context is all-important. In
that case, the main concern of the Highway Authority was in relation
to the increase in queueing at one junction only, with the potential
consequence that this would extend beyond the entrance of that
appeal site.493 It was in that context that the parties ‘agreed that an
increase in queuing may be inconvenient but that in itself would not
provide the necessary justification to refuse permission.’ It is
perverse to suggest, as Mr Tucker does, that because it was agreed
between the parties in that particular case that issue of concern was
not the extent of the queue at the one junction, but the effect of
queuing on driver behaviour at the site access, that issues of
congestion and capacity can never trigger the severity test.494
• Secondly, and in any event, Land at Pinn Court Farm concerned the
2012 Framework, not the 2019 iteration. In contrast to paragraphs
108 and 109 of the 2019 Framework, with which we are concerned,
paragraph 32 of the 2012 Framework made no express reference to
the concepts of congestion or capacity. Thus, even if the case did
purport to establish a general principle, it is not one which is
applicable to the proper interpretation of 2019 Framework.
v) Finally, there are numerous examples, even in the appeal decisions
before this Inquiry, of Inspectors proceeding on the basis that impacts on
the local highway network in terms of capacity and congestion alone (ie
without giving rise to any other harms) were capable of triggering the
severity threshold. The Leckhampton decision is but one example.495
7.130 Second, the suggestion, both in respect of paragraph 109 of the Framework
and Local Plan policy T1, that the impacts must be assessed relative to the
entirety of the highway network in Medway (such that the fact that the
proposal would have no material impact on the road network in the Hoo
491 CD 4.14
492It should be noted that Mr Tucker only sought to rely on this decision at rebuttal stage, having read Mr Rand’s
proof of evidence, and in particular the Hartnell’s Farm decision (Mr Rand Appendix B) which refers back to Land at
Pinn Court Farm. One may ask, rhetorically, why, if this was an interpretation of the severity test Mr Tucker had
always advanced, this was not to be found in the TA, Planning Statement, Statement of Case or his original proof.
493 CD4.14, IR 182
494 It is also of some significance that, whilst the inspector had the regard to the potential for severe residual
transport impacts if no mitigation was forthcoming, he ultimately concluded that there would be no such residual
impact concluding that there was a likelihood of adequate mitigation being provide in one form or another, having
regard to the highway proposals already in train. See CD4.14 193-194
495 CD4.8 See SoS paragraph 14 and IR221-238. Note the reference to changes in driver behaviour in IR231 refer to
the potential for re-routing as a result of the congestion; and are not separate highway safety concerns being raised
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peninsula, for example, must be take into account as a countervailing factor) is
a lawyer’s point.
7.131 The suggestion was first made by Mr Lopez in cross-examination of Mr Rand,
without having been foreshadowed in any of Mr Tucker’s three proofs. Mr
Tucker, presumably out of deference to Mr Lopez but apparently without any
critical analysis, picked up the baton and ran with it in his oral evidence.
7.132 The ‘road network’ referred to in Framework paragraph 109 is not defined.
Again, it is left to the decision maker to determine, in the context of the case,
what the relevant road network constitutes. There is nothing in policy to
require decision makers to assess severity against the entirety of the road
network in the administrative area. Indeed, adopting such a rigid approach
would be perverse, because doing so has the potential to be both over-
inclusive, and underinclusive at the same time.
7.133 It is likely to be over-inclusive because such an approach would prevent the
severity test from being triggered in respect of virtually all proposed
developments. Indeed, in response to the inspector’s insightful questions, Mr
Tucker was forced to postulate that proposals of the size of a new settlement,
or the cumulative effect of proposals for housing growth in a Local Plan
context, as being the only examples where the severity threshold would be
triggered when assessed against the Medway highway network as a whole.
This wholly unrealistic situation gives lie to the Appellant’s approach. Given
that paragraphs 108 and 109 of the Framework are applicable to development
management decisions,496 it cannot be correct to approach the test of severity
in such a way which restricts its application only to new settlements or to the
Local Plan process.
7.134 At the same time, such an approach also has the potential to be under-
inclusive, because if one was artificially restricted to the highway network of
the Medway, there is the potential that significant – and potentially severe –
effects on the highway network of neighbouring authorities would be ignored.
7.135 Moreover, the Appellant’s approach finds no support in the appeal decisions
before the Inquiry, where the issue of severity has been considered in relation
to impacts at single junctions497 or corridors,498 without any suggestion that
the test had been applied relative to the entirety of the authority’s network.
7.136 Finally, Mr Tucker invited the Inspector, when applying the severity test, to
‘balance’ any harm caused in respect of impacts on the highway network
(paragraph 108(c)), against the fact that a safe and suitable access had been
provided (paragraph 108(b)) and that appropriate opportunities had been
taken up to promote sustainable transport modes (paragraph 108(a)). Again,
adopting such an approach would be erroneous. Framework paragraph 108
establishes three objectives, each of which is required to be met, the third of
which requires decision makers to consider whether any significant impacts
from the development on the transport network in terms of capacity and
496 Framework paragraph 108 (‘specific applications for development’); paragraph 109 (‘Development should only
be…refused’)
497 E.g. Land at Pinn Court Farm (CD4.14) focused primarily on the impact on ne junction only
498 E.g Hartnell’s Farm (Mr Rand Appendix B) focused on the A3259 corridor, and specifically two junctions on it. In
Leckhampton (CD4.8) the focus was on the A46 Shurdington Road
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congestion have been mitigated to an acceptable degree. If, notwithstanding
any mitigation, the residual cumulative effect in terms of capacity and
congestion remain severe, the objective is not satisfied as the significant
impacts would not have been mitigated to an acceptable degree. It is no
answer to point to the fact there is no objection to the proposal in respect of
the first two objectives. This does not render the residual cumulative effects
on the road network any less severe.
Policy T1 of the Local Plan
7.137 Policy T1 provides, as relevant:
‘In assessing the highways impact of development, proposals will be
permitted provided that:
(i) The highway network has adequate capacity to cater for the traffic which
will be generated by the development, taking into account alternative modes
to the private car.’
7.138 The Council disagrees with the Appellant’s belated contention that this
establishes a lower standard than the severity test in the Framework.499 It
does so because the ‘adequacy capacity” test in Policy T1 begs the question as
to what is adequate. The policy leaves this to the judgment of decision-
makers. Decision-makers applying national policy will conclude there is
adequate capacity unless residual cumulative effects on the road network
would be severe. Thus, the flexibility provided by policy T1 is capable of
accommodating, and being applied consistently with, Framework paragraph
109.
Credibility, accuracy and appropriateness of the transport modelling
Overview
7.139 There are two models before the Inquiry which seek to assess the residual
cumulative impacts of the proposal on the highway network. The first model –
the Medway Aimsum Model (MAM) is a sophisticated model which operates at
both macroscopic and microscopic levels simultaneously. It has been
designed, inter alia, with the specific purpose of assessing ‘the impacts of
specific development sites.’500 It validates extremely well across multiple
measurements against a very broad observed data set. Both its base model,
and the future reference cases (which assess the future ‘without development’
scenarios in 2028 and 2037) have been approved by Highways England.501
7.140 The functionality of microsimulation, in particular the ability to assess complex
traffic interactions between junctions, as well as links and junctions (‘blocking
back’); to take into account any issues caused on links themselves (eg from
pedestrian crossings, bottlenecks etc); and to replicate ‘real-life’ vehicle
behaviour (such as lane changing behaviour), means that it more accurately
reflects likely network performance than traditional isolated junction modelling.
499 It was originally agreed between the parties that Policy T1 was consistent with national policy and up to date. This
was recorded in the Policy Position Statement agreed at the request of the inspector. It was not resiled from by Mr
Parr when giving planning evidence. It was only resiled from on the penultimate day of the Inquiry, after Mr Williams
had pointed out that the line of questioning advanced by Mr Lopez was inconsistent with the agreed position.
500 CD12.4, paragraph 2.1
501 Mr Jarvis XIC. See also Mr Jarvis PoE, Appendix D (in relation to the base model)
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Furthermore, it provides outputs, such as corridor journey time analysis, which
both allows the model to be validated across sub-networks and particular
routes, but also enables decision-makers to assess the overall impact of a
scheme on the highway network. The use of microsimulation modelling is
particularly apposite in the current context: a proposal for a strategic
development, which on any account would generate a significant number of
additional vehicular traffic in an urban environment where the local highway
network, including key arterial routes, is already heavily congested.
7.141 The second model – isolated junction modelling – is relied upon by the
Appellant. Whilst the modelling products (LinSig and Arcady) are well known,
and are regularly used in transport modelling, there are significant
shortcomings which fatally undermine both their credibility and accuracy in the
instant case. Most crucially, the only output against which the Appellant has
sought to validate their modelling – queue length – demonstrates that the
modelling performs extremely poorly when compared to observed conditions.
The validation results should have set alarm bells ringing for the Appellant’s
highways team, and led them to reassess their modelling. It is of some
concern that, instead of doing so, Mr Tucker sought to downplay – and frankly
misrepresent – the validation results in his evidence. The validation results
alone undermine the credibility of the isolated junction modelling results.
7.142 However, even putting concerns in relation to validation aside, the simplistic
nature of isolated junction modelling means that it could never fully capture
the traffic impacts of this scheme. It is unable to take account of the complex
interactions between junctions (and other causes of delays on links) which
regularly occurs in a congested urban environment. Nor can it account for the
diversionary impact of the development traffic. And it pays no regard
whatsoever to delays caused by issues on the links between junctions.
7.143 It follows that isolated junction allows only for a partial assessment of the
impact of a development proposal on the local highway network. Thus, even if
its base model validated appropriately – which plainly does not – the MAM
results are to be preferred as providing a more realistic assessment of the
likely effects of the scheme.
7.144 Given the importance of the credibility and accuracy of the modelling both to
this appeal and beyond (the MAM has been also developed for assessment of
the highway network to underpin the Local Plan; and is used regularly by
Medway to assess the high impacts of major proposals), this closing now turns
to consider these issues in greater depth.
Credibility of the MAM
7.145 The credibility of any highway model hinges on how well it validates. That is,
how well the base model outputs compare to observed data. Mr Tucker
accepted that validation was a crucial part of the modelling process. When
asked whether this was true of isolated junction modelling, as well as
microsimulation modelling, he responded that it was absolutely the case.502
During his cross-examination also Mr Jarvis also explained why it was
fundamental that highway models validate well against observed data.503
502 XX(RW) Day 14
503 XX(JL) day 12 (Youtube recording 12:53:30)
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7.146 In both his original and rebuttal proof of evidence, Mr Tucker’s attack on the
credibility of the MAM modelling centred on his contention that it did not
validate appropriately. He referred to, what in his view, were ‘significant and
undermining shortcomings in model validation.’504 It was because of these
alleged shortcomings in model validation that the inspector was invited to
prefer the evidence base of the Appellant.505
7.147 This criticism was entirely misguided, as is demonstrated by Mr Tucker’s very
belated withdrawal of his contention.506 The contention that the model did not
validate appropriately should never have been made. It was based on a
selective reporting of the validation report,507 a wilful refusal (in written
evidence at least) to acknowledge that the DfT criteria for validation had been
met in full; and a failure to enquire of the Council whether any further local
validation had been undertaken.508
7.148 To the contrary, the Inspector and Secretary of State can record that the MAM
base model validates extremely well, and is fit for purpose, having regard to
the following:
• The MAM was calibrated and validated at both macroscopic and
microscopic levels so as to enable inter alia “detailed local impacts of
proposals anywhere with Medway to be considered”.509
• It was validated against a “comprehensive dataset of existing and new
traffic counts and journey time data”510. This included over 150 Automatic
Traffic Counts (ATC), which ran over a 14 day period, and over 110 Manual
Classified Traffic Counts, on single days (MCTC).511 Unsurprisingly, given
the importance of the two arterial routes, both the A2 and A289 in the
vicinity of the site were very well accounted for in these traffic counts.512
• As the MAM validation report concludes513, both the macroscopic and
microscopic modelling passed the DfT criteria for validation as set out in
the TAG Unit 3.1 guidance.514 It met – indeed far exceeded – the requisite
criteria against each of the three required measurements: (i) assigned
flows and counts for each screenline515; (ii) flows and counts on individual
links and turning movements at junctions;516 and (iii) journey times along
routes.517
• Highways England have approved the MAM validation report.518
504 Mr Tucker Rebuttal (CD10.13) paragraph 3.5. This was not an isolated criticism. See also his PoE at 6.4.4, 6.7.4
505 See Mr Tucker Summary Proof (CD10.4) paragraph 2.11p2.12
506 Mr Tucker 2nd Rebuttal (ID36), and his XIC. Subject to two minor lingering concerns he raises, both of which are
baseless.
507 CD12.4 See Mr Tucker Poe, paragraph 6.4.3-6.4.5 and XX(RW) Day 14
508 Having had the validation report for well over a month, Mr Tucker wrote to the Council in early December
following my request that the Appellant set out in writing any further information that was required in relation to the
highways modelling. No request was made to be provided any further information regarding validation of the model,
and specifically no request was made to see any local validation results.
509 CD12.4 MAM Validation Report, p77
510 Ibid.
511 ibid, pp17-18 This does not take account of the Highways England locations
512 ibid Fig 11 and Fig 12 (pp96-97)
513 ibid, p77, Section 10.2
514 Mr Tucker Appendix ST6
515 CD12.4 MAM Validation Report, p64-65
516 ibid, p66-68
517 ibid, p70-76
518 Mr Jarvis Appendix D. See also Medway Guidance Note (Jan 2018), paragraph 7 (Mr Jarvis Appendix A)
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• Further local validation of the microsimulation model has been undertaken
of the three subnetworks (in accordance with the recommendation in the
MAM Validation Report).519 This was recorded in Mr Jarvis’ original proof of
evidence520 with further details given in his rebuttal proof.521 This shows
that, on a number of metrics, the MAM model validates extremely well. In
each subnetwork both the turns and links/sections at junctions, and the
journey time analysis was closely aligned to observed data, well in excess
of the DfT criteria.
• Mr Jarvis – who has considerable experience of macro and microsimulation
modelling, including the validation of such modelling – explained in his oral
evidence that meeting the DfT criteria was very difficult, and that it was
frequently the case that models in urban areas did not meet all of the
criteria. He emphasised that given the MAM does not simply meet, but
exceeds, all of the criteria at the macro, micro and local levels, this
demonstrates that it is very well validated. This was not an instance of Mr
Jarvis ‘marking his own homework’ – it was Fore Consulting who developed
the base-model.522
• The use of the MAM is not novel: it has been used to assess the traffic
impacts of other sizeable schemes in the Medway area,523 and it is
currently being used to test the cumulative impact of proposed allocations
in the emerging Local Plan. Outside of Medway, microsimulation modelling
(including Aimsum models) is regularly used by local highway authorities.
Indeed, Mr Tucker has previously instructed Fore Consulting to produce an
assessment of an individual scheme based on SAMM, Sheffield City
Council’s version of MAM.
7.149 The Council therefore invites the Inspector and Secretary of State to find that
the MAM validates extremely well when compared to a broad range of
observed data across a range of metrics. This is one of the key reasons why
the MAM assessment should be found to be credible and should be preferred
over the isolated junction modelling.
7.150 Whilst Mr Tucker largely withdrew his criticisms of the validation of the MAM,
he did have some lingering, minor concerns. On analysis, these concerns are
baseless, and his continued advancement of them simply serves to underscore
Mr Tucker’s steadfast refusal to believe that the MAM outputs could be
accurate:
1) First, the residual concern Mr Tucker raises in relation to the validation
of journey times on Route 6A in the AM Peak has been proven to be
entirely misguided.524 Mr Jarvis explained (and Mr Tucker did not
dispute) that the divergence in the modelled and observed journey
times on this route occurred on the eastbound approach to the Four
Elms roundabout on the Hoo Peninsula, far removed from the
subnetworks with which we are concerned. Moreover, as has been
noted above, both subnetworks 2 and 3 (which represent that part of
519 CD12.4 MAM Validation Report, p78
520 Mr Jarvis PoE, paragraph 4.6 and Table 2
521Mr Jarvis Rebuttal (CD10.16) paragraphs 2.6-2.13, Tables 1-5
522 XIC(RW) Day 11 (Youtube recording 1:37:00)
523 See Mr Jarvis PoE, paragraph 4.3 and 4.5
524 Mr Tucker’s Second rebuttal (ID36) paragraph 2.5 and 1st Rebuttal (CD10.13) Appendix REB1
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Route 6A in the vicinity of the site) validate well – and in accordance
with the DfT criteria – both in respect of journey times and turn/links at
junctions. Accordingly, Mr Tucker’s concern about the Route 6A journey
times is of no relevance to the credibility of the MAM assessment in this
case.
2) Second, the contention that the validation routes in subnetwork 3 are
shorter in length than recommended in the DfT guidance is
misconceived. That ignores the context. The 3km guidance is directed
to the validation routes when validating models as a whole.525 This was
the exercise undertaken in the Model Validation Report. The guidance
goes on (in paragraph 4.3.4) to explain that although “it is standard
practice to use journey validation at the route level….increasingly there
is a need to take a more detailed approach and check journey time
validation at the link level or for segments of the route as well”
(emphasis added). This is exactly what Mr Jarvis has done when
undertaking the local validation – a check of journey time validation for
segments of the route. There is no suggestion that these sections are
required to be 3km in length. Even if this was a valid criticism (which it
is not) , it is highly pertinent to note that subnetwork 3 validates well
against the alternative metric (turn and link counts at junctions). Of
course, Mr Tucker confirmed that this criticism does not apply to
subnetworks 2 or 7.
3) Third, Mr Tucker sought to argue that when assessing capacity at
junctions microsimulation modelling outputs should be checked against
outputs from isolated junction modelling.526 Again this is to misread the
applicable guidance. The DfT guidance cited by Mr Tucker527 is applicable
to calibration of the microsimulation model (i.e. adjusting model
parameters to accurately reflect the network), rather than validation
(comparing model outputs with observed data). As the section in the
Model Validation Report on calibration makes clear, the guidance to
which Mr Tucker refers has been followed when the MAM was
calibrated.528 In terms of validation, as the DfT TAG Unit 3.1 guidance
confirms, it is the observed data against which the model outputs should
be compared: which is exactly what has been done. Contrary to Mr
Tucker’s contention there is no suggestion in the DfT guidance that at
the validation stage, MAM outputs should be compared against
estimated outputs of isolated junction modelling. That is common
sense, because where one has observed data, as is the case here, it is
plainly preferable to validate the outputs of that model against that
observed data, as opposed to the estimated outputs of another model.
525 CD12.8 paragraphs 4.3.2 and 4.3.3
526 XIC Day 13 (Youtube recording 7:21:30)
527 Tucker Rebuttal (CD10.13) paragraph 3.23
528 CD12.4 MAM Validation Report, p50, second bullet which explains that ‘FORE_MACRO_JDF_3_Roundabout: This
function is used to calculate the delay incurred on the approach to a roundabout. Capacity is calculated as a function
of the circulating flow based on the capacity relationship used in ARCADY. The geometric parameters (entry width,
approach road half-width, flare length, turning radius and inscribed circular diameter) are all calculated from the
coded network geometry using a Python script. The resulting RFC is then used to calculate the delay.’
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7.151 Having been forced, at a late stage, to abandon his central attack on the
credibility of the MAM, in his 2nd rebuttal proof and in his oral evidence, Mr
Tucker turned his attention to the future scenarios in the MAM.
7.152 The ‘logic’ of Mr Tucker’s position became clear in cross-examination. In his
view, the outputs of the isolated junction modelling are infallible. That being
the case, once the MAM base model was demonstrated to validated
adequately, on his approach the only possible reason for the disparity between
the outputs of the isolated junction modelling and the MAM, could be down to
an (still unidentified) error in the development of the future scenarios. Of
course, this logic only holds true if one starts from the position that the
isolated junction modelling is infallible – which plainly it is not. Mr Tucker’s
belated criticism of the credibility of the future scenarios is as baseless as his
original and primary attack on the validation of the MAM.
7.153 It is of particular significance in this regard, that Mr Tucker does not challenge
the credibility or accuracy of the 2028 and 2037 reference cases (both of which
are future scenarios).529 He was right to accept as much. The reference cases,
developed by Sweco, were the subject of a detailed forecasting report
undertaken by Sweco and Fore Consulting.530 And as Mr Jarvis explained, the
MAM future year reference case models have been signed off by Highways
England and their consultants.
7.154 The fact that no one is doubting the accuracy of the reference case should give
the Inspector and Secretary of State significant confidence about the credibility
and accuracy of all future year scenarios, including the “with development”
scenarios. Both the reference case, and the “with development” scenarios
were developed by Sweco using the same paragraphs and assumptions.
7.155 Indeed, in terms of modelling approach, the future year reference case and
future year development scenarios are closely aligned. As Mr Tucker accepted
in cross-examination,531 the only differences between the reference case and
the ‘with development scenarios’ are: (a) additional development trips (which
can also have a diversionary impact on existing traffic) and (b) off-site
mitigation proposed in conjunction with the appeal scheme. In respect of the
former, any difference between the parties has been accounted for by the
Council modelling the Appellant’s preferred trip generation. In respect of the
latter, there is no suggestion that Sweco have misunderstood or inaccurately
modelled the Appellant’s proposed mitigation. This therefore begs the
question, if the future year reference cases are accepted as being credible and
accurate (as the Appellant does), why are the future year ‘with development’
scenarios not similarly credible and accurate? It is a question with which the
Appellant has not even sought to engage.
7.156 Instead, shorn of his criticism concerning validation and having conceded that
the reference case was credible and accurate, Mr Tucker resorted to disparate
criticisms of the future year scenarios – pointing to outputs which did not look
right to him (it being recalled that he has never built, calibrated or validated a
microsimulation model).532 For the reasons set out below, none of these
529 XX Day 13 (Youtube recording 4:46:00). See also Mr Lopez XX of Jarvis Day 11 (Youtube recording 5:35:30)
530 Mr Jarvis PoE, Appendix E
531 XX Day 13 (Youtube recording 4:48:25).
532 As he confirmed in XX (Day 13)
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criticisms have any force. Even if they did, pointing to supposed isolated
anomalies within the future year scenarios would not be sufficient to
undermine the credibility of the MAM outputs given the robustness of the
model as outlined above. Mr Tucker’s residual criticisms of the MAM are a far
cry from the ‘significant and undermining shortcomings’ which he was
originally alleging.
7.157 It is in that context that the residual and disparate criticisms concerning the
future year scenarios fall to be addressed:
1) First, in Tables 4 to 6 of his original proof, Mr Tucker pointed to the
apparent disparity between the relatively small change in flows on certain
routes and the change in the recorded level of service on those corridors as
demonstrating that the ‘findings of the model are clearly erroneous.’533 This
criticism is repeated in his second rebuttal proof.534 Mr Jarvis explained
during his examination in chief why this analysis was misconceived535 (a
subject on which he was not cross-examined). In short this is because:
i) Mr Tucker had taken flows in the tables from the macro model. These
are the demand flows - the amount of traffic that wishes to use the
route. And he has sought to compare them with journey times taken
from the microsimulation model. These are based on actual flows -
the amount of traffic that can use the route. Where a route is
congested the actual flow (which is affected by queuing, blocking back
and flow metering) would be lower than the demand flow (which is
unaffected by such phenomenon). Thus, Mr Tucker’s Tables 4 to 6
impermissibly compares ‘apples and pears’ and is, therefore, of no
value.
ii) The flows are taken from one single location on a route; whereas the
journey time is based on the entire corridor. The difference between
the level of flows at one point on the corridor tells us little, if anything,
about the difference in flows across the entirety of the corridor.
iii) In any event (without explaining as much) the tables do not present
like with like: the level of service/journey times are taken from the
December 2019 report (with a 2035 reference case)536 and flow
information from the October 2020 report (with a 2037 reference
case).537
2) Secondly, Mr Tucker pointed to the ‘select link analysis’ which, he said,
showed an immaterial change in flows on the network, particularly on the
A2, once the development is added.538 The Flow Comparison
information,539 which provide the macroscopic/demand flows, gives the lie
to this contention. These show that, although there are some corridors
533 Mr Tucker PoE, paragraph 6.6.10
534 ID36 paragraph 3.12
535 XX Day 11 (Youtube video 3:58:50)
536 CD12.10
537 CD 12.1
538 ID36 paragraphs 1.6, 3.8 and 3.12
539 ID43
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which experience a reduction in flows540, there are sizeable increases in
flow in the AM Peak on: (i) A2 Eastbound west of Bowaters roundabout
(+100 vehicles (+7%)); A2 Eastbound east of Bowaters roundabout (+366
vehicles (+44%)); and Lower Rainham Road westbound (+450 vehicles
(+77%)). In the PM peak there is a sizeable increase on the A2 Eastbound
east of Bowaters (+318 vehicles (+29%), as well as material increases on
the A2 Eastbound west of Bowaters (+79 vehicles (+4.5%); and A2
Westbound west of Bowaters (+29 vehicles (+2%)). These changes in
flow are a result of the additional development traffic, as well as the
diversionary impact caused by the development traffic and the mitigation
proposed. So the suggestion that there is an immaterial change in flows
on an important part of the network, is simply wrong.
3) Thirdly, and following receipt of the Flow Comparison information, in cross-
examination Mr Tucker sought to realign his criticism, querying why the
microsimulation modelling showed a substantial increase in queueing on
the A2 west of Bowaters, when the flow increases on that stretch were (in
his view) immaterial. The answer is obvious when the situation is
considered in context. The microsimulation videos show that the
eastbound A2 west of Bowaters in the 2028 reference case is already
congested in the AM Peak. It is wholly unsurprising that once the
development traffic is added the congestion is worsened, taking account:
(a) the additional demand of 100 vehicles on this particular corridor (which
is plainly not immaterial); (b) the additional demand of 366 vehicles
immediately to the east of Bowaters (which is undeniably substantial); and
(c) importantly, the blocking back which occurs through the roundabout,
caused by a combination of the pedestrian crossing to the east of
Bowaters, and the bottleneck where the two eastbound lanes merge into a
single lane (this blocking back can clearly be observed on the
microsimulation video, and does not occur in the reference case). The
same is true of the PM peak, albeit to a lesser extent. A real advantage of
the microsimulation videos is that it can account for those issues on the
links which cause a reduced capacity at junctions and cause queuing which
is simply not captured in the isolated junction modelling.
4) Fourthly, in respect of subnetwork 3, Mr Tucker points to the alleged
disparity between the observed data for Meresborough Road in 2016/2018
and the flows predicted in the 2028 reference case for this link and
‘assumes the change to be in error.’ 541 This criticism is surprising given
that Mr Tucker has accepted the credibility of the reference case. The
same point can be made in relation to the Moor Park Close cul-de-sac
issue. These issues are raised in relation to the reference case, which case
has been accepted by Highways England and the Appellant to be credible
and accurate. In any event, Mr Jarvis explained why there was no such
error:542
540 As ID42 explains, this is because of diversionary impacts, as well as reduction in capacity for certain movements
as a result of the proposed mitigation causing rerouting.
541 ID36 paragraph 3.48-3.49. His proof refers to Moor Park Close, but as there is no observed data for this road in
either the DTA or MAM validation report
542 XIC (RW) Day 11 (Youtube recording 4.26.00)
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a) The MAM validation report does not show Meresborough Road having
a flow of 8 vehicles per hour (it being noted that Mr Tucker did not
provide a reference to the relevant data in his proof or oral evidence).
Further analysis shows that Mr Tucker appears to have confused
Meresborough Road with Meresborough Lane – a rural lane,
approximately 1.5km away which does have a flow of approximately 8
vehicles an hour.543 In contrast, in 2016 the observed flows on
Meresborough Road ranged between 20 and 260 vehicles per hour –
depending on where the count was taken.544 Therefore Mr Tucker’s
premise is incorrect.
b) Even if the observed data were correct, as Mr Jarvis explained the
disparity is not a cause for concern because there is no reason to
suppose that flows observed in 2016 would be comparable with
predicted flows in the 2028 reference case (having regard to the
additional traffic on the network at that stage).545 It is a
fundamentally different exercise to validating the 2016 base model,
where one would expect the modelled flows to be comparable to
those which are observed. Whilst it is a valid exercise to point
towards any disparity in flows between a base model and observed
data, it is not a valid exercise to point to disparities in flows between
future year scenarios and observed flows – that would be comparing
apples with pears.
7.158 Standing back from the detail of the criticism, it can be concluded that the
MAM is a credible model. It validates extremely well. Its future year reference
cases are rightly not challenged and there is nothing of substance in the
disparate, unsubstantiated criticisms of the future year ‘with development’
scenarios.
Credibility of Appellant’s modelling
7.159 In contrast, the credibility of the Appellant’s modelling is fatally undermined by
the failure of its base model to validate adequately. As a starting point, the
process of validation was plainly inferior to that of the MAM:
• In contrast to the multiple measurements against which the MAM base
model was validated, the outputs of the Appellant’s base model has been
compared to one observed measurement only: queue lengths at junctions.
• Whereas the MAM validation drew upon a very broad data-set (both ATC
and MCTC), the Appellant has relied on queue surveys taken on one-day
only.
• In contrast to the MAM - which easily passes the criteria published by the
DfT specifically for the validation of such model - the Appellant’s modelling
has not been tested against any published criteria.
543 See CD12.4 MAM Validation Report Appendix D ‘Observed’ data, p151 PDF AM peak 28051 Meresborough Lane –
7.5; p198 pdf, PM Peak 28051 - Meresborough Lane – 10
544 ibid, Appendix D ‘Observed’ data. Word search ‘Meresborough Road”. It needs to be emphasised that the flows
reported by Mr Tucker are derived from one day counts whereas the flows reported in the MAM validation report
(CD12.4) come from automatic traffic counts over a two-week period.
545 Further analysis shows that in the reference case 2028 AM flow plots in Appendix C of Addendum 3 [ID34a], there
are 155 vehicles on Meresborough Road northbound (south of Moor Park Close,). This flow results in part from traffic
using a link to Meresborough Road from the services on the M2 between J4 and J5
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7.160 Thus, even if the Appellant’s modelling validated adequately against this single
metric, it would be less credible than the MAM. It does not validate
adequately. Far from it.
7.161 Even on Mr Tucker’s reported analysis,546 there are significant disparities
between the modelled and observed queues. This is particularly true of the
Lower Rainham Road/Yokosuka Way roundabout and Will Adams roundabout,
both in the AM and PM peaks. For some of the arms on these roundabouts the
model queues are out by factors of 7, with the model predicting a queue of
less than 2 vehicles (approximately 12m) on an arm, and observed queues
apparently being 13 vehicles (approximately 78m).
7.162 On the basis of this data Mr Tucker’s original conclusion was that modelled
queues at some of the junctions were not adequately comparable with
observed queues on the ground.547 His attempt to walk back from this
conclusion in cross-examination was unconvincing and does nothing for his
own credibility (a point to which we will return).
7.163 Furthermore, when the dataset underpinning the observed queue is
interrogated, it can be seen that the observed queues reported in Tables 1 and
2 significantly underreport the actual queues on the ground. This is for two
reasons:
1) First, as the survey data explains, the enumerators stopped counting the
queue once it was either out of sight or blocking back to the next junction.
They would signify this with a + sign next to the relevant queue. This
occurred at a number of junctions for a large period of the AM and PM peak
hours, including the Lower Rainham Road/Yokosuka Way roundabout and
Will Adams roundabout .548 This was not reflected in the average queue
lengths reported in Tables 1 and 2, which had assumed for the purposes of
the average that the queue length was as reported.549 This meant that the
average observed queue lengths reported in Tables 1 and 2 are artificially
restrictive, and not representative of the true position.
2) Secondly, the modelled queues in Tables 1 and 2 were expressed on the
basis of the average number of vehicles ‘per arm’. In contrast, as became
apparent from cross-examination, the observed queues reported in Tables
1 and 2 were reporting the average number of vehicles ‘per lane’. Where
there are multiple lanes of queues (as is the case, for example, in the east
and west arms of Will Adams Way), both of which had queuing traffic, this
had the reporting only half of the average observed queue. By way of
illustration, Table 1 reports a modelled queue of 1.7 vehicles on the A2
East arm of the Will Adams roundabout in the AM Peak. The reported
average observed queue is 13 vehicles. In reality, for the vast majority of
the AM Peak hour there are two lanes of queuing traffic where the queue
for each lane is recorded as 15+. It follows that the total number of
vehicles queuing at this arm of the roundabout for the majority of the AM
period is at least 30 (and quite possibly many more – we simply cannot
546 Mr Tucker Rebuttal, pp12-13, Tables 1and2
547 This is the necessary consequence of his statement at paragraph 7.9 of his rebuttal.
548 See, for example, CD5.25 p309 - Lower Rainham Road/Yokosuka Way roundabout AM Peak; CD5.25 p384 - Will
Adams roundabout AM Peak; CD5.25 p385 - Will Adams roundabout PM Peak
549 See XX(RW) of Mr Tucker Day 14 (Youtube recording 3:20:00 onwards)
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tell). Thus, the observed queue at this arm is at least 17 times greater
than the modelled queue, and quite possibly much greater.
7.164 It follows that a comparison between the modelled queues and observed
queues – the only metric by which the isolated junction modelling has been
validated – fatally undermines the credibility of the outputs of the Appellant’s
modelling. For this reason alone, the outputs of the Appellant’s modelling
must be disregarded.550
Accuracy and appropriateness of the competing models
7.165 Even if the decision-maker were to put aside the significant issues in relation
to validation of the Appellant’s modelling, the MAM is a far more appropriate
model to use in the current context. The functionality it possesses in
comparison to isolated junction modelling – neatly captured in Mr Jarvis’
original proof of evidence551 - means that, quite apart from issues of validity of
the base model, it would produce a more accurate forecast of the impacts on
the road network.
7.166 The benefits of the MAM over isolated junction modelling were rehearsed at
length during the inquiry, and are not repeated in full here. However, the key
differentials are as follows.
7.167 Holistic assessment of the network – the MAM enables an assessment of
the complex traffic interactions of a large and congested urban area such as
Medway. Most notably it takes account of link capacity issues (caused, for
example, by pedestrian crossings, bottlenecking, side roads etc); whereas, by
their very nature isolated, junction assessments are incapable of accounting
for such matters.
7.168 In an attempt to minimise this important functional difference, Mr Tucker has
sought to argue that the MAM shows that there are no capacity issues on the
links/corridors, and that the increase in journey time (and overall deterioration
in network statistics) is solely due to issues at junctions.
7.169 However, the MAM does not show as much. As Mr Jarvis confirmed in XIC and
XX552, it is clear from the microsimulation modelling that the deterioration in
journey times and network statistics is caused by a combination of the
junctions being overcapacity and link capacity issues. This is particularly true
on the A2, where there are a number of potential causes of delays on the links
including signalised pedestrian crossings (three sets between Will Adams and
Bowaters roundabouts, and four sets east of Bowaters roundabout) a reduction
in the number of lanes, causing bottlenecking (particularly to the east of
Bowaters), as well as bus stops and side roads. The effect of these link
capacity issues – particular the pedestrian crossings, and bottlenecking - can
be observed from watching the microsimulation videos.
550 Having been shown the problems with his own validation Mr Tucker’s response was that validation of his baseline
models doesn’t matter (contrary to his earlier answer), because of the proposal to physically changing the layout of
the junction as part of mitigation works. On that perverse logic the accuracy of future year models including
mitigation can simply never be known. Moreover, it begs the question as to how you can design a mitigation scheme
to address issues with the current layout if the accuracy of the existing results are unknown.
551 See Mr Jarvis PoE, paragraph 3.3, Table 1
552 XX(JL)of Mr Jarvis.( Youtube recording 6:40:08)
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7.170 Mr Tucker’s analysis, in contrast, is based solely on the Volume/Capacity
sections (V/C). He is forced to argue that, because none of the links that he
identified are recorded as operating at over 90%, it follows that all links are
operating within capacity.553 Mr Tucker’s analysis is misconceived in a number
of respects:
1) First, as Mr Jarvis explained, the V/C outputs are derived from the
macro model. They therefore do not account for queueing, bottlenecking
etc which is only taken into account at the microsimulation level. Given
that the microsimulation model within MAM does show that there are
link capacity issues, it is perverse for Mr Tucker to try to use the outputs
of the same model – at the macro level – to suggest otherwise.
2) Second, Mr Tucker’s reporting is selective. As the V/C presentation554
compiled by Mr Jarvis demonstrates there are numerous links which are
recorded as operating at over 90% capacity (even without the effects of
queueing, bottlenecking etc).
3) Third, the industry standard at which junctions or links are generally
considered to be operating above practical capacity is 85%. Both Mr
Jarvis and Mr Rand confirmed as much. The evidence shows that there
are a wide range of links operating at or above this level of capacity
even in the macro model.
7.171 Vehicle behaviour - the MAM takes account of individual vehicle behaviour
such as lane changing, individual acceleration/deceleration, diversionary
impacts and traffic routing based on congestion and travel times. The
simplistic isolated vehicle simply cannot account for this behaviour, or the
effects it may have on the network.
7.172 Junction interaction/blocking back – an important functional difference
between the two models is that the MAM captures the complex interactions
that occur between junctions, as well as between links and junctions on a
corridor. In particular, it accounts for ‘blocking back’ – when a queue backs up
through a junction, reducing its capacity. This is a phenomenon which is
particularly evident in urban areas, where the network is already congested
and there are multiple junctions in close proximity.
7.173 Isolated junction models cannot account for such blocking back. This means
that, where blocking back is already occurring, or is likely to occur in the
future, isolated junction capacity would over-estimate the junction’s capacity.
7.174 We know that blocking back already occurs on the network, and would only
increase if this development is permitted. We know it already occurs because
the Appellant’s own traffic surveys indicated that the enumerators stopped
counting vehicles in a queue if that queue extended through the next junction.
We know that it is likely to occur in the future year scenarios because the
microsimulation model illustrates as much.555 Indeed, it was partly based on
553 Mr Tucker 2nd Rebuttal, paragraph 3.10
554 ID44
555 See Mr Jarvis Proof, Figures 3 and 4, as well as the microsimulation video
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this evidence that the Appellant, mid-way through the inquiry, proposed
additional highway mitigation at Bowater roundabout556
7.175 Mr Tucker’s response to the inability of isolated junction modelling to take
account of blocking back is to claim that, because his modelling does not show
any of the junctions to be operating over capacity, none of those junctions
would cause queuing which would block back through another junction.557
Therefore, he says, it is not a phenomenon with which we need to be
concerned. However, Mr Tucker’s logic is flawed on a number of bases:
i) First, it is contingent on the isolated junction modelling being accurate in
the first place. Given the significant disparities between the modelled
and observed queues, this cannot be assumed.
ii) Second, it ignores the impact of queuing from junctions which he has
not modelled.
iii) Thirdly, it ignores the potential for blocking back from elements on the
network other than junctions, such as pedestrian crossings and
bottlenecks. This is of particular relevance for the A2. By way of
example, the microsimulation videos clearly show the blocking back
effect of a pedestrian crossing to the east of Bowaters. The videos show
how this reduces the capacity of Bowaters because traffic (heading west,
either from the A2, or from Twydall Lane) cannot flow through the
junction onto the A2 eastern arm. This is evident in the AM Peak video
from approximately 8:05am onwards. As Mr Tucker confirmed in cross-
examination, although the LinSig model had been extended to
incorporate the pedestrian crossings on the junction itself, it had not
been possible to incorporate into the isolated junction modelling the
effects from this pedestrian crossing.558
7.176 Journey time analysis/overall network statistics – importantly the MAM
provides outputs in terms of predicted journey times along routes and
corridors. As has been seen journey times can (and have) been used to
validate the model. However, they are also an important indicator of the
impact of a particular proposal on the network’s performance as a whole. The
same is true of the overall network statistics. The isolated junction modelling
simply does not allow for this level of analysis to be undertaken.
7.177 It follows from the above that, even if the Appellant’s modelling was credible –
which it is not – it would not accurately capture the likely effects of the
development on what is already a congested network. The failure to account
for link capacity issues, for individual vehicular behaviour and/or for the
complex interactions on the network, means that the isolated junction
modelling simply does not deliver the level of accuracy which the MAM is able
to provide.
556 See A2 Junction Operation Review (ID39) paragraphs 1 and 6. Mr Jarvis Addendum Proof (ID52) Appendix A.
This included to address the issues at both the toucan crossing and the bottleneck on the A2 eastbound mitigation to
the east of the roundabout itself
557 XIC (JL) Mr Tucker
558 See XX(RW) of Mr Tucker Day 14 (Youtube recording 5:15:40 onwards). DTA have not modelled the pedestrian
crossings at Edwin Road and Guardian Court
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Credibility of the expert highway witnesses
7.178 The Inspector is invited to find that the evidence given by the expert highway
witnesses called by the Council was credible and reliable. Mr Jarvis is vastly
experienced in macro and microsimulation modelling. He is an expert in the
field, having (amongst many other things) developed macro and micro
transport models of large urban areas, most recently for Liverpool; developed
his own micro-simulation models, including for Highway England schemes; and
audited Aimsum models, including of Middlesbrough and audited the Brent
Cross development modelling. His written and oral evidence was
comprehensive, balanced and transparent.
7.179 Mr Rand is an experienced transport planner, who has previously advised and
given evidence on behalf of private and public sector clients on a range of
transport related matters. His written and oral evidence was persuasive, with
the judgments he made, and the basis on which he made them, clearly set
out.
7.180 It is with some regret that the same cannot be said of the Appellant’s transport
witness, Mr Tucker. Although clearly experienced in the area of transport
planning, he was wedded to the results of the isolated junction modelling and
unwilling to countenance that his modelling may not be accurate even when
faced with the disparity between his modelled results and the observed data.
His mistrust of the MAM modelled appears to stem from his lack of familiarity
with Aimsun modelling: he confirmed that he has never developed, calibrated
or validated an Aimsum model.
7.181 The concern regarding the credibility and reliability of Mr Tucker’s evidence is
cumulative, stemming from a range of issues with his evidence, and the way in
which it was presented.
1) Firstly, and of most concern, is the fact that Mr Tucker was selective in
relation to the evidence that he chose to present in his proofs of evidence.
There were two stark examples, both on important topics:
i) In his original proof of evidence Mr Tucker alighted upon two GEH
statistics extracted from the MAM Model Validation report and, based
on those statistics alone and in isolation, suggested that that “the
model does not accurately enough validate turning movements at
junctions and therefore any output relating to junction capacity
should be treated with extreme caution”.559 He did so having cited the
DfT Tag Unit M3.1 guidance,560 and he went onto imply that the PM
peak results failed the criteria within that guidance.561 This exercise
was selective and wholly misleading. As Mr Tucker accepted in cross-
examination, the MAM base model does meet the DfT criteria in all
respects – something that was expressly confirmed in the MAM
Validation report itself. Mr Tucker’s failure to mention as much, and
to place any residual concerns he had in that context,562 was a
559 Mr Tucker PoE, paragraph 6.4.4
560 ibid, paragraph 6.4.3
561 ibid, paragraph 6.4.5
562 It is notable that this criticism is not maintained. This cannot be explained away by the production of local
validation results, which were entirely irrelevant to this particular criticism.
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significant omission. Had it not been picked up, his proof would have
left the reader with the impression that the MAM model failed to meet
the validation criteria published by DfT, which is demonstrably untrue.
ii) In his rebuttal proof of evidence, Mr Tucker presented what purported
to be average observed queues for the AM and PM peaks across a
number of junctions. Mr Tucker confirmed that, together with a
colleague, he was responsible for producing these statistics (ie the
Tables in his rebuttal). The observe queue lengths are important
evidence, as they are the sole basis on which the Appellant has
sought to validate its modelling. They were produced directly in
response to Mr Rand’s criticism that no validation had been
undertaken of the Appellant’s modelling. However, as has been
detailed above, in reality those averages were artificially restricted by
the fact that the enumerator stopped counting vehicles in a queue at
a given point. And thus, the average observed queue length was
calculated from incomplete data. The result was to give the
misleading impression that the modelled queues were closer in length
to the observed queues than was actually the case. This was not
recorded in Mr Tucker’s evidence. The averages were presented in
his proof without any caveat or relevant clarification. This significant
omission was compounded by Mr Tucker’s explanation that he had
specifically considered this issue when compiling his evidence but did
not consider it necessary in his proof to tell the reader that the data
from which he had drawn the averages was incomplete.563
2) Secondly, in his proof served only three weeks before the opening of the
Inquiry, Mr Tucker’s evidence to the Inquiry was that the original off-site
mitigation proposed was “demonstrably sufficient”.564 On any account this
judgment was demonstrably wrong. Only one week into the Inquiry, the
Appellant proposed a scheme of additional off-site highway works for the
first time (see the Council’s costs application for details). Nor was this a
result of evidence arising at the inquiry: as Mr Rand had pointed out in his
evidence (and is evident from the A2 Junction Review note) the Appellant’s
own modelling at the time demonstrated that a number of the junctions
which became the subject of further mitigation would be operating over-
capacity should the development go ahead.
3) Thirdly, Mr Tucker was willing to run with Mr Lopez’s point concerning the
appropriate network against which to test the impacts of the development,
despite this never being foreshadowed in any of his written evidence and
even when (in answer to the Inspector’s question) this forced him to
postulate the absurd position that, on this approach, only developments
the size of new settlements could meet the severity threshold.
7.182 For these reasons, to the extent that the Inspector or Secretary of State’s
decision is to be influenced by the credibility and accuracy of the evidence
given by the highways witnesses, it is submitted that the Council’s evidence is
plainly to be preferred.
563 XX(RW) Day 14 of Mr Tucker (Youtube recording 3:23:30)
564 Mr Tucker PoE, paragraph 6.7.5
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Impacts of the development on the local highway network, in terms of capacity
and congestion
7.183 The impacts of the development on the local highway network are clearly and
accurately set out in the Sweco assessment reports, as well as the proofs of
evidence of Mr Jarvis and Mr Rand. In particular, the Inspector and Secretary
of State are invited to have regard to, and place significant weight on, the
following (as representing the most up-to-date evidence):
1) Lower Rainham Report Impact Appraisal Addendum 3 (Sweco, March
2021)565 with particular regard to scenarios 5A (2028 scenario, MAM trip
generation) and 6A (2028 scenario, Appellant trip generation);
2) Mr Rand’s Addendum Proof of Evidence (April 2021) – most notably,
section 2;
3) Mr Jarvis’ Addendum Proof of Evidence (April 2021) - in particular
sections 2 to 5; and, in particular,
4) The microsimulation videos – which compare the 2028 reference case
with Scenario 6A.
7.184 The detail of that evidence is not repeated is these closings, which seek only to
summarise the key outputs in respect of each subnetwork (and referencing the
Scenario 6A statistics, given these are the most favourable to the Appellant).
Subnetwork 2
7.185 By any metric, the residual cumulative impacts on subnetwork 2 would be
severe. In terms of junction impacts, even in the 2028 reference case, two of
the junctions in this network are already over capacity in the AM peak – Lower
Rainham Road/Yokosuka Way roundabout and Eastcourt Lane/South Avenue.
Nor is this a question of the delays being just above the threshold for an LoS
F-rating (‘forced or breakdown flow, demand> capacity’): both exceed the
relevant threshold by a considerable margin.
7.186 The development would considerably worsen the situation. In the AM peak,
three further junctions would operate over capacity, including the key
Bowaters and Will Adams roundabouts. Once again, the average delays at
these junctions are significantly over the threshold for an LoS rating of F.
7.187 In the PM peak, four junctions would operate over capacity, with junctions on
the A289 near the Medway Tunnel now operating over capacity, in addition to
two junctions on the A2, including Bowaters Roundabout.
7.188 In terms of journey times, the increases from the 2028 Reference Case (which
of themselves evidence some delays) are substantial. The A2 is particularly
badly affected, with westbound journey times increasing by over 5 minutes
(80%) in the AM and PM peaks, and eastbound journeys increasing by over 10
minutes (89%) in the AM peak, over 8 minutes (119%) in the PM peak. This
gives rise to journey times for a 3.3km stretch of the A2566 of around 12
565 ID34a
566 Mr Jarvis Rebuttal (CD10.16), Table 2.
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minutes westbound in both peaks, over 21 minutes heading east in the AM
peak and over 15 minutes heading east in the PM Peak.
7.189 Journey times on the A289 are also significantly worsened, experiencing an
increase in journey times of between 27%-100% as compared to the 2028
reference case.
7.190 The impact of the development is also felt on the overall network statistics
with travel times increasing in the AM peak by 23% relative to the reference
case (from 3.2 minutes to almost 4 minutes in terms of seconds per km);
delays increasing by 38% (from almost 2 minutes to 2.75 minutes in terms of
seconds per km); and mean queues by 73% (from 489 vehicles to 846).
Similar increases are experience in the PM peak.
7.191 Even if there were no impacts outside of this subnetwork, the residual
cumulative impacts on subnetwork 2 – which incorporates two of the important
arterial routes in the local highway network – would be severe.567
Subnetwork 3
7.192 The impacts on subnetwork 3 are more focused, but no less severe. The
additional mitigation, in the form of signal optimisation to give greater green
time to the A2, has served to improve the journey times on this part of the A2.
However, this comes at a cost of transferring the delay to the side roads,
including Meresborough Road and Moor Park Close.568
7.193 In terms of junction impacts, the A2/Otterham Quay Lane/Meresborough Road
junction would operate over capacity in both peaks, with the delays at the
junction being particularly extensive in the PM peak.
7.194 The overall network statistics underscore that the supposed mitigation has not
removed the problem, just shifted it to another part of the subnetwork. Travel
times increase by 45% (from 3.9 minutes/km to 5.65 minutes/km), delays by
72% (from 2.45 minutes/km to 4.2 minutes/km) and mean queues by 124%
(58 vehicles to 130 vehicles) in the AM peak. Once again similar increases are
experienced in the PM peak.
Subnetwork 7
7.195 The issue with subnetwork 7 has always been the queues and delays created
by westbound development traffic in the AM peak on Lower Rainham Road. It
is not hard to see why. The development proposed would cause flows heading
westbound on Lower Rainham Road to virtually double in the AM peak, from
582 vehicles/hour in the 2028 Reference Case, to 1,032 vehicles/hour in
Scenario 6A. Using the Council’s trip generation, the increase would be
markedly greater.
7.196 As the Sweco Addendum 3 document569 and the microsimulation videos
illustrate, when the original mitigation proposed by the Appellant is modelled,
there would be extensive queuing at this junction for virtually the entirety of
567 It is noticeable that, even on the Appellant’s modelling, for all its inaccuracies, a number of junctions within
subnetwork 2 operate with an RFC in excess of 0.85, and therefore over practical capacity.
568 See Addendum 3 (ID34), Figures 15 and 16
569 ID 34 and ID34a
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the peak hour. Travel times along this route (4km in length570) would be in
the order of 16.25 minutes, a 127% increase on the 2028 Reference Case. On
any account this would constitute a severe residual cumulative impact.
7.197 The belated additional proposed mitigation at the Lower Rainham
Road/Yokosuka Way roundabout (allowing two lanes to turn right onto the
A289) would serve to reduce the queuing on the Lower Rainham Road.
However, it does not negate the severe impact. It merely shifts that impact to
another arm of the roundabout and, in this instance, a different subnetwork.
7.198 As Mr Jarvis’ evidence demonstrates,571 the effect of the additional mitigation
causes there to be a lengthy queue on the northern approach of the
A289/Yokosuka Way (see Figure 12). This is also reflected in the travel times
for the A289 heading northbound. Whereas in the reference case, the journey
from Hoath Way to Church Street (approximately 5km) would take just over
10 minutes, in the with development scenario, including the additional
mitigation, this would increase to 19 minutes and 31 seconds. This is virtually
a doubling of the travel time relative to the reference case.
Conclusions
7.199 The impact of the development on the local highway network in terms of
congestion and capacity would be significant. The proposed mitigation does
little, if anything, to reduce the impact, and in places considerable exacerbates
the situation. Whether measured in terms of junctions capacity, journey times
or overall network statistics it is evident that the residual cumulative impacts
would be severe.
BENEFITS OF THE PROPOSAL
Delivery of housing
Extent of Shortfall
7.200 That there is a significant need for housing in Medway is not in dispute.
However, the extent of the shortfall should not be overstated. The Council can
demonstrate a housing land supply of 3.03 years.572 This is a robust, perhaps
even conservative estimate of supply, noting the following:
i) It is based on figures derived from the Council’s December 2020 AMR,
which is the latest published evidence on delivery;
ii) It applies to a 5-year period of 1 April 2020 – 31 March 2025;
iii) All sites included within the supply benefit from the grant of planning
permission (and did so as at the date of the AMR), save for three sites
which have a resolution to grant subject to section 106,573 and save for
the windfall sites which are included and are addressed below;
iv) Because the small sites (delivering 341 units) have fewer than nine
homes, they benefit from the presumption of deliverability.574 Mr Parr
570 Mr Jarvis Rebuttal (CD10.16) Table 6
571 Mr Jarvis Addendum (ID52) Section 4
572 CD11.1 SoCG on General Matters, paragraph 5.1 and Canavan Proof, paragraph 6.13-6.14 (see Table calculating
5YHLS)
573 XIC(RW) Mr Canavan. See also Volume 2 of AMR (CD3.8)
574 Framework, Annex 1, p68
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accepted that he had produced no evidence, let alone the ‘clear
evidence’ required, to rebut that presumption;575
v) On the large sites, 5,332 (90%) of the 5,906 units benefitted from full
planning permission. Again, Mr Parr accepted that these units benefited
from the presumption of deliverability, and that he had not produced
any evidence, let alone the ‘clear evidence’ required, to rebut that
presumption576
vi) Mr Parr did not seek to challenge the inclusion of the windfall allowance
(603 units), which is modest, applies only to years 3-5 and is consistent
with historic windfall delivery rates; and,
vii) The Council had not sought to include in its deliverable supply any sites
which did not benefit from the grant of planning permission (such as
those identified in the SLAA, and/or Regulation 18 Plan) in order to
ensure a robust supply.
7.201 In contrast, the assessment that the Appellant has undertaken577 in support of
its contention that the Council can only demonstrate a 1.78 year supply, is
both outdated and calculated contrary to guidance:
i) As Mr Parr accepted, the supply information used by the Appellant was
taken from the December 2018 AMR and related to the period 1 April
2017 – 31 March 2018. There have been two further monitoring years
since that date (AMR December 2019 (April 2018-March 2019) and AMR
December 2020 (April 2019 – March 2020)). As a consequence, the
Appellant’s evidence will have ignored any grant of permission in those
two years;
ii) This means that the supply information used by the Appellant is two
years out of date. In these two years Medway has granted permission
for a significant amount of housing;578
iii) As Mr Parr accepted, it also has the consequence that the five-year
period which was being assessed by the appellant was the period 1st
April 2018 to 31st March 2023. The Appellant’s asserted 1.87 years
supply does not relate to the relevant five year period;
iv) The supply information was derived from the Council’s own 2018 AMR.
Mr Parr did not undertake an independent assessment of deliverability.
Nor has he done so in respect of the supply in the latest AMR, on which
the Council relies; and,
v) In order to reach a figure of 1.78 years, Mr Parr has factored in past-
under delivery (shortfall) prior to the five-year period in question. This is
contrary to the guidance set out in the PPG, which explains that past-
under is not required to be included in the calculation of 5-year supply
when, as here, the standard method figure is used for the
requirement.579
575 XX(RW) Mr Parr
576 XX(RW) Mr Parr
577 CD5.12
578 See Mr Canavan PoE, paragraphs 6.25-6.26
579 PPG on Housing Supply and Delivery “How can past shortfalls in housing completions against planned
requirements be addressed? Paragraph: 031 Reference ID: 68-031-2019072 which states ‘Where the standard
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7.202 It follows that the Council’s calculation of housing land supply is to be
preferred and should be considered a robust estimate of future supply.
Weight to be given to the delivery of housing in light of the shortfall
7.203 The Council accepts that, in light of the significant shortfall in five-year housing
supply, substantial weight should be given to the delivery of housing (at least
to the extent this site can help meet this shortfall).580 Once again, however,
the Appellant seeks to overstate its case, focusing largely, if not solely, on
historic under-delivery,581 a factor which is in any event captured in the
standard method requirement, by virtue of the affordability ratio uplift.582 In
doing so, the Appellant ignores the significant steps that the Council is taking
to meeting housing needs, both in the short-term and strategically. This factor
is relevant to the weight to be given to housing delivery from this scheme, as
well as the weight to be given to development plan policies.583
7.204 In the short term, this has meant granting a large number of permissions for
sustainable residential development on unallocated sites outside of current
development boundaries.584 This has included granting permissions for sites
within the Gillingham Riverside ALLI – albeit crucially only where the
development in question would neither radically alter the character, nor
undermine the functioning, of the valued landscape.
7.205 Notwithstanding the inevitable lag between grants of permissions and the
provision of actual houses of the ground, the Council’s positive approach to
these applications has garnered real results: the number of dwellings
completed in 2019/20 (1,130) was the highest ever number of residential
completions since Medway became a Unitary Authority in 1998. And the
number of units under construction last year was still higher (1,629).585
7.206 More fundamentally, through its emerging Local Plan the Council is seeking to
meet is strategic housing needs in full. As Mr Canavan explained, each of the
four scenarios promoted at the Regulation 18 Stage sought to deliver in excess
of the local housing need figure for the Local Plan period. They did so without
any reliance of delivery from the Appeal site, which had been assessed by the
Council to be unsuitable in its SLAA.
method for assessing local housing need is used as the starting point in forming the planned requirement for housing,
Step 2 of the standard method factors in past under-delivery as part of the affordability ratio, so there is no
requirement to specifically address under-delivery separately when establishing the minimum annual local housing
need figure.’
580 Given that the appeal is reserved to the Secretary of State, with the inevitable delays that will bring; the
application is at outline stage, with all matters save for access reserved; the extensive pre-commencement
conditions, including an unusually onerous archaeology condition due to the prospect of important archeological
remains being on site; and the fact that the Appellant does not have a house-builder on board, the prospect that the
appeal site will make a meaningful contribution to the five year supply in question (ie 1 April 2020 – 31 March 2025)
is questionable.
581 See XX (JL) of Mr Canavan on the delivery figures set out at his PoE, paragraph 6.20. This XX was also based on
the demonstrably false premise that the existing housing requirement figure (derived from the standard method) was
applicable from 1998 onwards. As ID32 confirms this is simply not the case.
582 As per footnote above
583See Gladman Developments Limited v SSHCLG [2021] EWCA Civ 104 at [27]. See also Mr Canavan PoE,
paragraphs 6.576-6.58
584 See Mr Canavan XIC and PoE, paragraph 6.25 and 6.26
585 Mr Canavan XIC and PoE, paragraphs 6.20 and 6.21
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7.207 This alone exposes as a fallacy the proposition that, despite the considerable
harms it would bring, this proposal is needed if Medway is to meet its housing
needs.
Delivery of Affordable Housing
7.208 The Council also accepts that significant weight should be given to the delivery
of affordable housing given the large degree of affordable housing need in the
area. However, the affordable housing need of the area must be seen in its
context and should not be over-stated.
i) National policy does not require, or even expect, Councils to meet their
affordable housing needs in full. This was true under the original
Framework (Kings Lynn and West Norfolk v Secretary of State for
Communities and Local Government [2015] EWHC 2464 at [32]-[37])
and, remains the case under the current Framework. As Dove J
explained in Kings Lynn “This is no doubt because in practice very often
the calculation of unmet affordable housing need would produce a figure
which the planning authority has little or no prospect of delivering in
practice.” (at 35);
ii) Dove J’s expectation is true of Medway. It is wholly unrealistic to expect
the Council to delivery its assessed affordable housing need in full (744
affordable dwellings per annum);
iii) Medway has set itself, in its Housing Strategy, a target which it
considers achievable, of 204 affordable dwellings per annum. Since that
target was established in 2011/12 it has met 95%586 of that target; and,
iv) In this case the Appellant is offering to secure a policy-compliant level
of affordable housing. It is doing simply what policy requires, and no
more.
Other Benefits
7.209 Save for the net the improvement in biodiversity which (assuming the
suggested condition is considered to be reasonable and lawful) is a significant
consideration which can be given moderate weight, the other benefits claimed
by the Appellant are either of limited weight (eg economic benefits from
construction jobs); simply meets policy expectations and therefore are neutral
(eg provision of community facilities); are unsubstantiated; (eg economic
benefits and jobs from transport infrastructure) or not material at all (eg New
Homes Bonus).587 These are matters set out in Mr Canavan’s proof,588 which
were expanded upon in his oral evidence. They are not repeated here.
586 204 x 9 = 1836 total requirement since 2011/12. The Council has delivered 1,754 affordable homes over that
time. 1,745/1836 x 100 = 95.5%.
587 Although local finance considerations, such as the new homes bonus, are capable of being a material
considerations, it is only so far as the financial considerations are material to the application: s.70(2)(b) of TCPA
1990. As the PPG (Paragraph: 011 Reference ID: 21b-011-20140612) makes clear these can only be material
considerations where it is shown that it would help to make the development acceptable in planning terms. This has
not been done in this instance
588 Mr Canavan PoE, paragraphs 7.10-7.23, and XIC (Mr Canavan) noting that Mr Canavan explained that he had
increased the weight to be biodiversity benefits having seen Mr Goodwin’s and heard evidence (and on the
assumption that the 20% net gain is secured by way of condition).
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OTHER CONSIDERATIONS
Emerging Local Plan
7.210 Whilst the Council does not object to the proposal on grounds of prematurity in
the sense set out in paragraph 49 of the Framework, it does say that the
emerging Local Plan is a material consideration of some importance in this
case.
7.211 It is true that the Local Plan is at a relatively early stage, having only passed
through the Regulation 18 stage. However, the Regulation 19 Plan is due to
be published in the next few months (and likely before the decision in this
matter is promulgated), with submission timetabled for December 2021 and
adoption in December 2022.
7.212 Most significantly, is that Medway has been awarded £170m from central
government, through the Housing Infrastructure Fund (HIF) for infrastructure
improvements to enable delivery of the Local Plan. Significantly, the HIF bid
was predicated on – and the £170m is ringfenced for - projects which would
facilitate strategic growth on the Hoo Peninsula, including the delivery of up to
12,000 homes.589
7.213 The Council’s planning for the expenditure of the HIF funding is well underway,
as is evidenced in the latest consultation on the subject.590 This includes
extensive, detailed plans for the new rail infrastructure (reinstating a
passenger service, and creating a new station on the Hoo Peninsula);591 road
infrastructure (consisting of six phases, involving strategic interventions on the
local highway network);592 and green infrastructure (the SEMS proposals)593
which would unlock the growth.
7.214 As Mr Canavan explained,594 the emerging Local Plan, and the support it has
received from central government in the guise of the HIF funding, are relevant
to this determination in at least four respects:
• First, as alluded to above, it demonstrates that the Council is taking
meaningful steps to meet its needs, including housing needs. It is not an
authority shying away from its responsibilities;
• Second, those steps involve long term planning, and an integrated
approach (eg the delivery of strategic infrastructure, and environmental
enhancements needed to unlock strategic development);
• Third, the Council’s vision has been vindicated, at least to the extent of the
award of the HIF grant; and,
• Fourth, there is a clear vision for how the housing needed in Medway would
be provided (which does not include strategic development in the area of
the appeal site).
589 Mr Canavan PoE, paragraph. 6.35-6.53, together with the oral updates he gave in XIC(RW)
590 CD1.4 Medway “New Routes to Good Growth” (January 2021)
591 ibid pages 31-48
592 ibid pages 11-30
593 ibid pages 49-62
594 PoE, paragraph 6.53 and XIC(RW)
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7.215 In addition, it is self-evident that development of this strategic scale is better
considered through the Local Plan process. It is through the plan-led process
where alternatives can be tested (not least through the SEA/SA assessments);
where strategic level interventions can be secured (most notably to transport
infrastructure); and where a proposal’s consistency (or otherwise) with the
overall strategy for the area can be examined. None of this is possible in the
current context.
7.216 The emerging plan context militates against the grant of permission, quite
apart from issues of prematurity.595
Public-interest in a plan-led approach
7.217 Related to the above, is the general principle that it is in the public interest in
having plan-led decisions. National policy emphasises that the ‘Planning
system should be genuinely plan-led.’596
7.218 The point was made in lucid and forceful terms by Sales LJ in Gladman
Developments Limited v Daventry District Council [2016] EWCA Civ 1146.597
He explained:
‘A plan-led system of planning control promotes the coherent development
of a planning authority’s area, allowing for development to be directed to
the most appropriate places within that area, and enables land-owners,
developers and the general public to have notice of the policies to be applied
by the planning authority to achieve those objectives. It is not in the public
interest that planning control should be the product of an unstructured free-
for-all based on piecemeal consideration of individual applications for
planning permission.’ At [6].
7.219 Sales LJ went on to explain that:
‘significant weight should be given to the general public interest in having
plan-led planning decisions even if particular policies in a development plan
might be old. There may still be a considerable benefit in directing decision-
making according to a coherent set of plan policies, even though they are
old, rather than having no coherent plan led approach at all.’ At [40(iv)]
7.220 Granting permission for this proposal would be antithetical to the plan-led
approach: a strategic-sized development, which is contrary to the existing
development plan on multiple bases, and which does not form any part of the
potential housing scenarios for the emerging local plan. This is a factor which
should weigh against the proposal.
595 The mischief underlying a conventional prematurity objection, is the prejudice that would be caused to an
emerging local plan by a development proposal where the development proposed ‘is so substantial, or its cumulative
effect would be so significant, that to grant permission would undermine the plan-making process by predetermining
decisions about the scale, location or phasing of new development that are central to an emerging plan.’ (Framework
paragraph 49(a)). Thus, in a prematurity case the harm caused is to the emerging local plan itself. In this case the
Council is not saying the emerging plan would be adversely affected, or could not come forward. Rather, it is
relevant that there is an emerging plan, underpinned by the HIF grant, which is likely to address the housing need in
Medway, and will do so without requiring any provision from the Appeal site. Moreover, we say it is that forum which
is better suited for bringing forward such strategic level developments, with the necessary infrastructure
requirements. These are material considerations in their own right.
596 Framework paragraph 15
597 CD 4.10
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PLANNING BALANCE
The Development Plan
7.221 The proposal is fundamentally at odds with the development plan in a number
of respects. As a starting point – and as Mr Parr agreed 598- it is in breach of
the development strategy of the Plan encapsulated within Policy S1, given that
it is not located in the urban area, and constitutes ‘expansion into fresh
land…to the east of Gillingham’ which the policy specifies will be ‘severely
restricted. Its location in the countryside, in circumstances where it is not
allocated and does not fall within any of the appropriate uses defined by the
policy, also renders the proposal in conflict with Policy BNE25, again as Mr Parr
agreed. However, given the housing land supply position, and specifically the
requirement to develop greenfield sites in order to meet housing need, these
breaches are considered to carry limited weight.599 As Mr Canavan explained,
the Council would not refuse otherwise sustainable development on this basis
alone.
7.222 More significantly, for the reasons set out in respect of the first main issue
above, the proposal is in conflict with Policy BNE34. This is a fundamental
breach given that the proposal will cause considerable harm to the landscape
character of the area and significantly diminish, if not entirely eradicate, the
functions played by the Gillingham Riverside ALLI. The economic and social
benefits of the scheme do not come close to outweighing this harm. This
policy should be given full weight because:
1) As Mr Hughes and Mr Parr agreed, the conclusions of the MLCA supports
the continuing validity of the functions of the ALLI, and therefore provides
an evidence base for the policy restriction;
2) Mr Hughes agreed that the functions identified for the ALLI continued to
have validity today, a position which was consistent with Mr Etchells;
3) Mr Parr accepted that BNE34 is consistent with national policy, specifically
Framework, paragraph 170 which required the protection and
enhancement of valued landscapes, such as the ALLI;
4) The policy is not a general restraint policy – it only prohibits development
where material harm is caused, and where that harm is not outweighed by
economic and social benefits of the proposal. It therefore incorporates an
internal balance. That being the case, the housing land supply situation
does not provide any proper basis for reducing the weight to be given to
this policy; and,
5) Finally, in the most recent appeal decision on this issue – Orchard
Kennels600 - the inspector gave detailed and cogent reasons for giving the
policy full weight. The inspector and Secretary of State is invited to follow
this decision (and, consistent with the principle of consistency in decision
598 XX(RW)
599 It is noted that Policy BNE25 also has a dimension relating to the character, amenity and functioning of the
countryside. The Council does not accept that this element of the policy is out of date, but in this case as policy
BNE34 is applicable that issue does not require determination.
600 CD4.4 See paragraphs 24-29. Note that the Inspector also gave reasons for disagreeing with the position adopted
in the Gibraltar Farm appeal (CD4.1), a much earlier appeal prior to the 2019 Framework
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making, would be required to give reasons if they wished to depart from
it).
7.223 In light of the fundamental conflict with development policy, which is to be
given full weight, the breach of Policy BNE34 should be given significant, if not
substantial, weight.
7.224 On a related note, the proposal would also conflict with Policy BNE47 given
that it would transform Pump Lane – currently identified as an important rural
lane – into a suburban through-road. This breach should be given significant
weight.
7.225 The harm caused to the significance of the listed buildings and two
conservation areas give rise to breaches of policies BNE12, BNE14 and BNE18.
As a matter of law, this harm must be given considerable importance and
weight, and so too should the breach of the related development plan policies.
These policies were adopted in the context of, and are consistent with, the
legislative protection afforded by section 66 and 72 of the Listed Buildings Act
1990. The same is true of the Framework.
7.226 There is no proper basis for seeking to reduce the weight to be given to Policy
BNE18, as Mr Parr seeks to do, simply because the policy does not directly
replicate the balance found in Framework, paragraph. 196. In the recent case
of City & Country Bramshill Limited v Secretary of State for Housing,
Communities and Local Government [2021] EWCA Civ 320, the Court of
Appeal rejected this very argument, finding that ‘The absence of an explicit
reference to striking a balance between harm and public benefits in the local
plan policies does not put them into conflict with the Framework, or with the
duty in section 66(1). Both local and national policies are congruent with the
statutory duty.’601 It follows that the breach of policies BNE12, 14 and 18
should be given significant (indeed great) weight.
7.227 Finally, given the severe impacts on the road network in terms of capacity and
congestion there is a breach of Policy T1. This policy ought to be given full
weight, as Mr Parr originally agreed (both in the policy table and his oral
evidence602). For the reasons set out above, there is no material conflict
between policy T1 and national policy. Accordingly breach of this policy ought
to be given significant weight.
7.228 Despite Mr Parr’s entirely unrealistic protestations to the contrary, the proposal
is plainly in breach of the development plan as a whole.
The National Planning Policy Framework
7.229 While the proposal finds support from some policies in the Framework with
which it would be consistent – chief amongst them, the objective of
significantly boosting the supply of housing603 - it would be contrary to a wide
range of important policies in national policy.
7.230 It would fail to protect, let alone enhance, a valued landscape, contrary to
paragraph 107(a). The loss of such a significant amount of high quality BMV
601 At paragraph 87
602 XX(RW)
603 Framework, paragraph 59
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land cannot be considered to be consistent with the requirement to recognise
the benefit of such land, still less to prefer areas of poorer quality agricultural
land, contrary to Framework paragraph 170(b) and footnote 53.
7.231 To allow development to proceed in circumstances where there would be a
severe residual cumulative impact on the highway network would be directly
contrary to policy in paragraph 109.
7.232 In addition, the wide-ranging adverse impacts on designated heritage assets
(to which considerable weight and importance must be attached) are not
outweighed by the public benefits of the scheme, such that the proposal would
be inconsistent with paragraph 196.
The tilted balance and the section 38(6)test
7.233 If the Inspector and Secretary of State accept the Council’s case that the
public benefits of the scheme do not outweigh the harm caused to the
designated heritage assets (considered in isolation, without other harms), then
the so-called tilted balance in paragraph 11 would not apply. In such a
scenario, it is clear that the section 38(6) tests could not be satisfied. In
circumstances where the harm to designated heritage assets alone outweighs
the benefits, it must logically follow that when all of the remaining harms are
factored in, that material considerations could not outweigh the breach of the
development plan.
7.234 If the Council’s position on Framework paragraph 196 is not accepted then,
due to the lack of a five-year housing land supply and the housing delivery test
result, the tilted balance would be in play. Thus, the decision maker would be
required to ask, ‘would the adverse impacts of granting permission significantly
and demonstrably outweigh the benefits, when assessed against the policies in
this Framework taken as a whole?’.
7.235 It is settled law that, in answering that question, the decision-maker is entitled
to have regard to the policies of the development plan: Gladman
Developments Limited v SSHCLG [2021] EWCA Civ 104.604 Indeed, at
paragraph. Lindblom LJ went as far as to state:
‘It is clear, therefore, that a complete assessment under paragraph 11d)ii,
in which “adverse impacts” and “benefits” are fully weighed and considered,
may well be better achieved if relevant policies of the development plan are
taken into account. This is not a substitute for discharging the decision-
maker’s duties under section 70(2) of the 1990 Act and section 38(6) of the
2004 Act. It is integral to that process.’
7.236 In this case the answer to the tilted balance question is clear-cut. The
significant adverse impacts on the landscape character and visual amenity of
the area, as well as the functioning of the ALLI; the harm caused to designated
and non-designated heritage assets; the loss of over 50 hectares of Grade I
and Grade 2 BMV land; the severe residual impacts on the highway network;
the multiple breaches of both development plan and national policy, together
with the consequent harm caused to the public interest in the plan-led system;
604 CD4.15
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all – individually605 and collectively - significantly and demonstrably outweigh
the benefits of the scheme, chief amongst them the delivery of housing.
CONCLUSIONS
7.237 The Government objective of significantly boosting the supply of housing is an
important part of national planning policy. But as the inspector in the
Gladman case (whose decision was upheld first by the High Court, and very
recently, by the Court of Appeal) remarked: ‘it is not the be all and end all.’606
It is one, amongst a number of objectives, which include:; protecting and
enhancing valued landscapes;607 recognising the benefits of BMV agricultural
land, and directing development to areas of poorer quality;608 giving ‘great
weight’ to the significance of designated heritage assets;609 and avoiding
development where the residual cumulative impacts on the road network
would be severe.610
7.238 The significant harm that would be caused to each of these objectives, and the
consequential breaches of related development plan policy, demonstrate that
this proposal should be refused. It is inimical to the achievement of
sustainable development.
8. THE CASE FOR OTHER PERSONS APPEARING AT THE INQUIRY
8.1 A number of other oral and written representations were made during the
Inquiry. The names of those who spoke at the event are listed at the end of
this Report. The main points of the speakers are summarised below.
Rehman Chisti MP611
8.2 I have consistently and strongly opposed this development from the very
outset. Taking account of local knowledge and residents’ views and I fully
support Medway’s position and arguments in opposition to the development.
Scale and Strategic Approach
8.3 This is one of the largest single developments that has been proposed in this
constituency whilst I have been the local MP. Housing and planning
development of such a strategic scale needs to go through a Local Plan, where
a number of different proposals and strategies are considered. This site has
not been identified by the local authority for planning development and it
would be wrong to grant this application contrary to that very basic principle.
Indeed, the appeal site was not considered to be suitable, available and
deliverable in the Council’s Strategic Land Availability Assessment, which went
to Cabinet in December 2019.
605 The Council maintains that the harm caused to the landscape, designated heritage assets, agricultural land and
highway network is of such a magnitude that any one of them in isolation (albeit taken together with the
consequential breach of development and national policy) would justify refusal on permission on the basis that the
harm significantly and demonstrably outweighed the benefits.
606 CD4.15 Gladman Developments Limited v Secretary of State for Housing Communities and Local Government
[2021] EWCA Civ 104 (paragraph 17 of Judgment)
607 Framework, Paragraph 170(a)
608 Framework, Paragraph 170(b) and fn55
609 Framework, paragraph 193. Reflecting the statutory presumption against development which harms the
significance of designated heritage assets found in s.66 and s.72 of the Planning (Listed Buildings and Conservation
Areas) Act 1990
610 Framework, paragraph 109
611 ID9
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8.4 In terms of the emerging Local Plan, the Government’s current methodology
means building 28,300 homes by 2037. However, that will be met through the
plan-led process, which allows for the merits of alternative strategies (and
alternative strategic sites) to be assessed and for the necessary infrastructure
to be provided in an integrated manner.
8.5 I support new housing where it can be sustainably built, ideally on brownfield
sites, and with the views of the local community taken into account. With
regard to housing on green spaces, of course one needs to look at that when
the need requires such but, where we are considering sites of such a strategic
scale, they need to go through a Local Plan procedure and with full public
consultation. However, the development proposed at Pump Lane is of too
large a scale, on a site which has not been identified by the local authority for
housing.
8.6 The Council’s successful Housing Infrastructure Fund bid which will mean
£170million of funding in Medway to provide over 12,000 new homes on the
Hoo Peninsula.
Character and Appearance
8.7 The appeal site is rural, mainly comprising high-quality farmland. There are
also leisure facilities available to the public such as bridleways and several
small country roads. Were the development to go ahead, over one hundred
acres of high-quality land would be lost forever, and the green and rural
environment not only of the site itself, but also the surrounding area of Lower
Rainham, would be badly damaged.
8.8 The scheme would have a significant long-term negative impact on the
landscape, which so many residents enjoy. New housing should be built
primarily on brownfield sites, with appropriate supporting infrastructure.
Where greenfield development is necessary, this should only be where the
environmental impacts can be adequately addressed and taking into account
the views of the community.
Heritage
8.9 The development would have a harmful impact on our local heritage, with
many nearby heritage sites being negatively impacted. The development
would be contrary to the Local Plan and the supposed benefits would not
outweigh the harm to the heritage sites, nor the harm to the landscape.
Supporting Infrastructure
8.10 This constituency contains some of the most densely populated wards in the
Medway Unitary Authority, such as Twydall directly to the south of this
development. At 1,250 homes on little more than 126 acres, the new
development would be more densely populated than Twydall already is.
8.11 With good urban planning, a densely populated area can be supported, but
that relies on significant further resources to ensure extra school places, GPs,
public transport links and road capacity are readily available. The addition of
an extra 1,250 homes would increase pressure on already stretched social
infrastructure.
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8.12 Local primary schools are already at capacity and whilst financial contributions
towards secondary school places are secured, no physical provision is being
made for secondary school places, putting the existing schools under additional
strain. There is significant concern too about the serious impacts this
development would have on GP and healthcare services, which are already
under strain in the local area. Medway Maritime Hospital already covers half a
million people and is overstretched. Further housing development will put
extra pressure on the hospital.
8.13 I understand that the Kent and Medway NHS Clinical Commissioning Group
and the developer have reached an agreement to fund the creation of
additional facilities away from the development site. However, this would
simply not solve the issue. The Section 106 agreement will not provide
additional GPs, which is what our local area needs.
Highways/Transport
8.14 The new development would lead to a significant increase in the number of
vehicles on the local road network, which is already highly congested, such as
the A2 through Rainham which is already overcapacity. This would lead to
longer journey times for residents and concerns about increased air
pollution. There is no provision for any reasonable improvement in local
infrastructure or additional public transport.
8.15 Furthermore, the proposal to provide additional healthcare facilities away from
the development site would create even more pressure on the local road
network, as residents are forced to travel further to access these services.
Conclusion
8.16 The proposed development is clearly unsustainable and any potential benefits
are outweighed by its negative impact on the local area. It would have serious
negative consequences for local residents, who have strongly expressed their
opposition to it. This is an unacceptable development and the Secretary of
State is urged to reject it.
Councillor Martin Potter612
8.17 In recent years, around 500 homes have been built in and around Rainham, or
are part of a live development, and there are over 300 in the pipeline with the
benefit of permission. So, what makes this development different from what
went before to lead to such an overwhelming reaction against it? What is so
significant about the harm? Why did the 2018 community petition amass over
a 1,000 signatures in a matter of weeks when it was only a concept? Why did
over 3,500 residents make personal written objections, the most for any single
housing development in the history of Medway?
Character and Appearance
8.18 The development is proposed in a special area of orchards and farmland. This
countryside, to the north of the railway line extending down to the river
Medway and west from Berengrave Lane along to Yokosuka Way, is a vital
612 ID7
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green lung preventing the total urbanisation of Rainham through to Twydall
and Gillingham. This treasured area of countryside includes historic working
orchards and associated heritage properties, farmland, woodland areas and
Riverside Country Park (including the Ramsar marshes along the Estuary).
8.19 The relationship between the Lower Rainham orchards and farmland and the
Country Park, which together form an Area of Local Landscape Importance
(Gillingham Riverside Area) cannot be separated - they run parallel east to
west between the railway and the river. The proposed development would cut
the heart out of this rural landscape and would severely impact the rural
character of this vital wellbeing escape from urban and suburban Medway. It
would also extinguish the orchards and would introduce development into an
area which is predominantly agricultural land of best and most versatile
quality. It would also significantly erode this important green buffer, which
prevents urban coalescence, whilst no doubt setting a precedent that would
lead to the obliteration of the entire Lower Rainham green lung.
Highways/Connectivity
8.20 As an isolated, car dependent development, it would overwhelm the highway
network which has already been stretched to capacity by the aforementioned
housing developments built over decades and live development and
permissions. Furthermore, it is important to bear in mind there are only two
connecting highway through routes (geography dictates an east/west flow) in
the Rainham area, which are the already congested A2 and Lower Rainham
Road. Therefore, the development would lead to the most severe highway
congestion and would contribute significantly to detrimental air quality.
8.21 A key aspect of the transport and access issues is that the development would
have limited pedestrian connectivity to local centres and would lack acceptable
safe walking and cycling routes due to the nature of the country lanes and
narrow highways in Lower Rainham. During daylight hours there are rural
public rights of way routes which can be safely traversed. However, we are
not convinced these homes would be occupied by 3,000-4,000 people who
want to go rambling just to go to the shops or work. The public transport in
the immediate area is very limited by its rural nature, and the nearest train
station (Rainham) is around 40 minutes’ walk by the safest route.
8.22 It should also be noted that the nearest centres (Rainham and Twydall) are
small and have limited employment opportunities. They would not provide
employment for the vast majority of people. This, combined with the issues
relating to transport and access, means car use would be substantially higher
than average, which is in stark contrast to the appellant’s traffic assessments.
The transport and access issues from this development would result in
significant harm and rule this development totally unsustainable.
Conclusion
8.23 Although Rainham is now a town consisting of a small centre surrounded by
urban/suburban sprawl, it has retained this treasured area of countryside and
rural character which also acts as a strategic green buffer preventing
coalescence with nearby towns and settlements. It is abundantly clear that
the benefits of providing new homes would not outweigh the significant harm
that this unsustainable development would have on the rural landscape and
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character of the area, on highways and the environment, and with the loss of
the Best and Most Versatile orchards and farmland, with impacts from such a
development having a detrimental impact on Rainham and the east of
Medway. Furthermore, the area does not need to be allocated for
development in order for Medway to meet its local assessed housing need as
per Medway Council’s emerging Local Plan. The appeal, and therefore the
proposed development, should be firmly dismissed.
Pump Lane Steering Group613
8.24 The Group formed in November 2018, just a short time after learning of the
planned development off Pump Lane and quickly grew to a Facebook group
with over 3,200 members and thus the Pump Lane Steering Group was formed
to try and provide a voice for that community - a community which has
submitted over 3,300 objections to the outline planning application, has held
six public protests, has created a petition containing over 2,800 signatures and
which has displayed over 3,000 posters in local homes for the past 18 months
to show how strongly the feelings are about this development.
8.25 We are not NIMBYs and we do not object to any and every development as a
way to block progress. We appreciate the need for housing and understand
that new houses need to be built somewhere. What we want to ensure is that
truly affordable housing is built in the right place, with sufficient infrastructure
to support those new homes. We also want appropriate care and consideration
for the environment and for the existing residents of the area. The appeal
scheme does not address any of those points and the appeal does little to
address the Council’s reasons for refusing planning permission. Indeed, the
Council has clearly stated that its emerging Local Plan satisfies the housing
requirement for this area on sustainable sites. The Appellant’s proposed
development does not form part of that Plan. Indeed the Council’s SLAA,
agreed by cabinet in December 2019, confirms that this was not considered to
be a suitable or sustainable site for development.
8.26 Whilst nine reasons for refusal were cited on the Council’s Decision Notice, the
Appellant’s appeal statement has addressed only five of those, referring to
ongoing discussions and an expectation that these matters would be resolved.
There is no factual basis upon which that assumption is made, other than the
Appellant wishing these reasons to disappear. The fact is that these issues
cannot be addressed. It is impossible to double the number and width of the
roads around the development site, due to existing housing. It is impossible to
mitigate the environmental issues and the irreversible impact this development
would have on the local ecology.
Highways
8.27 There is significant local concern about what this development would mean for
traffic and congestion on already inadequate roads, as evidenced by dozens of
community posts, photographs and videos showing two miles of stationary
traffic stretching from Pump Lane to the end of the Lower Rainham Road.
613 ID8
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8.28 The Appellant is no doubt acutely aware that these roads are well over capacity
during peak times and the dangers that presents to cyclist and pedestrians.
Indeed, its own study supporting the original application states there are 8,044
vehicles using these roads in a 12-hour period. This compares to figures in the
public domain from the Department for Transport (DfT) stating the average for
rural roads to be 1,000, rising to 1,400 in the south-east. It is only 1,800 for
minor roads, confirming that there are already 4-5 times the number of
vehicles using the Lower Rainham Road than the national average. Looking at
their figures more closely, it is clear that the traffic is polarised at peak times -
in one hour it approaches the national average in 24 hours elsewhere in the
south-east.
8.29 The Appellant’s “overall access strategy” merely details how vehicles would
access and exit the development. It does not address the physical
impediments restricting traffic flows on Lower Rainham Road, notably the
single lane sections towards the southern end of Pump Lane, due to the
cottages and existing housing and bridge restrictions thereafter.
8.30 The Council has, over recent years, already approved 866 new homes and
potentially 1,300 vehicles between Otterham Quay Lane and the proposed
development, which feeds directly into these pinch points. In the 1 mile
section from the bottom of Pump Lane there are four locations where the road
narrows to only allow one vehicle to pass, two of which are signal controlled.
Even under current circumstances, these create long queues and we are all
aware that any issues on the M2 immediately transfer onto the Lower Rainham
Road and Beechings Way, bordering the appeal site. Once again, there are
testimonies in our Facebook community to journeys taking hours to cover just
a couple of miles due to these constrictions.
8.31 The measures the Appellant outlines cannot overcome these immoveable
obstacles and are simply a smokescreen to the fact that this decade long
development would, during construction, exacerbate an already acute traffic
problem at peak times along adjacent roads. Once completed, it would then
overwhelm them with vehicles. It would bring a decade of additional
construction traffic and thereafter 2,000 vehicles to the epicentre of the
problem and the subsequent standstill that it would create, together with the
air quality, pollution and road safety implications.
8.32 We say 2,000 vehicles, because the community believes strongly that the
traffic assessment documentation in the Appellant’s submission is misleading.
It cites that 1,250 houses, a 350-pupil school and a 140-care bed home would
not significantly impact traffic in the area. That cannot be right. How many
households in this type of semi-rural setting have less than two cars? DfT
statistics from 2018 state that in general, 34% of households have two or
more cars. Being generous and assuming an average of 1.5 cars per new
household, that is nearly 2,000 more vehicles spilling out onto the inadequate
Lower Rainham Road and Beechings Way. How can that not impact the area?
8.33 The documentation assumes that people would walk to the shops and
supermarket, which is 1.5 miles away in Rainham. How many of us know
people who walk 20 minutes to do their shopping and then walk 20 minutes
back carrying their bags?
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8.34 The documentation also says that 29 vehicles would travel to the new school
each day to drop off pupils. That covers just 8% of the pupils. Presumably
the other 92% of pupils would be walking, yet DFT National Travel Survey
statistics cite that the average percentage of parents who drive their children
to school is 49%, which is six times greater than the 8% analysis in the
documentation. Of course, the Appellant would have lots of alternate statistics
which support their view and refute these Government statistics. But how
many of us don’t drive our children to school? How many of us have driven
past a school, anywhere in the country, be it primary or secondary at 08:30 or
15:30 and not been in traffic jams, including Rainham Mark Grammar School
on Pump Lane?
8.35 This all needs to be considered in the context of the 866 houses in recent and
current developments using the already overwhelmed Lower Rainham Road at
peak times. This road runs between conservation areas, community orchards,
a country park and a SSSI/Ramsar site which together create a unique estuary
ecology with community facilities for all ages and promoting mental wellbeing
for all its many visitors. Far from creating a local amenity for pedestrians and
cyclists, the proposed development would concrete over the very landscape
people currently cycle and walk to enjoy. It would make the car and the
issues that accompany them, the overwhelming and dominant feature of Lower
Rainham forever.
Environment/Ecology/Biodiversity
8.36 The Lower Rainham countryside, including the Riverside Country Park and
Saxon Shoreway, is currently at the cornerstone of social life for many
thousands of local residents, providing a green lung, a unique estuary and
increasingly rare clean air landscape in Medway. Particularly for those raising
children in what is arguably becoming the most difficult time in any of our life-
times, the past two years have been somewhat of a paradigm shift as we have
come to terms with what fight lays before us, a fight for the successful
continuation of ours and thousands of other species. Never before has the
care of the natural world been so important. The development proposed would
result in the irreversible destruction of the environment, the ecology and
biodiversity of this area, something which biodiversity net gain cannot make
up for.
8.37 In reviewing the original application, Natural England noted that it ‘could have
potential significant effects on the Medway Estuary and Marshes Site of Special
Scientific Interest, Special Protection Area and Wetland of International
Importance under the RAMSAR convention and the Medway Estuary Marine
Conservation Zone.’ Kent County Council Ecological Advice Service said that
‘The proposed development would negatively impact the site boundaries and
species present due to an increase in disturbance from a number of factors
including an increase in lighting, noise, recreational pressure,’ with Kent
County Council Archaeological noting that ‘We have concerns about the impact
of the development on historic landscape character and the setting of
designated assets, including impacts on the setting of two conservation areas
and individually listed buildings…’
8.38 In fact, there is not a single environmental professional that the Appellant
consulted who thinks this is a viable site, because this is an attack on local
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protected sites. The Appellant wants to destroy 60,000 apple trees and 7
kilometres of ancient hedgerow and replace them with nearly 50 hectares of
concrete. Yes, they would plant a few trees and create some borders, but this
would not be sufficient and it would have a severe and negative effect on
nearby protected sites, such as the estuary and marshes.
8.39 Even the Appellant’s appeal submission in relation to landscape character
concedes that this ten year development project would create a major adverse
effect on the local landscape. It goes on to state this adverse effect might
reduce to moderate after 15 years. And that is 15 years after the ten year
construction period. But of course, this irreversible destruction would be finite
and forever. A grave to the orchards which once gave life.
8.40 And what about the health of the residents? The pollution generated from the
construction trucks and HGVs for a decade, in addition to the 2,000 more cars
from the new residents, would significantly add to the pollution footprint of the
area. In May 2018, the World Health Organisation cited Medway (Gillingham)
as being the 4th worst town in the country for air pollution. That places us 16
places above London. Medway Council’s 2018 Air Quality Status report cited
‘The main source of air pollution in the District is road traffic emissions from
major roads, including the M2 and A2.’ It goes on to say that ‘Medway suffers
from significant congestion.’ The report concludes by saying ‘Road transport
is the dominant source of pollution and reducing road traffic emissions is,
therefore, the key air quality priority. Another significant challenge is
accommodating the large demand for development in Medway. This is likely to
put existing areas of poor air quality under additional pressure.’
8.41 According to the Climate Change Committee, the construction of, and
subsequent 50 years of life living in, 1,250 brick built homes would generate
emissions equivalent to 332,500 tonnes of Carbon Dioxide. We absolutely
recognise that housing developments would impact the environment and that
social housing is needed in Medway, but the level of harm to the ecosystems,
character and appearance of the local environment and the harm it does to our
health must be balanced against the social and economic benefits of the
development.
8.42 Against the backdrop of the Medway Local Plan, which we’re assured by
Medway Council would meet the governments overestimated full local housing
need, a 1,250 home housing development that would permanently impact the
environment; create 50 hectares of concrete; worsen air quality; impact SSSIs
and Ramsar sites, of which there are only 73 in the whole of the UK; reduce
our ability to provide UK grown fruit to our own citizens and those that we
trade with; permanently prevent Lower Rainham residents from having the
future security that would come from being able to grow any kind of produce
themselves on this site; and would provide little to no benefit to local
residents, must be seen simply as a financially profiteering application, and
nothing more.
8.43 [APPELLANT]s are the custodians of this land, land which has existed as
fertile agricultural land since at least 1869. Land which is more valuable to our
national security than the £189 million this land would be worth if planning
permission is granted, and more than the estimated £500 million that the
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properties on this site would generate in income. Put simply this is about
turning our precious soil into bank notes and nothing more.
8.44 There is always scope to build houses and meet local housing needs on sites
that are far better suited to development and where the impact would not be
as disastrous and long lasting. Such sites may require more innovative
thinking, or result in lower profit margins, but at a time where climate change
and mental well-being is very much at the forefront of society, surely such
options are the better way to go – better for individuals, better for the heritage
of a town and better for the planet as a whole.
Health and Community
8.45 The development proposed would have a significant negative impact on the
physical and mental health and well-being of local residents and on healthcare
services within the area.
8.46 Documentation submitted by the Appellant during the outline planning stage
stated an assumption that there would be a population increase of 3,100
persons resulting from this development. This would take the local population
to just over 24,000, all of whom would need a local GP surgery, of which there
are currently only ten. Assuming that those 3,100 new residents were spread
evenly across the ten surgeries in the area (which would not be the case in
reality) each surgery in the area would have just over 2,400 patients, which is
considerably larger than the 1,800 capacity set out by the NHS. Time and
time again residents in the area have told us that they struggle to get a GP
appointment within a reasonable timeframe, because surgeries are so heavily
oversubscribed, and that’s before the inclusion of this development.
8.47 The Appellant’s documentation stated that of the six surgeries they canvassed,
five were accepting new patients. However, when we called the exact same
surgeries, only one confirmed that it was accepting new patients, with another
stating that the surgery might be closing due to a retirement.
8.48 Anyone who lives in this area knows how much we desperately need another
hospital. Medway Hospital is literally at breaking point and has been for years.
Back in 2017 it came out of special measures, after four long years. Since
then, it has failed to meet national targets every single year. One irrefutable
reason for that is that occupancy is over, or very near capacity at all times.
8.49 To evidence this, for the two years spanning 2018-2020, the Hospital’s Annual
Reports noted that it did not achieve the national standard for the four-hour
performance target, finishing on just 81%. To quote the Chief Executive of
Medway NHS Trust ‘The challenges in delivery of the emergency care access
standard are strongly linked to the >100% bed occupancy.’ Moreover, in April
2020, the Care Quality Commission gave Medway Hospital a ‘Requires
Improvement’ rating and, once again, very high occupancy rates were cited.
It is clear that the people who live in this community suffer, first-hand, the ill-
effects of a failing healthcare service which can no longer provide the care it
should, due to a growing and aging population.
8.50 Finally, I would like to highlight the importance of a community’s surroundings
with regards to mental well-being. The proposed development site is one of
the few green buffers left between the towns of Rainham and Gillingham and
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its development from apple orchards into a housing estate would significantly
change the landscape of the local area, impacting upon Rainham’s agricultural
heritage and residents’ sense of place within the Medway Towns as a whole.
8.51 The Appellant argues that the development would ‘open up green spaces and
provide new planting and landscaping on a site that is currently private
commercial land.’ Yet, prior to the community fighting back against this
development, residents had walked freely through the orchards for many
decades without any objection from the landowner. It should be noted that a
public right of way application is currently being considered by Medway
Council, which needs to be taken in to account.614
8.52 Whether or not public access is permitted to the site, the orchards are very
much visible and form part of the rural landscape of Lower Rainham. This
landscape, as it stands, is significantly important for mental well-being as it
provides a brief escape from the urban landscape of the town, which has
grown significantly over recent years.
8.53 For all of these reasons, we feel that the appeal should be resisted.
9. WRITTEN REPRESENTATIONS
9.1 As set out in the Officer’s report, there was considerable public interest in this
case with some 3,295 letters reported as having been received at the time of
the application. Some 3,262 of those were objections relating to the following
principle themes: transport; air quality; healthcare; biodiversity;
infrastructure; landscape; heritage; education; flooding; climate change;
sewerage; construction; and employment.
9.2 In response to notification of the appeal, some 680 individual responses were
received, the overwhelming majority of which were objections. These
included, among others, responses from Rehman Chisti (the local Member for
Parliament), the Ward Councillors, Councillors Potter and Carr, the Medway
Liberal Democrats, the Green Party and the Pump Lane Steering Group.
Further responses were submitted pursuant to the re-consultation undertaken
on the additional material submitted. All these responses are generally
reflective of the themes identified by the Council in the officer’s report and can
be summarised as follows:
- transport and traffic: a significant increase in traffic compromising the A2
and Lower Rainham Road, with poor and constrained access along Pump
Lane. Concerns included existing congestion and increased waiting times,
the length of existing traffic queues, highway safety and lack of capacity
on the rail network. Many concerns also linked the increased road use to
existing poor air quality and potential climate change impacts;
- the loss of valuable and productive land (the orchards) and loss of
hedgerows, with impact on biodiversity and local air quality and potential
climate change impacts;
- significant increased pressure on infrastructure, with local schools at
capacity and GP surgeries and the Medway Maritime Hospital currently
unable to cope with demands;
614 See ID 11
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- overdevelopment of the area generally, and failure to maximise the use
of brown field and previously developed sites. A number of references
were made to recent developments, including those at Mierscourt Road,
Station Road, Otterham Quay Road, Bakersfield on Station Road, and
others, with implications for the loss of green spaces and the
amalgamation of development across the area, notably the buffer
between Rainham and Gillingham. Some specific concerns were raised
referencing the pandemic and the need for open spaces, as well as
mental health implications associated with their loss;
- environmental and biodiversity impacts; increased recreational pressure
and impacts on the Riverside Country Park and on the Medway Estuary,
Marshes, SSSI, SPA and MCZ; impacts on protected bat species;
- impacts on listed buildings and the Lower Rainham and Lower Twydall
Conservation Areas;
- increased flood risk to Lower Rainham Road and beyond;
- insufficient water resources and impact on foul drainage;
- increased crime rates; and,
- devaluation of property prices.
10. CONDITIONS
10.1 The related discussion at the Inquiry was based on the schedule of suggested
conditions dated April 2021615 and took place on a without prejudice basis in
light of the tests for conditions as set out in the Framework and the Planning
Practice Guidance.
10.2 It was agreed that suggested condition 42 could be deleted since planting was
a reserved matter. I have also merged a number of the suggested conditions,
aiming for conciseness. An additional condition relating to management of the
soil resource was also agreed.
10.3 If the Secretary of State is minded to allow the appeal and grant planning
permission, I recommend that the conditions set out in Annex D be imposed.
They are based on ID15 and the related discussions and are agreed by the
main parties. The condition numbers referred to in brackets below reflect
those set out at Annex D, not the numbering in the suggested schedule.
10.4 Conditions (1-4) relate to the submission of reserved matters and
commencement of development. The shortened period for submission of the
reserved matters relating to the first phase and commencement of
development was agreed as appropriate in light of the significant shortfall in
the Council’s housing land supply. To provide certainty, it is also necessary to
identify the plans to which the decision relates, but only insofar as they relate
to the matter of access, which is not reserved for subsequent approval, and
certain parameters (condition 5).
10.5 In order to ensure that the local centre serves the local community only and
does not harm the vitality and viability of existing designated centres
615 ID15
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elsewhere, it is necessary to restrict the gross internal floor area of individual
Class E units within the proposed local centre. (6)
10.6 Conditions 7-30 are necessarily worded as either pre-reserved matters or pre-
commencement/reserved matters stage conditions, as a later trigger for their
submission and/or implementation would limit their effectiveness or the scope
of measures which could be used to protect legitimate interests.
10.7 The scale of the development scheme requires the submission of a phasing
plan to ensure that key aspects of the scheme are carried out in a logical and
timely manner in order to secure delivery of planned outputs and to minimise
adverse effects on local residents and infrastructure. (7) A Design Code is
required with the aim of securing high quality development that also meets
targets for combatting climate change. (8)
10.8 Based on current information there is a good likelihood that nationally
important archaeology could be present on the site, including remains that fall
into the category of being equivalent in significance to scheduled monuments.
As a working orchard, the Appellant resisted a detailed evaluation prior to
determination of the application as requested by the County Council’s senior
archaeological officer. Condition (9) represents a pragmatic approach,
allowing for archaeological evaluation works to understand the character,
extent, condition and significance of any archaeological remains that might be
present before detailed designs are finalised. Other conditions require the
agreement of safeguarding measures to avoid and minimise harm following the
results of the evaluation (22) the submission of a scheme of archaeological
investigation (23, 37) and a scheme of historical interpretation. (36)
10.9 A Construction Environment Management Plan is necessary in order to
minimise the impacts of construction on local residents, local businesses and
those travelling through the area, and to protect the environment. (10)
10.10 Conditions are required to safeguard ecological and arboricultural interests,
increase biodiversity and in the interests of visual amenity. (11-13) The
Appellant proposes 20% biodiversity net gain as a benefit of the scheme.
Condition (12) ensures that that benefit is realised. Condition (14) is
necessary to help meet the challenge of climate change pursuant to
paragraphs 148 and 150 of the Framework.
10.11 The appeal site comprises more than 51ha of BMV land. Recognising that BMV
land is a finite resource, a condition requiring a scheme for the treatment and
handling of sub-soil and topsoil from the site is required as recommended in
the Environmental Statement.616 (15)
10.12 It is necessary to ensure that any site contamination, or the potential for such,
is detected and remediated accordingly and that any risks from contamination
are properly dealt with to protect the health of future occupiers and to prevent
pollution of the environment. (16-18, 45)
10.13 It is necessary to secure an acceptable environment for future occupiers/users
of the development hereby permitted in terms of noise and vibration from
transportation sources. (19-21)
616 CD5.18 (paragraphs 13.61-13.64)
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10.14 In the interests of visual amenity, providing a healthy environment for future
residents and helping minimise recreational pressure on nearby international/
European designated sites, it is necessary to ensure that sufficient open space
performing a variety of functions is provided for future residents. (24, 25)
10.15 In order to avoid pollution and to prevent increased risk from flooding, details
of a sustainable surface water drainage scheme are required, together with
details for ongoing management which are essential to ensure that the scheme
continues to perform as intended. (26, 38) Although the appellant sought to
secure compliance with the submitted drainage strategy, that was resisted by
the Council. I am content that the wording employed allows for flexibility
pending further investigation, whilst achieving the stated aims.
10.16 Conditions (27 and 28) are required in the interests of highway safety and
ensuring the free flow of traffic. In line with policy objectives to promote more
sustainable modes of travel and in the interest of pedestrian and cyclist safety,
it is necessary secure the intended footway and cycleway links. (29) For wider
reasons of sustainability, details of the installation of telecommunications and
broadband infrastructure should be submitted and electric vehicle charging
points should be provided. (30, 42, 43)
10.17 Conditions (31, 32) are necessary to ensure that the care centre and extra
care centre accommodation is provided to ensure a mixed tenure within the
site to meet local needs. It is necessary to ensure delivery of the
nursery/primary school at an appropriate time, to meet the demands of future
occupiers. (33) Conditions (34) is required to ensure that accessible facilities
to meet the needs of future occupiers are delivered on site at an appropriate
time in order to meet the needs of future occupiers and helping reduce the
need to travel. In order to protect the amenities and living conditions of future
residents above and in close proximity to the local centre, it is necessary to
control operating details of the community/commercial units. (35)
10.18 It is necessary to ensure that the access roads serving the development are
constructed to the appropriate standard and are delivered at an appropriate
time in the interest of highway safety and accessibility. (39, 40). A full Travel
Plan is required in order to promote more sustainable travel choices in
accordance with the Framework. (41)
10.19 In order to ensure that the units in the local centre are retained for their
intended purposes, namely providing retail, business and community space, a
condition removing permitted development rights for change of use to
residential or other purposes is warranted in this instance. (44)
10.20 In the interest of visual amenity and in order to protect wildlife, a condition
controlling external lighting is justified. (46)
11. PLANNING OBLIGATIONS
11.1 The Community Infrastructure Levy (CIL) Regulations 2010 and paragraph 56
of the Framework set a number of tests for planning obligations: they must be
necessary to make the development acceptable in planning terms, be directly
related to the development, and be fairly and reasonably related in scale and
kind to the development.
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11.2 A draft planning obligation in the form of a deed of agreement was submitted
in support of the appeal.617 It was supported by a CIL Compliance Statement
prepared by the Council, which sets out its reasons for concluding that the
various obligations would accord with Regulation 122 of the CIL Regulations.618
Both documents were the subject of discussion at the Inquiry. The Agreement
was further refined during the Inquiry and I allowed a period after the close of
the Inquiry for the submission of a signed version.619
11.3 The main provisions, subject to the usual contingencies, can be summarised as
follows:
• Financial contributions towards –
i) secondary and sixth form provision in the area;
ii) provision, improvement and promotion of waste and recycling
services;
iii) improved facilities and equipment at Rainham Library, or relocation
of the library to the town centre if the existing site reaches
capacity;
iv) public realm improvements, including development of a new
square/civic space in Rainham Precinct shopping centre and
improvements to the Precinct gateway;
v) improvements to public rights of way within 1.6km of the site;
vi) redevelopment works at Splashes Leisure Pool;
vii) improvements to open space and outdoor sports facilities and to
Great Lines Heritage Park;
viii) offsetting/mitigating the impact of takeaway establishments;
ix) mitigation measures to protect the habitats of wintering birds;620
x) bus infrastructure comprising bus shelter improvements along
Lower Rainham Road and interim assistance to support bus service
provision;
xi) the extension, refurbishment or upgrade of existing premises
within Medway South Primary Care Network; and,
xii) highway improvements to junction 4 of the M2 motorway.
• Financial contributions towards a nursery and 2 form entry primary
school and the provision of the allocated land within the site for that to
be constructed.
• Provision of open space within each phase of the development and a
management plan to an approved specification for that open space,
617 ID22b
618 ID14b
619 ID55
620 See Annex E to this Report
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together with arrangements to transfer the open space to a
management company.
• Minimum 25% on-site affordable housing, with a 60/40 split of rented
and shared ownership provision.
11.4 There was no dispute that the obligations meet the relevant tests. In light of
the related discussions at the Inquiry, supported by the information set out
within the CIL Compliance Schedule, I have no reason to come to a different
view and have taken the obligations secured into account accordingly.
12. INSPECTOR’S CONCLUSIONS
12.1 The following conclusions are based on the oral and written representations to
the Inquiry and on my inspection of the site and its surroundings. The
numbers in parentheses thus [ ], refer to paragraphs in the preceding sections
of this Report from which my conclusions are drawn.
12.2 Having regard to the reasons for refusal pursued by the Council, together with
the development plan context, statutory obligations in terms of heritage
assets, and the evidence of interested parties on other matters, the main
considerations that need to be addressed relate to the effect of the
development proposed on:
• the character and appearance of the surrounding area, including the
Gillingham Riverside Area of Local Landscape Importance and the role of
the appeal site as a green buffer;
• the significance of designated and non-designated heritage assets,
including the historic landscape;
• the availability of best and most versatile agricultural land, including the
loss of the orchards; and,
• the capacity and safety of the local highway network.
Character and Appearance[6.45-6.122, 6.330, 6.331, 7.2-7.73, 7.222, 7.223, 8.7, 8.8, 8.18, 8.19, 8.23, 8.36-
8.44, 9.2]621
12.3 The appeal site is located outside any settlement boundary as shown on the
Local Plan Proposals Map and lies within open countryside for planning policy
purposes. Local Plan policy BNE25 is only permissive of development in the
countryside if it maintains, and wherever possible enhances, the character,
amenity and function of the countryside, offers a realistic chance of access by
a range of transport modes and falls within a list of specified uses, none of
which apply to the appeal scheme. There is no dispute in this regard, that the
development proposed would conflict with this policy.[6.40, 7.221]
12.4 The site also forms a significant part of the Gillingham Riverside Area of Local
Landscape Importance (ALLI)622 as defined by Local Plan policy BNE34, which
621 See also CD5.27 Appendix 11.1, CD8.3 Appendix 11.1a, CD8.4 Appendix 11.1a, the proofs of Mr Hughes for the
Appellant (CD10.3 and CD10.7) and Mr Etchells for the Council (CD10.8) together with the Landscape SoCG (LSoCG)
(CD11.3)
622 Mr Hughes Volume 2 Figure 3
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policy seeks to prevent material harm to the landscape character and function
of the ALLI, unless justified by economic and social considerations. These
areas are described as being significant not only for their landscape
importance, but also for other stated functions.
12.5 It is common ground between the parties that the ALLI, and thus the appeal
site, comprises a valued landscape with regard to paragraph 170a) of the
Framework.[7.2, 7.3]623 Pursuant to paragraph 170a) such landscapes are to be
protected and enhanced in a manner commensurate with their statutory
status, as opposed to simply recognising its intrinsic character and beauty (as
referenced in paragraph 170b)).
12.6 It is also a matter of agreement between the parties that the development
proposed would give rise to adverse landscape and visual effects.624 What is
not agreed is the extent of that impact.
Landscape Context
12.7 A description of the appeal site and its surrounds is set out in section 2 of this
Report.[2.1-2.4] In brief, it comprises more than 50 hectares of agricultural land,
currently in use as commercial orchards. It lies within a broadly rectangular
area of countryside, to the northeast of the Gillingham to Sittingbourne railway
that sweeps down towards the Estuary from the urban area to the south. The
area is characterised by sparse, scattered dwellings/clusters of dwellings, as
well as the small hamlet of Lower Twydall, which sits to the west of the appeal
site, with the small village of Lower Rainham, which straddles the Lower
Rainham Road to the northeast. Both settlements are designated
Conservation Areas and are surrounded by countryside, each having its own,
individual identity. Beyond the railway line, to the southwest, is the urban
settlement of Twydall/Rainham. Otherwise the site is surrounded by
agricultural land which extends up to the Medway Estuary.625
12.8 The Council’s Medway Landscape Character Assessment 2011 (MLCA)626 places
the appeal site within the Lower Rainham Farmland landscape character area
(LRFCA), which forms part of the more strategic North Kent Fruit Belt
character area as defined by the County Council.627 For the most part, the
LRFCA is bounded by Lower Rainham Road to the north and the railway line to
the south.628 To all intents and purposes, it is split into two parts that are
separated by already built/consented development between the northern end
of Otterham Quay Lane and Berengrave Nature Reserve: the smaller part lies
to the east of that, with the majority of the sub-area lying to the west. The
appeal site occupies a significant proportion of that western part. 629
12.9 The appeal site is representative of many of the key characteristics of the
LRFCA. In particular, it makes a significant contribution to the farmland in the
area and provides virtually all of the well managed areas of orchard referred
to.[7.41] I am mindful, in this regard, that the reference to the orchards in the
623 Eg paragraph 5.1(12) of the Main Matters SoCG (CD11.1), paragraph 2.2(3) of the LSoCG
624 SoCG on Main Matters paragraph 5.1(15) CD11.1
625 Eg Mr Etchells Volume 2 Figures 1 and 2
626 CD3.4 pages 68-69
627 Kent County Council’s Landscape Assessment of Kent (2004)
628 Mr Hughes Volume 2 Figure 4
629 See Mr Hughes Volume 2 Figures 3 and 4
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MLCA makes no reference to ‘traditional’, as opposed to ‘commercial’ orchards.
Indeed, at the time the MCLA was produced, the orchards referred to as a
characteristics would have been commercial orchards.630 I also found it to be
tranquil in many parts, despite its proximity to Lower Rainham Road and the
railway line (from which, as noted in the MLCA, there are attractive open views
across the farmland). The character area is also noted as providing a
distinctive green backdrop when viewed from the Medway Estuary. The stated
actions for this character area are to conserve and create.
12.10 The ALLIs identified in the Local Plan are first and foremost a landscape
designation, described as encompassing areas of landscape that enhance local
amenity and environmental quality, providing an attractive setting to the
urban area and surrounding villages. As a significant part of the Gillingham
Riverside ALLI, the appeal site is also identified as providing an attractive rural
setting to the Estuary and the northern edges of Twydall and Rainham.631 I
agree with the observation of Mr Etchells in this regard[7.41] that the site
provides an area of separation between Lower Rainham and the urban area of
Twydall/Rainham. The LRFCA also identifies that the area has value as an
extended buffer to the Country Park and protected Estuary coastline, which lie
to the north. That is reflected as one of the stated functions of this ALLI.
12.11 Other stated issues for the LRFCA include:
• potential to restore traditional orchards; strengthen and enhance
biodiversity opportunities; introduce more positive land management
systems; respect for historic characteristics;
• Grade 1 agricultural soil classification; and
• threat of expansion to urban edges on south and west sides, along with
gradual, pervasive erosion of rural character.
12.12 The stated Guidelines include restoration of rural characteristics, resisting
further built development and consideration of this area integrally with the
Riverside Marshes character area (to the north)632 for its integral value as a
green buffer, wildlife corridor and link to wider countryside.
12.13 The Appellant’s revised LVIA (TGLVIA)633 breaks down the landscape character
areas into smaller, more detailed local areas, placing the site within the Lower
Rainham and Lower Twydall Fruit Belt (that essentially omits the eastern part
of the LRFCA which has quite a different character from the rest of the
area).634 That said, the landscape of the site (and some adjoining fields) is
dominated by orchards, whereas the wider landscape to the west within this
narrower character area, comprises mainly arable fields with some scattered
settlement, and with the landscape to the east also being also partly settled,
with woodland and some enclosed fields of pasture.635
12.14 The landscape evidence of the Appellant majored on the reference in the MLCA
to the landscape type of the LRFCA being urban fringe and the sub-type being
630 See the sequence of aerial photographs at ID3
631 CD1.1 paragraph 3.4.104 and 3.4.99
632 See Mr Hughes Volume 2 Figure 4
633 Tyler Green Landscape and Visual Impact Assessment September 2020 (CD8.3 Appendix 11.1a)
634 See Mr Hughes Volume 2 Figure 5
635 See Mr Hughes Volume 2 Figure 2 and ID3
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urban fringe with urban/industrial influences.[6.45, 6.51-6.57, 6.78,6.86] I am mindful in
this regard, of the definition of urban fringe in the MLCA,636 which describes it
as Landscape adjacent to intrusive built-up/urban areas and containing
features which intrude upon or detract from the essentially rural, agricultural
character to a significant degree. Distinguished from rural fringe landscapes by
a distinctively and predominantly urban feel, with urban/industrial elements
dominating the landscape in some urban areas.
12.15 Bloors Wharf on the estuary shoreline, referred to by the Appellant, was an
historic industrial use. However, it lies outwith the LRFCA and the Lower
Rainham and Lower Twydall Fruit Belt, as do the industrial/commercial uses
referred to at Motney Hill and the Mariners Farm boatyard. More importantly,
those uses are not apparent in any views from, nor are they experienced in
any way from, these character areas, being separated from them by the fields
and marshes within the Riverside Marshes character area. Whilst reference is
also made to industrial units on Owens Way, that is a considerable distance
away, on the edge of Gillingham, well beyond the junction of Lower Rainham
Road with the A289 and outwith these landscape character areas. None of
those ‘industrial’ areas has any perceptible influence whatsoever on the
essentially rural character and appearance of the appeal site and its
surroundings.
12.16 Putting the railway line and the urban area beyond to one side for the
moment, no other features were drawn to my attention within, or surrounding,
the landscape character areas within which the appeal site lies which I
consider intrude upon, or detract from their essentially rural, agricultural
character to any material degree. Returning to the railway line, the existing
urban edge of Twydall is partially screened by the vegetation along the slight
rail embankment that runs along the southern site boundary. However, the
railway line is not, in my view, an intrusive feature in the landscape of itself.
It is the fact that it ‘holds back’ the built-up land of Twydall/Rainham on rising
land behind which means that there is some urban influence along this edge of
the site. As a consequence, I am in no doubt that the established landscape
character of this area is not distinguished by a distinctively and predominantly
urban feel with urban elements dominating the landscape which might identify
it as urban fringe.
12.17 I recognise that the listed characteristics for the LRFCA do include reference to
neglected pockets of land and a busy road giving the area a transitional urban
fringe character.[6.52] However, the extensive appeal site itself does not include
neglected areas, nor were any readily apparent in the immediate surroundings
during my extensive site visit. I saw that its overwhelmingly dominant
characteristic is as rural countryside. Indeed, I saw nothing during the visit
that gave me any impression that the part of the character areas within which
the appeal site lies can properly be described as urban fringe in the usual
meaning of the phrase. It simply, as a matter of fact, is a rural area that is
located adjacent to a railway line that clearly separates it from the urban area
of Twydall/ Rainham. The change in character is distinct and abrupt, as
opposed to it being an area of ‘transition’ between town and country. I am
mindful in this regard, that policy BNE34 describes the Gillingham Riverside
636 CD3.4 Appendix B page 121
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ALLI (the majority of which comprises the LRFCA and the Lower Rainham and
Lower Twydall Fruit Belt) as an attractive rural landscape of orchards, mature
hedgerows and arable fields with country lanes, providing an attractive setting
to the Lower Rainham and Lower Twydall Conservation Areas, with attractive
views from the river and railway, forming a green backdrop in views from the
Estuary,637 being particularly important as a consequence of it providing a rural
setting to both the Estuary and the northern edges of Twydall and Rainham.638
I agree with those descriptions.
12.18 The MLCA records that there is considerable variation in the condition of the
landscape of the LRFCA. It notes that whilst some pockets are in serious
decline (for instance the smaller part to the east of Otterham Quay Lane,
which area may have informed the urban fringe references and is excluded
from the Appellant’s Lower Rainham and Lower Twydall Fruit Belt character
area) other parts comprise well managed and cared for areas. Indeed, the
area between Lower Rainham and Lower Twydall (the vast majority of which
area comprises the appeal site) is specifically identified as being in generally
good condition, with urban influences less apparent.
12.19 In support of its case, the Appellant refers to additional development in the
area since publication of the MLCA in 2011.639 However, it is clear from the
sequence of aerial photographs,640 that there have been no significant changes
in settlement pattern since at least 2003 when the Local Plan was adopted,
that materially affect the landscape character of this area. What development
there has been,641 has almost exclusively been confined to the east of the
Rainham urban extension, beyond Berengrave Lane, a significant distance
from the appeal site, in a part of the LRFCA that has a very different character
and feel,[7.7] outwith the Lower Twydall Fruit Belt area identified in the TGLVIA.
Visual Context
12.20 It is a matter of agreement642 that the appeal site is generally well contained
by mature vegetation, including woodland and tall hedgerows, limiting
available views and extent of visibility. However, there are publicly available
views into and across the site, including from the adjoining lanes, from Pump
Lane which passes through the site, and from the bridleway which runs across
its eastern part.643
12.21 Views across the appeal site from trains passing to the south are generally
screened and filtered by trackside trees and vegetation.644 Outward views
across the site are glimpsed through breaks in vegetation, with some clear
views to the Estuary, especially in the winter.645 In views inland from the
promontories of Motney Hill and Horrid Hill, and the northern shore of the
637 CD1.1 paragraph 3.4.107(xiii)
638 ibid paragraph 3.4.99
639 Mr Hughes proof paragraph 3.37 and Figure 3 in his Volume 2
640 ID3
641 See Mr Hughes Volume 2 Figure 3
642 LSoCG (CD11.3)
643 See eg Mr Etchells Appendix B photos and Mr Hughes Volume 2 photoviewpoints. See also Mr Etchells proof
paragraphs 3.6.1a-f and Mr Hughes proof paragraph 3.91-3.104 for more detail on the extent and composition of
views as well as the TGLVIA.
644 eg the video clip appended to the LSoCG (seconds 14-58) and Mr Etchells photos 13 and 14
645 eg Mr Etchells photo 27
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Estuary, the appeal site is set beyond vegetation and trees to the shoreline,
and development and hedgerows along Lower Rainham Road. In these views,
the urban edge of Twydall/Rainham forms a developed backdrop on the rising
land to the south of the appeal site, with the appeal site extending across the
view.
Landscape effects
12.22 The TGLVIA identifies the Lower Rainham and Lower Twydall Fruit Belt
character area as having an overall medium landscape sensitivity to residential
development, largely on the basis of the influence of the settlement edge of
Twydall and the asserted urban fringe character. It considers that the
estimated ten year construction phase would give rise to site-wide major
adverse landscape effects (ie the development would cause irrevocable
damage, degrade or badly diminish landscape character features, elements
and their setting: the development would be irrevocably visually intrusive and
would disrupt fine and valued views both into and across the area).646 Over the
same period, the effects on the wider LCA are identified as major/moderate.
Moderate adverse effects are defined as development that would cause
substantial permanent loss or alteration to one or more key elements of the
landscape, would include the introduction of elements that are distinct but may
not be substantially uncharacteristic with the surrounding landscape and where
development would be clearly visible, and would result in adverse effects upon
the landscape.
12.23 On completion, and taking account of the proposed mitigation planting etc, the
TGLVIA identifies the site-wide effects on landscape as being major/moderate
adverse,[6. 81] reducing to moderate adverse for the wider LCA. In terms of
residual effects (ie 15 years after completion) both site-wide and the wider
LCA effects are identified as being moderate adverse.[6.78, 6.82]
12.24 Mr Etchells, for the Council, considers the site and its surrounds to be of
medium quality and medium to high value in landscape terms, leading to an
assessment of medium to high sensitivity.[7.42] In his view, in the winter of the
first year following completion, the landscape effect of the development within
the site would high adverse, with a moderate to high adverse effect for the
surrounding area,[7.44] those effects being felt over the area of the visual
envelope.647 Long term effects would decline to generally moderate/high
adverse for the site itself, and to moderate adverse for the landscape around
the site after 10-15 years.[7.45]
12.25 Whilst I have been guided by those formal assessments, the comments that
follow are also informed by what I observed during my very comprehensive
site visit.
12.26 The development would, as a matter of fact, comprise a significant and large
scale development on large swathe of commercial orchards in a rural area. It
would result in the loss of those orchards, which extend across most of the
site, as well as significant lengths of mature roadside hedging at the proposed
access onto Lower Rainham Road and around the proposed junctions/
646 This, and the definitions that follow, are taken from the TGLVIA Appendix 2
647 See Mr Etchells Figure 4 With the exception of photoviewpoint 1 (Hoo Peninsula) and viewpoints within the urban
area to the south (Nos 20,21 and 22), that encompasses all the photoviewpoints in Volume 2 of Mr Hughes
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realignment of Pump Lane.648 Both the orchards and hedgerows are
characteristic features of this landscape type, with the appeal site comprising
almost the entirety of the well managed area of orchards within both the
LRFCA and the Lower Rainham and Lower Twydall Fruit Belt character area.
12.27 Pump Lane is an unlit, very narrow, sometimes single track country lane with
no footways, which wends its way from south of the railway line up to Lower
Rainham Road, bisecting the appeal site. Towards its northern end, it is
fronted one side by a small group of dwellings, but for the most part, it is lined
along both sides with mature hedges/hedgebanks. Indeed, it is identified as a
rural lane by policy BNE47 which, among other things, seeks to protect the
landscape value of such lanes. As set out in the explanatory text to the policy,
these lanes were identified as those of the highest physical landscape,
amenity, nature conservation and historic value.
12.28 Four new junctions are proposed on Pump Lane to facilitate its crossing by the
proposed estate loop road, as shown on Drawing No 20230-05F.649
Notwithstanding that access details are for determination at this stage, the full
extent of proposed hedgerow removal as part of those works was not apparent
until shortly before the Inquiry, as further clarified during the event.650
12.29 In total, the new junctions on Pump Lane would require the removal of around
175m of hedgerow.651 The layout of the southern junctions652 would require
any replacement planting to be set back significantly to allow for forward
visibility. At that point, the lane would cease to be narrow and it would no
longer be enclosed by hedgerows. At the northern junctions,653 the road would
be realigned to incorporate two staggered T-junctions, with the effect that the
road would cease to a be a ‘lane’ as such. As acknowledged by Mr Hughes in
cross-examination, at both junctions, drivers heading north or south would
have direct views into (and when turning would be looking directly at) built
development.[7.47] I am in no doubt that, particularly at the new junctions, and
acknowledging the introduction of community orchards along sections of the
lane,654 the highway would have the character and appearance of a residential
access road, as opposed to a rural country lane.
12.30 The TGLVIA includes an illustrative Landscape Framework Plan, a later version
of which is included in the evidence of Mr Hughes.655 Even taking account of
the planting proposed, including the proposed community orchards, the
character of the local landscape would change completely, from a largely open
rural area to a new residential estate. Built development would extend up to
Lower Rainham Road, in effect ‘leap-frogging’ the railway line which, between
Yokosuka Way in the west and Lower Bloors Way/Berengrave Lane to the east,
is a physical and perceptual barrier that ‘contains’ the urban area of
Twydall/Rainham to the south, providing a strong defensible boundary to the
settlement here.
648 ID20
649 Overall Access Strategy and Key Network (ID20)
650 See the plans at ID20
651 ID20
652 Dwg No 13374/P15a (ID20)
653 Dwg No 13374/P16a (ID20)
654 See eg the illustrative masterplan Dwg No 11047/PL009C (Appendix 5 to CD8.6)
655 Mr Hughes Volume 2 figure 8
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12.31 Proposed planting around the site boundaries and within the site would soften
the impact to some extent. Nevertheless, when travelling along Lower
Rainham Road from the west, and when travelling along Pump Lane and Lower
Bloors Lane, I am in no doubt that the village of Lower Rainham would be read
as part of that extended urban area. It would lose all of its rural countryside
setting on the southern side of the main road and would no longer be seen or
perceived as a separate settlement with its own rural identity. It would
effectively be subsumed within the extended urban area of
Twydall/Rainham.[7.43(iv)] That impact was recognised in the appellant’s original
LVIA submitted with the planning application.656
12.32 The bridleway that cuts across the eastern half of the appeal site currently has
a very rural feel as it passes through the orchards, with some open attractive
views across the appeal site.657 Whilst improvements to the bridleway are
proposed it would, as a consequence of the development proposed, pass
through a housing development, including having to cross the proposed estate
loop road. The current, rural and tranquil landscape character of the route
would, in my view, be completely lost.
12.33 The site also has a contiguous boundary with the southern end of the rural
hamlet of Lower Twydall. Again, notwithstanding the planted buffer zone
proposed, the individual identity of that settlement would be undermined to
some extent as a consequence of the development proposed, although not to
the same degree as Lower Rainham.
12.34 Aside from the effects on the extensive appeal site itself, I recognise that the
landscape effects that I have identified would be experienced from a relatively
constrained area around the site although, as a whole, it is a relatively large
area of roughly 1.5 x 1.5 km.658 That visual envelope is a narrower area than
the Lower Rainham and Lower Twydall Fruit Belt area identified by the
Appellant, but extends to the north of Lower Rainham Road, to include the
Country Park, marshes and Estuary shoreline, together with the Horrid Hill and
Motney Hill promontories.659
12.35 In my view, in no small part due to the contention that this is an area of urban
fringe, the Appellant’s assessment generally underestimates the harm to the
significance of the landscape at both site wide and the wider visual envelope
level during the ten year construction period, on completion of development
and at the site wide level in terms of residual impacts. I am mindful, however,
that both assessments are comparable in finding the residual impacts to be
moderate adverse in terms of the visual envelope, which forms part of the
ALLI and which is a valued landscape in the terms of the Framework.
12.36 I have no doubt that the appeal development would be built to a high quality
and that the large areas of green infrastructure proposed660 could result in an
attractive place in which to live. Nevertheless this would, in essence, be a
656 Lloyd Bore LVIA (CD5.21 Appendix 11.1)
657 Mr Etchells Appendix B photos 23-31 and Mr Hughes Volume 2 photoviewpoints 14a, 14b and 15
658 Mr Etchells proof paragraph 6.2.2 and his figure 4
659 See Mr Etchells Figure 4. Although the depth from the railway line to the promontories is around 1.5km, the depth
to the shoreline is around 1km.
660 Eg Revised Site Master Plan (11047/PL/009C) and Green and Blue Infrastructure Parameter Plan (11047/PL/005B)
(Appendices 5 and 6 attached to the Appellant’s Statement of Case – CD8.1)
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large suburban housing estate, which is not a characteristic feature associated
with the landscape of the relevant landscape character areas, or the Riverside
Gillingham ALLI. Having regard to the definition of moderate adverse I would,
in general, agree with the conclusion of the main parties in terms of the
residual impact on the wider area, although if there were a scale within that, I
would place the harm at the higher end, on the basis that the development
proposed would be uncharacteristic and of a significant scale.
Visual Effects
12.37 Visual receptors are people with the potential to have their views and visual
amenity affected by the development proposed. Those views can be
experienced from public and/or private places.
Public viewpoints
12.38 Views form part of the experience of those enjoying the Riverside Country
Park, including Horrid Hill and Motney Hill and the approaches to them, and the
long distance footpath, Saxon Shore Way, which runs along the Estuary
coastline here.661 I consider those receptors to be of medium to high
sensitivity. The contribution that the visual experience and views make to the
value of landscape has been incorporated into the assessment of landscape
effects above and informs the sensitivity of users. Having regard to the table
of magnitude of change for visual receptors,662 I consider that there would be a
medium degree of change for those receptors, and moderate adverse visual
effects for those with the most open views to the site.
12.39 For users of Pump Lane there would be a high degree of change around the
areas of the proposed junctions, where significant lengths of hedgerow would
be removed, altering the character of the lane itself completely and with views
of the new houses and other uses in the adjoining parts of the site.663 I
consider that change to be moderate/high adverse.
12.40 Other than at those proposed junctions, there would be no physical change to
the lane itself. However, whilst development would be set back beyond areas
of green space, including community orchards and the proposed village green,
the built development behind would, even when that planting was established,
still, in my view, be readily perceived. I consider those changes to be
moderate adverse.
12.41 Users of the bridleway are of high sensitivity. For most of its route, the
bridleway would run through the residential development areas. There would
be clear and short distance views from it of the new development at gaps in
the hedging and where it would cross the new estate loop road, as well as
from the proposed village green which it would cross, before terminating on
Pump Lane at the proposed local centre. Even where the route was screened
in visual terms, there would still be a general awareness of passing through a
residential estate, rather than passing through orchards. I consider the visual
661 INSPECTOR’S NOTE: I consider that views from the Hoo Peninsula on the northern side of the Estuary to be
sufficiently distant that the effect of the development proposed on those views would not be material to the outcome
of this appeal.
662 TGLVIA Appendix 2 (CD8.3 Appendix 11a)
663 ID20
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effects in this regard to be high adverse, even once new planting etc is
established.
12.42 For users of Lower Rainham Road, there would be a high degree of change at
the main site entrance as a consequence of the highway works involved,
including highway widening and the introduction of a ghost right-turn lane,
together with the removal of some 170 metres of hedgerow on the southern
side of the road here.664 On that basis, I consider the effects to be moderate
adverse for motorists at the point of the access. For pedestrian users of the
footways here, that effect would be slightly higher.
12.43 In terms of users of Lower Twydall Lane, any views of the appeal site are
limited at best. Any visual effects in this regard would be insignificant.
However, although the lane terminates at the railway, there is pedestrian
access to the south via a footbridge, from which there are clear views across
the western part of the appeal site. The visual impacts from there would be
moderate to high adverse.
12.44 Lower Bloors Lane runs along the eastern site boundary. Like Lower Twydall
Lane, it terminates at the railway, with a footbridge allowing pedestrians to
carry on into the urban area beyond. For the most part, views from the lane
across the appeal site are precluded by tall established hedgebanks which
would be reinforced, in addition to areas of buffer planting behind. I agree
with the Appellant in this regard, that any visual effects would be minor
adverse where perceptible. There are no clear views of the appeal site from
the footbridge here.
12.45 Views for rail passengers, who are considered to have low sensitivity, were
discussed above in terms of landscape effects. Passenger views of the
orchards and beyond to the Estuary would be lost, replaced by views of a
housing estate. The illustrative plans and Landscape Framework Plan show a
narrow belt of planting alongside the slight embankment here. I consider that
the visual effects would be minor adverse.
Private Residential Views
12.46 Most of the views from properties to the south of the railway line in Twydall
are from upper floor windows.665 Whilst there is a generally dense line of trees
and shrubs along the north side of the railway line to the east of Pump Lane,
the vegetation alongside the railway line to the west is generally thinner and
lower, where the views to the north are more open, though still mainly filtered
to some degree. In these views, the orchards and views towards the Estuary
would be replaced by built development. The degree of change would vary
with the presence of filtering vegetation, but for those with the most open
views, taking account of the fact that those views are across a busy railway
line, I consider that the visual effects could be moderate adverse for some
properties, reducing to anywhere between insignificant and slight to moderate
adverse effects for others.
12.47 The Council estimates there to be around seven properties on Lower Rainham
Road with rear facing views across the appeal site, including Bloors Place (see
664 Dwg No 13374/P17a (ID20)
665 Mr Etchells Appendix B photos 13,14 and 37 and Mr Hughes Volume 2 photoviewpoint 19
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heritage section below).666 For the most part, those would be from upper floor
windows across well vegetated boundaries although, as is clear from the
evidence of Ms Stoten for the Appellant,667 that the boundary of the newbuild
properties to the south of the Three Mariners is much more open. The existing
orchard views would be replaced with views of the proposed school, with
residential development beyond that. The effects would vary, depending in
intervisibility, from high adverse to slight/moderate adverse.
12.48 There are a number of properties scattered along both sides of Pump Lane, all
of which have some views across the existing orchards to varying degrees.
The Appellant’s evidence considers visual effects for all occupiers to be
moderate adverse. Whilst that may be true for a number of the properties, I
consider that for others, it is higher.
12.49 Southernmost occupiers of the short run of properties at the northern end of
the lane would have views of the new buildings both to the west (of the
proposed care facility) and to the southeast (of the proposed school). As such,
they would be largely surrounded by the new development. Even taking
account of the planting proposed, I agree with the Council that the visual
effects would be moderate to high adverse.
12.50 The three dwellings on the east side of the lane, close to Pump Farm, have far
reaching views across the orchards. As proposed, they would face onto the
new village centre and would be adjacent to the proposed new junctions to
facilitate the crossing of Pump Lane by the loop road at this point. The new
school would lie to the east of those properties. The new village green would
lie to the south/southwest, with residential development up to 12 metres in
height beyond. Again, I agree with the Council that there would be a high
degree of change for these receptors, resulting in moderate to high adverse
visual effects.
12.51 The outermost dwellings within the group of properties at Russett Farm,
adjacent to Pump farmhouse, would have views mainly of the new houses in
the western part of the site (up to 12 metres in height) albeit seen across
proposed community orchard planting. For most of those, I consider the visual
effects would high adverse.
12.52 Four properties on Lower Bloors Lane have views across the appeal site. The
most northerly of these is located at a point where there is no significant
boundary hedging to the appeal site, with clear views across the appeal site
from both ground and first floor level. Visual effects for occupiers would be
high adverse. The remaining properties, further along the lane are better
screened. Allowing for boundary planting etc, I agree with the Council that
effects are likely to range from slight to moderate.
12.53 There are limited views towards the appeal site from properties at the
southern end of Lower Twydall Lane. What views there are, are heavily
screened by existing vegetation. Combined with the development set back
proposed and the proposed planting, I agree with the Appellant that visual
effects would be negligible.
666 Mr Etchells proof paragraph 6.4.1(a)
667 CD10.2 Plate 36
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Riverside Gillingham ALLI
12.54 As well as their landscape importance, the ALLIs are significant for other
important functions. The Local Plan identifies the specific functions of the
Riverside Gillingham ALLI thus:668
• forms an important green buffer separating the built-up areas of Twydall
and Rainham from areas of international importance for nature
conservation and recreation along the Medway estuary;
• enhances the setting of the Medway Towns Northern Ring Road on the
western boundary, and allows attractive views from the river and railway;
• provides residents within an extensive urban area with access to an
attractive, rural landscape;
• provides an attractive setting to the Lower Rainham and Lower Twydall
conservation areas;
• contains a number of orchards, mature hedgerows and farm groups
complementing and contributing to the Riverside Country Park; and
• forms a green backdrop when viewed from the Medway Estuary.
12.55 These functions are also identified in the MLCA.
12.56 Green Buffer: For the most part, the ALLI is bounded by the railway line to the
south and the Estuary to the north, with a depth from railway to shoreline of
roughly 1 km. With a width of between 750 metres to 1 km, and a depth of
around 750 metres, the open, undeveloped appeal site forms a significant part
of the ALLI, comprising around 75% of its depth. As such, it is clearly a
substantial and integral part of the buffer.
12.57 The ALLI includes not only the LRFCA, but also the Riverside Marshes LCA,
which lies on the northern side of Lower Rainham Road.669 The MLCA confirms,
among other things, that the Riverside Marshes LCA provides a valuable
recreational and biodiversity resource.[6.116] The Appellant’s TGLVIA subdivides
it into two smaller areas, described as the Medway Marshes Farmland LCA
(between the main road and the shoreline) and the Medway Shoreline and
Riverside Country Park LCA, which includes the two promontories. It is
relevant to note at this point, that the designated boundary of the Country
Park itself, includes both those LCAs.670 It seems to me that together, it is
these LCAs that comprise the areas of recreation and international importance
for nature conservation referred to in the first bullet above. Whilst I agree
with the Appellant that there would be no direct impact of development
proposed on those LCAs,[6.61] I do not agree with the contention that the
development would reduce the degree of separation between them and the
railway line.[6.118] Rather, were the appeal scheme to go ahead, development
would extend from the railway all the way up to Lower Rainham Road, leaving
668 CD1.1 paragraph 3.4.107(xiii) This provides the justification for designation of this ALLI and guidance on the
landscape features and functions that policy BNE34 seeks to protect.
669 Mr Hughes Volume 2 figure 3
670 See Mr Hughes Volume 2 figure 3
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no buffer at all between the built up settlement edge and the identified areas
of recreation and nature conservation on the northern side of the road.
12.58 The Appellant suggests that the proposed development would offer
enhancements to the functionality of the site in terms of accessibility between
the urban area of Twydall, the wider rights of way network and Riverside
Country Park. However, whilst noting that this latter point featured in the
General Matters SoCG,671 it was confirmed by Mr Goodwin (the ecology witness
for the Appellant)672 that, in order to avoid providing a direct link which new
residents could use to easily access the designated Medway Estuary and
Marshes SPA/Ramsar site,673 no enhanced pedestrian linkage between the
application site and the Country Park towards the north is proposed. In
addition, no general parking areas are proposed within the site (aside from
those within the care and village centre, both of which would be subject to
parking and management controls) and so the development would not provide
parking for individuals to park and then access the Country Park and European
designated sites beyond.
12.59 In my view, even taking account of the green infrastructure proposed,
including the community orchards, the scale of the appeal scheme would
materially undermine the identified green buffer function, eroding it completely
at this point.
12.60 Views from the railway and Estuary: As noted earlier, there are views across
the appeal site from trains passing to the south. Although those views are
filtered in places by trackside trees and vegetation, as is clear from the video
clip,674 the appeal site is clearly appreciated from the train, with clear views in
places across the site all the way across the site to the Estuary, especially in
winter months. That landscape and those views would be replaced with a
residential estate.
12.61 During the site visit, I saw that from the causeway approach to the
promontory of Horrid Hill and Horrid Hill itself, as well as from Motney Hill,675
there are clear views of the green undeveloped appeal site as part of the wider
green ALLI, on gently rising ground as a backdrop to the Estuary, with the
urban settlement of Twydall/Rainham behind. Again, as a sizeable and
integral part of those views, development of the site as proposed would
materially undermine the contribution that it makes to these identified
functions.
12.62 Access to an attractive rural landscape: Public access through the appeal site
comprises the bridleway and Pump Lane. Users of those routes currently pass
through the attractive rural countryside of the appeal site.
12.63 Whilst residents within the urban area would, in principle, be able to access
areas of open space within the appeal site, that space would be in the context
671 CD11.3, Point 6 (page 6)
672 In his written evidence (at Appendix 5 to the proof of Mr Parr) and in answer to my questions at the Inquiry. See
Annex D below for further information on this.
673 The location of which is shown on Plan EC01 in CD5.13. See Annex E below for more detailed information on this.
674 See eg seconds 14-58 of the video clip appended to the LSoCG and Mr Etchells photos 13 and 14
675 Eg Mr Etchells photos 32, 34 and 35 and Mr Hughes photoviewpoints 2 and 4 INSPECTOR’S NOTE: I found the
appeal site and indeed the ALLI to be more readily appreciated on the ground as it were, than is portrayed in the
photographs.
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of a housing estate, as opposed to an attractive rural landscape. Moreover,
users of the bridleway would no longer pass through rural countryside, with
the rural character and appearance of Pump Lane materially changing not only
as a consequence of being bound to both sides by residential development, but
also the introduction of new junctions along it/realignment and hedgerow
removal. As a consequence, even taking account of the proposed community
orchards along parts of Pump Lane and the other panting proposed, the appeal
site would no longer provide residents within the urban area access to an
attractive rural landscape.
12.64 Providing an attractive setting to the Conservation Areas: I deal below with the
contribution of the appeal site to the heritage significance of Lower Twydall
and Lower Rainham Conservation Areas as part of their setting. That is a
separate matter to their setting in terms of character and appearance
generally.
12.65 As set out above, the extent of the development proposed would effectively
subsume the village of Lower Rainham, and its Conservation Area, into the
extended urban area of Twydall/Rainham, with the consequence that it would
lose its separate identity and character as a rural village.
12.66 The site also has a contiguous boundary with the southern end of Lower
Twydall. Notwithstanding the planted buffer zone proposed, the individual
identity of that settlement, and its Conservation Area, would also be
undermined, but not to the same degree as Lower Rainham.
12.67 Contains orchards and mature hedgerows: Whilst the proposal would result in
the loss of almost all of the orchards within the ALLI, areas of community
orchard are proposed within the scheme. Although covering a much smaller
area they could, if delivered successfully, mitigate the orchard loss to some,
albeit limited extent.
12.68 As shown on the illustrative Green and Blue Infrastructure Plan,676 read
together with the revised Hedgerow Removal Plan,677 a significant amount of
mature hedgerow would be removed to facilitate the development proposed.
Putting to one side the effect of that on the character of Pump Lane, which is
dealt with elsewhere, I recognise that the appeal scheme includes replacement
planting.
Conclusions on Character and Appearance
12.69 I consider that overall, the appeal scheme would have a substantial adverse
landscape and visual impact, with corresponding harm to the character and
appearance of a wide swathe of countryside between Lower Rainham Road and
Twydall/Rainham. I recognise that those effects would reduce over time to
some extent, and I am mindful in this regard of the extensive landscaping
proposals. However, whilst the visual envelope is relatively tightly drawn
around the site it nevertheless covers a sizeable area. As such, I consider that
the degree of harm would be significant. In coming to that view, I have also
had regard to the status of the site, lying as it does within a valued landscape
as recognised by its designation as an ALLI in the Local Plan and the harm that
676 No 11047/PL/005B (Appendix 6 to CD8.1)
677 ID20
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would be a consequence not only to its landscape importance, but also to its
functions, particularly that as a green buffer.
12.70 Those conclusions bring the development into conflict with policy S1, which
among other things seeks to restrict outward peripheral expansion onto fresh
land, particularly to the north and east of Gillingham. There would be conflict
too with policy BNE25, not only because the scheme does not meet any of
specified criteria for development in the countryside, but also because it would
not maintain or enhance the character, amenity or functioning of the
countryside. The scheme would also conflict with policy BNE34, given the
harm that I have found to the character and functions of the ALLI, including its
function as a green buffer. The policy does, however, require that any such
harm be weighed against economic and social benefits. I deal with that in my
overall planning balance section at the end of this report. There would be
conflict too in this regard, with paragraphs 170a) and b) of the Framework,
which together and among other things seek to protect and enhance valued
landscapes and recognise the intrinsic character and beauty of the countryside.
I also consider there to be conflict with policy BNE47, in that the landscape
character of Pump Lane, identified on the Proposals Map as a rural lane, would
be materially undermined by the alterations required to facilitate the new
junctions associated with the proposed estate loop road.
12.71 I recognise that the Council has, at times, permitted development on parts of
the ALLI.678 However, whatever the detailed circumstances that led to those
permissions, those sites are patently not of the same scale as the development
now proposed and, even, more importantly they are, for the most part, located
within a part of the ALLI that has a quite different character and appearance
from that part within which the appeal site is located. They do not, in this
regard, set any kind of precedent for appeal scheme, or diminish the value of
the ALLI.
Heritage Assets[6.44, 6.123-6.184, 6.337, 6.338, 7.94-7.118, 7.225-7.227, 8.9, 8.37, 9.2, 10.8]679
12.72 The Environmental Statement680 identifies that the appeal site is within an area
of high archaeological potential for both the prehistoric and post-medieval
periods, with moderate and low to moderate potential for the Roman and
Anglo-Saxon periods respectively. Based on current information, some of
those remains could fall into the category of being equivalent in significance to
scheduled monuments.
12.73 As a working orchard, the Appellant resisted a detailed evaluation prior to
determination of the application as requested by the County Council’s senior
archaeological officer. As a pragmatic way forward, and on the basis that any
important remains would be likely to have more impact on detailed
location/distribution of houses than precluding development completely, the
Council agreed that, were the appeal to be acceptable in all other regards,
rigorous planning conditions could provide sufficient protection. On that basis,
I had no reason to hear evidence on this particular matter.
678 Mr Hughes Volume 2 Figure 3
679 See also CD5.39 Appendix 14.3, CD6.3, CD6.10, CD8.4 Appendix 14.3a, the proofs of Ms Stoten for the Appellant
(CD10.2 and CD10.15) and Ms Wedd for the Council (CD10.7) the Heritage SoCG (CD11.2) and the Main Matters
SoCG (CD11.1) paragraph 5.1(9)
680 CD8.3 Appendices 14.1 and 14.21
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12.74 The parties are agreed that the relevant designated heritage assets comprise
seven listed buildings and two Conservation Areas, and that any effect on
significance would derive from changes to their setting as opposed to any
direct effects.681 An agreed non-designated heritage asset is also in the
vicinity. In addition, the Council maintained that the historic landscape of the
appeal site is a non-designated asset in its own right. That position was
contested by the Appellant.
12.75 Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990
requires that special regard be given to the desirability of preserving the
setting of listed buildings. Whilst no statutory protection is afforded to the
setting of other heritage assets, including Conservation Areas, paragraphs 189
and 190 of the Framework require an assessment of the significance, including
any contribution to that significance made by their setting, of any heritage
assets that might be affected by a development proposal.
12.76 Paragraph 194 of the Framework makes clear that the significance of heritage
assets (defined in the Glossary to the Framework as deriving not only from an
asset’s physical presence, but also its setting) can be affected by a change in
their setting, explained as the surroundings in which they are experienced.
The Government’s Planning Practice Guidance682 confirms that this is often
expressed by reference to the visual relationship between the asset and the
proposed development, and associated visual/physical considerations,
including our understanding of the historic relationship between places. It is
the significance of the heritage asset that enjoys protection in this regard,
described in the Framework as its value to this and future generations.
Setting is not, of itself, a heritage asset.
12.77 In relation to designated assets, the Framework identifies harm as being
substantial or less than substantial. Putting to one side the heritage status of
the historic landscape, the settled position of the main parties is that any harm
that would arise to the significance of the agreed heritage assets would be less
than substantial in nature. This does not mean that any harm would be
unimportant or of little consequence. Indeed, the Framework also confirms
that great weight should be given to the asset’s conservation.
12.78 Paragraph 196 of the Framework explains that any less than substantial harm
to the significance of designated heritage assets is to be weighed against
public benefits. In the case of any harm to the significance of non-designated
heritage assets, paragraph 197 of the Framework makes clear that a balanced
judgement should be made, having regard to the scale of any harm and the
significance of the asset.
12.79 Local Plan policy BNE18 reflects the statutory duty set out at Section 66 of the
Planning (Listed Buildings and Conservation Areas) Act, resisting development
that would adversely affect the setting of a listed building. Policy BNE14
681 Heritage SoCG CD11.2 INSPECTOR’S NOTE: A very small portion of the appeal site (between Chapel House and
Lower Rainham Road) extends into the western end of Lower Rainham Conservation Area. That land is well
vegetated at present and would remain so were the appeal to succeed. It was no part of the Council’s case that
there would be any harm to the character or appearance of the Conservation Area in this regard, or its heritage
significance. I have no reason to disagree.
682 Paragraph: 013 Reference ID: 18a-013-20190723
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requires that development affecting the setting of Conservation Areas should
preserve or enhance their historic or architectural character or appearance.
Bloors Place (grade II*), range of outbuildings including cartlodge and granary
west of Bloors Place (grade II) and garden walls to south and east of Bloors
Place (grade II): [6.130, 6.154-6.162, 6.166, 7.100, 7.103(vii), 7.109, 7.110]
12.80 Bloors Place is located on the southern side of Lower Rainham Road, some
60 metres to the northeast of the appeal site, at the eastern end of the Lower
Rainham Conservation Area. It comprises a timber framed, two-storey plus
attic house originally constructed as a Hall House in 1470-1510, with later
additions. It is set well back from the main road behind a densely vegetated
frontage, within a large immediate curtilage which also contains the associated
grade II listed outbuildings and walls, and gardens. Wider grounds to the
southwest and southeast of the asset include orchard outwith the appeal site.
The gardens are very enclosed, with pleasure gardens immediately adjacent to
the house enclosed by high walls and with further produce gardens beyond
also enclosed by high walls.
12.81 The landholding originally associated with Bloors Place was very extensive and
included land that now comprises the eastern half of the appeal site. Based on
the 1838 Rainham Parish Plan Map,683 it would seem that this was a large,
dispersed landholding supporting a mixed farming base, rather than a
consolidated area centred on the house. Any functional association with the
appeal site has long since ceased.
12.82 The Bloors Place complex has been subdivided into multiple separate
residences and ownerships. The Wagon Lodge has been converted to a
residence with a separate curtilage (including the other listed outbuildings).
The former Oast House to the south (an undesignated asset – see below) has
also been converted to a separate residence. In addition, a large fruit
storage/machinery building has been erected to the south of the Oast House,
and a roofing company operates from the former dairy and a yard at the
southern edge of the complex.
12.83 The heritage significance of Bloors Place derives primarily from its built form,
which has architectural, artistic and historic illustrative value. I consider that
the main elements of setting which contribute to its significance relate to its
immediate curtilage, including the outbuildings, which together give legibility
to the historic mixed farming use of the complex, and the gardens and listed
walls. The configuration of these, with high walls enclosing the spaces around
the house, and the strong lines of vegetation present in the vicinity of the
asset beyond its immediate curtilage, including around the boundaries with the
appeal site, materially limit views out to the wider area. The views of Bloors
Place from the appeal site, such as they are, lie beyond the enclosed gardens
at the rear of the property and beyond further areas of orchard, with the house
having no functional relationship with the appeal site. I consider any
contribution to the significance of Bloors Place made by the appeal site as part
of its setting, to be very limited.
683 Ms Stoten proof (CD10.2) page 47
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12.84 In terms of any contribution to significance by other, intangible qualities of
setting, whilst the walled gardens would give some sense of tranquillity to the
immediate surroundings, the outbuildings have been converted to residences
and commercial uses. It is also close to the main road.
12.85 The range of listed outbuildings lies some 65 metres to the north-east of the
appeal site, with the listed garden walls being within some 25 metres of so of
the site. The outbuildings most likely date from the C18th with later
alterations. They are of brick, with partly weatherboarded timber frame and
tiled roofs. They have been converted to separate residences, each with its
own curtilage. The garden walls, of English bond brick and limestone rubble
with dressings, date from the mid-C17th. They enclose the eastern and
southern kitchen gardens.
12.86 The heritage significance of the listed outbuildings and walls is primarily
derived from their built form, which has architectural, artistic and historic
illustrative value. The element of setting that makes the greatest contribution
to their significance is clearly Bloors Place, the presence of which enables the
origin of the formerly functionally associated outbuildings and walls to be
understood. Their immediate surrounds, comprising the grounds of the
residences and the enclosed gardens of Bloors Place, from where each asset
can be appreciated, also contribute to their significance.
12.87 Any functional association of the listed buildings/structures with the appeal site
has long since ceased and there is little, if any, intervisibility between them
and the appeal site, being separated as they are by the Oast House, the
roofing company premises and orchard (beyond the appeal site). As such, the
appeal site does not allow any meaningful appreciation or understanding of the
listed outbuildings and walls.
12.88 The appeal scheme would introduce new residential development, potentially
up to 12 metres in height within around 60 metres of the complex, together
with a school, up to 10 metres in height, within around 120 metres at their
closest.684 The new housing and school would be set back from the shared
boundaries, behind additional boundary planting.
12.89 As acknowledged for the appellant, some limited views of the development are
anticipated in the winter months from the rear of Bloors Place and perhaps,
obliquely, from its eastern elevation.685 However, there is no suggestion that
the building was designed to have views across the appeal site. Its secluded
curtilage, which makes the most significant contribution in terms of setting to
the significance of the asset, would not be changed by the development
proposed, the former farming use remaining legible within the complex
through the presence of the historic outbuildings and walls, and the adjacent
orchard areas outwith the appeal site. Any views that might be available
towards the appeal site from higher level windows at the property, would be
across those private orchards and screening vegetation and are not, in my
opinion, integral to the heritage significance of Bloors Place, given the
orientation of the house and the siting of the kitchen garden and walls.
684 Ms Wedd proof (CD10.7) paragraph 6.20
685 Ms Stoten proof (CD10.2) paragraphs 6.154-6.156
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12.90 In terms of the listed outbuildings and walls, the appeal scheme would, at its
closest, introduce housing potentially up to 12 metres in height, and a school
up to 10 metres in height, within about 60 metres.686 However, that would be
beyond intervening mature vegetation. Whilst the character of the appeal site
would change, there is little intervisibiity between land within the appeal site
and the listed walls, and none with the listed outbuildings.687
12.91 Historic England believes that there would be harm to the significance of Bloors
Place due to its relationship with the surrounding fields and rural setting, which
it considers to be important to understanding the asset’s historic use as a
farmhouse and its origins as a rural dwelling.688 It goes on to express the view
that that relationship is still appreciable from the surrounding roads and
pathways and from trains passing along the southern site boundary (some
600m away).
12.92 Dealing with this last point first, as is clear from the video extract of the train
journey past the appeal site,689 notwithstanding the distance separation, the
Bloors Place complex is completely obscured in views from passing trains due
to the band of conifers that runs along most of the length of the bridleway as it
crosses the eastern part of the appeal site.690 As a consequence, any
relationship between the complex and the appeal site is not experienced from
this aspect.
12.93 Other than the bridleway, no other footpaths cross the appeal site. At a gap in
the conifer belt on the bridleway, there is a view towards Bloors Place.
However, as demonstrated by the photographic evidence submitted,691 and as
I saw during my site visit, it is the white cowls on top of the Oast House
building (an undesignated heritage asset) that can be seen in those views, as
opposed to any meaningful appreciation of Bloors Place. Moreover, no key
viewpoints from surrounding roads were drawn to my attention where Bloors
Place is seen, or appreciated together with the appeal site. In essence, I did
not find any relationship of the complex with the appeal site to be readily
appreciable in the suggested context.
12.94 So, inasmuch as there would be some limited/intermittent intervisibility with
the appeal site (albeit not to the extent suggested by Historic England) I
consider that the appeal scheme would result in some, minor harm to the
heritage significance of the grade II* listed Bloors Place and the grade II listed
walls, but not the listed outbuildings. That harm would be less than
substantial, at the lower end of that spectrum.
York Farmhouse (grade II):[6.131-6.136, 6.183, 7.100, 7.104(i), 7.106]
12.95 This former farmhouse comprises a two-storey timber framed dwelling with a
plain tiled roof, dating from C16th with later additions and alterations. It is
now converted to three cottages. Its outbuildings have also been converted to
residential use. It lies close to the road frontage, behind a small fore garden,
686 Ms Wedd proof (CD10.7) paragraph 6.23
687 MS Stoten proof (CD10.2) paragraph 6.168
688 Letter dated 1 August 2019 (Appendix 6 to the proof of Ms Wedd)
689 See the short video clip appended to the LSoCG (CD11.3) The train passes the appeal site between 14-58 seconds
(once past the footbridge at 14 seconds).
690 At seconds 33-44 on the video. See also photograph 40 in the evidence of Mr Etchells.
691 Mr Hughes poof volume 2 photoviewpoint 14b (summer view) and Mr Etchells photo 27 (winter view)
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and is located within the associated garden plots. Two large dwellings have
been constructed to the rear of the listed building (between the listed building
and the appeal site) which, together with their extensive grounds, are
surrounded by woodland to the south and west, possibly planted to screen the
nearby railway line.
12.96 The heritage significance of the building derives primarily from its built form,
which has architectural, artistic and historic value. In my view, any
significance now derived from its setting relates to its immediate rather than
wider setting, its functional and visual relationship with the wider farmland
having been severed as a consequence of the substantial new dwellings now
constructed behind it, together with layers of domestic curtilage and the
woodland planting referred to. Even in winter, that extensive planting and the
intervening buildings mean that there is little if any vestigial intervisibility
between the appeal site and the listed building.
12.97 The asset is no longer experienced in a way that is illustrative of the
relationship it once had with the wider landscape, or indeed with any of the
other heritage assets within the wider landscape. In particular in this regard,
neither the appeal site, nor any of the other heritage assets, including Pump
Farmhouse and the agricultural outbuildings at Bloors Place, are visible as a
backdrop in any key views of the farmhouse. Moreover, there is no direct
route between York farmhouse and the appeal site. Even when viewed from
the elevated vantage point of the adjacent footbridge over the railway line,692
whilst the appeal site can clearly be seen, intervening woodland means that
there is little perception of York farmhouse having any remaining relationship
with the appeal site, or indeed any of the other heritage assets.
12.98 Given that context, the changes to the landscape that would be a consequence
of the development proposed would not materially harm the heritage
significance of the former farmhouse through any change brought about to
historic illustrative values. Neither would the development adversely affect the
ability of the public to interpret its heritage significance, which is now best
appreciated from the lane.
12.99 In terms of any contribution to significance by other, intangible qualities of
setting, tranquillity makes no meaningful contribution in this instance – the
building is converted into three cottages, it is surrounded by other dwellings,
and lies in close proximity to the railway.
Pump Farmhouse (grade II):[6.137-6.143, 7.103i), 7.107]
12.100 Another former farmhouse now converted to a residence. It is located
roughly mid-way along Pump Lane, at the centre of, but outwith, the appeal
site. It comprises a two storey building of rendered brick with a tiled hipped
roof, dating from the late C18th with later alterations and remodelling.
Historically, it was surrounded by orchard and arable land. It is set back some
distance from the lane, behind what is thought to have been the farm yard but
is now a large domestic garden, with a well treed boundary to the road.
692 Eg Mr Hughes proof volume 2 photoviewpoint 13 and Mr Etchells photo 1. See also Ms Stoten proof Plate 4 (page
13).
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12.101 Russet Farm, a development of 24 modern dwellings, arranged as six close-
knit terraces with modest gardens, and access roads, has been constructed
around two sides of the former farmhouse, immediately to the west and south-
west. In addition, a large modern outbuilding associated with the orchard has
been erected nearby to the north. A former outbuilding/cottage to the south,
between the farmhouse and Pump Lane, has been remodelled/rebuilt as a
separate residence. Consequently, the immediate surroundings of the former
farmhouse have comprehensively changed in form and character, with this
group of built development forming a small residential enclave.
12.102 In my view, the heritage significance of the asset derives primarily from its
built form, which has architectural, artistic and historic value. Its set back
from the road, combined with the vegetated frontage, means that any
contribution to that significance from its setting is principally derived from its
associated garden plot, as opposed to its wider setting. Although Ms Wedd
referred to views of Pump Farmhouse from Lower Rainham Road across the
appeal site, through gaps in the roadside hedgerow, that was not apparent
during the site visit. However, whilst its historic functional connection with
the wider agricultural land has been severed, there is intervisibility in one view
from the side elevation of the property to the northeast, across the appeal site
to the Medway Estuary, where there is a notable absence of built form.693
Whilst that part of the site was not functionally related to the farmhouse
historically,694 its current use as an orchard does, nevertheless, provide an
experience of the listed building in a way that is illustrative of the relationship
the asset once had with the wider landscape.
12.103 The illustrative masterplan shows a buffer of open space/planting to the
northeast, between the asset and the proposed local centre, which would
comprise buildings up to 10 metres in height. I appreciate that the
development proposed would only be readily appreciated in that one view, but
that is the only remaining view that allows for an appreciation of the asset in
anything like its historic context. To my mind, that serves to heighten the
importance of that relationship. That said, whilst there clearly would be some
harm to the significance of the asset as a consequence of the development
proposed, that harm would be less than substantial, towards the lower end of
the range.
12.104 In terms of any contribution to significance by other, intangible qualities of
setting, tranquillity makes no meaningful contribution in this instance, the
farmhouse having been converted to a residence, with associated farm
buildings etc having been replaced with 24 new dwellings in very close
proximity.
Chapel House (grade II):[6.144-6.148, 6.163, 7.108]
12.105 Chapel House lies immediately adjacent to the northern extent of the appeal
site. It dates from the mid-late C15th with later alterations. It has a timber
frame with a rendered rear and weatherboarded left-hand end and a half-
hipped tiled roof and left-hand hipped cross range. It has been subdivided to
create two cottages.
693 See Ms Wedd Figure 9 (page 38 of her proof)
694 See Ms Stoten Plate 10 (page 22 of her proof)
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12.106 The building is contained within its own land parcel that is larger than the
historic curtilage - the original gardens have shifted from the south-west to the
north-east of the building and further to the north-west. Although some of the
land originally associated with Chapel House was located within the appeal
site, that association has been severed and there is now no functional
association between the appeal site and the heritage asset.
12.107 Its main, eastern façade fronts directly onto the northern end of Pump Lane,
from where it is best appreciated, although it is also seen from Lower Rainham
Road at the Pump Lane junction. The 1938 Tithe Map shows it apparently
forming part of the then very loose-knit cluster of buildings along this part of
Lower Rainham Road. Modern dwellings, constructed in the 1960s, lie
immediately to the south-east of the asset, on the opposite side of the lane.
12.108 The rear of the listed building has some partially screened intervisibility with
the appeal site. Filtered views of the appeal site are also co-visible with the
asset from Lower Rainham Road, and the absence of built form within the
appeal site is perceptible. From Pump Lane, co-visibility on the approach from
the south is largely screened by roadside vegetation, although there are a
couple of glimpsed, narrow aspect views in the immediate vicinity of Chapel
House towards the site, beyond the garden areas.
12.109 The heritage significance of Chapel House is primarily derived from its built
form, which has architectural, artistic and historic illustrative value, with any
significance derived from its setting relating primarily to its immediate rather
than wider setting. Its location as part of the settlement at Lower Rainham,
albeit at the at the very eastern end, separated from it by Pump Lane, also has
historic illustrative interest, as recognised by its inclusion within the
Conservation Area. As two residences together, opposite modern residences
and immediately fronting onto Pump Lane, close to its junction with Lower
Rainham Road, it does not disclose any significant degree of tranquillity.
12.110 In my view, as part of the historic rural surrounds of Chapel House with
which it has some intervisibility, and as an area which was part of the historic
landholding of the asset, the land within the appeal site makes a minor
contribution to the heritage significance of the asset. The appeal scheme
would introduce new residential development up to 12 metres in height within
around 80 metres of the asset, together with care/extra care accommodation
up to 10 metres in height within around 50 metres.695
12.111 The character of the land, including some of the historically associated
landholding would clearly alter, reducing the contribution of this area through
historic illustrative interest. There would also be a corresponding increase
activity levels in the wider vicinity. That said, the development would be set
well back from the shared boundaries, behind an area shown on the illustrative
plans as community orchard. Some views from and of the asset and its
surrounds would change, and built form would be perceptible beyond the
buffer in views from Lower Rainham Road and Pump Road.
695 Ms Wedd proof (CD10.7) paragraph 6.13 INSPECTOR’S NOTE: the height of the care accommodation referred to
in the proof does not reflect the revised parameters plan (ID29)
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12.112 Historic England identified harm as occurring to the heritage significance of
the asset through increased vehicular movements during the construction
phase at the adjacent road junction. However, the development scheme
would not utilise Pump Lane as a main access. Rather, the main access to the
site would be via a new junction off Lower Rainham Road, to the northeast of
the listed building, separated from it by the proposed community orchard.
12.113 Overall, I consider that the proposed development would result in less than
substantial harm to the heritage significance of the Grade II Listed Chapel
House, through changes to its setting. That harm would, in my opinion, be
towards the middle of that range.
Bloors Oasts (non-designated asset):[6.150, 6.158, 7.101, 7.116] 696
12.114 Bloors Oasts lies to the south-west of Bloors Place and its associated listed
buildings, between them and the appeal site, and is located outwith Lower
Rainham Conservation Area. It dates from the very late C19th and, as noted
earlier, has been converted to use as a dwelling. Its modest heritage
significance is derived principally from its built form and history, its historic
functional links with the surrounding land, including the appeal site, having
long since been severed. Any significance it derives from its setting is, in my
view, confined to its immediate surroundings, including the surviving buildings
of the Bloors Place complex referred to earlier.
12.115 There are some filtered views of the asset across the site from Lower Bloors
Lane697 and from the bridleway, mainly through a gap in the conifer belt that
bounds it for most of its length, although as noted earlier those latter views
are of the white roof cowls in the distance, rather than of the main building
itself.698 As such, any contribution made by the appeal site to the heritage
significance of the building is modest at best.
12.116 Whilst the development proposed would not interrupt the relationship
between the Oast House and the Bloors Place complex, as asserted by the
Council, those views from and of the asset and its surrounds would change as
a consequence of the appeal scheme, with built form up to 10 metres in height
located within some 20 metres of the rear boundary of the property.699 I agree
with both parties that any harm to the heritage significance of the asset would
be limited/minor at most.700
Lower Rainham Conservation Area:[6.159-6.153, 7.69, 7.72, 7.103i) and iv), 7.111, 9.2]
12.117 No Conservation Area Appraisal is available for this Conservation Area to
provide assistance in my consideration as to what determines its significance
and value, although Ms Wedd’s evidence includes a pamphlet that sets out,
among other things, a brief explanation as to why it was designated.701 It is a
linear Conservation Area, located close to the north-eastern boundary of the
696 Also referred to in the evidence as The Oast House or the Oasts. INSPECTOR’S NOTE: The building is not
identified on the Council’s Historic Environment Records (HER) but there was no dispute that it should be treated as a
non-designated heritage asset.
697 Eg Mr Etchells photo 10
698 Mr Hughes poof Volume 2 photoviewpoint 14b (summer view) and Mr Etchells photo 27 (winter view)
699 Ms Wedd proof paragraph 6.36 (page 20) INSPECTOR’S NOTE: the height of the residential development
referred to in the proof does not reflect the revised parameters plan (ID29)
700 The Framework test of less than substantial only applies to designated heritage assets.
701 Her Appendix 7
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appeal site, encompassing the historic core of the village. It comprises a
mixed collection of dwellings, including the Bloors Place complex and Chapel
House702 and a pub, most of which buildings front onto the main road, which is
very narrow at this point.
12.118 Whilst Lower Rainham has been characterised as a traditional Kentish hamlet
in its original setting, surrounded by orchards and with the river in the
vicinity,703 there appear to have been very few farm complexes within the
settlement. As such, whilst the historic core clearly had links to the wider
landscape, that was largely through complexes such as Bloors Place that are
now no longer used for agricultural purposes. In essence, any functional links
with the surrounding countryside have been severed.
12.119 However, although the Conservation Area is generally inward looking, mainly
experienced from the main road which it straddles, from where many of the
historic buildings and their arrangement within the settlement can be
appreciated, it also derives heritage significance from its setting. That setting
allows for an understanding and appreciation of its significance, providing an
historical context for the village, marking it as a small historically rural
settlement. Indeed, that the settlement was designated as a Conservation
Area appears to have been in part due to the rural environment within which
the historic buildings are set.704 To the north, that setting comprises the salt
marsh and Estuary: to the south, it comprises the western half of the appeal
site which separates the village from the built of edge of Twydall/Rainham. I
do not agree with the appellant that the northern setting is somehow more
important than, or has a stronger visual relationship with the settlement than
that to the south – they are just different, each influencing the heritage
significance of the Conservation Area in different ways.
12.120 The appeal site does not directly abut the southern boundary of the
Conservation Area and I recognise that the development proposed would be
set off the site boundaries allowing for some boundary planting. Even so, the
appeal scheme would be clearly perceptible on approaches to the Conservation
Area along Lower Bloors Lane and Pump Lane, and from the rear of properties
on the southern side of Lower Rainham Road within the Conservation Area.
There is also some seasonal intervisibility between the wider landscape and the
rear of Bloors Place and Chapel House. I am in no doubt, in this regard, that
replacing the historic landscape setting along the length of the southern side of
the Conservation Area with new residential development and a school would
have a marked and detrimental impact on the contribution that setting makes
to the heritage significance of the Conservation Area. In essence, it would no
longer be perceived as a separate small rural village related to its agricultural
hinterland. Whilst the harm would, in the language of the Framework be less
than substantial, I consider that harm to be very firmly towards the middle of
that range.
Lower Twydall Conservation Area:[6.164-6.166. 7.70, 7.103(i)(iv)(v), 7.104(3), 7.112, 9.2]
702 Neither York farmhouse nor Pump farmhouse lie within the conservation Area. Neither does the Oast House.
703 Ms Stoten proof paragraph 6.127 (page 64)
704 Pamphlet at Ms Wedd Appendix 7 (page79)
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12.121 Again, no Conservation Area Appraisal is available for this Conservation Area.
It is a linear Conservation area that lies adjacent to the western extent of the
appeal site, at the southern end of Lower Twydall Lane. It encompasses the
historic core of this small hamlet and contains a number of listed buildings,
including York Farmhouse.
12.122 Whilst historically, three farm complexes were located here, the settlement
has changed greatly through the residential conversion and/or rebuilding of
several farm structures, together with the erection of new dwellings to the rear
of York farmhouse, itself converted to three cottages, and the erection of 12
new dwellings at Little York Meadows (which lie outwith the Conservation
Area). It now has an essentially residential, as opposed to agrarian character
and is best experienced from the lane. Its heritage significance derives largely
from the character and appearance of the historic street pattern, buildings and
spaces within its boundaries. Although the Conservation Area is generally
inward looking, mainly experienced from the lane which it straddles, it also
derives some of its heritage significance from its rural setting, which comprises
woodland, arable land and orchards, including the appeal site.
12.123 The appeal site adjoins the eastern edge of the Conservation Area at its
southern end, with most of the site separated from the Conservation area by
intervening agricultural land. At its closest, any intervisibility between the
appeal site and the Conservation Area is only glimpsed, due to intervening
mature vegetation at the rear of the curtilage plots. All in all, I agree with the
Appellant that the development proposed, which would be set beyond a
triangular landscape buffer (as shown on the illustrative plans) would result in
less than substantial harm at the lower end of that scale.
Constellation of Assets and the Historic Landscape:[6.167-6.175, 7.98, 7.101-7.104, 7.117,
7.118, 8.37]
12.124 The Council contended that assessing the assets individually ignores
significance of the historic landscape within which they lie which, in its view,
should be treated as a non-designated asset in its own right and as a shared
setting for the constellation of the other heritage assets referred to.
12.125 Historic England guidance705 advises that the context of a heritage asset
describes any relationship between it and other heritage assets which is
relevant to its significance, including functional relationships, with contextual
relationships applying irrespective of distance, sometimes extending well
beyond what might be considered an asset’s setting, and can include the
relationship of one heritage asset to another of the same period or function.
12.126 York farmhouse, Pump farmhouse and the outbuildings at Bloors Place would
all have related to historical use of the surrounding land, including the appeal
site, for agricultural purposes. However, there is no indication that they were
linked functionally with each other, as demonstrated by the respective
landholding maps in the evidence of Ms Stoten.706 The holding associated with
Chapel House was also separate.707 There is no obvious intervisibility between
those buildings that might otherwise link them, and the distance between
705 The Setting of Heritage Assets Good Practice Advice Note 3 – second edition (GPA3)
706 Plates 2, 10 and 28 respectively,
707 Plate 21
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them, either across the appeal site or by road, does not provide any obvious
appreciation of the buildings as some sort of related group to which group
value might be ascribed. There is no reference in any of the list descriptions
that refers to any group value. Neither do the buildings provide any identified
waymarking function. In addition, only the Bloors Place outbuildings and
Pump farmhouse date from a similar period, both York farmhouse and Chapel
House being earlier in origin. All told, I am not persuaded that there is a
meaningful interrelationship between these buildings in terms of their heritage
significance that derives from the landscape between them.
12.127 As to the landscape itself, the Council described it as an historic north-south
sequence of landscape and settlements, comprising:
• the River Medway and its sea defences and remnant wharves;
• estuarine mudflats and saltmarsh;
• Lower Rainham, built on the first solid geology that could carry buildings
and the coastal road to Chatham;
• the open undeveloped farmland of the appeal site, with widely dispersed
farmsteads and the hamlet of Lower Twydall;
• the railway line embankment which has provided a physical (and possibly
psychological) barrier to development; and,
• the suburban development to the south of the railway.
12.128 Landscapes can clearly comprise heritage assets. Indeed, landscapes are
cited as an example in the Framework definition of heritage assets. However,
the definition sets out that it must have heritage interest.
12.129 Whilst the landscape sequence can be seen from the various aerial
photographs of the site,708 no identifiable, intrinsic heritage value is readily
apparent that might merit its designation as a non-designated asset, so
allowing it to be considered properly as such in the planning process. It does
not feature, for instance, in the Council’s HER. Moreover, until the related
discussion at the Inquiry, no thought had been given as to exactly where the
boundaries of the ‘asset’ might lie in order to be able to quantify any impact
upon its significance or its setting. Initially it was suggested that it related to
the red line of the appeal site, but during the discussion that was then
extended to encompass the land between Lower Bloors Lane and Lower
Twydall Lane, the railway and the Estuary, with the appeal site forming the
substantive part of that.
12.130 Ms Wedd held that the ‘story’ told by the landscape sequence was the last
remaining such sequence on this part of the Medway Estuary, explaining how
the sparse scattered settlements and buildings came about. Be that as it may,
that seems to me to essentially be a landscape character consideration as
opposed to imbuing it with more than remote and ephemeral heritage interest.
The heritage assets referred to above sit within that landscape and would have
been informed by it, but I have had regard to their setting in my consideration
of each of the assets individually. The distance between them does not make
708 Eg ID3
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a meaningful contribution to, or somehow amplify their heritage significance.
On that basis, I consider that the historic landscape does not, in this instance,
comprise a non-designated heritage asset and I have not treated it as such.
Conclusion on Heritage Assets
12.131 For the reasons set out above, I have found that there would be no harm to
the heritage significance of York farmhouse, or the listed outbuildings within
the Bloors Place complex. I consider that the harm to Pump farmhouse, Bloors
Place, the listed walls and Lower Twydall Conservation Area would be at the
lower end of the less than substantial range, with the harm to Chapel House
and Lower Rainham Conservation Area in the middle of the spectrum. I have
found very limited/minor harm to the non-designated asset that is the Oasts.
12.132 As set out above, I do not agree with the Council that the historic landscape
here merits treating as a non-designated heritage asset. Should the
Secretary of State come to a different conclusion, any harm to its significance
would also need to be taken into account in determining the planning
application as part of the overall planning balance.
12.133 In light of the forgoing, I consider that there would be conflict with policies
BNE14 and BNE18, in that the development scheme would not preserve or
enhance the setting of the two Conservation Areas and would adversely impact
the setting of various listed buildings with consequent harm to their special
interest and heritage significance. Paragraph 196 of the Framework requires
that such harm be weighed against the public benefits of the scheme.
Paragraph 197 requires the harm to the non-designated asset be taken into
account. I return to these matters in my overall planning balance below.
Agricultural Land[6.29, 6.35, 6.264-6.315, 6.328, 6.339, 6,340, 7.74-7.93, 7.230, 7.236, 7.237, 8.7, 8.19, 8.23, 8.47,
9.1]709
12.134 The Agricultural Land Classification system classifies land into five grades,
with Grade 3 subdivided into subgrades 3a and 3b. The Framework defines
Grade 1, 2 and 3a land as the best and most versatile (BMV) land. Natural
England confirms that BMV land is ‘the land which is most flexible, productive
and efficient in response to inputs and which can best deliver future crops for
food and non-food uses such as biomass, fibres and pharmaceuticals.’710
12.135 Around 96% of the appeal site is classified as either Grade 1 (excellent
quality) or Grade 2 (very good quality), with the remainder comprising grade
3a (good to moderate quality).711 It is a matter of common ground in this
regard, that the appeal scheme would result in the loss of 51.5 hectares of
BMV land, currently in use by the Appellant as apple orchards (with a cropping
area of around 43 hectares).[6.280]
12.136 There are no current development plan policies relating to agricultural land
and so national policy and guidance form the principal consideration.[6.264]
Paragraph 170 of the Framework requires that planning decisions should
709 See also CD6.6, CD6.11, CDs7.7-7.9, CD8.3 Appendices 13.1 and 13.2, CD8.4 Appendix 13.2(i) together with the
proofs of Mr Pelham for the Appellant (CD10.5 and CD10.14) and Mr Lloyd Hughes for the Council (CD10.5) and the
Agricultural SoCG (ASoCG) (CD11.5)
710 Natural England Technical Information Note TIN049, p2 (CD7.8)
711 Agricultural SoCG (CD11.5) and Mr Pelham proof (CD10.5) paragraph 2.11
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contribute to and enhance the natural environment by protecting and
enhancing soils and recognising the wider benefits from natural capital and
ecosystem services, including the economic and other benefits of BMV land.
12.137 The Appellant’s case was that the BMV status of the land does not reflect site
specific, physical characteristics of the site. To that end, it was argued that no
‘reasonable’ profit[6.295] could be derived from agricultural/ horticultural use of
the land, including non-food crops.[6.270-6.276, 6.295]
12.138 I agree with the Council that on the face of it, the contention that more than
50 hectares of BMV land cannot achieve a ‘reasonable’ profit, either by itself as
a free standing enterprise, or as a satellite as part of a larger enterprise, is
unexpected. Indeed, neither of the professional agricultural witnesses had
come across such argument before. That is not to say, however, that that
may not be the case in this instance, with each case falling to be determined
on its own particular merits.[7.78]
12.139 A C Goatham and Sons (Goathams) is one of the largest growers of apples
and pears in the UK,712 currently farming over 2,400 acres of land[7.79] on a hub
and satellite model,713 all for top fruit (apples and pears) producing around 350
million apples a year and 55 million pears.[7.79(1)] This is a large, long
established company, with over 67 years of experience of fruit growing in this
part of the country.
12.140 The Appellant purchased Pump farm in 2011.[7.79(2i)] As experienced large-
scale growers, the company would have been well aware of matters such as:
the distance and nature of the routes between the site and the relevant hub
farm,714 as well as between the site and the processing and storage facilities at
Flanders Farm, Hoo; the age, alignment and sizes of the various orchard
blocks; the change in ground level levels at the northern end of Blocks 15/16
on the Pump farm side;715 and local weather conditions, including hail
incidents, all matters that are now relied on in arguing that the site is no
longer viable.[6.296-6.299, 6.308, 7.79iv), 7.78] Moreover, after purchasing the Pump
farm site, the Appellant invested by replanting orchard blocks there twice
(4.45 hectares in 2011 and a similar area again in 2017)[7.79(2ii)] which costs
would not have been insignificant.
12.141 The company’s confidence in the orchards here is also evidenced by its
purchase of the Bloors farm land (comprising the eastern half of the appeal
site) in 2016,[7.79((2iii)] having had five years of experience cropping the Pump
farm land on the opposite side of Pump Lane. Had the orchards on the Pump
farm side been operating at a loss (or making below Mr Pelham’s ‘reasonable’
profit level) and/or not thought to be capable of continuing to make a profit
because of the reasons now relied on, the commercial sense in purchasing the
additional orchard land at Bloors farm is brought into question, particularly
given that: the distance and nature of the routes between the site and the
relevant hub/packing facility would have been similar; the age, size and
alignment of the orchard blocks would have been known; where it was known
on the Appellant’s own evidence that there had been hail incidents at the Pump
712 Mr Lloyd Hughes Appendix RH08 page 11 of the supporting planning statement in relation to Gore Farm.
713 Four of the farms are hubs, with the remainder, including the appeal site, being satellites
714 The base from which machinery etc would be sent to work on Pump farm orchards
715 See ID5
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farm site in the three years preceding the Bloors farm purchase, which
included the worst recorded year (2014);716 and where the presence of the
bridleway which crosses the land, dividing it into two, would have been known.
Again, all matters that are now said to make the site unviable.
12.142 Given the experience of the Appellant in growing apples in this area, it seems
anomalous to me that the company would have purchased these farms if
cropping them as orchards was not considered to be a viable proposition. I am
mindful in this regard, that the planning application now the subject of this
appeal was made in June 2019, just three years after purchase of the Bloors
farm land, just two years after replanting 4.45 hectares of orchards on the
Pump farm land. Nothing has changed on the ground, as it were, in terms of
the physical characteristics of the appeal site, its surroundings, or the local
weather, since being purchased by the appellant.
12.143 I also understand that the company has, as recently as 2020, invested in
Gore farm, located some 3 miles from the appeal site, including its continued
use as orchards to support what it described as the ongoing expansion and
improved efficiency of the business. As noted by the Council, it is a satellite
farm growing Gala and Braeburn apples, among others. It is also of similar
overall size, cropping area and yield as the appeal site, with similar small
orchard block sizes (in part).[7.79(3)]
12.144 Notwithstanding that the burden of proof is on the Appellant to prove its case
non-profitability, no accounts relating to the appeal site were available to the
Inquiry (nor even to the Council’s agricultural witness on a confidential basis)
on the grounds of commercial sensitivity. I was advised that even if they had,
since the Appellant has dispersed groups of orchards it would not be possible
to identify site specific profit because a significant proportion of the costs
associated with those sites are central costs (such as a central packhouse,
central storage, central management and other labour, and administration)
borne by the business in respect of all of the sites - they are not site specific.
Mr Pelham agreed (in evidence in chief) that there were some economies of
scale to be had in these regards.
12.145 If it is not possible to identify whether a particular site is profitable, that begs
the question of how to tell if it is not profitable. Mr Pelham confirmed that
although he had not been asked to undertake any assessment of the
profitability of the appeal site as part of the larger enterprise he had a
suspicion, based on his own experience, that the site had not produced any
profit over the last ten years although, absent the relevant analysis, he could
not be confident about that.[7.86] Were that the case, that again begs the
question as to why the Bloors farm site was purchased just five years ago.
12.146 Relying again on his own experience, combined with data that Goathams was
able to let him have sight of (but which could not be shared with the
Inquiry)[6.287] Mr Pelham produced a theoretical lifetime financial model for a
2024 orchard replanting of a Gala dessert apple crop, using a coloured clone
such Royal Beaut, across a site the same size as the appeal site, with the same
soil quality and with the new trees all planted on a north-south alignment.[6.286-
716 Table 1 in the proof of Mr Pelham (page 10) informed by Goathams.
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6.295, 6.298, 7.87-7.88] 717 That indicates that excluding hail damage, and with the
price of apples remaining static (a position contested by the Council) the
orchards would return a lifetime profit of 2.39% of turnover.[6.294, 6.295] Once
hail damage is taken in to account, the model shows that the theoretical site
would return a loss.[6.298]
12.147 However, and if nothing else, that treats the site in isolation and seems to me
to miss the benefits that accrue from the site being a part of the larger
Goathams portfolio. In discussing the economic viability of this site, much was
made of the prevalence of hail damage to crops, with reference to an average
annual crop loss of 10.4% over the last nine years on the appeal site (based
on Goathams evidence to Mr Pelham).718 There was no suggestion in this
regard, that the appeal site is any more (or less) susceptible to hail than any
other of the Kent orchards run/managed by the company. In the absence of
any evidence to the contrary, I have no reason to suppose that similar hail
damage would not also be a feature at the Appellant’s other farms (other than
perhaps where hail netting might be employed). On that basis, absent any
protection, it seems to me that the Appellant must accept annual losses across
its orchard portfolio as a consequence of hail damage.
12.148 In essence, in any given year, some ‘random’ sites within the Goathams
group may suffer from hail damage but, as part and parcel of a larger group of
satellite farms, any losses sustained on those individual sites in any one year
would, in the bigger picture, be compensated for by the ongoing profits from
unaffected sites that same year as part and parcel of the company’s ongoing
operations. In other years, other sites may, or may not sustain such damage.
Whilst an individual site may, in any one year, not make a profit because of
hail damage it may not, given the random, variable and very localised nature
of hail events, suffer that damage in other years when other sites in the
‘family’ might. This seems to be me to be a symbiotic relationship, where the
whole of the group, in terms of viability, is greater than the sum of its parts.
12.149 In relation to apple prices, the Council referred me to data published by
DEFRA concerning past and current trends.719 That shows a rise in ‘farm-gate’
sale prices of some 3.33% (compound interest rate) for the period 2010-2019
for dessert apples in general.720 In addition, the DEFRA evidence indicates that
the weekly wholesale prices (ie not adjusted for farm-gate sales) for Gala
apples have increased by some 5.12% between October 2011 and October
2020. I am mindful, in this regard that Goathams deal directly with the
supermarkets. Either way, these are the only empirical figures before the
Inquiry on this matter. Whilst the Appellant sought to portray these figures as
being generally static,[6.305] I do not agree. I recognise that there is some
variation year on year, with some years showing a decrease from the year
before. Overall however, on the evidence that is before me, the average farm
gate price per tonne for dessert apples has increased from £533 to £607
717 See also Mr Pelham proof paragraphs 6.1- 6.13 and his Appendices 5 and 6
718 Mr Pelham proof Table 1 (page 10) and paragraphs 3.16-3.22 and paragraph 6.9. This refers to incidents of hail
in five out of the nine seasons that Goathams has been in occupation of the land (2012-2020).
719 Mr Lloyd Hughes Appendix RH07. The DEFRA Horticulture Statistics 2019. These statistics cover area, production,
value, imports and exports of horticulture crops from 1985 to 2019. (CD7.9)
720Mr Lloyd Hughes Appendix RH07 Table 6 INSPECTOR’S NOTE: ID48 confirms that the dataset that supports these
figures has been adjusted to reflect ‘farm-gate’ prices. The Gala apples wholesale average price and prices chart
2010-2020 are not so adjusted.
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(2011-2018). I am mindful, in this regard, that Gala apples only feature in
those statistics for 2016, 2017 and 2018. It is over those three years that the
prices started rising after a dip (although I recognise that there was slight drop
in 2017).
12.150 On the evidence of the Council, were the static sale price of Gala apples in
the lifetime cropping model to be replaced with a 2% annual price rise
(reflecting the historic rise in dessert apples generally referred to above) then,
even allowing for 10.4% hail damage, the model shows a lifetime profit in the
region of £89,634, which represents a ‘reasonable’ profit as a percentage of a
turnover of £749,983.[7.87(3vi)] 721 Even a price rise of 0.6% per annum, well
below the average historic price rise for dessert apples referred to above)
would still return a reasonable profit as a percentage of turnover.[7.87(3vi)]
12.151 Mr Pelham also looked at the suitability of the appeal site for other
enterprises none of which, in his experience, could realise a reasonable profit.
These included other tree fruit and soft fruit, field vegetables and salad crops,
cereals and potatoes, hops, livestock, non-food crops (biomass and
pharmaceutical crops). That evidence was not robustly challenged by the
Council (on the basis that in its view, continued intensive orchard use of the
land could return a profit) other than to point out that the reference to the
price of vermin proof fencing around the site would, on the appellant’s figures,
be some £35,00-£45,00 as opposed to £350,000-£450,000 as referred to by
Mr Pelham,722 casting some doubt on the accuracy of his forecasting in that
regard. For the most part though, the evidence before me on this was very
generalised, including little in the way of any actual costed figures relating to
the introduction of other uses on this particular site.
Conclusion on Agricultural Land
12.152 Based on DEFRA figures, there are over 90,000 hectares of BMV land in
Kent.723 Nevertheless, I am in no doubt that the loss of more than 50 hectares
of such land, which would be a consequence of the development proposed, is a
significant matter, particularly given that such land is a finite resource.
However, the Framework does not advocate against the loss of such land.
Rather it indicates that its economic and other benefits be recognised.
12.153 In this case, the evidence that was before the Inquiry indicates to me, that
even if the site is not capable of returning a reasonable profit were it to be put
to any other agricultural/horticultural or related uses I have found that, on the
evidence before me, there is good prospect for the land to be farmed in such a
way that it realises a reasonable profit. That is a matter that will need
weighing in the overall planning balance.
12.154 Should the Secretary of State consider that there is no reasonable profit that
can be made from this significant area of BMV land, that too would need
weighing in the overall planning balance.
721 Mr Lloyd Hughes Rebuttal proof (CD10.17)
722 Mr Pelham proof paragraph 7.18
723 Mr Pelham proof paragraph 8.13
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Highways[6.185-6.263, 6.332-6.3336, 7.119-7.199, 7.228, 8.14, 8.15, 8.20-8.22, 8.27-8.35, 9.1, 9.2] 724
12.155 Local Plan policy T1 is permissive of new development proposals where,
among other things, the highway has adequate capacity to take the additional
traffic and where they would not add significantly to the risk of road traffic
accidents. In addition paragraph 108c) of the Framework seeks to ensure that
any significant impacts from the development on the transport network (in
terms of capacity and congestion) or on highway safety, can be cost effectively
mitigated to an acceptable degree. Paragraph 109 goes on to confirm that
development should only be prevented or refused on highways grounds if
there would be an unacceptable impact on highway safety, or the residual
cumulative impacts on the road network would be severe.
12.156 There was no agreement as to what might comprise the highway/highway
network for the application of policy T1 or the Framework policies. The
Appellant suggested that they require consideration to be given to the impact
of the development over the whole of the Medway authority area, as opposed
to parts of the network, with the Council taking a more focussed approach.
12.157 The Local Plan gives no indication as to what comprises the ‘highway’ in
terms of the extent of the area over which consideration is to be given to
implementation of the policy. Neither is there anything in the Framework to
define what might comprise the extent of the ‘transport network, or the ‘road
network,’ nor indeed is there any quantification or threshold as to what may
comprise a ‘severe’ impact to assess at what point, if any, an increase in
congestion would amount to a severe residual cumulative impact. That seems
to me to allow for site specific circumstances to inform matters on a case by
case basis. Had those drafting the policy and the Framework intended the
considerations to apply to a specific area, it surely would have said so.
12.158 In this case, I see no reason why the refence to capacity in policy T1 should
relate necessarily to the impact of a development on the capacity of every
single part of the district-wide highway network, when the traffic impacts of a
development are most likely to be felt closest to the source. The same goes in
relation to the application of paragraphs 108 and 109 of the Framework. That
effects may only be felt over a small part of the network does not mean, in my
view, that they cannot also be severe. Indeed, it is hard to imagine anything
other perhaps than a new settlement, or the cumulative effect of housing
growth in a Local Plan being of a scale to potentially to trigger the threshold of
severity referred to in the Framework over an Authority-wide area. None of
the appeal decisions dealing with the matter of severity of impact in highways
terms that were brought to the attention of the Inquiry dealt with the impact
over the entirety of an Authority’s network.725 I am content, in this regard,
that it is appropriate to focus on the areas of greatest potential traffic impact
in order to assess the scheme against the relevant policies.
12.159 Figure 1 in the Final Transport Assessment provides a useful map of the local
road network.726 In brief, the appeal site straddles Pump Lane which runs
north to south between the B2004 Lower Rainham Road and Beechings Way
724 See also eg the proofs of Mr Tucker for the Appellant (CD10.4, CD10.13, ID36) and for the Council, the proofs of
Mr Jarvis (CD10.10, CD10.16 and ID52) and Mr Rand (CD10.9, ID35)
725 Eg CDs 4.8 and 4.14 Also Appendix B to the proof of Mr Rand
726 CD8.3 Appendix 10.1
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respectively. To the east, as the B2004 enters Lower Rainham, where the
width of the single carriageway enters a pinch-point, the route through the
village is managed by a series of traffic light controls, incorporating shuttle
working and build-outs. To the west, the B2004 runs to a roundabout junction
with Yokosuka Way (which links the roundabout to the A2 to the south) and
the A289 Gads Hill to the north west.
12.160 To the south, Pump Lane passes under the rail line, where the carriageway
narrows and shuttle working for two-way car passage is exercised, before
joining Beechings Way where, via a staggered junction, it continues
southwards to the A2 London Road. Beechings Way is an important local
distributor road providing access to a number of residential streets within the
local vicinity, connecting the eastern edge of Gillingham with the A2 corridor.
With limited options for crossing the River Medway, the A2 and the A289 are
two of the key east-west arterial routes in Medway. Together with other A
roads in the locality, they form the principle road network within the area, also
servicing the M2 and M20.
12.161 The local highway network, including key arterial routes, is already heavily
congested, particularly during the AM and PM peaks.[6.336, 7.119, 7.140, 7.167, 7.172,
7.177, 8.14, 8.20, 8.27, 8.30, 8.35, 8.40, 9.2] In support of the proposal, the Appellant
proposed a number of mitigation works, as amended during the Inquiry,
comprising:
• Lower Rainham Road/Yokosuka Way/Gads Hill roundabout: widening of
the eastern, Lower Rainham Road approach to provide a two-lane entry
with kerb realignments on the southern side of the road and associated
amendments to the central splitter island, plus appropriate destination
markings to allow for two lanes of right-turning traffic from the eastern
arm (Dwg No 20230-10 Rev B)
• A2/Will Adams Way/Ito Way roundabout: revised lane markings to
accommodate three lanes of traffic on the southern circulatory
carriageway (Dwg No 20230-18B).
• Bloors Lane/A2 London Road/Playfootball signalised junction: additional
ahead lane on the eastbound approach (Dwg No 20230-09 Rev A).
• Bowaters Roundabout: reconfiguration of the Toucan crossing to the
east of the roundabout to include staggered refuge island, revised
signal timings and additional lane capacity on the roundabout through
new lane markings (Dwg No 20230-17B).
• Otterham Quay Lane/Meresborough Road/A2 signalised junction:
revised timings.
• Pump Lane rail underbridge: revised signal shuttle arrangement (Dwg
No 20230-05-1F).
12.162 There are two competing appraisals before the Inquiry that deal with traffic
impacts. The Council assessed highways impacts through the use of its
strategic Medway Aimsum Model (MAM),727 which consists of eight main sub-
networks covering the whole local authority area, operating at macroscopic
727 Medway Council Transport Assessments Guidance Note (2018) Mr Rand proof (CD10..9) Appendix A
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and microscopic levels simultaneously. The modelling assessment undertaken
in relation to the appeal scheme analyses the impact of the development on
the three subnetworks closest to the site, (subnetworks 2, 3 and 7)728
including the mitigation measures referred to above. The appeal site lies
within subnetwork 7.
12.163 The Appellant’s assessment is based on isolated junction modelling (using
ARCADY and LinSig)729 at locations where it is predicted that the most
significant traffic impacts are likely to be felt, informed by the Council’s sub-
networks and MAM outputs.
12.164 In terms of inputs to the models, the Council contends that there would be
around an additional 800 two-way trips on the highway network in both the AM
and PM peaks (around 13 additional trips every minute). The Appellant’s
figures, derived from the TRICS database, suggest an additional 585 two-way
movements during the AM peak, with an additional 558 two-way movements
during the PM peak730 (around 9.5 additional trips every minute).731 To assist
the Inquiry, the Council ran its model using the appellant’s trip rates (scenario
6a in the evidence) and presented its case on that basis. Other inputs to both
models, including committed development, TEMPRO growth forecasts and
future forecast years were all agreed.
12.165 The results of each assessment are significantly different. Simply put, if the
Appellant’s modelling outputs are to be preferred which suggests that, with the
proposed mitigation, none of the modelled junctions would be operating over
728 Figure 1 in the proof or Mr Rand
729 ARCADY is an industry tool used to model the capacity of roundabout junctions. LinSig is used to model the
capacity of signalised junctions.
730 ibid Section 5 Table 30 (page 36)
731 See Technical Note 2 (CD6.7)
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capacity, then the conclusion would be that any residual cumulative impacts on
the road network would not be severe. If the Council’s outputs are preferred,
then even with the mitigation measures proposed, the residual cumulative
impacts would, in its view, be severe
12.166 Both models are very different and assess different aspects of the highway
network and the way in which it functions. A significant amount of the
highways evidence, and the related time at the Inquiry, was spent on the
merits and deficiencies of each modelling approach. Needless to say, each
party highlighted the benefits of its own preferred modelling and the
shortcomings and apparent anomalies in terms of validation/calibration and
outputs of the other’s. It is necessary however, to come to a view as to which
approach should be preferred in this case.
12.167 In general, it seems to me that in focussing on isolated junctions, the
evidence of the Appellant may not have fully embraced the complexity of the
already congested highway network around the site.732 That is particularly
important in this instance, given strategic scale of the development proposed
and the interaction of the junctions and the links between them. The MAM, in
principle at least, enables an assessment of the complex traffic interactions of
this large and congested urban area, taking account of a range of effects that
arise not only at several junctions but also, importantly, key routes. By their
very nature, isolated, junction assessments cannot account for such matters
on that holistic scale.733
12.168 Taking just a couple of examples: the MAM allows for congestion and travel
times in some areas causing drivers to redistribute across the network. Whilst
the Appellant suggested that this is dealt with in Technical Note 3 (TN3)734 it is
not readily apparent from the Note how those diversionary impacts have been
accounted for in the Appellant’s modelling. The MAM also takes account of
individual driver behaviour such as lane changing and individual acceleration/
deceleration, as well as link capacity issues, including any blocking-back at
junctions which may affect the performance of the links and other junctions on
the travel corridors, and thus the capacity of that part of the network. I agree
with the Council that this is a phenomenon which is particularly evident in
urban areas, where a network is already congested and where there are
multiple junctions in close proximity.[7.172] A further example, explored in more
detail below, relates to the mitigation measures proposed for the Lower
Rainham Road approach to the A289 Gads Hill/Yokosuka roundabout. Whilst
the mitigation reduced impacts on Lower Rainham Road to less than severe, it
had a significant knock-on effect for traffic on the northbound Yokosuka Way
approach which was not accounted for.
732 The junctions modelled by the Appellant comprised the Lower Rainham Road/Yokosuka Way/Gads Hill roundabout,
Beechings Way/Yokosuka Way/Cornwallis Avenue/Ito Way roundabout, Will Adams roundabout, Bowaters
roundabout, Pump Lane/A2 junction, Bloors Lane/A2/Playfootball junction, the two Beechings Way/Pump Lane
junctions, Lower Rainham Road/proposed site access junction and the proposed Pump Lane underbridge shuttle. (see
eg TN4 (CD12.6))
733 Table 2 of Mr Jarvis original proof (CD10.10) identifies the links, junctions and routes close to the development
site that were calibrated and validated in the MAM. In addition to the above, the MAM looked at Otterham Quay
Lane/Meresborough Road junction, plus link counts on Lower Rainham Road, Sovereign Boulevard (A2), London Road
(A2) Ito Way, Hoath Way, Yokosuka Way, Pier Road/Gads Hill, and route travel times on the A2 and the A289/A278.
734 CD6.11
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12.169 It was also confirmed during the Inquiry that the Appellant’s own traffic
surveys stopped counting when a queue extended back through the next
junction and/or reached 15. That seems to me to confirm that this is already a
problem on this part of the network. Even with the mitigation measures
proposed, the Council’s microsimulation videos suggest that there would be a
deterioration in journey times and network statistics, caused by a combination
of the junctions being overcapacity combined with link capacity issues. This is
particularly true on the A2 corridor where there are a number of potential
causes of delays on the links. The isolated junction models do not account for
that wider linked effect.
12.170 The Appellant’s evidence suggested that as its modelling did not show any of
the junctions to be operating over capacity (based on volume/capacity sections
showing that none of the modelled junctions would be operating at over 90%)
then none would cause queuing which would block back along a link and/or
through another junction.[1] However, it does not take account queuing at
other interacting junctions that were not modelled - the MAM model looks at
the interaction of all the junctions within any subnetwork and the interaction of
their performance with each other. Moreover, as is clear from the
microsimulation videos, queuing and blocking-back can also be affected by
other features on the links between junctions, although I appreciate that such
effects are more transient. I am mindful, in this regard that, as confirmed
during the Inquiry, the Appellant’s own traffic surveys stopped counting when
a queue extended back through the next junction and/or reached 15.
12.171 Even with the mitigation measures proposed, the Council’s microsimulation
videos suggest that there would be a deterioration in journey times and
network statistics caused by a combination of the junctions being overcapacity
combined with link capacity issues. This is particularly true on the A2 corridor
where there are a number of potential causes of delays on the links. The
isolated junction models do not account for that wider linked effect.
12.172 In my view, the complex inter-relationship of the various components of the
network are not fully tested in the isolated junction modelling approach.
Therefore, whilst recognising that there are some apparently anomalous
outputs from the MAM I tend, on balance, towards the more holistic approach
that informs the Council’s evidence on this.
12.173 I turn now to the predicted effects on the identified subnetworks based on
the Council’s modelling. In essence, and noting that the identified impacts are
based on the Appellant’s trip generation figures which are lower than those
suggested by the Council) the model outputs indicate the following:
12.174 Subnetwork 2: this is the largest of the three subnetworks, principally
comprising the A289, A2 and A278, being the main urban strategic distributor
roads (all dual carriageway). Even in the 2028 reference case, two of the
junctions within that subnetwork, including the Lower Rainham Road/Yokosuka
Way roundabout, would be over capacity, both exceeding by some margin the
highest level of saturation (LoS) rating of F (alternatively a RFC (ratio of flow
to capacity) of more than 1) which can be equated to a severe residual impact.
With the appeal scheme, the MAM indicates that in the AM peak, three further
[1] XIC Mr Tucker
https://www.gov.uk/planning-inspectorate Page 185
junctions would operate over capacity, including the key Will Adams and
Bowaters roundabouts on the A2, exceeding an LoS F rating. In the PM peak,
four junctions, including Bowaters, would operate over capacity.
12.175 Journey times would also increase significantly from the 2028 reference case.
Westbound journey times would increase by over 5 minutes (80%) in the AM
and PM peaks, with eastbound journey times increasing by over 10 minutes
(89%) in the AM and over 8 minutes (119%) in the PM peaks, giving rise to
journey times for a 3.3km stretch of the A2 of around 12 minutes heading
westbound in both peaks, over 21 minutes heading eastbound in the AM peak
and over 15 minutes heading eastbound in the PM peak. Journey times on the
A289 are also significantly worsened, with an increase in journey times of
between 27%-100% when compared with the 2028 reference case.
12.176 The impact of the development is also felt on the overall network statistics,
with travel times increasing in the AM peak by 23% relative to the reference
case (from 3.2 minutes to almost 4 minutes in terms of minutes per km);
delays increasing by 38% (from almost 2 minutes to 2.75 minutes in terms of
minutes per km); and mean queues by 73% (from 489 vehicles to 846).
Similar increases are experienced in the PM peak.
12.177 The latest iteration of proposed mitigation for the Lower Rainham
Road/Yokosuka Way/Pier Road roundabout allows for two lanes of westbound
traffic on the Lower Rainham Road (which lies within subnetwork 7) to turn
right onto the A289. The Council accepted that this would reduce queuing on
Lower Rainham Road to less than severe.[.242]735 However, the originally
modelled impacts (which were severe) would shift to the southern A289 arm of
the roundabout, which forms part of subnetwork 2. The Council’s evidence736
predicts a lengthy queue on the northern approach of the A289/Yokosuka Way,
which has implications for travel times on that link. For instance, in the 2028
reference case, the journey from the A278 (Hoath Way) to the Church Street
roundabout on the A289 (Pier Road) which traffic uses the northbound
approach to the A289/Yokosuka Way roundabout – a journey of approximately
5km - would take just over 10 minutes. That would increase to some 19
minutes and 31 seconds with the now proposed mitigation in place,737 with the
junction performance being classified as having an LoS rating of F, equating to
a severe residual impact
12.178 Based on those statistics and being mindful that, importantly, this network
incorporates two of the key arterial routes in the local highway network, I am
in no doubt that the residual cumulative impacts on this subnetwork would be
severe.
12.179 Subnetwork 3: this is the smallest of the three networks, comprising a
roughly 3km stretch of the A2 between Bowaters roundabout to a point past
Otterham Quay Lane. Other than a short stretch between Bloors Lane and
Century Road, this is a single carriageway route. The MAM indicates that
whilst the proposed mitigation would in fact improve journey times on this part
of the A2, there would be a knock-on effect, transferring delays to the side
735 Mr Rand EiC
736 Mr Jarvis Addendum proof (ID52) Figure 12
737 ibid paragraph 4.7
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roads, including Meresborough Road and Moor Park Close. The A2/Otterham
Quay Lane/Meresborough Road junction would operate over capacity in both
peaks, with the delays at the junction being particularly extensive in the PM
peak.
12.180 However, among other things, the Appellant took particular issue with the
statistics for the Meresborough Road and Moor Park Close arm. Whilst Moor
Park Close, which serves approximately 80 dwellings,738 contains numerous
short cul-de-sac offshoots, it has direct access onto both the A2 and
Meresborough Road, by-passing the traffic light controlled A2/Otterham Quay
Lane/ Meresborough Road junction. It is not, of itself, a cul-de-sac739 as
suggested by the Appellant. That said, I agree with the Appellant that the
Council’s figure of 300 associated traffic movements as suggested in the 2028
reference case seems, on a common sense approach, to be excessive, given
the number of dwellings, noting that west and southbound traffic from the
Close can avoid the junction altogether, and noting that Meresborough Road
does not link to any significant residential areas.
12.181 Mr Jarvis sought to explain this by a Note to the Inquiry.740 However, whilst
that confirms that the MAM does not model the link as a cul-de-sac, it was not
clear why traffic associated from other development within the relevant
centroid is also modelled as using Moor Park Close/Meresborough Road, when
there is no direct link between them.
12.182 In any event, the most significant point in relation to this subnetwork to my
mind, is that the mitigation measures would mean that journey times on the
A2 would be improved. Whilst queuing may, as a consequence of that,
increase on the Moor Park Close/Meresborough Road arm of the junction,
sufficient doubt is cast over the relevant figures for that arm of the junction
and I have not taken the residual cumulative impact identified for that arm to
be severe.
12.183 Subnetwork 7: this includes that part of the B2004 Lower Rainham Road
between the Lower Rainham Road/Yokosuka Way/Gads Hill roundabout to the
west and Otterham Quay Lane to east, together with Pump Lane, Lower Bloors
Lane, Berengrave Lane, Station Road and Otterham Quay Lane. The MAM
identified the main problem within this network to be westbound traffic
(towards Gillingham, Chatham and the Medway crossing) in the AM peak.
12.184 The modelling suggests that, as a consequence of the development proposed,
flows would be expected to virtually double, from 582 vehicles per hour in the
2028 Reference Case, to 1,032 vehicles/hour in Scenario 6A (ie based on the
Appellant’s trip data). However, the latest iteration of proposed mitigation for
the Lower Rainham Road/Yokosuka Way/Pier Road roundabout allows for two
lanes to turn right onto the A289. The Council accepted that this would reduce
the impacts on queuing on Lower Rainham Road to less than severe.[6.240]741
12.185 Drawing these findings together, I consider that the development proposed
would have a significant adverse impact on the transport network, particularly
738 See eg aerial photograph at ID54
739 Eg Figure 15 in ID34 page 33
740 ID54
741 Mr Rand EiC
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during the AM and PM peaks, in terms of junction capacities, journey times,
and overall network statistics on corridors such as the A2, A289 and A278 ie
subnetwork 2. The linked residual cumulative impacts in this case would, in
my view, be severe, bringing the scheme into conflict with policy T1 of the
Local Plan and paragraphs 108 and 109 of the Framework, which together and
among other things seek to prevent such harm.
12.186 In support of its case, the Appellant drew attention to a Council issued
decision in relation to a large residential led scheme on land at East Hill, which
was issued during the April adjournment.[6.209-6.211] 742 Although the application
was not refused on highway grounds, I was directed to a reference in the
officer’s report setting out that the applicant in that case undertook an
approach of considering MAM derived flows, providing a consideration of net
changes in traffic flows from the model, and then providing individual junction
models (Arcady and LinSig) of each junction, which approach was accepted by
the Council in that case.
12.187 The Council’s written response,743 as supplemented orally at the Inquiry by
Mr Jarvis, suggested that East Hill was distinguishable on the basis that no
‘blocking back’ was evident and separately, because wider, net transport
betterment of the scheme had been shown, including provision of link road.
12.188 I agree with the Appellant that the betterment point carries little weight in
relation terms of the matter at hand, since it doesn’t go to the robustness of
the assessment in principle. However, it is not clear whether blocking back
along the links between junctions in that case was an issue or not. It has been
shown to be an issue in the instant appeal and I am satisfied that the MAM
approach is the more appropriate model through which to consider those
effects on the performance of the linked highway network. A such, that case is
not directly comparable to this and it does not indicate that the Appellant’s
modelling is to preferred in all the circumstances of this particular case.
Highway Safety
12.189 Although no longer a matter of concern for the Council,[1.10, 6.196, 6.198, 6.262]
local residents continue to have concerns in this regard.[8.31, 9.2] However, as
confirmed by Mr Tucker,744 the recorded number of accidents for the area,
including the A2/Ito Way roundabout (Will Adams roundabout) the A289
Yokosuka Way/Cornwallis roundabout, Lower Rainham Road and Pump Lane, is
not significant in the light of national accident rates. In the absence of any
empirical evidence to substantiate the concerns raised, and noting that the
mitigation measures referred to above all meet the requirements of the latest
Stage 1 Safety Audit (April 2021)745 there is no good reason to suppose that
the traffic movements that would be a consequence of the appeal scheme
would have a material adverse impact in terms of highway safety. Indeed, the
local highway authority raises no objection on these grounds. I find no conflict
therefore, with Local Plan policy T1 or paragraphs 108b) and 109 of the
742 ID37 see also paragraph 4.3 of Mr Jarvis proof (CD 10.10)
743 ID41
744 See eg Section 6 of the Transport Assessment Addendum attached to the Appellant’s Statement of Case and
related Appendix D (CD8.1)
745 ID40 See also Section 6 of the Transport Addendum Statement September 2020 (CD8.3 Appendix 10.1)
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Framework, which together and among other things seek to prevent adverse
impacts on highway safety.
Conclusions on Highway Matters
12.190 I find no harm in terms of highway safety.
12.191 In terms of the highway modelling evidence, whilst acknowledging the
shortcomings and apparent anomalies highlighted by the Appellant, on
balance, I prefer the outputs of the Council’s more holistic MAM approach
(which models the interaction between junctions, links and journey times) over
the Appellant’s isolated junction modelling approach, which itself was also the
subject of identified shortcomings and anomalies.
12.192 Whilst I have found that the residual cumulative impacts on subnetworks 3
and 7 would not be severe, that is not the case for subnetwork 2. The residual
cumulative impacts on that subnetwork would, in my view, be severe,
particularly during both the AM and PM peaks. I recognise that those impacts
are confined largely to the peak hours and that the subnetwork forms only a
part of the wider network. That does not, however, mean that the impacts
cannot be considered as severe in their context. As such, even taking account
of the mitigation measures proposed, I find that the appeal scheme would
have a severe residual cumulative impact on the local highway network. There
would be conflict in this regard with Local Plan policy T1 and paragraphs 108
and 109 of the Framework.
12.193 In support of its case, the Appellant drew attention to the constrained urban
nature of Medway and the need to deliver some 28,300 hones by 2037.[6.336] I
recognise that such development would need to utilise the urban road network
and draw upon its capacity. It is suggested that if the appeal were to fail, then
more housing would have to be provided elsewhere, with highways capacity
issues displaced rather than prevented. That may well be the case, but each
scheme needs to be considered on its own merits. Without knowing in detail
what any other impacts might be elsewhere, this is not a consideration that
takes the Appellant’s case any further. Any highways impacts consequential
upon that scale of development would be better addressed on a strategic
basis, through the emerging Local Plan. I am mindful for instance, that the
Council has been awarded £170m from central government, through the
Housing Infrastructure Fund (HIF) for infrastructure improvements to enable
delivery of the Local Plan, including road infrastructure (consisting of six
phases, involving strategic interventions on the local highway network to help
unlock strategic development.[7.213]
12.194 Should the Secretary of State prefer the modelling employed by the Appellant
and/or disagree with my conclusion in relation to subnetwork 2, that would
lead to a finding of less than severe cumulative impacts for the reasons set out
in paragraphs 6.185-6.263 above.
Other Matters
12.195 Separated by Lower Rainham Road and agricultural land is the Medway
Estuary and Marshes SPA, Ramsar and SSSI, a European Protected site, which
lies approximately 250m to the north of the appeal site. It has been
designated for the complex and mix of coastal and intertidal habitats which
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support assemblages of winter and breeding birds as well as migratory birds
and various plant species.
12.196 As set out at the start, one of the Council’s reasons for refusal related to the
effects of the development proposed on the integrity of the protected site,
subsequent supplementary information was provided on this, in consultation
with Natural England. As set out at paragraph 5.1(1) of the General Matters
SoCG,746 on the basis of necessary planning conditions and an executed
section 106 agreement to secure the mitigation required by Natural England,
the Council did not pursue this reason for refusal at the Inquiry. Since there
was no dispute between the main parties on this matter, ecological impact is
not identified as a main consideration in the Report.
12.197 Annex E below sets out my assessment of the evidence presented in this
regard. I found that the appeal scheme would not be likely to have a
significant effect on any of the identified European/international designated
sites through lighting, noise, hydrological impacts or physical damage and
degradation to habitats when considered alone or in combination with other
plans or projects. However, in the absence of avoidance or mitigation
measures, there remains potential for the development proposals to lead to a
significant effect on the Medway Estuary and Marshes SPA/Ramsar site via
disturbance effects and, on a precautionary basis, to contribute towards such
an effect at other of the coastal international/European designated sites. In
addition, further detailed assessment is required in respect of NOx associated
with road traffic emissions in relation to this site. An Appropriate Assessment
under the terms of the Conservation of Habitats and Species Regulations 2017
(as amended) is therefore required. Such an Assessment is to be carried out
by the Secretary of State in this instance, as the competent authority under
the Regulations. Should the Secretary of State be minded to allow the appeal,
Annex E sets out information to help inform that Assessment
12.198 Local residents raised concerns in relation to air quality, in particular in
relation to traffic generation.[6.261, 8.20, 8.31, 8.40-8.42, 9.1, 9.2] This matter is dealt with
in more detail in Annex E below, albeit in relation to impacts on the European
protected sites. Suffice it to say here, that there was no objection from the
Council in air quality terms and the concerns raised were not supported by any
substantive evidence. Whilst I fully appreciate local concerns, I am of the view
(as set out in Annex E) that there would be no adverse air quality implications
arising from the appeal scheme, subject to conditions. On this point, the
recommended Travel Plan condition (condition 41 in Annex D below) includes
provision for the monitoring of air quality.
12.199 Other appeal decisions and court judgements were put to me in evidence by
the main parties. Each case turned on its own evidence, as does this case. I
have had regard to these, drawing specifically on them where necessary.
However, because of the individual site-specific nature of those other cases,
none of those schemes and their planning context are substantively similar to
this case. As such, I have given limited weight to them in determining this
appeal.
746 CD11.1
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Benefits of the Development Proposed[6.5, 6.98, 6.103, 6.118, 6.185-6.188, 6.316-6.323, 7.200-7.209]
747
12.200 A number of what are described by the appellant as benefits in fact relate to
an absence of harm, for instance high quality design including landscaping and
the provision of a local centre and village green to support the function of the
development itself and create a community ‘feel’ and the accessibility of the
location. As such, they attract no positive weight in the planning balance. For
the purpose of clarity, where there is positive weight to be ascribed, I have
used the following scale: limited, moderate and substantial.
12.201 The housing land supply range identified by the parties is between 1.78-3.03
years.[5.1, 6.6] Whichever figure is used, the parties are agreed that as a
minimum, the shortfall is significant.748 Even on the Council’s figures, and
recognising the steps it is taking to address that shortfall both in the short and
longer term,[7.203-7.207, 7.214] I consider the weight to be afforded to the extent of
the shortfall to be substantial.
12.202 There is also an acute need for affordable housing.[6.2, 6.5, 6.8, 6.14, 6.18-6.21, 6.317,
6.331, 7.208] 749 In light of that, the delivery of at least 25% of the residential units
as affordable accommodation (equating to no less than 313 units if 1,250
homes come forward through the reserved matters applications)[11.3] 750
attracts substantial weight.
12.203 The development would contribute to employment provision, primarily
through construction and related jobs over a ten year period for a range of
trades and occupations, including opportunities for training and skills
development. In the longer term, although not formal employment uses, the
school and the care homes, together with the facilities in the local centre,
would all provide a range of employment provision. Future residents would
also contribute to the economy through local expenditure, supporting shops
and local businesses. The weight to be given to these benefits is substantial.
12.204 The current use of the appeal site as a commercial orchard includes a
spraying and fertilisation regime that suppresses biodiversity on the site. The
appeal scheme includes a significant amount of planting and landscaping,
including a buffer zone around the around the site and landscaping between
the different development areas to create connected habitats to allow
movement of animals through the site. Together with enhanced hedgerow
planting, a mix of grassland habitats, tree planting etc, as well as garden areas
and the swales that would form part of the surface water drainage works on
the site, the development would result in significant improvements in terms of
ecology and biodiversity. Indeed, one of the suggested conditions secures at
least 20% biodiversity net gain.[10.10] I consider that the benefits secured in
this regard attract substantial weight.
747 See also eg the Appellant’s Planning Statement (CD5.11) and Statement of Case (CD8.1) the proofs of Mr Parr for
the Appellant (CD10.1 and CD10.12) and Mr Canavan for the Council (CD10.6) and the Main Matters SOCG
paragraph 5.2 (CD11.1)
748 Main Matters SoCG paragraph 5.1(8)
749 ID45
750 ID14b
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12.205 The vehicular connection between Beechings Way to the south (on the far
side of the railway line) and Lower Rainham Road to the north via Pump Lane
is said to be improved. This is an existing narrow lane, single vehicle width in
places. The appeal scheme introduces two new junction points along the lane
where the proposed estate spine/loop road crosses it, necessitating significant
realignment at those junctions. I am not persuaded, in this regard, that there
would be any knock-on improvements as such for existing residents in this
regard, who would either have to negotiate both those junctions, or turn off
onto the spine/loop road and wend their way through the proposed housing
development to a new junction on Lower Rainham Road.
12.206 However, the appeal scheme does provide for signalisation of the section of
restricted carriageway beneath the railway at the southern end of Pump
Lane.751 That may represent an benefit for local residents but in light of my
forgoing comments, that is a consideration to which I afford limited weight.
12.207 Reference is made to improved pedestrian and cycle networks promoting
sustainable travel and enhancing local connections through the site and
surrounding area. There are already connections through the site - along
Pump Lane and along the bridleway between Pump Lane and Bloors Lane
(albeit that there would be some realignment of Pump Lane in places).
However, as confirmed in the appellant’s IHRA,752 and by Mr Goodwin in oral
evidence to the Inquiry, in order to avoid providing a direct link which
residents could use to easily access the European designated site on foot, no
enhanced pedestrian linkage between the application site and the Country Park
towards the north is proposed.753 As such, there would be no enhanced access
through the site for existing residents either.
12.208 It is intended to open up a pedestrian access to the site from the southern end
of Lower Twydall Lane, which would allow existing residents from that part of
the settlement to access open space areas within the appeal site, and
potentially to the local centre and school. It is also suggested that there would
localised beneficial effects for the setting and character of Bridleway GB6a,
with reference to it being incorporated into areas of Green Infrastructure
including the village green, linear green space, play areas and community
orchards.754 However, it would continue on its existing alignment between two
rows of substantial conifers. It would pass next to a proposed play area and
through the proposed village green at its western end, but I am not persuaded
that that is necessarily an improvement, given that it currently passes though
orchards. It would also need to cross the estate loop road and is not shown as
passing through or near any community orchards on the illustrative plans. I
recognise that financial contributions towards bridleway improvements are
secured. Those measures would benefit existing residents to some extent and
are considerations that attract limited weight in my view, not least since were
the development to proceed, the bridleway would pass for the majority of its
length, through a housing development, as opposed to its current route
through countryside orchards as it does at present.
751 Dwg No 20230-05-1F
752 Information tor Habitats Regulations Assessment (CD5.13)
753 Ibid paragraph 6.34
754 Mr Hughes proof paragraph 1.39 final bullet (page 10)
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12.209 Reference is made to improved public transport links as a benefit.[6.187] The
planning obligation includes a contribution towards interim assistance to
support bus service provision. As set out in the TA and the HSoCGC ,755 that
relates to extending the route of existing bus service No 1, which currently
terminates at The Strand, approximately 3km or so to the north-west of the
appeal site along Lower Rainham Road. Whilst aimed at encouraging future
occupiers of the appeal scheme to utilise public transport it would, however,
also benefit existing residents living close to the proposed extended route.
That is a consideration that attracts moderate weight.
12.210 Whilst the Appellant asserts that the increase in population would greatly
contribute to ensuring the future viability of community facilities such as
healthcare centres, post offices, and schools, there is no evidence before me to
indicate that existing facilities are failing, or would fail absent the appeal
scheme. As such, this is not a consideration that attracts any material weight
in this instance.
12.211 The local primary schools are at or over capacity and the school proposed on
the site could assist in this regard.[6.187] However, its provision is largely to
mitigate the impact of the future occupiers on existing school capacity. I
therefore give this limited weight. The two care facility facilities are also
referred to as a benefit. There was no evidence however, to demonstrate a
particular need for these in this specific location. That said, inasmuch as they
may increase choice for residents, I afford their provision limited weight.
12.212 Reference is made to income for the Council from the New Homes Bonus as a
benefit. Section 70(2) of the Town and Country Planning Act 1990 (as
amended) provides that a local planning authority must have regard to a local
finance consideration as far as it is material. However, New Homes Bonus
payments recognise the efforts made by authorities to bring residential
development forward. I am mindful, in this regard, that the Planning Guidance
makes it clear that it would not be appropriate to make a decision based on
the potential for a development to raise money for a local authority.756
Accordingly, whilst the Bonus is a material planning consideration, it is not one
to which I attach positive weight.
12.213 Increased Council tax receipts are also mentioned as a benefit. However,
since the development would result in a corresponding increase in demand on
local services etc, again that is not a consideration to which I attach positive
weight. Similarly, the financial contributions secured via the planning
obligations do not amount to benefits, since they are aimed at mitigating the
adverse impacts of the development scheme on local infrastructure.
12.214 It is suggested that the release of Bloors Farm and Pump Farm for the
development proposed would generate additional funds that would enable the
Appellant to invest meaningfully in farms that produce a materially higher fruit
yield. No robust evidence was produced in this regard as to the extent of that
profit; to demonstrate that such funds are necessarily required at this time for
investment; or that profits from the sale of the land would necessarily be
755 CD5.25 and CD 11.4 respectively
756 Paragraph 011 ID:21b-011-20140612
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reinvested as suggested. This not a consideration therefore, which attracts
any positive weight.
Overall Planning Balance and Conclusion
Policy Framework
12.215 The Secretary of State is required to decide this appeal having regard to the
development plan, and to make the determination in accordance with it, unless
material considerations indicate otherwise.
12.216 In this case, the Council is unable to demonstrate a five year supply of
housing land. Even on its best case of 3.03 years, the shortfall is agreed as at
least significant. In light of paragraph 11d) of the Framework and associated
footnote 7, the absence of a five year supply means that the policies most
important for determining this appeal are out of date.
Heritage Balance
12.217 In coming to an overall view on the scheme, there are some ‘internal ‘
balances that need undertaking. Firstly, in relation to heritage assets,
paragraph 196 of the Framework requires that any harm to designated assets
be weighed against the public benefits of the scheme, with paragraph 197
setting out that any harm to a non-designated asset is also to be taken into
account having regard to the scale of such harm and the significance of the
asset.
12.218 As a consequence of the extent and location of the development proposed, I
have found that there would be harm towards the middle of the less than
substantial range to the special interest and significance of the grade II listed
Chapel House, and to the heritage significance of Lower Rainham Conservation
Area, with harm identified to other of the designated assets to be at the lower
end of the scale. Any harm to the significance of the non-designated Bloors
Oasts would be very minor.
12.219 When considering a proposal involving a number of heritage assets, as here,
more weight can reasonably be attached in the overall planning balance to a
number of ‘less than substantial’ harms than would be the case if only one
asset would be harmed. However, these separate harms would not then
cumulatively amount to substantial harm, or a high level of less than
substantial harm in the Framework context, as asserted by the Council’s
heritage witness.757 Rather, each incidence of harm to the listed buildings
needs to be given ‘considerable importance and weight’,758 with the Framework
confirming that whatever the level of harm in relation to other designated
heritage assets (the Conservation Areas in this instance, the settings of which
are not statutorily protected) great weight is to be given to their conservation,
with any harm to the significance of non-designated assets also to be taken
into account in determining the application, taking account of the scale of any
harm.
757 Ms Wedd paragraph 6.65
758 Eg Barnwell Manor Wind Energy Limited v East Northamptonshire District Council [2014] EWCA Civ 137
https://www.gov.uk/planning-inspectorate Page 194
12.220 In this case, I consider the very substantial benefits that would arise from the
appeal scheme to be sufficient to outweigh the heritage harm that I have
identified both individually and collectively. In reaching this conclusion I have
applied the balancing exercise so as to give great weight and importance to
the conservation of the heritage assets, understanding that they are an
irreplaceable resource. The outcome of this balance does not, in the terms of
paragraph 11d)i) of the Framework, provide a clear reason for refusal. If the
Secretary of State were to come to the opposite view, that would engage
paragraph 11di).
Agricultural Land Balance
12.221 Framework paragraph 170b) requires that the economic benefits of this area
of BMV land be recognised. I have found, in this regard, that the appeal site,
which comprises more than 50ha of BMV land is capable of returning a
reasonable profit and is therefore economically viable for continued
horticultural use.
12.222 I am also mindful that, in relation to development plans, footnote 53 of the
Framework states that where significant development of agricultural land is
demonstrated to be necessary, areas of poorer quality land should be
preferred to those of a higher quality. That is also reflected in the Planning
Practice Guidance.759 Based on Natural England’s Likelihood of BMV Land Map
(2017)760 it would appear that that part of the District with a low likelihood of
comprising BMV land lies to the north of Cliff and along the north side of the
Hoo peninsula, around Lodge Hill and to the west of the Isle of Grain. Those
areas also coincide with large areas of land within flood zone 3 and areas
identified as SSSIs.761 Excluding those built up areas, which cannot realistically
accommodate the forecast housing requirements for Medway, the rest of the
District is considered to be BMV land.
12.223 The Council accepts that BMV land will be required in order to meet housing
needs across Medway.[6.265, 7.91] However, none of the scenarios in the
emerging Local Plan envisage development of the appeal site, or indeed any
strategic level development in the same locality. I recognise that, going
forward, the Council relies in no small part on large scale development on the
Hoo Peninsula to meet its housing requirement and that, given the early stage
of the emerging plan, that cannot be guaranteed (notwithstanding Medway’s
New Routes to Growth HIF Project).762 However, it seems to me that there is
at least the possibility of locating strategic development, such as that proposed
here, on land that whilst comprising BMV is potentially of poorer
quality/usefulness than that of the appeal site, albeit that that may be some
years off if it was to be delivered as part of that emerging Plan.
12.224 In my view, the substantial benefits of the appeal scheme, including the
delivery of market and affordable housing at a time of pressing need, are not
sufficient in this instance, to outweigh the loss of more than 51 hectares of
759 Reference ID: 8-026-20140306
760 CD6.6 Appendix 1
761 CD6.6 paragraph 2.7 and 2.8
762 CD1.4
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BMV land, including the loss of orchards, being land that I have found is
capable of continued beneficial economic use. BMV land is a finite asset and,
once built on, it will never be available again. All in all, I consider that the loss
of this significant area of BMV land, and the orchards, would have a negative
effect on the provision of such land in terms of economic and other benefits,
bringing it into conflict with paragraph 170b) of the Framework.
12.225 If the Secretary of State were to come to a different view, then the loss of
the BMV land would not be a matter that weighed against the appeal proposal.
Overall Balance
12.226 In the absence of a five year supply of housing land, the most important
policies for determining this appeal are out date and the so-called tilted
balance as set out in Framework paragraph 11d)ii) is engaged. In other
words, permission should be granted unless the presumption in favour of
sustainable development can be displaced. That is not to say, however, that
any conflict with relevant policies should be disregarded. That will depend on
their consistency, or otherwise, with the policies in the Framework. The
Position Statement on Policy Matters763 sets out the parties views on the
various policies and their consistency with the Framework.
12.227 The development proposed would have a substantial adverse landscape and
visual impact, with corresponding harm to the character and appearance of
wide swathe of countryside between Lower Rainham Road and Twydall/
Rainham. That harm is all the more significant given the status of the site as
part of a locally valued landscape as recognised by its designation as an ALLI
in the Local Plan, with the development causing material harm to the character
and functions of the ALLI, including its function as a green buffer. That brings
the development into conflict with policies S1, BNE25, BNE34 and BNE47.
There would also be conflict with paragraph 170a) and b) of the Framework.
12.228 There is no dispute that policy S1 does not reflect the Framework and that
any conflict should be afforded limited weight.[6.29, 7.222]764
12.229 In dealing with development in the countryside, policy BNE25 is intrinsically
linked to settlement boundaries that in turn reflect now out-of-date housing
requirements. It also lacks a hierarchical approach requiring that landscape
protection is commensurate with status, effectively placing a blanket
restriction on most development in the countryside.[6.33, 6.40, 6.41, 7.221] However,
it does include a requirement to maintain/enhance the character, amenity and
functioning of the countryside, which chimes with the environmental objective
in the Framework at paragraph 8c) and with the need set out at paragraph
170b) to recognise the intrinsic character and beauty of the countryside. To
that extent, I afford any conflict with it some, albeit limited weight. I am
763 CD11.6, INSPECTOR’S NOTE: Mr Canavan (for the Council) verbally corrected some of his entries on the table.
The weight to be afforded in his view to policy BNE25 (page 2) was confirmed as limited (instead of medium); the
weight in his view to be afforded to policy BNE48 (page 4) was confirmed as none (as opposed to limited); and the
weight he considered should be afforded to policy S1 (page 5) was confirmed as limited (as opposed to full). In
addition, the Appellant revised its position in relation to policy T1, as set out in ID46.
764 CD11.6
https://www.gov.uk/planning-inspectorate Page 196
supported in that view by the reasoning of a colleague in the Orchard Kennels
Decision drawn to my attention.765
12.230 BNE34 relates to the ALLIs.[6.34, 6.36, 6.331, 7.222(3-5), 7.223] As noted by the Orchard
Kennels Inspector, it is not a general restraint policy, but one that protects
specific areas for their local landscape value. I agree with him that as such, it
is consistent with the aims of Framework paragraph 170 in seeking to
contribute to and enhance the natural and local environment, including valued
landscapes. There was no dispute that it is a valued landscape for these
purposes. Although as a local designation, it is at the lower end of the
hierarchy, it still merits protection. In restricting development in some areas,
the policy may have some effect on housing delivery, but that is an inevitable
side effect of protecting valued landscapes. As with my colleague, I see
nothing in this aspect of the policy that is inconsistent with the approach of the
Framework in seeking to balance the need for housing with the interests of the
environment. I recognise, as noted above, that the Council has granted
permission for some development in this ALLI, but matters of landscape and
visual impact will often vary between different sites. Whilst recognising the
pressing need for housing in Medway, like my colleague, I see no reason in
this case why the conflict with policy BNE34 should be given anything less than
full weight, even.
12.231 Both parties are agreed that policy BNE47 is consistent with the Framework
and any conflict with it can be afforded full weight.766 I have no reason to take
a different view.
12.232 There would be harm to the heritage significance of a range of heritage
assets to varying degrees, none higher than towards the middle of the range
that is less than substantial in the terms of the Framework, and minor/very
limited harm to the significance of a non-designated asset. Those harms bring
the development into conflict with Local Plan policies BNE14 and BNE18.
Notwithstanding that the outcome of the internal heritage balance, a finding of
less than substantial harm in relation to designated heritage assets does not
equate to a less than substantial planning objection.
12.233 Both parties are agreed that BNE14 is consistent with the Framework and any
conflict with it can be afforded full weight.767
12.234 Inasmuch as policy BNE18[6.31, 7.226] reflects the statutory duty set out at
Section 66 of the Planning (Listed Buildings and Conservation Areas) Act to
resist development that would adversely affect the setting of a listed building,
as opposed to balancing any harm that may arise against public benefits, there
is an apparent tension with the Framework. However, the underlying purpose
of both the statutory duty and the Framework is to protect the special interest
and heritage significance of listed buildings. It would be a nonsense not to
protect them just because the policy contains no balance. On that basis, I
consider that any conflict with the policy can attract at least moderate, if not
virtually full weight.
765 CD4.4 paragraph 29
766 Position Statement on Policy Matters (CD11.6)
767 ibid
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12.235 I have found that the loss of this significant area of BMV land is not justified
in this instance, bringing it into conflict with paragraph 170b) of the
Framework. I attach moderate weight to this harm.[6.315, 7.93]
12.236 I have found that the appeal scheme would result in a severe cumulative
impact on traffic levels at key junctions in the local area and on the free flow of
traffic on the local highway network, in particular subnetwork 2. As such, I
have found that the scheme conflicts with Local Plan policy T1 and paragraphs
108 and 109 of the Framework.
12.237 The relevant part of policy T1 in terms of this appeal is permissive of
development proposals provided that the highway network has adequate
capacity to cater for the traffic which would be generated by the development.
Inasmuch as it sets what the Appellant considers to be a lower threshold at
which a policy conflict may be found, with the Framework allowing for adverse
impacts on capacity, with refusal on highways grounds only where the residual
cumulative impact is severe. I agree with the Appellant therefore that the
policy is not in conformity with the Framework.[6.332, 7.138]768 Nonetheless,
inasmuch as it does require an assessment of impact on capacity, I consider
that any conflict with the policy should attract at least modest weight.
12.238 The benefits of the appeal scheme are substantial and wide ranging. I am
particularly mindful of the market and affordable housing that would be
provided at this time of undoubtedly pressing need. However, when assessed
and considered those benefits do not, even collectively, overcome the
cumulative substantial weight I attach to the harms I have identified. In my
view, the adverse impacts in this case significantly and demonstrably outweigh
the benefits when assessed against the Framework taken a whole.
12.239 Even had I concluded that the mitigated highway impacts were acceptable
and that there really was no viable agricultural/horticultural use to which this
particular area of BMV could be put, I consider the landscape harm to be so
substantial that, and even without the heritage harm, the adverse impacts
would still significantly and demonstrably outweigh the benefits when assessed
against the Framework taken a whole.
13. RECOMMENDATION
13.1 For the reasons set out above, I recommend, on balance, that the appeal
should be dismissed.
13.2 In the event that the Secretary of State comes to a different view and allows
the appeal, Annex D sets out the conditions that I recommend should be
attached to any grant of planning permission, with Annex E containing
information that the Secretary of State will need to consider when carrying out
an Appropriate Assessment under the Habitats Regulations.
Jennifer A Vyse
INSPECTOR
768 ID46
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ANNEX A
APPEARANCES
FOR THE APPELLANT:
Juan Lopez, of Counsel
He called:
Robert Hughes Technical Director at Tyler Grange Group
BSc(Hons) PgDipLA, CMLI Limited
John Pelham Partner at Andersons Midlands
MA(Oxon)
Timothy Goodwin Director of Ecology Solutions
BSc(Hons), MSc, MIEnvSc,
MCIEEM, MIALE
Gail Stoten Executive Director at Pegasus Planning Group
BA(Hons), MCIfA, FSA
Simon Tucker Director of DTA Transport Limited
BSc(Hons), MCIHT
Duncan Parr BA, DUPI, Planning Partner at Rapleys LLP
DipTP, FRGS, MRTPI, Cgeog,
MEWI
Mesdames Flintoft and Nutley assisted the Council in the discussion on conditions and the planning
obligations.
FOR THE LOCAL PLANNING AUTHORITY:
Robert Williams, of Counsel
He called:
Jon Etchells Director of Jon Etchells Consulting Limited
MA, BPhil, CMLI
Richard Lloyd Hughes Director of Rural Planning Limited
BSc(Hons) MRICS, CGFBM
Kit Wedd Director of Spurstone Heritage Limited
BA(Hons), IHBC
Karl Jarvis Technical Director in Transport Modelling at
BA(Hons), MA, MCIHT Sweco UK Limited
James Rand Principal Transport Planner at Paul Basham
BA(Hons), MA Associates
Peter Canavan Associate Partner at Carter Jonas LLP
BA(Hons), MSc, MRTPI
Ms Lockwood assisted the Appellant in the discussion on conditions and the planning obligations.
INTERESTED PARTIES:
Rehman Chisti MP Member of Parliament for Gillingham and Rainham
Cllr Martin Potter Ward member
Ila Hewitt Local resident and member of the Pump Lane Steering Group
Paul Clarke Local resident and member of the Pump Lane Steering Group
Kaye Belmonte Local resident and member of the Pump Lane Steering Group
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ANNEX B
DOCUMENTS HANDED UP TO THE INQUIRY
ID1 Council’s opening statement
ID2 Appellant’s opening statement
ID3 Aerial photo sequence of appeal site 2003-2020 (also at CD12.9)
ID4 Hedgerow removal and replacement at site access points
ID5 Pump Farm orchard blocks
ID6 Appellant’s Note on UK Farm incomes - long term (Defra/Andersons)
(15 February 2021)
ID7 Councillor Potter – speaking notes
ID8 Pump Lane Steering Group – speaking notes
ID9 Rehman Chisti MP – speaking notes
ID10 Appellant’s Note on position reached with Highways England
(17 February 2021)
ID11 Pump Lane Steering Group - update on public right of way application
ID12 Footpath link to Lower Twydall Lane (Plan No 11047 FPL.01 Rev A)
ID13 Appellant’s ecology note on hedgerows (22 February 2021)
ID14a CIL Compliance Statement v1
ID14b CIL Compliance Statement v2
ID15 Suggested conditions
ID16 Council Note on annualised interest rates (re BMV) (19 February 2021)
ID17 Local Plan Proposals Map extract and key
ID18 Location of appeal sites referred to within the District
ID19 Peel Investments (North) Ltd v SSHLG and Salford CC [2020] EWCA Civ
1175
ID20 Appellant’s update on access plans/hedgerow removal and Movement
Parameter Plan (22 February 2021)
ID21 Appeal Decision – Land at Perrybrook (APP/G1630/V/14/2229497)
ID22a Draft Planning Obligation v1 (superseded by v2)
ID22b Draft Planning Obligation v2 (superseded by ID55)
ID23 Appeal Decision – Land off Silver Street (APP/Y1138/W/17/3172380)
ID24 Written representations from Mr and Mrs Fisher
ID25 Appellant’s response to Inspector’s questions on ecology, biodiversity
and air quality (26 February 2021)
ID26 Appellant’s response to Inspector’s questions on community orchards
(26 February 2021)
ID27 Cllr Potter’s suggestions re site visit itinerary
ID28 HM Treasury Budget 2021 (Executive Summary and Budget Report)
submitted by the Appellant (22 March 2021)
ID29 Building Heights Parameters Plan (amended) – Appellant’s note
(3 March 2021)
ID30 Building Heights Parameters Plan – Council’s note and addendum
(March 2021)
ID31 Additional Appeal Decisions/Judgements relied on by the Appellant
1. Suffolk Coastal DC v Hopkins Homes Ltd and Richborough Estates
Partnership LLP & Cheshire East v SSCLG [2016] EWCA Civ 168
2. Cheshire East BC v SSCLG [2016] EWHC 571 (Admin)
3. Wainhomes (South West ) Holdings Ltd v SSCLG [2013] EWHC 597
(Admin)
4. APP/A0665/W/19/3220360: Land at The Hollies, School Lane,
Hartford, Northwich
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5. APP/A0665/A/12/2179410 & APP/A0665/A/12/2179374: Land at
Grange Farm, Hartford, Cheshire and Land to the East of School Lane,
Hartford
6. APP/P2935/A/14/2212989: Land South of A196, Stobhill, Morpeth,
Northumberland
7. APP/C3105/W/19/3229631: Land North of Shortlands and south of
High Rock, Hook Norton Road, Sibford Ferris, Oxon
ID32 Medway Housing Delivery Table 1998/99 – 2019/20
ID33 Historic England comments on revised building parameters plan
(29 March 2021)
ID34 SWECO Transport Impact Appraisal Addendum 3 (Additional A2
Mitigation Results) March 2021
ID34a Transport Impact Appraisal – corrected tables
ID35 Mr Rand Addendum proof of evidence
ID36 Mr Tucker Second Rebuttal Proof
ID37 Appellant’s Note on planning application No MC/19/0765: East Hill,
Chatham (15 April 2021)
ID38 Appellant’s Note on Building Heights (15 April 2021)
ID39 Appellant’s A2 Junction Operation Review (23 February 2021)
ID40 Pump Lane, Lower Rainham Road Safety Audit Stage 1 8 April 2021
(Mott Macdonald)
ID41 Council’s response to ID37 (16 April 2021)
ID42 Addendum Highways Statement of Common Ground
ID43 Macroscopic flow comparisons
ID44 Volume/Capacity ratio comparisons
ID45 Medway Affordable Housing Delivery Table
ID46 Appellant’s Note on Transport Policy T1 and Framework paragraphs
108-111 (23 April 2021) 769
ID47 Council’s application for costs
ID48 Mr Lloyd Hughes Addendum Note re DEFRA figures in his Appendix
RH07 (23 April 2021)
ID49 Appellant’s costs rebuttal
ID50 Council’s Closing Submissions
ID51 Appellant’s Closing Submissions
ID52 Mr Jarvis Addendum proof
ID53 Medway Council costs response
ID54 Mr Jarvis Note on Moor Park Close traffic figures (27 April 2021)
ID55 Engrossed Planning Obligation
769 INSPECTOR’S NOTE: This was accepted into the Inquiry but with a caveat expressed by Mr Williams for the
Council to the effect that paragraph 12 of the Note does not reflect accurately the Council’s position. The Council’s
closing submissions confirm its position in this regard, namely that its concerns relate to all three sub-networks, not
solely sub-network 2 as asserted.
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ANNEX C
CORE DOCUMENTS
CD1: Local Planning Policy and Guidance
CD1.1 Medway Local Plan 2003 - saved policies
CD1.2 Future Medway : Development Strategy Consultation (Mar 2018)
CD1.3 Hoo Peninsula consultation presentation (Mar 2020)
CD1.4 Hoo: New Routes to Good Growth (Jan 2021)
CD2: National Planning Policy and Guidance
CD2.1 National Planning Policy Framework
CD2.2 Planning Practice Guidance
CD3: Other Relevant Policy, Guidance and Evidence Base Documents
CD3.1 Medway Guide to Developer Contributions and Obligations (2018)
CD3.2 Strategic Access Management and Mitigation
Medway Council Interim Policy Statement (2015)
CD3.3 Medway Housing Design Standards (Interim) (2011)
CD3.4 Medway Landscape Character Assessment (2011)
CD3.5 Kent County Council - Kent Design Guide (2010)
CD3.6 Kent County Council Local Transport Plan 4: Delivering Growth without
Gridlock 2016-2031
CD3.7 Housing Delivery Test Action Plan (August 2020)
CD3.8 Medway Authority Monitoring Report 2020
CD3.9 Medway Strategic Land Availability Assessment (2019)
CD3.10 Housing Delivery Test Results 2020
CD3.11 Historic England: Conservation Principles - Policies and Guidance (2008)
CD3.12 Historic England: Managing Significance in Decision-Taking in the Historic
Environment (GPA2) (2015)
CD3.13 Historic England: Listed Buildings and Curtilage (Advice Note 10) (2018)
CD3.14 Historic England: Statements of Heritage Significance: analysing
significance in heritage assets (Advice Note 12) (2019)
CD3.15 Guidelines for Landscape and Visual Impact Assessment Third Edition
(2013)
CD3.16 Historic England – Proposals for Development Management – consultation
requirements (2019)
CD3.17 Historic England: The Setting of Heritage Assets (GPA3) (2017)
CD3.18 Natural England: An Approach to Landscape Character Assessment (2014)
CD3.19 Medway Transport Assessments – Guidance Note (2018)
CD3.20 Start to Finish – what factors affect the build out rates of large scale
housing sites? (2nd Edition 2020) (Lichfields)
CD4: Appeal Decisions/Judgement
CD4.1 Land at Gibraltar Farm, Hempstead, Gillingham
APP/A2280/W/16/3143600
CD4.2 Land at Station Road, Rainham
APP/A2280/W/15/3002877
CD4.3 Land north of Brompton Farm Road, Strood, Rochester
APP/A2280/W/18/3214163
CD4.4 Land at Orchard Kennels, Meresborough Road, Rainham
https://www.gov.uk/planning-inspectorate Page 202
APP/A2280/W/19/3240339
CD4.5 Land off Station Road, Long Melford, Suffolk
APP/D3505/W/18/3214377
CD4.6 Catesby Estates Ltd vs Steer et al.
[2018] EWCA Civ 1697
CD4.7 Land at Hartnell’s Farm, Monkton Heathfield, Taunton, Somerset
APP/D3315/W/16/3157862
CD4.8 Land at Kidnappers Lane, Leckhampton, Cheltenham
APP/B1605/W/14/3001717
CD4.9 Land off Town Road, Cliffe Woods, Kent
APP/A2280/W/17/3175461
CD4.10 Gladman Developments Ltd v Daventry District Council & Anor
[2016] EWCA Civ 1146
CD4.11 Oxton Farm v Harrogate Borough Council v D Noble Limited
[2020] EWCA Civ 805
CD4.12 SSCLG v Hopkins Homes Ltd
[2016] EWCA Civ 168
CD4.13 Redhill Aerodrome Ltd v SSCLG
[2014] EWCA Civ 1386
CD4.14 Land at Pinn Court Farm, Pinn Hill, Exeter
APP/U1105/A/13/2208393
CD4.15 Gladman Developments Ltd v SSHCLG, Corby BC and Uttlesford DC
[2021] EWCA Civ 104
CD4.16 Monkhill Ltd v SSHCLG & Waverley BC
[2021] EWCA Civ 74
CD5: Application Documents and Plans
CD5.1 Application form and Certificates
CD5.2 Site Location Plan PL 010 Rev B
CD5.3 Building Heights Parameter Plan PL 004 Rev A (superseded by Rev B
appended to ID29)
CD5.4 Green and Blue Infrastructure Parameter Plan PL 005 Rev A (superseded
by Rev B at Appendix 6 to the Appellant’s Statement of Case (CD8.1))
CD5.5 Land Use Parameter Plan PL 006 Rev A (superseded by Rev B at Appendix
6 to the Appellant’s Statement of Case (CD8.1))
CD5.6 Movement Parameter Plan PL 007 Rev A (superseded by Rev D appended
to ID20)
CD5.7 Indicative Recreation Plan PL 008 Rev A
CD5.8 Masterplan PL 009 Rev B (superseded by Rev C at Appendix 5 to the
Appellant’s Statement of Case (CD8.1))
CD5.9 Indicative Phasing Plan PL 011 Rev A
CD5.10 Design and Access Statement (Feb 2019)
CD5.11 Planning Statement (Jun 2019)
CD5.12 Housing Report (May 2019)
CD5.13 Information for Habitat Regulations Assessment (May 2019)
CD5.14 Statement of Community Involvement (Feb 2019)
CD5.15 Utilities Assessment (Mar 2019)
CD5.16 Noise and Vibration Impact Assessment (Oct 2018)
CD5.17 Flood Risk Assessment and Drainage Strategy (Jan 2019)
CD5.18 Lower Rainham ES Main Text Chapters (31 May 2019)
CD5.19 Lower Rainham ES Non-Technical Summary (28 May 2019)
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CD5.20 1.1 Screening Opinion and Response (Aug 2018)
CD5.21 1.2 Scoping Report Rainham (Aug 2018)
CD5.22 1.3 Statement of Competence (May 2019)
CD5.23 8.1 Flood Risk Assessment and Drainage Strategy (Jan 2019)
CD5.24 9.1 Phase 1 Ground Condition Assessment (Oct 2018)
CD5.25 10.1 Transport Assessment (Mar 2019)
CD5.26 10.2 Framework Travel Plan (Mar 2019)
CD5.27 11.1 Landscape and Visual Impact Assessment (May 2019)
CD5.28 12.1 Air Quality Impact Assessment Approach (May 2019)
CD5.29 12.2 Traffic Data for Air Quality (May 2019)
CD5.30 12.3 Future Year Emissions Calculations (May 2019)
CD5.31 12.4 Model Verification (May 2019)
CD5.32 12.5 DEFRA Background Concentrations (May 2019)
CD5.33 12.6 Wind Rose (May 2019)
CD5.34 12.7 Predicted Pollutant Concentrations (May 2019)
CD5.35 13.1 Agricultural Land Classification and Soil Resources (Dec 2018)
CD5.36 13.2 The Farm Business Horticulture and Agricultural Issues and
Constraints (Mar 2019)
CD5.37 14.1 Archaeological Desk Based Assessment (Jan 2019)
CD5.38 14.2 Pleistocene and Palaeolithic Desk Based Assessment (Nov 2018)
CD5.39 14.3 Heritage Setting Assessment (May 2019)
CD5.40 15.1 Preliminary Ecological Appraisal (May 2019)
CD5.41 15.2 Bat Activity Survey (May 2019)
CD5.42 15.3 Badger Survey (May 2019)
CD5.43 15.4 Breeding Bird Survey (May 2019)
CD5.44 15.5 Reptile Survey (2018)
CD5.45 15.6 Great Crested Newts eDNA Testing Report (Jul 2018)
CD6: Additional Information Submitted after Validation
CD6.1 Appellant’s Response to Highways England consultation (20230-05)
CD6.2 DTA - Transport Technical Note 1 (20230-08)
CD6.3 KM Heritage - Review Note (Appendix 1 – Rapleys ES Technical Appendix
14.3) (Sep 2019)
CD6.4 Appellant’s response to Medway’s Air Quality comments (by Stuart Steed)
CD6.5 Rapleys - response on Planning Policy (Oct 2019)
CD6.6 Lambert & Foster - Response on Best Most Versatile land (including
appendices) (Oct 2019)
CD6.7 DTA - Transport Technical Note 2 (20230-09)
CD6.8 Stantec - Surface Water Drainage Strategy Addendum (44538/TN001)
(Jan 2020)
CD6.9 Ecology Solutions - IHRA Update with regards to Hydrological Matters
CD6.10 KM Heritage - Addendum Heritage Note (Feb 2020)
CD6.11 Rapleys – Supplementary Environmental Statement (including surface
water and drainage addendum (App 8.1sup); Transport Technical Note 3
(App 10.1sup); Framework Travel Plan (App10.2a); response on air
quality (App 12.1sup); Loss of Agricultural Land rebuttal (App 13.2sup))
(Mar 2020)
CD6.12 DTA – Second response to Highways England (Apr 2020)
CD6.13 Appellant’s Housing Supply Note Update (March 2020)
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CD7: Other Documents (does not include consultation responses)
CD7.1 Decision Notice
CD7.2 Officers Report
CD7.3 Members presentation meeting note (Jul 2019)
CD7.4 Planning and highways meeting with Officers - meeting note (Sep 2019)
CD7.5 Planning and highways meeting with Officers - meeting note (Oct 2019)
CD7.6 Planning and highways meeting with Officers - meeting note (Jan 2020)
CD7.7 Agricultural Land Classification of England and Wales (Oct 1988)
CD7.8 Natural England - Technical Information Note 49 : protecting the best and
most versatile agricultural land (Jan 2009)
CD7.9 DEFRA Statistics on UK apple production volumes and value (Jul 2020)
CD7.10 'Parishes: Rainham', in The History and Topographical Survey of the
County of Kent: Volume 6. Canterbury 1798 (British History Online)
CD7.11 Not used
CD7.12 The Landscape Assessment of Kent (Jacobs Babtie for Kent County Council
(Oct 2004)
CD7.13 Lower Rainham Conservation Area (Information leaflet produced by
Gillingham Borough Council) (Oct 1994)
CD8: Documents Submitted as Part of the Appeal
CD8.1 Appellant Appeal Statement of Case:
Appendix 1 Transport Addendum- David Tucker Associates
Appendix 2 Farming Viability Report – E J Pelham
Appendix 3 Correspondence with Natural England
Appendix 4 Consolidated update Environmental Statement (Sep 2020)
Appendix 5 Revised site Master Plan
Appendix 6 Parameter Plans – Building Heights, Land Use, Movement and
Green & Blue Infrastructure
Appendix 7 Indicative Recreation Plan
Appendix 8 Planning for Growth on the Hoo Peninsula Representation –
Rapleys LLP
Appendix 9 Relevant Appeal Decisions
Appendix 10 Planning Policy Officer’s response (15/07/2019)
CD8.2 Draft General Matters Statement of Common Ground
CD8.3 Consolidated Environmental Statement (including updated drawings,
Transport Addendum, LVIA, Farm Business Financial Viability assessment
and Heritage Setting Assessment) (Sep 2020)
CD8.4 Supplementary Environmental Statement (including Transport Addendum,
LVIA, Farm Business Financial Viability assessment and Heritage Setting
Assessment) (Sep 2020)
CD8.5 Supplementary Environment Statement: Non-Technical Summary (Sep
2020)
CD9: Council Appeal Documents
CD9.1 Council’s Statement of Case
CD10: Proofs of Evidence
CD10.1 Duncan Parr (Proof + Appendices)
CD10.2 Gail Stoten (Proof + Appendices + Summary)
CD10.3 Robert Hughes (Proof (Vol 1) + Plans and Photoviewpoints (Vol 2) +
Summary)
https://www.gov.uk/planning-inspectorate Page 205
CD10.4 Simon Tucker (Proof + Appendices + Summary)
CD10.5 John Pelham (Proof)
CD10.6 Peter Canavan (Proof)
CD10.7 Kit Wedd (Proof)
CD10.8 Jon Etchells (Proof)
CD10.9 James Rand (Proof + Appendices)
CD10.10 Karl Jarvis (Proof + Appendices)
CD10.11 Richard Lloyd-Hughes (Proof + Appendices)
CD10.12 Duncan Parr (Rebuttal)
CD10.13 Simon Tucker (Rebuttal)
CD10.14 John Pelham (Rebuttal)
CD10.15 Gail Stoten (Rebuttal)
CD10.16 Karl Jarvis (Rebuttal)
CD10.17 Richard Lloyd-Hughes (Rebuttal)
CD11: Statements of Common Ground
CD11.1 General Matters SoCG
CD11.2 Heritage SoCG
CD11.3 Landscape SoCG
CD11.4 Transport SoCG
CD11.5 Agricultural Land SoCG
CD11.6 Position Statement on Policy Matters (as amended orally at the Inquiry
and by ID46)
CD12: Other Appeal Documents
CD12.1 Pump Lane and Lower Rainham Transport Impact Appraisal (Oct 2020)
CD12.2 Pump Lane and Lower Rainham Transport Impact Appraisal Addendum 2
(2028 results) (Jan 2021)
CD12.3 Pump Lane and Lower Rainham Transport Impact Appraisal Addendum”
(2037 results) (Dec 2020)
CD12.4 Medway Aimsun Model Validation Report (Sep 2017)
CD12.5 Council email responses to queries from Appellant
CD12.6 DTA Transport Technical Note 4 (Jan 2021)
CD12.7 CIHT Planning for Walking (Apr 2015)
CD12.8 DfT TAG UNIT M3.1 Highway Assignment Modelling (May 2020)
CD12.9 Aerial Google Photos (repeat of ID3)
CD12.10 Lower Rainham Site Sensitivity Test 1 (PowerPoint presentation)
CD13: Representations
CD13.1 Historic England (Aug 2019)
CD13.2 Historic England (Oct 2019)
CD13.3 Conservation Officer emails (Jul and Oct 2019)
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ANNEX D
Schedule of recommended conditions should the appeal succeed
Reserved Matters
1) Details of the appearance, landscaping, layout and scale for each phase of
the site (hereinafter called ‘the Reserved Matters’) shall be submitted to
and approved in writing by the local planning authority before any
development on that phase begins. Development shall be carried out as
approved.
2) Application for approval of the Reserved Matters relating to the first phase
of the development hereby permitted shall be made to the local planning
authority not later than eighteen calendar months from the date of this
permission.
3) Application for approval of the Reserved Matters on all the remaining
phases of the development hereby permitted shall be made to the local
planning authority not later than five years from the date of this
permission.
4) The development hereby permitted shall begin no later than 12 months
from the date of approval of the last of the Reserved Matters relating to the
first phase to be approved. Development on any subsequent phase must
commence within 12 months of approval of the last of the Reserved Matters
relating to that phase.
Plans
5) Development shall be undertaken in accordance with the following
approved plans:
Site Location Plan PL 010 Rev B
Building Heights Parameter Plan PL 011 Rev B
Land Use Parameter Plan PL 006 Rev B
Movement Parameter Plan PL 007 Rev D
Green and Blue Infrastructure PL 005 Rev B
Parameter Plan
DTA Drawing Proposed Right Turn 20230-05-2 Rev F
Lane Lower Rainham Road
DTA Drawing Proposed Overall Access 20230-05 Rev F
Strategy and Key Network
DTA Drawing Proposed Northern Pump 20230-05-6 Rev F
Lane crossing arrangement
DTA Drawing Proposed Southern Local 20230-05- 5 Rev F
Access / Spine Road Junction
Floorspace Parameters
6) No single retail unit within the local centre hereby permitted falling within
Class E of the Town and Country Planning (Use Classes) Order 1987 (as
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amended) (or any Order revoking or re-enacting that Order) shall have a
floorspace greater than 450sqm (gross internal area).
PRE-RESERVED MATTERS
Phasing
7) Prior to the submission of any Reserved Matters application, a Phasing Plan
for development of the entire site shall be submitted to and approved in
writing by the local planning authority. Development shall be carried out in
accordance with the approved details. Among other things, the Phasing
Plan shall demonstrate how development of the entire site would be
brought forward to secure the following:
• maximum 1,250 homes;
• two form entry primary/nursery school;
• 60 bed extra care facility;
• 80 bed care home;
• village green (minimum 2.78 acres);
• 5% of the dwellings to be for custom and self-build;
• how the site would be developed by a number of developers, including
provision for SMEs;
• a local centre, including community facilities, retail and business uses;
and,
• a spine road, cycle ways and footpaths.
Design Code
8) Prior to the submission of any Reserved Matters application, an Overarching
Design Code for development of the entire site shall be submitted to and
approved in writing by the local planning authority. The Overarching
Design Code shall include consideration of character areas, parameter
matters, principles of sustainable urban drainage, strategic landscaping,
dwelling mix, matters of sustainability including measures to support and
encourage safe pedestrian and cycle movement within and out from the
site, aspirations towards energy efficiency, and measures to combat climate
change. The Reserved Matters applications relative to each phase of the
development shall demonstrate how the approved Overarching Design Code
has been adhered to, or provide a coherent and justified argument relative
to why there is any departure. Development shall be carried out in
accordance with the approved details.
Archaeological Field Evaluation
9) Prior to the submission of any Reserved Matters application, an
Archaeological Field Evaluation Report identifying any remains that may be
present on the site and assessing their character, extent, date, condition
and significance, together with recommendations in relation to any
necessary safeguarding measures, shall be submitted to and approved in
writing by the local planning authority. The archaeological evaluation
works shall include specialist evaluation of the site’s Pleistocene and
Palaeolithic interest. The archaeological field evaluation works shall have
been carried out in accordance with a written specification and timetable
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which shall previously have been submitted to and approved in writing by
the local planning authority.
PRE-COMMENCEMENT/RESERVED MATTERS STAGE
Construction
10) No development shall commence on any phase (including works of site
clearance, ground preparation and/or any remediation works, but excluding
the erection of tree protection fencing and site hoardings) until a
Construction Environmental Management Plan (CEMP) for that phase has
been submitted to and approved in writing by the local planning authority.
Development shall be carried out in accordance with the approved CEMP.
The CEMP shall include, but is not limited to, the following matters:
i) the hours during which construction work, including works of site
clearance, and deliveries to/from the site can take place;
ii) site management arrangements, including on-site storage of materials,
plant and machinery; temporary offices, contractors compounds and
other facilities; on-site parking and turning provision for site
operatives, visitors and construction vehicles; and provision for the
loading/unloading of plant and materials within the site;
iii) details of measures to prevent the deposit of mud and debris on the
public highway by wheeled or tracked vehicles;
iv) measures, including noise control devices, to mitigate the impact of
noise at nearby residential premises;
v) measures to minimise the emission of dust from the site during the
construction period;
vi) arrangements for any temporary site lighting, including security
lighting, its location and hours of operation;
vii) a construction waste management plan that identifies the main waste
materials expected to be generated by the development during
demolition and construction, including vegetation, together with
measures for dealing with such materials so as to minimise waste and
to maximise re-use and recycling;
viii) pollution incident control measures;
ix) a nominated developer/resident liaison representative with an address
and contact telephone number to act as first point of contact for
residents who have any problems or questions related to the ongoing
development for the construction period; and,
x) a Construction Surface Water Management Plan (CSWMP) detailing
how storm and surface water is to be managed on site during the
construction period (including works of site clearance, preparation and
remediation works). The CSWMP shall include method statements,
scaled dimensioned plans and drawings detailing the surface water
management proposals, including temporary drainage systems,
measures for managing pollution/water quality and protecting
controlled waters and watercourses, and measures for managing any
associated on or offsite flood risk.
Ecology/Environmental
11) Development shall not commence unless and until a Site Wide Strategic
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Ecology Plan has been submitted to and approved in writing by the local
planning authority. The Reserved Matters submitted pursuant to each
phase shall include an ecological mitigation, enhancement and management
plan for that phases which accords with the Site Wide Strategic Ecology Plan
as approved, together with details of when and how the ecological measures
are to be secured. Development shall be carried out in accordance with the
approved details.
12) Prior to the commencement of development in each phase, details of how
that particular phase will enhance biodiversity (demonstrating a minimum
of 20% net biodiversity gain) shall be submitted to and approved in writing
by the local planning authority. Development shall be carried out in
accordance with the approved details.
13) No development shall commence, including any works of site clearance and
preparation, unless and until an Arboricultural Method Statement (AMS)
and Tree Protection Plan (TPP), which shall include details of all trees and
hedgerows to be retained and removed, any facilitation pruning required
and the proposed measures of protection undertaken in accordance with BS
5837 (2012) 'Trees in Relation to Design, Demolition and Construction-
Recommendations,' has been submitted to and approved in writing by the
local planning authority. The AMS shall include full details of all areas of
hard surfacing within the root protection areas of the retained trees and
hedges, which should be of permeable, no-dig construction, and full details
of foundation design where the AMS identifies that specialist foundations
are required. The approved barriers and/or ground protection measures
shall be erected before any equipment, machinery or materials are brought
onto the site and shall be maintained until all equipment, machinery and
surplus materials have been removed from the site. Nothing shall be
stored or placed, nor fires lit, within any of the areas protected in
accordance with this condition. The siting of barriers/ground protection
shall not be altered, nor ground levels changed, nor excavations made
within these areas without the prior written consent of the local planning
authority. The measures set out in the AMS and TPP shall be adhered to in
accordance with the approved details.
14) The Reserved Matters details submitted pursuant to condition 1 with
respect to each phase shall include details of measures to address climate
change and energy efficiency that build on the objectives set out in the
Overarching Design Code approved pursuant to condition 8. The measures
shall include, but are not confined to, meeting the objectives of the Future
Homes Standard (2019) and measures to utilise brown water.
Development shall be carried out in accordance with the approved details.
Prior to occupation of 90% of the dwellings in any phase, a verification
report demonstrating how the measures have been secured shall be
submitted to and approved in writing by the local planning authority. The
approved measures shall thereafter be retained.
Soil Resource Management Plan
15) No development shall take place on the site, including works of site
clearance and ground preparation, unless and until a Soil Resource
Management Plan has been submitted to and approved in writing by the
local planning authority. The Plan shall confirm the different soil types
(based on the soil survey work already undertaken) and the most
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appropriate re-use for the different types of soils. It shall also include a
scheme, including a timetable for implementation, setting out the proposed
methods for the treatment, handling, storing and replacing soils on-site
pursuant to the recommendations set out in the Environmental Statement
(dated 31 May 2019: Ref: SRS/18-01307 - particular paragraphs 13.61-
13.64). Development shall be carried out in accordance with the approved
scheme.
Contamination
16) The details submitted pursuant to the first Reserved Matters application for
each phase must include an investigation and risk assessment, which must
be completed in accordance with a scheme to assess the nature and extent
of any contamination on the site, including risks to groundwater, whether
or not it originates on the site. The investigation and risk assessment must
be undertaken by competent persons in accordance with DEFRA and the
Environment Agency's 'Model Procedures for the Management of Land
Contamination, CLR 11' and a written report of the findings must be
produced. The report of the findings must include:
(i) a survey of the extent, scale and nature of any contamination.
(ii) an assessment of the potential risks to:
- human health
- property (existing or proposed) including buildings, crops,
livestock, pets, woodland and service lines and pipes.
- ground waters and surface waters
- ecological systems,
- archaeological sites and ancient monuments.
(iii) an appraisal of remedial options, and identification of the
preferred option(s).
17) Where, following the investigation and risk assessment pursuant to
condition 16, land affected by contamination is found in any phase which
poses risks identified as unacceptable, no development within that phase
(including any works of site clearance and preparation but with the
exception of tree protection fencing and hoarding) shall take place until a
detailed remediation scheme has been submitted to and approved in
writing by the local planning authority. The scheme shall include the
proposed remediation objectives and remediation criteria, and a description
and programme of the works to be undertaken, including a verification plan
providing details of the data that will be collected in order to demonstrate
that the works set out in the remediation scheme are complete and
identifying any requirements for longer-term monitoring of pollutant
linkages, maintenance and arrangements for contingency action. The
remediation scheme shall be sufficiently detailed and thorough to ensure
that, upon completion, the site will not qualify as contaminated land under
Part IIA of the Environmental Protection Act 1990 in relation to its intended
use after remediation.
18) Any remediation scheme for any phase approved pursuant to condition 17,
must be carried out in accordance with its terms prior to the
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commencement of any development within that phase (other than
development required to enable the remediation process to be
implemented, together with the erection of tree protection fencing and the
erection of hoarding). The local planning authority must be given not less
than two weeks written notification prior to the commencement of the
remediation scheme works. Following completion of the measures
identified in the approved remediation scheme, a verification report by a
suitably qualified contaminated land practitioner, based on the verification
plan submitted pursuant to condition 17, that demonstrates the
effectiveness of the remediation carried out, must be submitted to and
approved in writing by the local planning authority before first occupation of
the relevant phase of development.
Noise/Vibration
19) With regard to any residential accommodation in any phase, including the
extra care and care home accommodation, the Reserved Matters details
submitted pursuant to condition 1 for that phase shall include a scheme of
acoustic protection. The scheme shall accord with BS8233:2014 Guidance
on Sound Insulation and Noise Reduction for Buildings to ensure that
internal noise levels from transport sources (LAeq,T) are no greater (with
windows closed) than 30dB in bedrooms and 35dB in living rooms, and that
maximum noise levels (LAFmax) are no greater than 45dB(A) with windows
closed. Where the internal noise levels would be exceeded with windows
open, the scheme shall incorporate appropriate acoustically screened
mechanical ventilation. The scheme shall also include details of acoustic
protection sufficient to ensure amenity/garden noise levels of not more
than 55dB (LAeq,T). All works to any relevant residential accommodation
which forms part of the approved scheme, shall be completed before it is
occupied and shall thereafter be maintained in accordance with the
approved details.
20) Prior to commencement of the development on the nursery/primary school
hereby permitted, a scheme of acoustic protection for occupiers of the
building in relation to noise from transport sources shall be submitted to
and approved in writing by the local planning authority. The scheme shall
be designed in accordance with Building Bulletin 93 Acoustic Design Of
Schools: Performance Standards. All works which form part of the
approved scheme shall be completed before any part of the building is
brought into use and the development shall thereafter be maintained in
accordance with the approved details.
21) The details submitted pursuant to each Reserved Matters application for
any phase shall include a scheme to protect development within that phase
from vibration arising from the adjacent railway line. All works, which form
part of the approved scheme, shall be completed before any part of the
development within that phase is occupied and shall thereafter be
maintained in accordance with the approved details.
Archaeology
22) The details submitted pursuant to the Reserved Matters submissions for
each phase, including siting and layout, shall demonstrate how the
development has been informed by any safeguarding measures identified in
the Archaeological Field Evaluation Report submitted pursuant to condition
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9. The details to be submitted shall have regard to any areas identified as
needing to be excluded from development and shall include details of
foundation designs and any other proposals involving below ground
excavation. Development shall be carried out in accordance with the
approved plans.
23) No development shall take place, including any site clearance or
remediation works, unless and until a written scheme of archaeological
investigation has been submitted to and approved in writing by the local
planning authority. The scheme shall provide details of the programme of
archaeological works to be carried out within the site, as well as post-
excavation assessment (including analysis of the site investigation records
and findings and production of a final report on the significance of the
archaeological, historical and architectural interest represented) and
appropriate publication. The archaeological site work shall thereafter be
implemented in full in accordance with the approved scheme.
Open Space/Landscaping
24) Prior to the commencement of any development, details of the village
green (min 2.78 acres); the siting and provision of either nationally
equipped areas of play or locally equipped areas of play; community
orchard; dog walking (on and off lead) areas; and sports provision, shall be
submitted to and approved in writing by the local planning authority.
Details of the precise layout and equipment to be included in the village
green, play spaces, dog walking areas and sports provision shall be
included within the Reserved Matters applications for the phases within
which they would be located and shall be provided in accordance with the
approved details prior to 50% occupation within the phase within which
they are to be provided as approved in condition 7.
25) The landscaping details submitted pursuant to condition 1 shall include
strategic landscaping for the entire site which shall accord with the
Overarching Design Code approved pursuant to condition 8.
Surface Water Drainage – scheme required
26) No development shall take place, including works of site clearance and
ground preparation, until details of surface water drainage works based on
sustainable drainage principles, including details of the design,
implementation, maintenance and management of the drainage scheme,
have been submitted to and approved in writing by the local planning
authority. Development shall be carried out in accordance with the
approved details. The details to be submitted shall, where applicable:
i) provide information about the design storm period and intensity, the
method employed to delay and control the surface water discharged
from the site and the measures taken to prevent pollution of the
receiving groundwater and/or surface waters;
ii) include a timetable and construction method statement for its
implementation (including phased implementation where applicable);
iii) provide appropriate operational, maintenance and access requirements
for each sustainable drainage component; and,
iv) provide, a management and maintenance plan for the lifetime of the
development which shall include the arrangements for adoption by any
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public body or statutory undertaker or management company and any
other arrangements to secure the operation of the scheme throughout
its lifetime.
Highway Works
27) No development shall take place until full details (including timing of
delivery) of the on-site access works set out below have been submitted to
and approved in writing by the local planning authority:
i) Southern Local Access/spine road junction (Dwg 20230-05-5 F);
and,
ii) Northern Local access/spine road junction (Dwg20230-05-6 F).
The works shall be carried out in accordance with the approved details and
delivery programme.
28) No development shall take place until full details (including timing of
delivery) of the off-site highway improvement works set out below have
been submitted to and approved in writing by the local planning authority:
i) Lower Rainham Road: Proposed right turn lane (Dwg 20230-05-2 F);
ii) Pump Lane Railway bridge improvements (Dwg 20230-05-1 F).
iii) Yokosuka Way Roundabout (20230-10 Rev B) with appropriate
destination markings to allow for two lanes of right-turning traffic
from the eastern arm;
iv) Bloors Lane Junction (20230-09 Rev A);
v) Will Adams Roundabout (20230-18B) with appropriate destination
markings to allow for two lanes of right-turning traffic from the
eastern arm;
vi) pedestrian crossing improvement east of Bowaters roundabout
(20230-17B); and,
vii) signal phasing at the Otterham Quay Lane/A2 junction and
Bowaters roundabout.
The works shall be completed in accordance with the approved details and
delivery programme.
29) The Reserved Matters details for each phase shall include details of the
proposed footpath and cycle way provision and footways through the site to
accord with the objectives of the Overarching Design Code and phasing
plans approved pursuant to conditions 8 and 7, along with details of the
timing for their provision and future maintenance. Development shall be
carried out in accordance with the approved details.
Telecommunications
30) No development within any phase (with the exception of works of
demolition and site clearance) shall take place until details of the
installation of fixed telecommunication infrastructure and high speed
broadband on that land have been submitted to and approved in writing by
the local planning authority. No building in any phase shall be occupied or
brought into use before the telecommunication infrastructure and
broadband to serve that building have been installed in accordance with the
approved details.
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EARLY STAGE AND PRE-OCCUPATION CONDITIONS
Care/Education Provision
31) No more than 800 residential units shall be occupied until the extra care
centre hereby permitted has been constructed in accordance with details
that have previously been submitted to and approved in writing by the local
planning authority and is available for occupation.
32) No more than 800 residential units shall be occupied until the care centre
hereby permitted has been constructed in accordance with details that have
previously been submitted to and approved in writing by the local planning
authority and is available for occupation.
33) No more than 400 residential units shall be occupied until the 1FE nursery
and primary school with a 2FE core and associated grounds covering no
less than 6.43 acres, has been constructed in accordance with details that
have previously been submitted to and approved in writing by the local
planning authority and be ready and available for occupation. The
remaining 2FE element of the nursery and primary school shall be provided
on site in accordance with details previously submitted to and approved in
writing by the local planning authority prior to occupation of the 1,000th
dwelling on site.
Local Centre
34) No more than 800 residential units shall be occupied until the local centre
hereby permitted has been provided in accordance with details that have
previously been submitted to and approved in writing by the local planning
authority and is available for occupation. The details to be submitted shall
provide for a mix of uses, including community facilities, retail and business
units, as well as residential flats.
35) Prior to the occupation of any community, retail or business unit within the
local centre, an operational statement shall be submitted to and approved
in writing by the local planning authority for that unit detailing the method
of operation including, but not limited to, the use, hours of operation,
servicing strategy and, where necessary, any management procedures for
the unit to reduce the potential impact of the use on residential amenity.
All units shall be operated in accordance with the approved details.
Historical Interpretation/Archaeology
36) No building shall be occupied or brought into use until a scheme of
historical interpretation has been submitted to and approved in writing by,
the local planning authority. Examples of how to relay and interpret the
archaeology and history of the site can include, but are not limited to, the
use of materials, landscaping, public art and the provision of historical
interpretation boards. The details to be submitted shall include location,
design, dimensions and materials of any fixed interpretation. The historical
interpretation scheme shall be carried out in full accordance with the
approved details prior to first occupation of any residential accommodation
and shall thereafter be retained and maintained in accordance with the
approved details.
37) No building shall be occupied or brought into use until the site investigation
and post-excavation assessment approved pursuant to condition 23 has
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been completed in accordance with the approved details and the provision
made for analysis, publication and dissemination of the results and archive
deposition has been secured.
Surface Water Drainage - verification
38) Prior to first occupation (or within an agreed implementation schedule) a
signed verification report carried out by a qualified drainage engineer (or
equivalent) must be submitted to and approved in writing by the local
planning authority to confirm that the surface water drainage system the
subject of condition 26 has been constructed in accordance with the
approved details. The report shall include details and locations of critical
drainage infrastructure (such as inlets, outlets and control structures)
including as built drawings, and an operation and maintenance manual for
the unadopted parts of the scheme as constructed.
Access/Highways/Travel Plan/Electric Vehicle Charging
39) No dwelling within any phase shall be occupied until details of provision,
surfacing and drainage of the access road to that dwelling have been
submitted to and approved in writing by the local planning authority. The
details to be submitted shall also include a timetable for complete delivery
of the access road. Development shall be carried out in accordance with
the approved details and timetable.
40) No dwelling shall be occupied until the vehicular accesses approved
pursuant to condition 5 have been provided with the necessary visibility
splays, and no obstruction of sight, including any boundary treatment more
than 0.6m above carriageway level shall be permitted within the visibility
splays thereafter.
41) No dwelling in any phase shall be occupied unless and until a Travel Plan
for that phase, pursuant to the sustainable development aims and
objectives of the National Planning Policy Framework and in general
accordance with the DTA Framework Travel Plan (SJT/JA/20230-04b 13
September 2019) has been submitted to and approved in writing by the
local planning authority. The Travel Plan shall include: arrangements for
the appointment of a Travel Plan coordinator for a period to be agreed,
objectives, targets, mechanisms and measures to achieve the targets
(including the monitoring of air quality) and timescales for implementation,
together with monitoring and review provisions and an enforcement
mechanism for failure to meet the Travel Plan targets. The Travel Plan
shall be implemented as approved.
42) No dwelling shall be occupied unless and until an electric vehicle (EV)
charging point for that dwelling (one per dwelling with dedicated parking
and one per 10 unallocated parking spaces) has been installed and is
operational in accordance with details that shall previously have been
submitted to and approved in writing by the local planning authority. Once
provided, the EV charging points shall be retained thereafter.
43) The care home, extra care home, school/nursery, and the commercial/
community units within the local centre hereby permitted, shall not be
occupied unless and until related electric vehicle (EV) charging points (both
active and passive) have been installed and are operational in accordance
with details that shall previously have been submitted to and approved in
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writing by the local planning authority. Once installed, the EV charging
points shall thereafter be retained.
POST-OCCUPANCY CONDITIONS
Permitted Development Rights
44) Notwithstanding the provisions of the Town and Country Planning (General
Permitted Development)(England) Order 2017 (as amended) (or any order
amending, revoking and re-enacting that order with or without
modification) none of the community, retail and/or business units within
the local centre hereby permitted shall be converted to residential use, or
any other use.
Unexpected Contamination
45) In the event that contamination that was not previously identified is found
at any time when carrying out the approved development, it must be
reported in writing immediately to the local planning authority. An
investigation and risk assessment must be undertaken in accordance with
the requirements of condition 17 and, where remediation is necessary, a
remediation scheme must be prepared in accordance with the requirements
of condition 18, which is subject to the approval in writing of the Local
Planning Authority.
Lighting
46) No external lighting within any phase of the development hereby permitted
(other than within residential curtilages relating to domestic properties)
shall be installed other than in accordance with details that have previously
been submitted to and approved in writing by the local planning authority.
Any lighting will need to avoid light spillage onto wildlife corridors and
prevent light spill above the horizontal.
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ANNEX E
Information to assist the Secretary of State’s Habitats Regulations
Assessment if required770
1. PREAMBLE
1.1 One of the Council’s reasons for refusal related to the effects of the
development proposed on the Medway Estuary and Marshes Special Protection
Area/Ramsar Site. However, supplementary information was subsequently
provided by the appellant on this, in consultation with Natural England. As set
out at paragraph 5.1(1) of the General Matters Statement of Common
Ground,771 on the basis of an executed section 106 agreement to secure the
mitigation required by Natural England, the Council did not pursue this reason
for refusal at the Inquiry. Since there was no dispute between the main parties
on this matter, ecological impact is not identified as a main consideration in the
Report.
1.2 The appeal site does not overlap with but lies in close proximity to a number of
European designated sites. The Conservation of Habitats and Species
Regulations 2017 (as amended) and the Conservation of Offshore Marine
Habitats and Species Regulations 2017 (as amended) (for plans and projects
beyond UK territorial waters (12 nautical miles)) require that where a plan or
project is likely to have a significant effect on a European site,772 or European
marine site, either alone or in combination with other plans or projects, and
where the plan or project is not directly connected with or necessary to the
management of the European site, a competent authority (the Secretary of
State in this instance) is required to make an Appropriate Assessment of the
implications of that plan or project on the integrity of the European site, in view
of the site’s conservation objectives.
1.3 The People over Wind judgement773 ruled that measures intended to avoid or
reduce the harmful effects of a plan or project (ie mitigation) should not be
taken into account when determining if significant effects are likely. They can
only be considered at the Appropriate Assessment stage.
2. PROJECT LOCATION
2.1 The appeal site and its surroundings are described at section 2 of the main
Report. The site is located to the east of Gillingham and Chatham, north-west
770 The information reported in this Annex is derived largely from the following documents: Information for Habitats
Regulations Assessment (CD5.13) as supplemented by the Surface Water Drainage Strategy Addendum (CD6.8) the
IHRA Addendum (CD6.9) the proof and Appendices of Mr Goodwin (which are found at Appendix 5 to Mr Parr’s proof
(CD10.1 part 1 of 3)) and ID 25
771 CD11.1
772 Regulation 8 of the Habitats Regulations 2017, as amended by The Conservation of Habitats and Species
(Amendment) (EU Exit) Regulations 2019 (the 2019 Regulations) defines European sites and European marine sites.
European sites include: Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) already existing at
31 December 2020; any Site of Community Interest (SCI) placed on the EU Commission’s list or any site proposed to
the EU prior to 31 December 2020; and any SAC or SPA designated in the UK after 31 December 2020. European
marine sites are defined as European sites consisting of marine areas. As a matter of policy, the Government also
applies the Habitats Regulations procedures to Ramsar sites. European sites in the UK will no longer form part of the
EU’s ‘Natura 2000’ ecological network. The 2019 Regulations have however created a ‘national site network’. The
national site network includes existing SACs and SPAs, and new SACs and SPAs designated under the Habitats
Regulations 2017 (as amended), as noted above. Ramsar sites do not form part of the national site network, but all
Ramsar sites are treated in the same way as SACs/SPA as a matter of policy.
773 People Over Wind and Peter Sweetman v Coillte Teoranta [2018] EUCJ C-323/17
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of Rainham, immediately south of Lower Rainham Road (B2004) between the
built up area to the south, and the Riverside Country Park and River Medway
Estuary to the north.
2.2 To the north-west, the appeal site is bounded by agricultural fields between the
site and Lower Twydall/Lower Twydall Lane. To the north and north-east, it is
bounded partly by the buildings that comprise the settlement of Lower Rainham
and by the B2004 Lower Rainham Road, beyond which are further agricultural
fields and paddocks alongside the Medway River Estuary. To the south-east,
the site is adjoined by allotments and Lower Bloors Lane, beyond which is the
Bloors Lane Community Woodland. The south-western boundary is defined by
the Gillingham to Sittingbourne railway line, which is elevated above the
landscape of the appeal site on a slight embankment. On the other side of the
railway line is the urban area of Twydall/Rainham.
2.3 Details of the development proposed are set out at section 3 of the main
Report. In essence, it is proposed to develop some 51.5 hectares of commercial
apple orchard for up to 1,250 residential units, a local centre, a village green, a
two form entry primary school, a 60 bed extra care facility, an 80 bed care
home and associated accesses.
3. THE DESIGNATED SITES, THEIR QUALIFYING FEATURES AND
CONSERVATION OBJECTIVES
3.1 There are a number of number of international/European designated sites
located within 10 kilometres (km) of the appeal site as the crow flies:
• Medway Estuary and Marshes Special Protection Area (SPA)/Ramsar Site
• Thames Estuary and Marshes SPA/Ramsar Site
• The Swale SPA/Ramsar Site
• Queendown Warren Special Area of Conservation (SAC)
• North Downs Woodlands SAC
• Peter’s Pit SAC
3.2 No arguments were advanced that any additional European sites should have
been considered. The relationship between the appeal site and each of these
designated sites is shown on Plan ECO1 of the document titled Information for
Habitat Regulations Assessment (May 2019) which accompanied the planning
application.774
Medway Estuary and Marshes SPA/Ramsar Site
3.3 This is the nearest of the designated sites, lying approximately 0.2 kilometres
(km) to the north of the appeal site boundary at its closest point. Both
designations share a common boundary. The SPA is also part of the Swale and
Medway European Marine Site. It is underpinned by the Medway Estuary and
Marshes Site of Special Scientific Interest (SSSI).
3.4 The qualifying features of the SPA are populations of breeding, wintering and
migratory birds of European importance including Avocet, Little Tern, Common
Tern, Bewick’s Swan, Pintail, Shoveler, Teal, Wigeon, Turnstone, Dark-bellied
Brent Goose, Dunlin, Knot, Ringed Plover, Oystercatcher, Black-tailed Godwit,
774 CD5.13
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Curlew, Grey Plover, Shelduck, Greenshank and Redshank, and the support it
affords to some 20,000 waterfowl.
3.5 With regard to the SPA, the stated conservation objectives seek 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.
3.6 The qualifying features of the Ramsar site include nationally scarce plants and
invertebrate species listed on the British Red Data Book. It also supports a
waterfowl assemblage of international importance and populations of Grey
Plover, Redshank, Dark-bellied Brent Goose, Shelduck, Pintail, Ringed Plover,
Knot and Dunlin at levels of international importance.
3.7 The SPA/Ramsar site and SSSI are separated from the application site by the
Lower Rainham Road (B2004) agricultural fields and existing residential
development in Lower Rainham. Access into the majority of the SPA/Ramsar
site and SSSI is generally restricted due to the estuarine nature of the site (with
habitats subject to inundation with the tide). In some locations however, the
designated site boundary incorporates land beyond the sea wall, including a
number of public rights of way.
3.8 Riverside Country Park, which lies between the appeal site and the Medway
Estuary, is an extensive site (around 100 hectares) some parts of which,
including the Horrid Hill peninsula and much of the Motney Hill peninsula, lie
within the boundary of the SPA/Ramsar site. One of the Country Park car parks
is located approximately 0.5 km to the northwest of the appeal site at its closest
point (straight line distance).
Thames Estuary and Marshes SPA/Ramsar site
3.9 These designated sites lies approximately 8.4 km to the north of the application
site at its closest point, some 19 km by road. Both designations share a
common boundary. The SPA is a part of the Thames Estuary and Marshes
European Marine Site. The component SSSI of relevance to the appeal site,
which underpins this designated site, is the South Thames Estuary and Marshes
SSSI.
3.10 The qualifying features of the SPA are the support it affords to populations of
wintering and migratory birds of European importance, namely Hen Harrier,
Avocet, Dunlin, Knot, Black-tailed Godwit, Grey Plover, Redshank and Ringed
Plover. It also supports at least 20,000 waterfowl, including Avocet, Grey
Plover, Knot, Dunlin, Black-tailed Godwit and Redshank.
3.11 With regard to the SPA, the stated conservation objectives 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.
3.12 The qualifying features of the Ramsar site are the support it provides to at least
one endangered plant species, at least 14 nationally scarce plants of wetland
habitats and more than 20 British Red Book invertebrates. It also supports a
waterfowl assemblage of international importance and populations of Ringed
Plover, Black-tailed Godwit, Grey Plover, Knot, Dunlin and Redshank at levels of
international importance
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3.13 The SPA/Ramsar site is separated from the application site by the River Medway
and open countryside on the Hoo Peninsula, which form a significant barrier. As
a result, the distance between the appeal site and the nearest part of the
designated site by road is approximately 19 km.
3.14 As with Medway Estuary and Marshes, access into the SPA/Ramsar site is
restricted due to the estuarine nature of the site, but the area is crossed by a
limited number of public rights of way.
The Swale SPA/Ramsar Site
3.15 This is situated approximately 8.9 km to the east of the appeal site boundary at
its closest point, some 14.5 km by road. Both designations share a common
boundary and are underpinned by The Swale SSSI.
3.16 The SPA is a part of the Swale and Medway European Marine Site. The
qualifying features of the SPA are the populations of migratory European bird
and waterfowl species that it supports, including Dark-bellied Brent Goose,
Dunlin and Redshank.
3.17 The stated conservation objectives for the SPA 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.
3.18 The qualifying features of the Ramsar site include nationally rare and scarce
plants and at least seven British Red Date Book invertebrates. It also supports
a waterfowl assemblage of international importance and populations of
Redshank, Dark-bellied Brent Goose and Grey Plover at levels of international
importance.
3.19 The SPA/Ramsar site is separated from the appeal site by existing development
at Upchurch, Lower Halstow and Iwade, together with extensive areas of open
countryside. The distance from the appeal site to the designated site by road is
approximately 14.5 km. As with the designated sites above, access into the
Swale SPA/Ramsar site is restricted due to the estuarine nature of the habitats.
Queendown Warren SAC
3.20 This is the nearest SAC to the appeal site, situated approximately 4.2 km to the
south-east of the site boundary at its closest point (straight line distance) some
7.4 km by road. It is underpinned by Queendown Warren SSSI.
3.21 The qualifying feature of the SAC is its Annex I priority habitat:
• Semi-natural dry grasslands and scrubland facies: on calcareous substrates
(Festuco-Brometalia) (important orchid sites). (Dry grasslands and
scrublands on chalk or limestone, including important orchid sites).
3.22 The stated conservation objectives for the SAC 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 favourable conservation status of its qualifying
features.
3.23 The SAC is separated from the appeal site by existing development at
Gillingham and Chatham, the M2 motorway and open fields. It is located over
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300 metres to the south of the M2 motorway at its closest point, with only
minor rural lanes situated within 200 metres of the site.
3.24 There are a number of existing footpaths and tracks at Queendown Warren SAC,
with a small car park located to the north-east of the SAC boundary.
North Downs Woodlands SAC
3.25 The SAC is situated approximately 7.9 km to the southwest of the appeal site
boundary at its closest point (straight line distance). The component SSSI of
relevance to the appeal site, which underpins this European designated site, is
the Wouldham to Detling Escarpment SSSI.
3.26 The qualifying features of the SAC include three Annex 1 priority habitats:
• Taxus baccata woods of the British Isles. (Yew-dominated woodland);
• Asperulo-Fagetum beech forests. (Beech forests on neutral to rich soils);
• Seminatural dry grasslands and scrubland facies: on calcareous
substrates (Festuco-Brometalia). (Dry grasslands and scrublands on chalk
and limestone).
3.27 The stated conservation objectives 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 favourable conservation status of its qualifying features.
3.28 The SAC is separated from the appeal site by existing development in
Gillingham and Chatham, the M2 motorway and open fields. However, it lies in
close proximity to the strategic road network in two locations: the A229 at Kit’s
Coty to the west and A249 at Detling to the east. The distance by road from
the appeal site to those two locations is approximately 15.1 km and 16.4 km
respectively.
3.29 There are a number of public rights of way passing through the woodland,
although the nearest component of the SAC to the appeal site is located on a
very steep embankment, which is likely to restrict informal recreation to existing
footpaths and routes.
Peter’s Pit SAC
3.30 Peter’s Pit SAC is located approximately 9.3 km to the south-west of the appeal
site boundary at its closest point (straight line distance) some 16.4 km by road,
and is underpinned by Peter’s Pit SSSI.
3.31 The qualifying features of the SAC are the large populations of Great Crested
Newt that it supports. The stated conservation objectives 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 favourable conservation status of its
qualifying features.
3.32 The SAC is significantly separated from the appeal site by existing development
in Gillingham and Chatham, the M4 motorway and woodland. Public access
through the designated site is restricted, in part due to the nature of the site as
a former chalk quarry.
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4. HRA IMPLICATIONS OF THE PROJECT AND ASSESSMENT OF LIKELY
SIGNIFICANT EFFECTS
4.1 The Medway Estuary and Marshes, Thames Estuary and Marshes and The Swale
SPAs/Ramsar sites are designated on account of wetland birds and wildfowl
which are predominantly associated with estuarine habitats. Whilst the
qualifying bird species may utilise sites further inland for foraging, the extent to
which land provides such opportunities for these species depends on a number
of factors, not least the current use of the land and management regime.
4.2 With the exception of a small number of existing buildings, the appeal site
comprises a commercial apple orchard. Grassland areas associated with the
orchard are intensively managed, being regularly mown, with herbicide
treatment applied to the edges. Tall hedgerows with trees are present along
the boundaries of the site, and also subdivide the site in places. Together with
the orchard trees themselves, that planting limits sight lines for birds on the
ground. Consequently, the habitats present within the appeal site do not
provide ready foraging opportunities for the qualifying species associated with
any of the identified SPAs/Ramsar sites. Indeed, the breeding bird survey
undertaken at the appeal site between April and June 2018 recorded none of the
qualifying species associated with the SPAs/Ramsar sites.775 There is no
likelihood therefore that the appeal site represents land which could be classed
as important ‘supporting habitat’ for any of the SPA/Ramsar sites considered
here.
4.3 With the exception of the Medway Estuary and Marshes SPA/Ramsar site, the
appeal site is separated by a significant distance from the other designated sites
by existing development in Gillingham and Chatham, open countryside and/or
significant barriers such as the River Medway. There is no likelihood therefore,
of direct impacts on any of those sites as a result of factors such as lighting or
noise during the construction or operational phases of development.
4.4 However, given the proximity of the Medway Estuary and Marshes SPA/Ramsar
site, it is necessary to consider, on a precautionary basis, potential pathways for
direct effects through lighting and noise during construction and operation of
the development. In addition, whilst no watercourses flow through the appeal
site, there is a potential hydrological pathway in the form of the existing surface
water and foul water network that the development scheme would connect with.
There are no hydrological links between the application site and any of the other
international/European designated sites.
4.5 As the scheme includes up to 1,250 new dwellings, there is also a potential
pathway for effects to arise as a result of an increase in recreational pressure,
specifically through physical damage and degradation to habitats, and
disturbance to qualifying species associated with the various SPAs/Ramsar sites,
in particular for the Medway Estuary and Marshes SPA/Ramsar site, given its
proximity. Although located significantly further away by road, consideration
has also been afforded to potential effects that could arise at the other
SPA/Ramsar sites.
775 The Ecology Partnership, July 2018 Breeding Bird Survey report: Technical Appendix 15.4 of the ES (CD5.43)
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4.6 Whilst all the SACs are located a significant distance by road from the appeal
site, again consideration was given on a precautionary basis to the potential for
recreational effects to arise at those sites as well.
4.7 There is also a potential pathway for a significant effect through air quality
impacts associated with an increase in road traffic. As such, consideration was
afforded to such effects, in particular on those sites in close proximity to the
strategic road network in the locality.
4.8 To summarise, potential pathways for significant effects on the
international/European designated sites are limited to the following:
• Direct impacts through lighting and noise (in respect of Medway Estuary
and Marshes SPA/Ramsar site only);
• Hydrological impacts (in respect of Medway Estuary and Marshes
SPA/Ramsar site only);
• Physical damage and degradation to habitats arising from an increase in
recreation;
• Disturbance effects (eg from dog walking/walking); and;
• Air quality impacts associated with increase in traffic emissions.
Direct impacts through lighting and noise (Medway Estuary and
Marshes SPA/Ramsar site only)
Vulnerability
4.9 Direct illumination of an ecological receptor can be regarded as having a
potential significant impact where illumination is at a level of 1 lux or above
(other than in relation to particular species that are not relevant here).
4.10 Increased noise generated during the construction phase also has the potential
to disturb the qualifying bird species. Whilst the effects would be temporary
and reversible, they could cause birds to cease feeding and/or take flight,
leaving the area of influence, using up valuable energy resources which can be
of particular importance during cold/adverse weather in the winter period. Very
loud noises (in excess of 70dB) can have impacts on birds at a distance of up to
300 metres.
4.11 In relation to operational impacts from noise, the qualifying bird species are
likely to exhibit a level of habituation to noise associated with current land uses
in the local area. There is no reason to suppose in this regard, that the species
present would not habituate to increases in noise levels or frequency of events
in the long term.
Consideration of Likely Significant Effects
4.12 The SPA/Ramsar site is separated from the appeal site by Lower Rainham Road
(with some existing street lighting) a number of existing dwellings, treelines and
agricultural fields. As a consequence, any increase in direct illumination of the
designated site at a level at, or above 1 lux, would not occur as result of the
appeal scheme and thus potential lighting impacts could not be considered to be
significant when the project is considered either alone, or in combination with
other plans or projects.
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4.13 Surveys identified baseline ambient noise levels adjacent to Lower Rainham
Road along the northern site boundary of 64dB LAeq,T during the day, and
57dB LAeq,T at night. Since the noise is largely associated with road traffic, the
potential for additional noise impacts arising from the proposal, either during
the construction or the operational period would not represent a ‘novel’ noise
source. Moreover, given the distance separation, it is anticipated that noise
levels would be much lower within the site than those recorded along the road
itself.
4.14 In any event, should qualifying bird species utilise the nearest parts of the
SPA/Ramsar site, they would invariably be habituated to the existing
background noise levels. It is noted however that the vast expanse of intertidal
mud within the designated site provides ample opportunities for birds within the
site.
4.15 The greatest potential for adverse effects to arise is likely to occur as a result of
‘short, sharp’ noise events, particularly where these occur in conjunction with
particular conditions which are likely to exacerbate the effect, for instance
during very cold weather.
4.16 At present, the existing acoustic environment at the nearest part of the
designated site is characterised by continuous, low level noise associated with
road traffic along Lower Rainham Road, as well as informal recreation (see
below). Given that the appeal scheme is for new residential development,
including residential care and a primary school, the proposal would not lead to a
significant effect at the SPA/Ramsar site during the operational period.
4.17 Construction activities are more likely to involve sudden noise events, with
comparatively greater potential for instantaneous disturbance events. Studies
have indicated an approximate threshold of 50dB for impulsive noise. Noting
that ambient noise levels along Lower Rainham Road already exceed this
threshold, short term disruptive noise events arising during construction are
unlikely to result in a disturbance effect upon qualifying birds. Furthermore, the
application site is visually screened from the nearest part of the designated site,
a factor known to be of relevance with regards to the likelihood of disturbance
arising to qualifying birds.
4.18 Given the negligible increase in noise levels arising during construction
compared to the baseline situation, the potential for adverse effects to
qualifying species from noise impacts during construction is negligible.
4.19 In summary therefore, the development proposals would not be likely to give
rise to significant effects upon the SPA/Ramsar site as a result of lighting or
noise impacts, either during the construction or operational periods, either alone
or in combination with other plans or projects. That conclusion does not rely on
any specific mitigation or avoidance measures beyond those which would form
an integral part of the construction works or operation of the site.
Hydrological impacts (Medway Estuary and Marshes SPA/Ramsar site
only)
Vulnerability
4.20 The hydrology of this designated site is for the most part associated with the
tidal influences of the estuary. Estuarine habitats are susceptible to toxic
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contamination, sedimentation and erosion, which have the potential to kill off
benthic and other invertebrates, as well as plant species. Knock-on effects on
organisms further up the food chain, such as birds, are also possible via the
uptake of toxins by these groups.
Consideration of Likely Significant Effects
4.21 The distance separation, and the absence of any watercourses that flow
through, or which lie adjacent to, the appeal site which are linked to the
SPA/Ramsar site mean that there is no potential pathway for an adverse effect
to arise to the designated site during the construction phase through
hydrological impacts, such as surface run-off, contaminated water or siltation.
4.22 As outlined in the Flood Risk Assessment (FRA)776 the surface water drainage
strategy for the proposed development involves the delivery of a Sustainable
Drainage System (SuDS). As illustrated on the Drainage Strategy Plan,777 the
development would utilise a series of attenuation basins and swales throughout
the site, with measures in place to restrict runoff velocities during extreme
events.
4.23 The Ground Assessment778 indicates that the ‘potentially highly permeable chalk
aquifer is overlain by circa 2m to 6m of low permeability clays.’ As such, the
development proposals include deep bore or trench soakaways within or
adjacent to attenuation basins, enabling more surface water runoff to be
discharged to ground, as opposed to the existing sewer network. However,
given that further investigation would be required to confirm that infiltration
drainage is viable, a precautionary approach has been adopted and the drainage
strategy assumes a ‘no-infiltration’ system.
4.24 As set out in the FRA, the drainage system would be connected to an existing
surface water sewer that eventually discharges into the River Medway via an
existing outfall. The rate of discharge into the surface water sewer would be
maintained at current, green field run-off rates. The design of the SuDS would
ensure that water quality associated with development runoff would be
managed through a series of measures, such as gully pots on highways,
hydrocarbon interceptors and attenuation ponds before discharge to the existing
surface water sewer. The final detail of the drainage strategy would be
informed by further technical studies and would need to be agreed with the
Lead Local Flood Authority at the detailed planning stage.
4.25 In terms of foul water drainage, the FRA sets out that the proposed
development would connect to the existing public sewer network. Given its
proximity to the site, it is considered likely that waste water would be treated at
Motney Hill Waste Water Treatment Works. To date, Southern Water has not
raised any concerns with regards to capacity at the site.
4.26 Given that the design of the development scheme incorporates appropriate
measures, including the delivery of a SuDS system as an integral part of the
development scheme (proposed irrespective of the international/European
776 CD5.17…………
777
778
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designated site) the risk of potential adverse effects via hydrological pathways
occurring as a result of the development proposals is de minimis in nature. On
that basis, the appeal scheme would not be likely to have a significant effect on
the designated site via hydrological impacts, either considered alone or in
combination with other plans or projects.
Physical damage and degradation to habitats from increased recreation
(all the designated sites)
Vulnerability
4.27 Recreational pressure on a wildlife site, including walking and cycling, trampling
of vegetation, soil enrichment (through dog fouling), fly tipping/littering and
fires, has the potential to cause the degradation of its qualifying habitat
features. In all but the case of fires, these potential pathways for impacts are
directly related to the frequency of visits and the management of visitors on
site. In the case of fire damage, this is generally as a result of anti-social
behaviour (arson) and is more prevalent in habitats in close proximity to
residential areas.
4.28 Some fragile habitat types are more susceptible to damage as a result of an
increase in recreational disturbance than others, as well as unrelated factors
including scrub encroachment, natural erosion, grazing and hydrology.
4.29 Where existing tracks and public rights of way are clearly defined on the ground
and where suitable visitor management initiatives (such as signage) and a
maintenance plan are in place, adverse impacts from visitor pressure is far
more limited in extent. This is because erosion impacts, often associated with
walkers, runners, horses and cyclists, are concentrated along specific routes,
leaving the wider area free from such effects.
Consideration of Likely Significant Effects
4.30 Based on an average of 2.4 persons per dwelling, the development proposed
could give rise to approximately 3,000 additional people in the area. Around
21% of households would be expected to own dogs, and would be likely to
access nearby recreational areas for dog walking. The development scheme is
estimated as resulting in an increase of approximately 263 dogs.
4.31 As set out earlier, with the exception of Medway Estuary and Marshes
SPA/Ramsar site, the application site is separated by a significant distance when
travelling by road, from all other designated sites. The distances referred to do
not take into account whether there are opportunities for car parking - residents
may, in some case, need to travel even further to reach car parks where
present.
4.32 Future residents of the appeal site would clearly have to travel a considerable
distance by car to reach the nearest part of those sites. They would then need
to access the site in order to have a potential effect upon it. On that basis, it is
highly unlikely that new residents would visit the designated sites in any
significant numbers, even more so on a regular basis.
4.33 In any event, the qualifying features of Medway Estuary and Marshes
SPA/Ramsar site, the Swale SPA/Ramsar site and the Thames Estuary and
Marshes SPA/Ramsar site essentially comprise populations and assemblages of
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wildfowl and wetland birds (with the exception of wetland plants and
invertebrate features associated with the Ramsar sites). Whilst recreational
pressure can potentially result in degradation to the habitats which are
associated with (and which support) these qualifying features, the qualifying
features in and of themselves are not sensitive to physical damage and
degradation.
4.34 Moreover, since the key habitats for the qualifying species at these sites are
estuarine in nature they are, in the main, inaccessible for walkers and dog
walkers, with the vast majority of the designated sites not accessible. The
public footpaths at the Medway Estuary and Marshes SPA/Ramsar site are
primarily restricted to the boundary of the designated site. Any potential effects
as a result of physical damage, such as trampling or erosion, or localised
nutrient enrichment, would therefore be restricted to existing footpaths.
4.35 Whilst access into the coastal SPA/Ramsar sites is possible in some locations –
for instance at Horrid Hill for the Medway Estuary and Marshes SPA/Ramsar site
– there are a limited number of footpaths and tracks, with few opportunities for
visitors to stray from the designated routes into the marshy or mudflat habitats.
Other factors relating to physical habitat damage and degradation are of far
greater significance, for instance the potential for estuarine habitats to change
dynamically in light of restrictions imposed from coastal defences. In light of
that, the potential for an adverse effect to the coastal SPAs/Ramsar sites from
physical damage or degradation to habitats arising as a result of an increase in
recreational pressure, is really very limited.
4.36 In coming to a view on this, it is worth noting that no reference is made in the
Supplementary Advice to the Conservation Objectives for the coastal SPAs, to
potential damage to habitats associated with the qualifying features arising from
recreational pressure.
4.37 Qualifying features associated with the SACs within 10km radius of the
application site are potentially more susceptible to physical damage arising from
increased in recreational pressure. However, both North Downs Woodland SAC
and Peter’s Pit SAC are located more than 15 km by road from the appeal site.
Moreover, I understand that there do not appear to be specific parking
opportunities associated with the nearest components of those designated sites
to the appeal site. As such, the probability of new residents driving to either of
those sites for informal recreation is very unlikely.
4.38 Moreover, the site-specific characteristics of both sites further limits the
potential for habitat damage to occur. North Downs Woodlands SAC is located
on a steep south-facing slope, which is likely to discourage access into the
designated site beyond the recognised public rights of way. Similarly, whilst
there is a public right of way passing through Peter’s Pit SAC (which is managed
by Kent Wildlife Trust), it is understood that no wider public access is permitted
due to health and safety - the site represents a former quarry.
4.39 Whilst there is a car park located to the north-east of Queendown Warren SAC,
and access is possible within the European designated site, given the distance
that residents would need to travel from the appeal site, along country lanes, it
seems very unlikely that there would be a significant increase in informal
recreation at this site.
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4.40 Again, no reference to potential damage arising from informal recreation is
made in either the Supplementary Advice to the Conservation Objectives for any
of these SACs, nor the SSSI citations or condition assessments for the
components which underpin these sites.
4.41 All in all, any risk of potential adverse effects from physical damage and
degradation to habitats occurring as a result of the development proposals
would be de minimis in nature. Accordingly, the development proposals would
not be likely to have a significant effect on any international/European
designated sites as a consequence of physical damage or degradation to
habitats, either considered alone or in combination with other plans or projects.
Disturbance effects (all sites)
Vulnerability
4.42 Recreational disturbance has the potential to displace birds either temporarily or
sometimes permanently. If such disturbance is continuous, or very frequent, it
could cause the habitat to become unsuitable for birds, resulting in an effect on
their distribution in the immediate locality. This type of disturbance is most
likely to occur near to well-used footpaths and may result from a range of
recreational uses.
4.43 The level of disturbance to wetland bird species varies according to the activity
undertaken. It is generally recognised that dog walking has the greatest
potential to lead to disturbance of birds, especially where dogs are off the lead.
However, such disturbance is still typically focussed along accessible rights of
way, particularly where access into the European sites is restricted for both
people and dogs.
4.44 Consideration must also be afforded to particularly sensitive periods for
disturbance. During winter, birds are susceptible to adverse effects through
disturbance due to food sources being more scarce and efficient use of energy
being of heightened importance to survival. During the breeding season,
disturbance can result in adult birds being flushed from nests, leaving eggs or
young exposed to the elements and predation. Prolonged or repeated
disturbance can cause the adults to abandon a nest site.
Consideration of Likely Significant Effects
4.45 The coastal SPAs/Ramsar sites are designated on account of the presence of
wetland and wildfowl bird populations. With the exception of Avocet, Little Tern
and Common Tern (in the Medway Estuary) these sites are designated on
account of the wintering populations and assemblages that they support.
4.46 As already noted, the appeal scheme could give rise to approximately 3,000
additional people and an increase of approximately 263 dogs. Informal
recreational activity associated with new residents is likely, therefore, to include
both walking and dog walking.
4.47 There are a number of footpaths and public rights of way which lead to the
north from Lower Rainham Road, which provide access into the Riverside
Country Park and the Medway Estuary and Marshes SPA/Ramsar site. No
pedestrian links are proposed leading from the appeal site towards the
designated site. However, the main vehicular access point would be from Lower
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Rainham Road, providing potential for new residents to access the designated
site on foot. Access is possible via a number of pathways, roads and public
rights of way which lead to the north from Lower Rainham Road.
4.48 Similar to the other coastal SPAs/Ramsar sites, the Medway Estuary and
Marshes site supports a footpath network which tends to be focused around the
edge of the shoreline and estuary habitats, which are likely to be attractive to
new residents. As noted before, disturbance arising as a result of an increase in
recreational pressure would be focussed along those existing routes, and as
such should be viewed as a potential increase in existing pressures, as opposed
to introduction of a new pathway for an effect.
4.49 With the exception of Medway Estuary and Marshes SPA, the other
international/European designated sites are located a significant distance away
from the appeal site, with a drive of at least 7.4 km required to reach the
nearest part of any other site. As such, the likelihood of regular (ie daily) use
for informal recreation is considered to be very limited. A proportion of new
residents could, however, visit those designated sites on an occasional basis.
4.50 In the context of existing visitor pressure at the Thames Estuary and Marshes
and the Swale SPA/Ramsar sites, and given the distances concerned, in light of
the above it is considered that the application proposals are unlikely to lead to
any significant increase in recreational pressure when considered alone.
However, there remains a small potential for an effect to arise when the
proposals are considered in combination with other plans and projects.
4.51 None of the qualifying habitats or species associated with the Queendown
Warren and North Downs Woodland SACs are susceptible to disturbance effects
from informal recreation. Whilst the SSSI citations list other features associated
with these sites, including faunal species/groups, given their significant distance
from the appeal site, it is unlikely that disturbance would arise sufficient to
result in any adverse effect upon the integrity of the European designated sites.
4.52 In summary, in the absence of avoidance and mitigation measures, there
remains the potential for a significant effect to arise on the integrity of Medway
Estuary and Marshes SPA/Ramsar site through disturbance from informal
recreation. There is also some, albeit very minor, potential for an effect to arise
on the Thames Estuary and Marshes and the Swale SPA/Ramsar site when the
project is considered in combination with other plans and projects. In the
absence of mitigation measures, a likely significant effect cannot be discounted
and an Appropriate Assessment is required.
Air quality impacts - increased traffic emissions (all sites)
Vulnerability
4.53 Qualifying habitats within a number of the designated sites are known to be
particularly sensitive to changes in air quality, thereby affecting the quality and
availability of habitats, and in turn their suitability to support qualifying species.
I am mindful in this regard that there is significant variation in the sensitivity of
habitats, with some, such as heathland and species-rich grassland identified to
be very sensitive, with others comparatively less so.
4.54 Emissions from vehicular traffic arising as a result of the development scheme
provides a potential pathway for air quality effects to arise on designated sites.
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The primary pollutants which can, in some circumstances, give rise to adverse
effects on European designated sites include oxides of nitrogen (NOx).
Consideration of Likely Significant Effects
4.55 The approach towards assessing the potential for effects to arise as a result of
increased nitrogen deposition from increased road traffic emissions is outlined in
an Internal Guidance Note produced by Natural England.779
4.56 A key factor to consider is the distance between an emission source (in this
case, the road network) and the receptor (the designated site). Both Natural
England and Highways England (the relevant statutory authorities in such
matters) concur that 200 metres is an appropriate screening distance to use for
assessment purposes. In essence, potential effects can be screened out of the
assessment process where the qualifying interest features of a European
designate site do not fall within 200 metres of a road affected by the plan or
project.780
4.57 Given the scale of the development, and in line with pre-application advice from
Natural England, consideration has been afforded not only to the road network
in close proximity to the application site, but also the wider strategic road
network (including the M2 motorway and major A roads).
4.58 Although the Medway Estuary and Marshes SPA/Ramsar site is located
approximately 200m to the north of the appeal site at its closest point, sections
lie within 200m of the B2004 Lower Rainham Road and the A289 (Danes
Hill/Gads Hill) leading towards the west - the primary road access for the
development would be onto Lower Rainham Road. Furthermore, both the
Thames Estuary and Marshes SPA/Ramsar site and the Swale SPA/Ramsar site
lie immediately adjacent to major roads (the A228 serving the Isle of Grain and
the A249 serving the Isle of Sheppey respectively). Notwithstanding the
significant distance that any new residents would need to travel to reach the
nearest points, potential air quality effects in respect of these sites needs to be
considered.
4.59 In addition, the nearest component of North Downs Woodland SAC lies within
200m of the strategic road network in two locations – the A229 at Kit’s Coty to
the west, and the A248 at Detling to the east. Again, notwithstanding the
distances concerned, potential air quality effects need to be considered in
relation to this site.
4.60 Queendown Warren SAC is located approximately 310m to the south of the M2
motorway at its closest point. Whilst there are a number of minor roads which
lie within 200m of the SAC, they are isolated from the wider strategic road
network and may best be described as rural lanes. Peter’s Pit SAC is located
well over 200m from any major roads (with the nearest such road, the A228,
situated approximately 900m to the west). On that basis, and given the
779 Natural England’s approach to advising competent authorities on the assessment of road
traffic emissions under the Habitats Regulations (June 2018).
780 This position is outlined in paragraph 4.10 of the Internal Guidance Note and is similarly
reflected in the Design Manual for Roads and Bridges (DMRB).
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distances concerned, air quality effects arising from traffic emissions can be
scoped out in respect of these sites.
4.61 Not all qualifying features associated with a European designated site are
distributed evenly throughout each site. Accordingly, as acknowledged in the
Natural England Internal Guidance note, the Conservation Objectives of the site
are ‘unlikely to apply equally to all parts of a site.’
4.62 It is apparent that parts of the designated Medway Estuary and Marshes site
which lie within 50 metres of the B2004 Lower Rainham Road and the A289
Danes Hill/Gads Hill, comprise either intertidal mudflats (which represents the
vast majority) or coastal saltmarsh (in one location close to Gads Hill). With
regards to the Thames Estuary and Marshes SPA/Ramsar site, habitats within
200m of the A228 include reedbeds and coastal/floodplain grazing marsh.
Similarly, with regards to the Swale SPA/Ramsar site, habitats within 200m of
the A249 include coastal/floodplain grazing marsh, semi-improved grassland,
reedbeds, lowland fens, intertidal mudflats and coastal saltmarsh. Accordingly,
assessment is therefore required in respect of sensitive qualifying species
associated with these habitats.
4.63 In relation to the North Downs Woodlands SAC, habitats identified in the
nearest parts of the strategic road network include deciduous woodland (to the
west of the A249) and coniferous woodland (to the east of the A229).
Assessment is therefore required in respect of qualifying habitats which fall
under these broad categories.
4.64 The next step is to consider the risk from road traffic emissions associated with
the proposal. Guidance from Natural England (and Highways England)
considers that the process contribution can be considered either in terms of the
predicted average annual daily traffic flow (AADT as a proxy for emissions) or
the predicted emissions themselves (the actual process-contribution). An
increase in 1000 AADT for traffic numbers or 1% of the critical load or level for
emissions is considered to be significant, as any emissions below this level are
widely considered to be imperceptible and, in the case of AADT, undetectable
through the DRMB model. Where the screening assessment indicates that
effects are screened out alone, the screening assessment is then applied in
combination.
4.65 David Tucker Associates carried out a specific assessment in order to identify
relevant increase in traffic movements as a result of the development proposals
when considered in combination with other relevant plans or projects, notably
the emerging Medway Local Plan, recent consents and wider general traffic
growth. This assessment has considered both the local road network (including
in particular the B2004 Lower Rainham Road and A289 Danes Hill/Gads Hill) and
also key locations in the wider strategic road network associated with the three
designated sites that would potentially be affected.
4.66 The results of that assessment, as outlined in the IHRA,781 indicate that there is
potential for an effect to arise on Medway Estuary and Marshes SPA/Ramsar site
both alone and in combination. With regards to the Swale SPA/Ramsar site and
781 CD5.13 Tables 2-5 on pages 52-53. Full detail and methodology is found in Chapters 5 and 6 of the Transport
Assessment, Technical Appendix 10.1 of the ES (CD5.25)
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North Downs Woodlands SAC, maximum increases of +21 AADT and +545
AADT resulting from the appeal scheme in isolation are predicted, which can be
considered as a de minimis increase given the baseline AADT figures, and any
effects arising would not be measurable against the baseline AADT. However,
when considered in combination with the Medway Local Plan etc, the AADT
screening threshold of 1,000 is clearly breached.
4.67 Further detailed consideration is therefore required to ascertain whether an
adverse effect on the integrity of the international/European designated sites
would arise as a result of the development proposals.
4.68 As outlined in detail in the Air Quality Chapter of the ES,782 atmospheric
dispersion modelling was undertaken by Peter Brett Associates at a number of
key locations associated with each of the potentially affected designated sites.
The results of the assessment work are presented in Chapter 12 of the ES,783 as
updated.784
4.69 Three scenarios were assessed: baseline flows as per 2017; future assessment
of 2022 including traffic growth, committed development and measures in the
Medway Local Plan, and the 2022 future assessment which additionally includes
the proposed development. As such, the assessment considers effects in
combination. Given that the anticipated completion date at that time for the
proposed development is 2029, to ensure that a worst-case scenario has been
modelled, the air quality assessment work was undertaken using 2029 traffic
data.
4.70 The detailed results of the dispersion modelling are presented in Technical
Appendix 12.7 of the ES785 and are discussed in detail in paragraphs 12.162 to
12.181 inclusive of the ES Chapter.786
4.71 In short, the modelling demonstrates that the appeal scheme is not likely to
have to a significant effect on the integrity of any international/European
designated sites situated in close proximity to the strategic road network when
considered either alone or in combination with other plans or projects. Further
consideration in the form of Appropriate Assessment is, however, required in
respect of NOx at the Medway Estuary and Marshes SPA/Ramsar site.
5. FINDINGS IN RELATION TO ADVERSE EFFECTS ON INTEGRITY
5.1 As outlined above, I conclude that the appeal scheme would not be likely to
have a significant effect on any of the identified European/international
designated sites through lighting, noise, hydrological impacts or physical
damage and degradation to habitats when considered alone or in combination
with other plans or projects. No specific avoidance or mitigation measures are
therefore required in these regards.
5.2 However, in the absence of avoidance or mitigation measures, there remains
potential for the development proposals to lead to a significant effect on the
Medway Estuary and Marshes SPA/Ramsar site via disturbance effects and, on a
782 CD5.28
783 CD5.28-5.34
784 See the Note entitled Air Quality – Update and Response to EHO concerns (Mr Parr PoE Appendix 8)
785 CD5.34
786 CD5.18
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precautionary basis, to contribute towards such an effect at other of the coastal
international/European designated sites. In addition, further detailed
assessment is required in respect of NOx associated with road traffic emissions
in relation to this site. An Appropriate Assessment is therefore required.
5.3 Dealing firstly with air quality, in respect of NOx, the detailed dispersion
modelling identified that an increase in over 1% of the critical level is
anticipated to arise at two locations at Medway Estuary and Marshes
SPA/Ramsar site as a result of the development proposed.
5.4 Section 5 of the Natural England’s Internal Guidance Note recommends that at
Appropriate Assessment stage, ‘the same 1% threshold is not used as a means
of determining whether there is an adverse effect on site integrity from a road
traffic project. Other factors are relevant which may mean that a plan or
project that exceeds the 1% screening threshold can still demonstrate no
adverse effect on site integrity through an Appropriate Assessment.’ As such,
whilst the appeal scheme breaches the threshold, that simply serves to indicate
that further consideration is required. It does not in and of itself indicate that
the proposals would result in an adverse effect on the integrity of the
designated site.
5.5 I am advised, in this regard that effects from airborne NOx are most likely on
habitat/species which are permanently exposed to the air. Habitats which are
underwater or, if exposed for periods of time are regularly flushed by water/
subject to tidal influences, are likely to be affected more by water based
nutrient loadings arising from other sources. The only features which are likely
to be exposed to emissions at the potentially affected locations are intertidal
habitats which are covered by the tide with different regularities depending on
the tidal reach (mudflats and saltmarsh). Since the majority of the habitats
located within 200 metres of Lower Rainham Road and Gads Hill/Danes Hill,
comprise mudflats, they would be covered either daily by most tides, or
regularly each month on spring tides. On that basis, the predicted increase in
NOx arising from the proposed development is unlikely to pose a credible risk to
habitats within the designated site, and there is unlikely to be an adverse effect
on the integrity of the site arising as a result.
5.6 As an SPA, and being mindful of the site’s Conservation Objectives, the
attribute having the most potential to be undermined in this case would be ‘the
structure and function of the habitats of the qualifying species’. For the reasons
outlined above, I consider that the predicted increase in NOx levels would not
pose a risk to habitats associated with the designated site to the extent that
they could lead to any change to the structure and function of those habitats
supporting qualifying bird species that could adversely affect the integrity of the
SPA.
5.7 Moreover, having regard to each of the associated qualifying features, the
Supplementary Advice to the Conservation Objectives states that ‘there is
evidence from survey or monitoring that shows the feature to be in good
condition and/or currently un-impacted by anthropogenic activities.’ I am
mindful, in this regard, that at these specific locations, the critical level for NOx
is already exceeded. No evidence is before me to indicate that air quality
effects are currently resulting in adverse effects to the integrity of the site,
despite that current situation. Importantly, the air quality assessment shows
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that under both the ‘development’ and ‘no development’ scenarios, NOx levels
are predicted to decrease below existing levels, in line with the ongoing trend
towards improving air quality. On that basis, notwithstanding that NOx is not
considered to be a credible risk to the European designated site, the
development scheme would not impede this downward ‘real world’ trend of
declining emissions between the baseline year and occupation of the
development.
5.8 Nevertheless, in accordance with Air Quality Planning Guidance from Medway
Council and with the precautionary principle in mind, a package of mitigation
measures is proposed, including provision of travel plans, electric charging
points, cycle paths, green infrastructure, in particular trees, and an extended
bus route, all of which can be secured by conditions/planning obligations were
the appeal to succeed. Whilst the measures are not necessary as specific
mitigation for effects arising on the European designated site, they will further
reduce the potential for any air quality effects, both to ecological and human
receptors.
5.9 In light of the forgoing, it is my view that the appeal scheme would have no
adverse effect on the integrity of Medway Estuary and Marshes SPA/Ramsar site
as a result of air quality impacts.
5.10 Moving on to the identified potential recreational disturbance effects to
qualifying bird species arising from an increase in informal recreation, a package
of avoidance and mitigation measures is proposed. It comprises three key
elements:
• provision of an appropriate financial contribution towards management
and monitoring at the SPA/Ramsar sites, in accordance with the Council’s
Interim Policy Statement on Strategic Access Management and
Monitoring;787
• provision of enhancements to on-site public open space to maximise
opportunities for informal recreation including dog walking; and,
• engagement with Medway Council to provide further contributions
towards off-site recreational opportunities in the local area.
Taking each in turn:
5.11 Along with other local planning authorities in close proximity to the North Kent
Coast European sites, Medway Council has adopted a strategic level mitigation/
avoidance tool in relation to new residential development, which necessarily
takes full account of potential in combination effects on the European
designated site.788 In essence, a specified index-linked, per dwelling
contribution is required to contribute to the delivery of a strategic access
mitigation scheme to address potential damage from population increases on
the designated habitats of the Thames, Medway and Swale Estuaries and
Marshes. To that end, the planning obligation789 secures the requested financial
contribution.
787 CD3.2
788 ibid
789 …………………
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5.12 Given the nature of the coast, the provision of alternative informal open space
also has a role to play in terms of mitigation for potential effects arising from
informal recreation, since it is not possible to replicate the same experience
(unlike provision of open space for European designated sites supporting
heathland habitats, for instance). Nevertheless, the provision of attractive open
space does have a role to play in mitigating for a potential increase in activity
from new residents.
5.13 The appeal scheme provides for on-site opportunities for informal recreation as
illustrated on the Green and Blue Infrastructure Parameter Plan790 and the
Indicative Recreation Plan.791 The proposals would not (and indeed could not)
deliver an experience directly equivalent to that found at the coast, and some
future residents might still visit the SPA/Ramsar site on occasion. That said, it
can be expected that the open space provision would reduce the overall number
of potential visits to the SPA/Ramsar site (and SSSI) to some extent, by offering
an easily accessible area for regular dog walks for new residents, and that the
delivery of additional mitigation measures (as outlined above and below) could
help address the potential for any additional effect. The open space provision
would also provide a new facility for existing local residents, potentially reducing
further the number of visits to the SPA/Ramsar site.
5.14 Furthermore, in order to avoid providing a direct link which new residents could
use to easily access the European designated site on foot, no enhanced
pedestrian linkage between the application site and the Country Park towards
the north is proposed. In addition, no general parking areas are proposed
within the site, aside from those within the care and village centre, both of
which would be subject to parking and management controls, and so the
development would not provide parking for individuals to park and then access
the Country Park and European designated sites beyond.
5.15 In relation to the third of the key elements, Natural England required a bespoke
wardening package for the Country Park, including a bespoke warden in place
for a ten-year period, plus an uplift of the standard SAMM contribution to
address the ongoing impacts of the development beyond the ten-year bespoke
warden period, all of which is secured via the planning obligation.
5.16 The appellant has been in close consultation with Natural England throughout.792
Natural England has confirmed that it is content that the combination of
measures secured would be sufficient to ensure that the scheme, alone or in
combination, would not contribute to an overall significant effect that may have
an adverse effect on the integrity of any of the European/international
designated sites.
6. HRA CONCUSIONS
6.1 These conclusions represent my summary and assessment of the evidence
presented to me. I have taken into account all the available evidence and have
adopted the precautionary principle in carrying out my consideration of the
matters raised.
790
791
792 Written Statement of Mr Goodwin paragraphs 5.2- 5.4 - found at Appendix 5 of Mr Parr’s proof of evidence
(CD10.1 part 1 of 3)
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6.2 Having considered all of the potential significant effects that could arise from
the appeal scheme, I am content, in light of the avoidance and mitigation
measures which form an integral part of the development and/or which can be
secured by conditions and/or the planning obligation, that the development
proposed would not result in a likely significant effect alone, or in combination
with other plans and projects, on:
• Medway Estuary and Marshes SPA/Ramsar Site;
• Thames Estuary and Marshes SPA/Ramsar Site;
• The Swale SPA/Ramsar Site;
• Queendown Warren SAC;
• North Downs Woodlands SAC; and,
• Peter’s Pit SAC
6.3 My conclusion is predicated on the circumstances of this particular case, based
on the site’s unique context and situation and on the basis of securing the
identified mitigation measures that I have identified.
6.4 For the purpose of clarity, the above does not constitute an Appropriate
Assessment for the purposes of the Habitats Regulations. That is a matter for
the Secretary of State to undertake as the competent authority.
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www.gov.uk/mhclg
RIGHT TO CHALLENGE THE DECISION IN THE HIGH COURT
These notes are provided for guidance only and apply only to challenges under the
legislation specified. If you require further advice on making any High Court challenge, or
making an application for Judicial Review, you should consult a solicitor or other advisor or
contact the Crown Office at the Royal Courts of Justice, Queens Bench Division,
Strand,London,WC2 2LL (0207 947 6000).
The attached decision is final unless it is successfully challenged in the Courts. The Secretary of
State cannot amend or interpret the decision. It may be redetermined by the Secretary of State only
if the decision is quashed by the Courts. However, if it is redetermined, it does not necessarily follow
that the original decision will be reversed.
SECTION 1: PLANNING APPEALS AND CALLED-IN PLANNING APPLICATIONS
The decision may be challenged by making an application for permission to the High Court
under section 288 of the Town and Country Planning Act 1990 (the TCP Act).
Challenges under Section 288 of the TCP Act
With the permission of the High Court under section 288 of the TCP Act, decisions on called-in
applications under section 77 of the TCP Act (planning), appeals under section 78 (planning) may
be challenged. Any person aggrieved by the decision may question the validity of the decision on
the grounds that it is not within the powers of the Act or that any of the relevant requirements have
not been complied with in relation to the decision. An application for leave under this section must
be made within six weeks from the day after the date of the decision.
SECTION 2: ENFORCEMENT APPEALS
Challenges under Section 289 of the TCP Act
Decisions on recovered enforcement appeals under all grounds can be challenged under section 289
of the TCP Act. To challenge the enforcement decision, permission must first be obtained from the
Court. If the Court does not consider that there is an arguable case, it may refuse permission.
Application for leave to make a challenge must be received by the Administrative Court within 28 days
of the decision, unless the Court extends this period.
SECTION 3: AWARDS OF COSTS
A challenge to the decision on an application for an award of costs which is connected with a
decision under section 77 or 78 of the TCP Act can be made under section 288 of the TCP Act if
permission of the High Court is granted.
SECTION 4: INSPECTION OF DOCUMENTS
Where an inquiry or hearing has been held any person who is entitled to be notified of the decision
has a statutory right to view the documents, photographs and plans listed in the appendix to the
Inspector’s report of the inquiry or hearing within 6 weeks of the day after the date of the decision. If
you are such a person and you wish to view the documents you should get in touch with the office at
the address from which the decision was issued, as shown on the letterhead on the decision letter,
quoting the reference number and stating the day and time you wish to visit. At least 3 days notice
should be given, if possible.


3 November 2021
Dave Harris Our Ref: APP/A2280/W/20/3259868
Head of Planning,
Medway Council,
Gun Wharf,
Dock Road,
Chatham ME4 4TR
Dear Sir
LOCAL GOVERNMENT ACT 1972, SECTION 250(5)
TOWN AND COUNTRY PLANNING ACT 1990, SECTIONS 78 and 320
APPEAL BY [APPELLANT]
AT LAND OFF PUMP LANE, RAINHAM, KENT
APPLICATION REF: MC/19/1566
APPLICATION FOR A PARTIAL AWARD OF COSTS
1. I am directed by the Secretary of State to refer to the enclosed letter notifying you
of his decision on the above named appeal.
2. This letter deals with Medway Council’s application for a partial award of costs
against the developer. The application as submitted and the response of the
developer are recorded in the Inspector’s Costs Report (CR), a copy of which is
enclosed.
3. In planning inquiries, the parties are normally expected to meet their own
expenses, and costs are awarded only on grounds of unreasonable behaviour
resulting in unnecessary or wasted expense in the appeal process. The
application for costs has been considered in the light of the Planning Practice
Guidance, the Inspector’s Costs Report, the parties’ submissions on costs, the
inquiry papers and all the relevant circumstances.
4. The Inspector’s conclusions and recommendation with respect to the application
are stated at paragraphs CR4.1-5.1. The Inspector recommended that a partial
Mike Hale, Decision Officer Tel: 0303 444 5374
Planning Casework Unit Email: PCC@communities.gov.uk
Department of Levelling Up, Housing and Communities
3rd Floor, Fry Building
2 Marsham Street
award of costs is justified on the basis of unreasonable behaviour by the
developer which caused the Council to incur unnecessary or wasted costs in
relation to all but one of the component parts of the application.
5. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
conclusions in his report and accepts her recommendations. Accordingly, he has
decided that a partial award of costs, as specified by the Inspector at paragraph
CR5.1 is warranted on grounds of unreasonable behaviour on the part of A C
Goatham & Son.
6. Accordingly, the Secretary of State, in exercise of his powers under section
250(5) of the Local Government Act 1972 and sections 78 and 320 of the Town
and Country Planning Act 1990, HEREBY ORDERS that the developer shall pay
to the Council its partial costs of the inquiry proceedings limited to those costs
incurred in producing the Pump Lane and Lower Rainham Transport Impact
Appraisal Addendum 2028 results (December 2020) and Addendum 2 2037
(January 2021), the costs incurred during the adjournment, including the
production of further proofs of evidence from Messrs Rand and Jarvis, the costs
incurred in the additional sitting day and the costs of making the costs
application, such costs to be taxed in default of agreement as to the amount
thereof.
7. You are invited to submit to the developer details of those costs, with a view to
reaching agreement on the amount. Guidance on how the amount is to be
settled where the parties cannot agree on a sum is at paragraph 44 of the
Planning Practice Guidance on appeals, at
https://www.gov.uk/guidance/appeals#how-to-make-an-application-for-an-award-
of-costs
Right to challenge the decision
8. This decision on your application for an award of costs can be challenged under
section 288 of the Town and Country Planning Act 1990 if permission of the High
Court is granted. The procedure to follow is identical to that for challenging the
substantive decision on this case and any such application must be made within
six weeks from the day after the date of the Costs decision.
9. A copy of this letter has been sent to the developer.
Yours faithfully,
M A Hale
Mike Hale
This decision was made by the Minister of State for Housing on behalf of the
Secretary of State, and signed on his behalf