Case Reference: 3278256

Appeal Decisions
Inquiry held on 23 to 26 and 30 November, and 1 to 2 December 2021
Site visit made on 3 December 2021
by O S Woodwards BA(Hons.) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 5 January 2022
Appeal A: APP/Y3940/W/21/3278256
Land at Filands Road/Jenner Lane, Malmesbury SN16 9HZ
• The appeal is made under Section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for outline planning permission (all matters reserved).
• The appeal is made by [APPELLANT] Ltd against Wiltshire Council.
• The application Ref 21/01641/OUT, is dated 12 February 2021.
• The development proposed comprises residential development, associated infrastructure
and public open space.
Appeal B: APP/Y3940/Q/21/3278923
Whychurch Farm, Malmesbury, Wiltshire SN16 9HZ
• The appeal is made under Section 106B of the Town and Country Planning Act 1990
against a failure to determine that a planning obligation should be discharged.
• The appeal is made by [APPELLANT] Ltd against Wiltshire Council.
• The development to which the planning obligation relates is the discharge of Schedule
1, Part 1, Clause 4.5 of the planning obligation relating to N/11/04126/OUT.
• The planning obligation, dated 15 February 2013, was made between Wiltshire Council
and Michael Edward Weaver & Gleeson Developments Ltd.
• The application Ref 20/05470/106, is dated 2 July 2020.
• The application sought to have the following planning obligation discharged: “Not to
Commence the Development Until the Owner has transferred the Primary School Land
to the Council in accordance with the terms and conditions of transfer at Part 2 below.”
Appeal C: APP/Y3940/W/21/3282365
Land at Filands Road/Jenner Lane, Malmesbury SN16 9HZ
• The appeal is made under Section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for outline planning permission (all matters reserved).
• The appeal is made by [APPELLANT] Ltd against Wiltshire Council.
• The application Ref 21/01363/OUT, is dated 5 February 2021.
• The development proposed comprises residential development and land for a nursery,
associated infrastructure and public open space.
DECISIONS
1. Appeal A is dismissed and planning permission for residential development,
associated infrastructure and public open space, on land at Filands
Road/Jenner Lane, Malmesbury SN16 9HZ, is refused.
2. Appeal B is dismissed and the planning obligation, dated 15 February 2013,
made between Wiltshire Council and Michael Edward Weaver & Gleeson
Developments Ltd shall continue to have effect.
3. Appeal C is allowed, and planning permission is granted for residential
development and land for a nursery, associated infrastructure and public
open space on land at Filands Road/Jenner Lane, Malmesbury SN16 9HZ in
accordance with the terms of the application Ref 21/01363/OUT, dated
5 February 2021, subject to the conditions set out in the attached schedule.
PRELIMINARY MATTERS
4. Malmesbury Town Council (MTC) and the Malmesbury Civic Trust (the Trust)
were represented at the inquiry as independent parties, each with Rule 6
status.
5. Appeals A and C are for outline planning permission with all matters
reserved. They both relate to the same site. It was a matter of agreement
that only the site location plan forms part of the formal drawing set for each
appeal, which only details the red line boundary of the site. However, the
applications were accompanied by some illustrative details and drawings. In
addition, in the lead up to the inquiry, the appellant submitted illustrative
drawings regarding the proposed landscaping for Appeals A and C, and an
illustrative layout for a proposed nursery with regard to Appeal C. Although
these drawings were not consulted upon as part of the original applications,
sufficient time was provided for the Council and the Rule 6 parties to review
the documents. I therefore accepted these illustrative drawings to the
inquiry, where they were explored in depth.
6. Precise residential dwelling numbers are not known at this stage, because of
the outline nature of both Appeals A and C. However, based on reasonable
density assumptions, themselves based on the illustrative landscape
drawings, the appellant suggests predicted numbers at up to 70 dwellings for
Appeal C and up to 78 dwellings for Appeal A. I view these dwelling numbers
as useful indicators of the proposed scale of development, albeit
acknowledging that they are not fixed, and have allowed for this as
appropriate in my reasoning below.
7. The site for Appeals A and C lies immediately to the south of land which
benefits from an extant outline planning permission1 for residential
development (the ‘northern parcel’), which is also owned by the appellant,
Bloor Homes Ltd. Although access is a reserved matter in relation to both
appeals, access to the appeals site would be taken through the ‘northern
parcel’, which I expand upon as relevant later on.
8. Appeal B relates to a wider that includes both the Appeals A and C land and
land to the west, which has already been built out for a residential
1 Permission Ref 19/11569/OUT, granted on 1 September 2020, for 71 dwellings
development2 (the 2013 permission). The relevant section of that site
corresponds, albeit not identically, to the land under consideration for
Appeals A and C, and has not been developed. Again, I expand upon this as
relevant later on.
MAIN ISSUES
9. The main issues are:
• whether or not the obligation still serves a useful purpose (Appeal B);
• whether or not the proposals would adequately provide for early-
years/nursery education facilities, including consideration of alternative
sites and facilities (Appeals A and C);
• the effect of the proposals on biodiversity, with particular regard to
hedgerows (Appeals A and C);
• whether or not the appeals site is an appropriate location for housing,
having regard to local and national planning policy and guidance (Appeals
A and C); and,
• the effect of the proposed developments on the safe and efficient
operation of the highway network in the vicinity of the appeals site
(Appeals A and C).
REASONS
Planning Policy
10. The Development Plan includes the Wiltshire Core Strategy, adopted January
2015 (the CS), the Wiltshire Housing Site Allocations Plan, adopted February
2020, the Malmesbury Neighbourhood Plan, made in March 2015 (the MNP),
and the ‘saved’ policies of the North Wiltshire Local Plan 2011, adopted June
2006 (the LP).
11. The Council is currently in the process of preparing a new Local Plan, but this
is at the earliest stage of preparation and there are not yet any draft policies
within the emerging Plan against which to consider the appeals.
Whether or not the obligation still serves a useful purpose? (Appeal B)
12. The Unilateral Undertaking the subject of Appeal B, dated 15 February 2013
(the 2013 UU), in relation to the 2013 permission, places covenants on the
Appeals A and C land (called the Primary School Land in the 2013 UU).
Schedule 1 Part 1 Paragraph 4.5 states “Not to Commence the Development
until the Owner has transferred the Primary School Land to the Council…”.
The development to the west has not only commenced but is now completed
and the land has not been transferred to the Council. However, I do not view
the failure to transfer the land as a de facto breaking of the clause as
necessarily rendering it irrelevant. Such an approach would mean that any
‘prior to commencement’ clause, or indeed condition, could be rendered null
and void by an applicant/appellant simply commencing development. I also
2 Permission Ref N/11/04126/OUT, granted 18 March 2013, for 180 dwellings and provision of land for a primary
school
note that there is no specific end date in the 2013 UU for the safeguarding of
the land.
13. The appellant attempted to transfer the land to the Council between October
2015 and January 2016. This was not taken up by the Council, which has
since confirmed that it does not wish to take control of the land to provide a
primary school. In light of that, it is now the appellant’s contention that the
land does not need to be transferred because the obligation no longer serves
a useful purpose, hence the making of the application to discharge the
obligation, resulting in the submission of Appeal B.
14. The key consideration in this case turns on the terms and conditions of the
transfer of land and their remaining relevance, as set out in Schedule 1
Part 2 of the 2013 UU. The contentious consideration is set out in
Paragraph 4.6.3.4, which covenants the land to be used for “educational
purposes by an educational institution which shall include play areas and
pitches in connection with the use of the Primary School Land for such
educational purpose”. Also of relevance is the definition of the Primary
School Land, which is land “to be transferred to the Council for the provision
of primary school infrastructure”.
15. The clear intention for the use of the land, and therefore the appeals site,
was for a primary school. The size of the land at 2 ha, the definition and title
in the 2013 UU, and the reference to play areas and pitches in Paragraph
4.6.3.4 all point to this. However, the use of the land for alternative
educational purposes by educational institutions is explicitly allowed for at
Paragraph 4.6.3.4. This was purposefully and intentionally included, as is
made clear at Paragraph 85 of the Decision letter for the planning permission
granted at appeal3, where the Inspector makes it clear that the land should
remain available for educational purposes, whether or not a primary school
is provided.
16. I therefore conclude that the 2013 UU still serves a useful purpose. However,
for what educational purpose and how much of the land should remain
safeguarded, are important factors to which I now turn.
Adequacy of Provision for Early-years/Nursery Education Facilities
(Appeals A and C)
Primary School
17. There are two existing primary schools in Malmesbury – Malmesbury Church
of England Primary School (the CofE School) and St. Joseph’s Roman
Catholic School. Both are full. Lea & Garsdon Primary School (the L&G
School) is also located nearby and has some, but limited, capacity for new
pupils. Evidence has been provided that more primary school places are
required in Malmesbury due to the pupil demand from committed
developments, as well as the demand that would be created by either Appeal
A or C. MTC also point to further potential pupil demand from current, but
not permitted, planning applications. However, I do not take the latter into
account because they are not yet firm commitments and each application
3 Appeal Ref APP/Y3940/A/12/2183526, AC12.1
will need to be responsible for its own effect on primary school
infrastructure.
18. The increased demand is being met by an expansion to the L&G School4 that
is currently being built. This school is located outside Malmesbury and some
children need to use buses to attend the school. This is not a preferred form
of transport for primary aged pupils but it is already in operation and I have
been provided with no evidence that this is an insurmountable problem. I
particularly note that the Education Authority raised no objection to the use
of this school to meet the needs of Malmesbury children.
19. If further capacity is required, the CofE School recently secured the option to
use 0.6 ha of land that lies between the school and the recently permitted
Backridge Farm housing development5. The s106 Planning Obligation for this
permission, dated 22 October 2021, secures the land as an option for the
school for up to 10 years. It may take some time for this to be implemented
and I am aware that the CofE School is an Academy and cannot be forced to
expand. However, expansion of the CofE School is the preferred option for
primary school expansion in Malmesbury, as set out in Policy 11 of the MNP.
I also place weight on the fact that the Education Authority has confirmed
that it does not wish to build a primary school on the appeal land and is
content to rely on the expansion of existing facilities.
20. I am therefore satisfied that the currently anticipated demand for primary
school places in Malmesbury can be accommodated either through the
under-construction expansion to L&G School, or in the future through
expansion to the CofE School. Consequently, I conclude that a primary
school is not required at the appeal site at the present time. I therefore turn
to the question of whether the appeals site, or part of it, should be
safeguarded for alternative educational purposes by educational institutions.
Alternative Educational Purposes
21. The concrete proposal before me is for a nursery, for 0 to 5 year olds. This is
as offered by the appellant through Appeal C. It is also what has been
requested by the Council, which has requested that 0.3 ha of the appeal site
land be safeguarded for nursery provision. Nurseries fall under the control of
the Department of Education and are inspected by the Office for Standards
in Education, Children's Services and Skills, more commonly known as
Ofsted. The Childcare Act 2006, which relates to young children, defines the
‘well-being’ of young children as including education6. However, there is a
clear difference between the unambiguous educational offer of a primary
school and the blended responsibilities and provisions of a nursery. A
nursery, particularly for the younger children/babies, is also a care provider.
In my view, therefore, a nursery is partly an education institution and partly
a care provider.
22. As such, a nursery falls into a grey area where it undeniably provides
education, but only in part. In this context, the approach taken by the
Council of only requesting that a small proportion of the safeguarded land
remain safeguarded is reasonable, recognising the imperfect fit of a nursery
4 Planning permission Ref 18/08362/DP3
5 Permission Ref 16/06401/FUL, dated 22 October 2021
6 Part 1, Paragraph 2(c) of the Act
into the 2013 UU’s definition whilst also retaining the intention of the
development to the west providing educational accommodation.
23. The Trust also questions why the entire land, or part of it, could not be
offered to other educational providers, such as colleges or Dyson’s in-house
education establishment. However, no concrete or detailed proposals from
other educational institutions are before me. Although there is no time limit
on the safeguarding of the land in the 2013 UU, I do not view it as
reasonable, now that the clear original purpose of the land as a primary
school will not be coming forward, to keep the land safeguarded in
perpetuity on the off-chance that it may come into use in the future.
Need for a Nursery
24. It is difficult to gauge accurately the capacity of existing nurseries in
Malmesbury because, amongst other factors, some children only attend for
certain days of the week, and the demand in the summer term can be
higher. For similar reasons, it is difficult to forecast demand for new nursery
provision. Whilst acknowledging these difficulties, the appellant and the
Council in its role as the Education Authority have agreed that there is
demand for one new nursery in Malmesbury. It is also common ground that,
if a new nursery is provided, it should be for 80-places irrespective of the
precise demand, because anything smaller would be uneconomic to operate
and would be unlikely to attract a provider.
25. One alternative site for a nursery was explored at the inquiry, on land at the
CofE School. The CofE School is located more centrally in Malmesbury. Co-
location of a nursery with a primary school has many benefits, including
sharing drop-offs and pick-ups, staff training, transition from nursery to
school for children, and shared resources. The school has set these out in its
submission dated 17 March 2021. These remain valid points with which I
agree. MTC has raised concerns regarding parking and access but I do not
foresee these as insurmountable in the context of an existing and
operational school with land to re-configure if necessary. In this context,
provision of a nursery at the CofE School would appear to be preferable to
one located on the appeal site.
26. However, deliverability also needs to be taken into account. A nursery at the
school would likely be on land currently used for hard surfaced outdoor
playspace. This would need to be re-provided and the school would need to
secure additional land for this, which it has not yet achieved. There is no
certainty or timetable regarding a nursery at the CofE School, whereas the
appeal site would afford a blank canvas on land acquired for one pound.
There is no operator on board at present, but there is no reason it could not
be progressed quickly. I therefore see the appeal site as the preferable site
in terms of deliverability. Moreover, if it were found that there is sufficient
demand for two nurseries, then allowing a nursery at the appeal site would
not prevent the provision of a further nursery at the CofE School. This would
be a commercial decision at the time and one with which the CofE School
have stated it is comfortable.
Area of Land Required
27. The allocated, safeguarded land for a primary school is 2 ha. The Council is
requesting that only 0.3 ha of this land remain safeguarded for an 80-place
nursery. The appellant contends that 0.2 ha is required, and the Trust and
MTC request 0.4 ha.
28. I do not view comparison of the sizes of existing nurseries as particularly
helpful here, because they are often in existing buildings and facilities and
are likely to have evolved by accommodating and adapting to the existing
nature of the building/site, and/or might be inefficiently using a larger
building/site than they require, rather than being the optimum size or
layout.
29. Government guidance7 sets the minimum internal space requirements for
nurseries at 3.5 sq m per 0 or 1 year old child, 2.5 sq m per 2 year old, and
2.3 sq m per 3–5 year old. Without knowing the eventual breakdown of the
children’s ages, it is not possible to use these requirements to come to a
definitive figure. However, the Council has set a likely configuration of 12x
0–2 year olds, 24x 2 year olds, and 44x 3–5 year olds. This would equate to
203 sq m. These are net areas, for classrooms, and do not include ancillary
facilities. A reasonable expectation is that a nursery should also provide staff
facilities, storage and buggy storage, a kitchen, and a utility area. A
floorplan was provided at the inquiry for a proposed nursery at another site
by an experienced provider, the YMCA. This is for up to 100 pupils, i.e. 20
more than that proposed at the appeal site, and also included a community
offer. Its total internal floor area is 500 sq m, of which 107 sq m is allocated
to community facilities.
30. The internal size of a nursery is not an exact science and related government
guidance is only partial. There is no relevant planning policy. On the
evidence before me, I consider a reasonable allowance for an 80-place
nursery to be in the region of 400 sq m. That would accommodate sufficient
classroom and ancillary space, based on the YMCA’s proposal for a slightly
higher pupil capacity nursery minus the space allocated for community
facilities, and comfortably accommodating the only internal space figures
available (i.e. 203 sq m as set out above), flexibility for alternate mixtures of
child ages, and ancillary accommodation.
31. Government guidance also strongly encourages access to external areas. I
consider that there should be access to high quality outside space on-site in
a new build facility even with limited site constraints. In this regard, the
Council has adopted the base area figure for a primary school from further
government guidance8, which is 2,400 sq m, or 0.24 ha. However, a primary
school has far greater outdoor space requirements than a nursery, for
example for sports and leisure facilities amongst much else. I do not agree,
therefore, that using a figure based on this provides a reasonable basis for
calculating outside space for a nursery. The same government guidance sets
the minimum gross outdoor site area for nurseries at 6 sq m per child. This
equates to 480 sq m for an 80-place nursery, or 0.048 ha. The maximum is
7 Paragraph 3.58 of The Statutory framework for the early years foundation stage – Setting the standards for
learning, development and care for children from birth to five, published 31 March 201, by the DoE, ED05
8 Annex B, Area Guidelines for mainstream schools – Building Bulletin 103, dated June 2014, by the DoE, ED04
set at 7.5 sq m per child, which equates to 600 sq m (0.06 ha). It seems to
me that the higher figure should be adopted for a new build provision on a
site with minimal physical constraints and where seeking to allow for a high
standard of development. The combined internal and external floorspace
requirements would therefore be approximately 1,000 sq m, or 0.1 ha.
32. The allocated nursery land also needs to provide car parking for staff, and
potentially parents, and drop-off facilities. There are no car parking
standards for nurseries. Limited evidence was provided at the inquiry of
what reasonable parking provision should be for a nursery at the appeal site,
although the Council suggested 23 spaces, with MTC highlighting a potential
nursery site in Yate with an alleged allocation of up to 34 spaces, albeit
without any detailed information provided to confirm this. The proposed site
layout and the relationship to internal roads and access points is also not yet
known. Agency advice, from Jones Lang LaSalle, has been provided from the
appellant that a total site area of 0.2 ha should be sufficient, but the advice
lacks granular detail or empirical justification. The YMCA has stated that it
would require a 500 sq m building and a total site area of 0.3 ha, including
car parking and drop-off provision. It subsequently indicated a preference for
a total site area of 0.4 ha, but this was based on potential future expansion,
which is not being suggested is likely to be required at the appeal site, and
extra parking so as not to negatively impact on local traffic flows, which, as
set out later on, I consider not to be a particular issue at this site.
33. For the purposes of these appeals, the only reasonable approach I can adopt
is to allow for sufficient land to accommodate a high quality 80-place nursery
with associated outside space and car parking/drop-off, but without over-
allocating land and thereby negatively affecting efficient use of the appeal
site. Taking everything into account, and particularly taking note that the
Education Authority and the YMCA both use this figure, I assess this to be
0.3 ha, comprising 0.1 ha for the building and outside play space and 0.2 ha
for parking and drop-off etc. Some further flexibility within this space is also
likely to be possible, because the nursery building could be two-storeys and
therefore have a reduced footprint. A one-storey building would provide
easier access to outside space but there are plenty of examples of nurseries
successfully operating from two-storey buildings.
34. The location of the land to be allocated for the nursery is not set by Appeal
C. At the inquiry, the presence of a small area of undevelopable land in the
likely area where the nursery could be located was discussed. However, it
was found that much of this land, if not all, could still be used for outside
space and/or parking in any event because the ‘undevelopable’ label relates
simply to a no foundations/no dig area around an underground electricity
cable. Given the uncertainties of the eventual location and the minimal likely
constraints provided by this area of undevelopable land, I do not consider
this further.
35. Drawing all of the above together, I consider that there remains a need to
safeguard land for nursery provision and that the amount of land required to
be safeguarded for that purpose should be 0.3 ha. Subject to this, the land
would adequately provide for early-years/nursery education facilities, as
required by the 2013 UU.
Ecology (Appeals A and C)
36. Paragraph 180 of the National Planning Policy Framework (the Framework)
sets out a clear hierarchy for proposals affecting biodiversity. The hierarchy
is to: firstly, avoid harm; secondly, where this is not possible, to mitigate
any harm on-site; thirdly, as a last resort, to compensate for any residual
harm.
37. The appeals site is of relatively low ecological value. It mostly comprises
grassland, with small areas of scrub, and hedgerows to some of the site
boundaries. The primary feature of ecological value is a species-rich
hedgerow that runs across the centre of the site from east to west. This not
only provides habitat but also a transit route for wildlife. However, even this
hedgerow is only of parish level importance in ecological terms.
38. Development of the site would inevitably lead to the loss of the majority of
the existing grass and scrubland. It is also not possible to avoid the loss of
the hedgerow and also develop the appeal site in an efficient manner for
housing and/or a nursery. Or, for that matter, for a primary school, had the
land been used as originally intended. This is because the hedgerow runs
across the middle of the appeal site and any layout solutions that avoid it
entirely would result in a proposal that did not make efficient use of the site,
contrary to basic planning principles as set out in Paragraph 124 of the
Framework. It is not possible to efficiently develop the appeal site and to
avoid all harm to biodiversity.
39. The appellant has proposed mitigation in the form of native scrub and
wildflower planting, sustainable urban drainage systems incorporating wet
grassland, and replacement hedgerow planting. This has been illustrated on
landscape masterplans for both Appeals A and C, and is cross-referenced to
detailed data supporting a Natural England Biodiversity Metric 3.0
calculation. The assumptions made by the appellant regarding areas of
landscaping and hedgerow provision appear reasonable, with significant
proportions of the site set aside from built development, where both
biodiversity and other infrastructure, such as drainage, could be provided.
Importantly, the Council has accepted that the provision of hedgerows to the
site boundaries would provide suitable replacement wildlife transit
opportunities.
40. I acknowledge that the landscape masterplans are indicative and subject to
change at reserved matters stage. However, there is no evidence before me
that something in the order of the ecological mitigation the appellant has
proposed could not be achieved on site, for either Appeal A or C. It should be
remembered that the existing level of biodiversity to be mitigated is fairly
low. It is common practice to set out a high level approach, subject to review
at reserved matters and condition discharge stages. A condition could
require the provision and agreement of a detailed Ecological Parameters
Plan. The Council would remain in control of the level of on-site biodiversity
mitigation to be provided through the approval of those submissions.
41. Full on-site mitigation is not achievable. Compensation for residual harm is
therefore required. In this regard, although The Environment Act 2021 has
now passed, secondary legislation is required for it to be implemented.
Therefore, the 10% biodiversity net gain requirement set out in the Act is
not yet law and is not applicable to these appeals. Policy CP50 of the CS, and
Paragraph 174 of the Framework, both seek a net gain in biodiversity
without identifying a specific percentage. A net gain of just 1% would be
policy compliant in these circumstances. This could be secured by a planning
obligation.
42. The Trust has raised concerns regarding the effect of the proposals on
Conygre Mead, a nearby nature reserve and County Wildlife Site. The
specific concerns relate to use of the site as a transit for wildlife seeking
access to the Mead, and the potential effect on the Mead from changes to
surface water run-off caused by the proposals. However, no substantive
evidence has been provided of harmful effects from the proposals on transit
routes for wildlife. In any event, this could be considered as part of any
future reserved matters and condition discharge submissions. Conditions
could also control details of the proposed drainage measures to ensure that
the effect from surface water run-off would be appropriately managed.
43. Overall, the proposals would meet the biodiversity hierarchy as set out in
Policy CP50 of the CS and Paragraph 180 of the Framework, and, subject to
further details that could be controlled at reserved matters and condition
discharge submissions, and through an appropriately worded clause in the
planning obligation, the proposals would not have an unacceptable effect on
biodiversity, including hedgerows.
Location (Appeals A and C)
44. Malmesbury is an identified Market Town, the second highest category of
settlement in the CS. Market Towns are considered to support sustainable
patterns of living and to have the potential for significant development, as
set out in Policy CP1 of the CS. However, Policy CP2 of the CS states that
development will not be permitted outside the ‘limits of development’ as
defined on the Proposals Map, other than for the exceptions set out in
Paragraph 4.25 of the CS. It is common ground that the appeals site sits
outside of the defined ‘limits of development’ and that none of the
exceptions apply. Appeals A and C are therefore in conflict with Policies CP1
and CP2 as a matter of principle.
45. The CS makes it clear that the high-level development strategy set out in
Policies CP1 and CP2 should be read in conjunction with the relevant
Community Area policy. The appeals site sits in the Malmesbury Community
Area, which is the subject of Policy CP13. This policy directs growth to reflect
the constraints set out in Policies CP1 and CP2. Saved Policy H4 of the LP
also restricts development in the countryside, other than in specified
circumstances, none of which apply to the proposals. The proposals
therefore also conflict with Policies CP13 and H4.
46. The appeals site falls within the Malmesbury Neighbourhood Plan area,
within the ‘Malmesbury Town’ part of the MNP area. Five allocated housing
sites are within this area, none of which cover the appeal site. There are no
specific policies within the MNP which prohibit residential development
coming forward outside of the allocations, but equally there are no policies
which support it. The MNP is silent with regard to such development,
although it is implicit that the allocated housing sites are deemed sufficient
to meet the housing need for Malmesbury. There are also no policies with
regard to nursery provision. I consequently find no direct conflict with the
MNP in these respects.
47. Therefore, having regard to the locational policies in the Development Plan,
the appeals site represents an inappropriate location for housing or a
nursery.
Highways (Appeals A and C)
48. As set out in the Statement of Common Ground, this is not a matter at issue
between the Council and the appellant. It continues, however, to be a matter
of considerable concern for the two Rule 6 parties, and local residents.
49. The appeals site is set to the south of Filands Road, with a further area of
undeveloped land between the site and the road, i.e. the ‘northern parcel’.
Access to Filands Road would be through the ‘northern parcel’ land, the
intention being to integrate the proposed development schemes with the
future development on the ‘northern parcel’ site.
50. The applications for Appeals A and C were accompanied by detailed
Transport Assessments, recording traffic levels, assessing highway safety
and accident data, and using traffic modelling to predict the effects of the
proposals and other commitments. The Transport Assessments conclude that
Filands Road and nearby junctions are not particularly busy and do not suffer
from unacceptable levels of congestion. The modelling for the proposals
concludes that there would be relatively limited additional traffic generated
by the proposals and that the surrounding road network would be
comfortably able to accommodate the increased traffic flows. Safety data has
been provided and there was only one recorded accident on Filands Road,
with only a minor injury.
51. Anecdotal evidence was provided at the inquiry regarding the ‘busyness’ of
the local roads and safety. However, no substantive evidence has been
provided of safety issues or traffic congestion in the area, or of the likelihood
of the proposals materially worsening the existing situation. There may well
be incidents of speeding on Filands Road, but no evidence has been provided
of any particular safety issue or high accident record along this road in
comparison to the national highway network. I also note that the Highways
Authority has assessed the proposals and raises no objection. Conditions and
reserved matters submissions could control the detail and acceptability of
visibility splays, highway layouts, and access points to Filands Road.
52. Consequently, the proposals would not have an unacceptable adverse effect
on highway safety or the efficient operation of the highway network in the
vicinity of the appeals site. There is no conflict, therefore, with Policies CP61
and CP62 of the CS, and Chapter 9 of the Framework.
OTHER MATTERS
Housing Land Supply
53. It is common ground that the Council cannot demonstrate a five-year supply
of deliverable housing sites, thus engaging the so-called ‘tilted balance’ set
out at paragraph 11d) of the Framework. However, the supply of housing,
and therefore the degree of the shortfall, is contested. In this regard, the
housing land supply figure is calculated using the base date of April 2019. I
have relied on evidence to the present day, but have only considered sites
that were included as of April 2019. Therefore, recent sites such as
Backridge Farm have not been taken into account. This is important for
consistency and to ensure that the housing land supply situation is equally
updated with regard to both demand and supply measures. The Framework
is clear that for sites to be considered as ‘deliverable’, there must be a
realistic prospect that housing will be delivered on them within five years,
and for sites either without permission or with only outline permission this
must be demonstrated through clear evidence.
54. I take the disputed sites in turn below9:
• Site 24, Land at Empress Way – there remain many unresolved
objections to a current planning application, including from the
Environment Agency with regard to nitrate pollution, which is a known
problem for residential planning permissions and could be difficult and
time consuming to resolve. There is therefore no clear evidence that
these will be delivered. The homes should be removed from the supply;
• Site 64, Former Wiltshire College – the Council agreed to remove this site
from the supply;
• Site 158, Land at Elm Grove Farm – an outline planning application was
made in November 2019. There remain unresolved issues regarding
access, layout and heritage and no convincing timetable or evidence has
been provided that these could be overcome in a timely manner. There is
therefore no clear evidence that these will be delivered. The homes
should be removed from the supply;
• Site 163, Southwick Court – an outline planning application was made in
January 2020, and is not yet determined. There remain outstanding
objections, including from the Council’s Design Officer and the
Environment Agency. The timetable set out in the Statement of Common
Ground10 relied on outline planning permission being granted in
December 2019. There is no clear evidence that these homes can be
delivered within five years, and the homes should be removed from the
supply;
• Site 192, Land North of Hilltop Way – outline planning permission has
been granted and the reserved matters application has been submitted.
Although not yet determined, the reserved matters submissions have
been made by a housebuilder, and the proposed development is
relatively small at 10 homes and would be capable of being delivered
relatively quickly following the granting of reserved matters consent. I
am therefore satisfied that these dwellings are likely to be delivered
within five years and should be retained within the supply;
• Site 215, Finch House – this is for extra-care, class C2 accommodation.
Planning Practice Guidance (the PPG)11 is clear that the contribution of
such accommodation is based on the amount of accommodation released
9 Scott Schedule, dated 22 November 2021, ID07
10 See Appendix 44 to the Council’s Housing Land Supply Proof of Evidence
11 Paragraph: 035 Reference ID: 68-035-20190722
in the housing market, and does not distinguish or make allowance for
self-contained class C2 accommodation. Therefore, the ratio of 1.8 should
be applied to this permission to reflect the accommodation likely to be
released onto the market. The permission is for 21 flats and applying the
ratio reduces the contribution to housing supply to 12 homes;
• Site 227, Land at Netherhampton Road – outline planning permission was
granted in June 2020 for approximately 600 units. Some pre-
commencement conditions have already been discharged. The reserved
matters application for the first 234 dwellings was submitted in October
2021 and is yet to be determined. There is no certainty of the timescale
of the approval of this reserved matters application, but it is reasonable
to assume that it could be approved in time to allow for delivery of the
60 homes from the reserved matters application that have been allowed
for in the supply. These only constitute a relatively small proportion of
the overall site, within five years. The homes should be retained within
the supply;
• Site 230, Land at Rowbarrow – an application for full permission was
made in January 2020. In November 2021, revised information was
submitted and negotiations are ongoing regarding resolving flood risk
issues. The applicant is a developer, Bellway Homes, and they have
entered into negotiations to finalise the relevant planning obligation, as
well as agreeing to an extension of time to determine the application to
try and secure a January 2022 committee date. These all point to
momentum being behind the application. The Council has only included
70 of the proposed 95 homes in their supply. I view this as a reasonable
assumption, and these homes should be retained;
• Site 231, Clover Lane – this is an allocated site but there is no current
planning application, no developer is on board, an no clear evidence has
been provided that an application is forthcoming, nor of a reasonable or
likely timescale for delivery of the allocated homes. The homes should be
removed from the supply;
• Site 232, Land off Larkhill Road – an outline planning application was
made in May 2020. It is yet to be determined and there remain
objections in relation to design and drainage. There is no certainty that
these can be overcome, or what the timescales may be for resolving
them. There is therefore no clear evidence that these homes can be
delivered within five years, and the homes should be removed from the
supply; and,
• Site 233, The Yard – outline planning permission has already been
granted. A current reserved matters application is due to be determined
shortly and simultaneous condition discharge applications have been
made. A developer is on board. The homes should be retained in the
supply.
55. The agreed five-year housing need incorporating a 5% buffer is 10,533
dwellings. I calculate the housing supply to be 9,605 homes (the Council’s
deliverable supply number) minus the 316 homes that I have identified to be
removed above. This equals 9,289 homes, which in turn provides a housing
land supply figure of 4.41 years for the purposes of these appeals.
Letters of Objection
56. Letters of objection have been received regarding the three appeals. In
addition to the matters covered above, they raise concerns with the lack of
education capacity in Malmesbury, that the proposed homes would
exacerbate this situation, overflow car parking, overall scale of the combined
proposals along Filands Road, over-provision of housing in Malmesbury,
surface water drainage, the capacity of local infrastructure to cope, requests
that the entire land should be used for community use if not a primary
school, and the potential effects on a right of way across the site.
57. I have taken all these factors into consideration. No substantiated evidence
has been submitted to support these concerns. The technical information
that accompanied the planning applications, such as the Transport
Assessment and Flood Risk Assessment, have been considered by the
Council and other relevant statutory authorities, and have been found to be
acceptable. Other matters can be addressed by conditions or are dealt with
by the planning obligations.
PLANNING OBLIGATIONS (APPEALS A AND C)
58. A s106 Planning Obligation, dated 16 December 2021, has been submitted in
relation to Appeal C (the s106). A Unilateral Undertaking, dated 14
December 2021, has been submitted in relation to Appeal A (the 2021 UU).
59. The s106 secures the provision of at least 40% of the dwellings as affordable
housing, of which 60% are to be affordable rented units with a rent at no
more than 80% of open market rents, and 40% are to be shared ownership
units. The mix is to be determined when the overall housing mix is known.
This level of provision complies with Policy CP43 of the CS.
60. The s106 secures contributions towards early-years, primary school, and
secondary school education. The precise contributions are to be calculated
when the final housing mix is known, so that the contribution fairly relates to
the demand for school places generated by the proposals. The early-years is
necessary for Appeal C, despite the provision of land allocated for a nursery
on-site, because the appeal only secures the land for a nursery, and
providing new nursery provision, on the appeal site or elsewhere, still
requires funding.
61. The s106 secures the land to be used to construct a nursery. For the reasons
set out above, I set this at 0.3 ha of land. Construction of the nursery on this
land is to commence within 10 years, otherwise the land is to revert back to
the appellant.
62. The s106 secures open space and a play area to be provided on the site in
perpetuity. The sizes of these areas are to be calculated when the final
housing mix is known, so that they reflect the demand for open and play
space created by the final housing mix. The provision accords with Policy
CP52 of the CS and Saved Policy CF3 of the LP. The s106 secures various
controls and commitments in relation to the provision of sustainable urban
drainage infrastructure. It also sets out details of the management of the
spaces and drainage infrastructure by a management company and the
funding of such management in perpetuity, also in accordance with the
requirements of Policy CP52.
63. The s106 secures a contribution towards public art. The precise contribution
is to be calculated when the final housing numbers are known so that it
remains reasonable in scale to the final housing mix. Public art is required to
ensure a high quality design is achieved, and its provision complies with
Policies CP3 and CP57 of the CS.
64. The s106 secures £100,000 towards the improvement and conversion of a
footpath, ‘Malmesbury 8’, to a shared foot and cycle path, including surface
improvements and lighting. This path is located along the eastern boundary
of the appeal site and its improvement would bring direct benefits to the
future occupiers of the site, as well as improving links to the centre of
Malmesbury. This would ensure that sustainable transport improvements are
secured, in accordance with Policies CP52 and CP61 of the CS.
65. The s106 secures a £6,000 payment for the advertisement and sealing of the
related prohibition of driving order (except for busses) at Gilmore Road, and
the related provision of a Bus Gate between the appeal site and the existing
residential area to the west along the road link proposed between the two
sites. The s106 also secures a contribution towards erecting a number plate
recognition camera. These measures are required to enforce the controls of
non-bus traffic between or through the site to the existing development to
the west. These controls are necessary to control traffic flows and prevent
rat-running, whilst simultaneously allowing a bus route through the site to
service the development. This accords with the requirements for sustainable
transport choices as set out in Policies CP60, CP61 and CP62 of the CS.
66. The s106 secures a contribution towards the costs of upgrading the changing
room and pavilion at Malmesbury Cricket Club. The precise contribution is to
be calculated when the final housing numbers are known. On-site provision
is not possible because of the requirement to provide biodiversity mitigation,
drainage features, and landscaped open space. The proposed contribution to
off-site provision is therefore reasonable and necessary, and accords with
Policy CP3 of the CS.
67. The s106 secures a contribution towards the provision of waste and recycling
containers for each proposed residential unit, in accordance with Policy CP3
of the CS.
68. The s106 secures a payment towards compensatory biodiversity measures,
to secure a biodiversity net gain of 1%. This is the for the reasons set out in
detail in the ‘Ecology’ section above, and ensures that the proposals comply
with Policy CP50 of the CS.
69. The s106 also makes amendments to the 2013 UU in the event that Appeal
B is dismissed and Appeal C is allowed. The changes reflect the provision of
0.3 ha of land for a nursery as secured through Appeal C and remove the
current Primary School Land obligations.
70. The 2021 UU is substantively the same as the s106 save for not having any
clauses in relation to the provision of nursery land, and not needing to link to
the 2013 UU because no changes would be required to that document.
PLANNING BALANCE AND OVERALL CONCLUSION
71. In the section that follows, I have adopted the following ascending scale in
terms of weighting – limited, moderate, significant, substantial.
72. The Council has instigated an action plan to remedy the lack of a five-year
housing land supply. It is securing consultants to process applications and
condition discharges on stalled sites, and provided examples of where this
has yielded results, such as Backridge Farm. It has also begun to allow
permissions outside of defined settlement boundaries, a matter I return to in
detail below.
73. The lack of a five-year housing land supply was first identified in April 2020
when the Purton Road, Swindon decision was made12, setting the housing
land supply at 4.42 – 4.62 years. Since then, the trajectory of the shortfall
has been largely flat, with the 4.41 years supply that I have identified above
falling within the range set through Purton Road. Therefore, if the action plan
is helping, the results have not yet been realised. Having said that, the lack
of a five-year housing land supply was first identified relatively recently, in
2020. As such, I do not view the shortfall as persistent. The shortfall is
relatively modest, at 0.59 years. The action plan may not yet have yielded
concrete results in terms of the housing land supply calculation but it shows
a genuine willingness to engage with the problem and to find a resolution.
74. Malmesbury, through a combination of permissions, completions and
allocations in the MNP, is providing more housing than has been allocated to
the area. However, this is mostly due to the provision of housing along the
various Filands Road sites, none of which are allocated in the MNP. These
sites have relieved the MNP of the need to formally allocate all of its true
housing requirement. This is largely a distraction in any event. Wiltshire
Council as a whole is failing to meet its housing land supply requirement.
The marginal over-provision in Malmesbury, itself only a product of
permissions being granted on unallocated sites, does not weigh heavily
against this.
75. I acknowledge that the Housing Delivery Test 2020 shows that Wiltshire
Council is currently over-providing housing, at 140% of their requirement.
This is a promising figure and I have taken it into account.
76. All in all, due to the relatively modest shortfall, the clear steps being made to
address the issue, the relatively high level of provision in Malmesbury, and
the positive recent delivery results, I place moderate weight on the lack of a
five year housing land supply. However, this conclusion is reliant on a key
aspect of the action plan, which is to permit proposals outside of settlement
boundaries where there are no other conflicts with the Development Plan.
This is highly relevant to Appeals A and C.
77. Providing more housing is one of, if not the most important, aspiration of
local and national planning policy. As set out above, the Council is failing to
meet its requirement to provide a five-year housing land supply. In that
context, the housing being proposed for Appeals A and C is being put
forward by a housebuilder that is already active on adjacent sites and has
12 Appeal Ref APP/Y3940/W/18/3202551, dated 6 April 2020
committed to the timely building of the proposed housing through the
wording of the relevant conditions to submitting reserved matters
application(s) within one year and to commence within one year of those
application(s) being discharged. I therefore afford the proposed provision of
housing for Appeals A and C substantial positive weight. The slightly reduced
provision in Appeal C, after taking account of the nursery land, is of no
material difference in this regard.
78. The proposed affordable housing would not be as cheap, either to rent or
buy, as housing in some other parts of Wiltshire, because Malmesbury is a
relatively high value area for housing. However, the housing would meet all
policy requirements in terms of amount, mix, and type of provision. Both
Appeals A and C would offer affordable housing products as defined by
national and local planning policy. I do not diminish the weight to be
provided to this provision because such housing might be even cheaper in a
theoretical location elsewhere. In fact, that Malmesbury is a relatively high
value area for housing adds more weight to the need for affordable housing
products.
79. Evidence has been provided that there is more affordable housing either
already provided or committed for Malmesbury than the identified need.
However, that need is as identified in a Development Plan that is out-of-date
in relation to housing, and there is an overall identified shortfall in Wiltshire
as a whole. I therefore place substantial positive weight on the proposed
provision of affordable housing in Appeals A and C. The slightly reduced
provision in Appeal C, after taking account of the nursery land, is of no
material difference in this regard.
80. A biodiversity net gain would be achieved for Appeals A and C, subject to
control through reserved matters and condition discharge submissions, and
through an appropriately worded clause in the planning obligation. There
would, however, be a loss of on-site biodiversity and the likely net gain is
modest. I place limited positive weight on this factor.
81. There would be economic benefits from both Appeals A and C, in the short
term through construction employment, and in the longer term through
expenditure by future occupants and/or workers in the area. I place
significant positive weight on this.
82. For Appeal C, whilst the proposed nursery is required to meet the needs of
future occupiers, it would also provide a benefit to the wider community
because its capacity would be substantially greater than the likely demand to
be generated from future occupiers. However, set against this, the provision
of an educational establishment is a requirement of the previous 2013 UU.
The amount of land to be safeguarded for educational purposes would
actually be significantly reduced as part of the proposal. I therefore place
only moderate positive weight on this.
83. Whilst the upgrading of the public right of way to the eastern boundary of
the appeals site is intended to mitigate increased use by future occupiers of
the proposals, there would be a mutual benefit to the wider community. I
place limited positive weight on this.
84. No substantive evidence has been provided that local infrastructure could
not cope with the demand created by the future occupiers of the proposed
housing. Either the s106 or the 2021 UU would secure the relevant
payments and measures to mitigate the effects of the proposals, as set out
in detail above. The effect on local infrastructure therefore weighs neutrally
in the planning balance.
85. The appeals site is outside the defined settlement boundary for Malmesbury.
However, it is already bordered on two sides by residential development, and
is likely to be bordered on a third side when the ‘northern parcel’ is built.
Therefore, although there would be the loss of fields directly on the appeals
site, the harm to the countryside setting of Malmesbury would be limited as
a consequence of either proposal.
86. Malmesbury is an identified Market Town, the second highest category of
settlement in the CS. Market Towns are considered to support sustainable
patterns of living and to have the potential for significant development, as
set out in Policy CP1 of the CS. The provision of housing in this location, and
a nursery for Appeal C, is therefore broadly in accordance with the
sustainable development principles set out in Paragraph 8 of the Framework.
Nevertheless, development of either housing or a nursery outside of a
defined Settlement Boundary conflicts with Policies CP1, CP2 and CP13 of the
CS, and Saved Policy H4 of the LP. I place limited negative weight on this
conflict. In addition, Saved Policy H4 of the LP, only carries limited weight
because it is inconsistent with the Framework given the in-principle
restrictions the policy places upon development in the countryside. I note
that there is no direct conflict with any of the policies in the MNP, although
there is implicit conflict with the MNP’s aspirations because the appeal site is
not one of the specifically identified sites for housing.
87. Safeguarding education provision on the appeals site is a key component of
the 2013 permission. By not providing any educational facilities, there would
be substantial harm to the community. I therefore place substantial negative
weight on the lack of education provision in Appeal A.
88. However, for Appeal C, land is to be set aside for a nursery which I have
concluded would meet the residual requirements for educational use of the
land associated with the 2013 permission. The eventual nursery, when built,
would provide places for children above and beyond the demand generated
by the future occupiers of the proposal. However, the construction of the
nursery is not part of the proposal, and therefore this weighs neutrally in the
planning balance.
89. For Appeal C, the only conflict with the Development Plan I have found is
with the locational policies as detailed above. Whilst these policies are the
most important policies for determining the appeal, they are out-of-date
which diminishes the weight that I apply to the conflict. In any event, the
Council confirmed that parts of its action plan to respond to the lack of a five
year housing land supply is to allow applications in situations where the only
conflict is the location being outside of a defined settlement limit. Under
cross-examination, the Council acknowledged that this would apply to both
Appeals A and C if the education and ecology issues were overcome. I have
found that in relation to Appeal C, these issues are addressed satisfactorily.
In the overall planning balance, I consider that the adverse impacts that I
have identified are significantly and demonstrably outweighed by the
benefits, when assessed against the policies in the Framework taken as a
whole. For the reasons set out above, I conclude that Appeal C should
succeed.
90. However, for Appeal A I have found harm with regard to education. I assess
this level of harm to be substantial. The adverse impacts I have identified as
a consequence of the lack of appropriate safeguarding of land for the future
provision of educational facilities as required by the 2013 permission,
significantly and demonstrably outweigh the benefits of the proposed
housing and associated works, when assessed against the policies in the
Framework taken as a whole. For the reasons set out above, I therefore
conclude on balance that Appeal A should not succeed.
91. For the reasons above, I conclude that the Appeal B should not succeed.
CONDITIONS (APPEAL C)
92. A schedule of possible conditions was discussed at the inquiry. Given my
conclusion in relation to Appeal C, I have considered those in relation to
Appeal C in the light of that discussion and of government guidance on the
use of conditions in planning permissions.
93. The two time limit conditions, for submission of the reserved matters and for
commencement of development, have both been shortened to one year from
the standard approach of two years. This is necessary because the provision
of housing in a timely manner is a key benefit of the appeal and is
reasonable because a developer is already on board and has committed to
this timetable.
94. A condition specifying the relevant drawing provides certainty.
95. A condition to limit the number of proposed dwellings was put forward by the
main parties. However, I do not see it as necessary or reasonable to
arbitrarily limit the number of dwellings before the layout and design of the
proposal has been finalised at reserved matters stage.
96. A condition setting a minimum size for the area of nursery land was put
forward by the main parties. However, this is to be controlled by the s106
Planning Obligation, as set out in detail below. A condition would
unnecessarily duplicate that.
97. A condition requiring a written archaeological report archiving the results of
the already undertaken on-site archaeological investigations, and to publish
the results in a journal, was put forward by the main parties. However, the
appeal site has very limited archaeological potential and I do not view this as
being necessary or reasonable.
98. Details of the estate roads, driveways, visibility splays and other similar
measures are necessary in the joint interests of highway safety and
protecting the character and appearance of the area. Details of the site
levels are necessary to protect the character and appearance of the area and
to ensure an appropriate relationship with existing and future development
on adjoining land.
99. It is necessary to secure measures to protect existing ecology on the site
and to mitigate construction effects on habitats and species on and adjacent
to the site. Details of external lighting are necessary to mitigate disturbance
to commuting and foraging bats.
100. Conditions in relation to protection of trees are necessary to protect the
character and appearance of the area. However, whilst conditions were
suggested regarding the detailing of landscaping and planting seasons, these
matters would be addressed as part of the relevant reserved matters
submission(s) and do not require separate control by condition.
101. Whilst conditions were suggested removing permitted development rights in
relation to extensions to the proposed dwellings, that is not appropriate at
this outline stage. Only when detailed plans are available can an informed
assessment be made as to whether there is sufficient justification to warrant
that level of control.
102. A contamination condition is necessary to control the effect of construction
on contamination and to secure appropriate protection and remediation
measures.
103. A Construction Method Statement is required to control the effects of
construction on the living conditions of nearby occupiers, highway safety,
traffic congestion, and the character and appearance of the site during
construction.
104. In order to minimise the contribution of the proposal on air pollution, a
condition regarding Ultra Low Energy Vehicle infrastructure is required to
secure the provision of electric vehicle charging points, pursuant to Policy
CP55 of the CS.
105. Conditions to control surface water and drainage, the culverting of existing
ordinary watercourses, and sewerage, are necessary to implement mitigation
measures identified as required to control surface water drainage and
sewage in the Flood Risk Assessment & Drainage Strategy by Clarkebond,
dated 4 May 2021, and to ensure there are no unacceptable impacts on
biodiversity including to Conygre Mead.
106. A condition is necessary to secure the detail of the required ecological
mitigation measures, and to ensure they are retained. This is required with
the submission of the first reserved matters application because all reserved
matters submissions have the potential to affect the proposed ecological
mitigation measures. This is also reflected in the landscaping condition
because of the overlap between some of the likely mitigation measures and
landscaping.
107. The pre-commencement conditions are necessarily worded as such, because
a later trigger for the submission and/or implementation would limit their
effectiveness or the scope of measures which could be used.
O S Woodwards
INSPECTOR
ANNEX A: APPEARANCES
FOR THE APPELLANT:
Christopher Young, of Queen’s Counsel. He called:
Jeff Richards MRTPI Director, Turley
Jan Kinsman Consultant, EFM Ltd
David Knight Director, Clarkebond
Rosie Dinnen MRTPI Consultant, Tetlow King Planning
Matthew Jones MCIEEM CEnv Director, EAD Ecology
Richard Harding Associate Director, Osborne Clarke
FOR THE LOCAL PLANNING AUTHORITY:
Hashi Mohammed, of Counsel. He called:
Lucy-Anne Bryant Commissioning Manager for Families and
Communities
Christopher Roe MRTPI Spatial Planning Manager for Monitoring and
Evidence
Steven Corbin Senior Planning Officer
Fiona Elphick Senior Ecology Officer
Dorcas Ephraim Senior Solicitor
Lee Burman MRTPI Area Team Leader, Development Management
North Team
FOR MALMESBURY TOWN COUNCIL:
Councillor Kim Power Town Councillor, Deputy Mayor of Malmesbury,
and Chair of the Town Council’s Joint
Neighbourhood Plan Working Group
Thomas de Lange Local resident and the Filands Speedwatch Team
Leader
Andrew Kyte Trustee of the Malmesbury River Valleys Trust
FOR MALMESBURY CIVIC TRUST:
Councillor Campbell Ritchie Trustee of the Civic Trust and Town Councillor
Councillor Gavin Grant Town Councillor
INTERESTED PERSONS:
Laurence Musett Chairman of the Governing Body, Malmesbury Primary School
ANNEX B: DOCUMENTS SUBMITTED DURING AND AFTER THE INQUIRY
DOC 1 Appellant opening statement
DOC 2 Wiltshire Council witness list and opening statement
DOC 3 Malmesbury Town Council opening statement
DOC 4 Malmesbury Civic Trust opening statement
DOC 5 Malmesbury Primary School letter, dated 19 November 2021
DOC 6 Housing land supply round-table session agenda
DOC 7 Housing land supply Scott Schedule, dated 22 November 2021
DOC 8 Revised housing land supply calculations
DOC 9 What’s the plan? An Analysis of local plan coverage across
England, report by The Countryside Charity, dated May 2020
DOC 10 Appellant witness list
DOC 11 Backridge Farm, Malmesbury s106 Planning Obligation, dated
22 October 2021
DOC 12 Appeal decision Ref APP/Y3940/W/21/3275477 – Chilvester
Hill, Calne, dated 22 November 2021
DOC 13 Site notice photographs
DOC 14 Malmesbury Community Area Joint Strategic Needs
Assessment 2020
DOC 15 Correspondence between the Council and Malmesbury Primary
School, dated 24, 27 and 28 September 2021
DOC 16 Briefing Note Ref 20-37 - Housing Land Supply Update, dated
December 2020
DOC 17 Committee Report Ref 20/08341/OUT – Land South West of
Park Road, Malmesbury, dated 1 December 2021
ANNEX C: SCHEDULE OF PLANNING CONDITIONS FOR APPEAL C
1) The development hereby permitted shall take place not later than one
year from the date of approval of the last of the reserved matters to be
approved.
2) Details of the access, appearance, landscaping, layout, and scale,
(hereinafter called "the reserved matters") shall be submitted to and
approved in writing by the local planning authority before any
development takes place and the development shall be carried out as
approved.
3) Application(s) for approval of the reserved matters shall be made to the
local planning authority not later than one year from the date of this
permission.
4) The development hereby permitted shall be carried out in accordance
with the following approved plan: Site Location Plan Ref 32441 9001.
5) Prior to commencement of development, details of the estate roads,
footways, footpaths, verges, junctions, street lighting, sewers, drains,
retaining walls, service routes, surface water outfall, vehicle overhang
margins, embankments, visibility splays, accesses, carriageway
gradients, drive gradients, car parking and locations of street trees and
street furniture, including the timetable for provision of such works, shall
have been submitted to and approved in writing by the Local Planning
Authority. Development shall be carried out in accordance with the
approved details and timetable.
6) Prior to commencement of development, including any works of site
clearance and preparation, full details of the proposed contours and site
levels (above ordnance datum), together with the finished floor slab
levels of the proposed buildings and structures (including roads and
footpaths), in relation to existing ground levels, shall have been
submitted to and approved in writing by the Local Planning Authority. The
development shall be carried out in accordance with the approved details.
7) Prior to commencement of development, including any works of site
clearance and preparation, an Ecological Construction Method Statement
(ECMS) shall be submitted to and approved in writing by the Local
Planning Authority. The ECMS shall address the protection and detailed
mitigation measures of all receptors within the site, or adjacent to it,
likely to be affected by the development process as detailed in Section
4.1 of the Ecological Impact Assessment by EAD Ecology Ref
210205_P1088_EcIA_Final02, dated 5 February 2021. The ECMS shall
also detail that no external lighting will be permitted during the
construction phase other than in accordance with details that have first
been submitted to and approved in writing by the Local Planning
Authority. Development shall be carried out in accordance with the
approved ECMS.
8) Prior to commencement of development, including any works of site
clearance and preparation, an Arboricultural Method Statement prepared
by an arboricultural consultant providing details of construction works in
relation to retained trees and vegetation shall have been submitted to
and approved in writing by the Local Planning Authority. All works shall
subsequently be carried out in strict accordance with the approved
details. In particular, the method statement must provide the following:
a) A specification for protective fencing to trees and vegetation during
both demolition and construction phases which complies with
BS5837:2012 and a plan indicating the alignment of the protective
fencing;
b) A specification for any scaffolding and ground protection within
tree protection zones in accordance with British Standard
5837:2012;
c) A schedule of tree works conforming to British Standard
3998:2010;
d) Details of general arboricultural matters such as the area for
storage of materials, concrete mixing and use of fires;
e) Plans and particulars showing the siting of the service and piping
infrastructure;
f) A full specification on how the construction of the access road and
parking spaces will be achieved within the RPA of T16 including
details of any no-dig method;
g) Details of the length of G1 to be removed to facilitate the
pedestrian access along with clarification of the impacts on G17;
h) Details of how the cycleway will be constructed within the RPA of
T1;
i) Details of the works requiring arboricultural supervision to be
carried out by the developer’s arboricultural consultant, including
details of the frequency of supervisory visits and procedure for
notifying the Local Planning Authority of the findings of the
supervisory visits; and,
j) Details of all other activities, which have implications for trees on
or adjacent to the site.
Subsequently, and until the completion of all site works, site visits shall
be carried out on a monthly basis by the developer’s arboricultural
consultant. A report detailing the results of site supervision and any
necessary remedial works undertaken or required shall then be submitted
to the Local Planning Authority. Any approved remedial works shall
subsequently be carried out under strict supervision by the arboricultural
consultant following that approval.
9) Prior to commencement of development, (other than as required to be
carried out as part of a scheme of remediation approved by the Local
Planning Authority under this condition), Steps (i) to (iii) below shall have
been fully complied with.
Step (i) ‘A survey of the extent, nature and scale of contamination on
site’: The collection and interpretation of relevant information to form a
conceptual model of the site, and a preliminary risk assessment of all the
likely pollutant linkages. If the preliminary risk assessment identifies any
potentially significant pollutant linkages a ground investigation shall be
carried out, to provide further information on the location, type and
concentration of contaminants in the soil and groundwater and other
characteristics that can influence the behaviour of the contaminants. An
assessment of the potential risks to: • human health; • property (existing
or proposed) including buildings, crops, livestock, pets, woodland and
service lines and pipes; • adjoining land; • groundwater and surface
waters; • ecological systems; and, • archaeological sites and ancient
monuments. This must be conducted in accordance with the Environment
Agency’s “Land Contamination Risk Management” document and other
authoritative guidance.
Step (ii) ‘Submission of Remediation Scheme’: If any unacceptable risks
are identified as a result of the investigation and assessment referred to
in Step (i) above, a detailed remediation scheme to bring the site to a
condition suitable for the intended use must be prepared. This should
detail the works required to remove any unacceptable risks to human
health, buildings and other property and the natural and historical
environment, should be submitted to and approved in writing by the
Local Planning Authority. The scheme must include all works to be
undertaken, proposed remediation objectives and remediation criteria, a
timetable of works and site management procedures.
Step (iii) ‘Implementation of Approved Remediation Scheme’: The
approved remediation scheme under Step (ii) must be carried out in
accordance with its requirements. The Local Planning Authority must be
given at least two weeks written notification of commencement of the
remediation scheme works.
If unexpected contamination is found after development has begun,
development must be halted on that part of the site affected by the
unexpected contamination to the extent specified by the Local Planning
Authority in writing until Step (iv) has been complied with in full.
Step (iv) ‘Reporting of Unexpected Contamination’: In the event that
contamination is found at any time when carrying out the approved
development that was not previously identified it should be reported in
writing immediately to the Local Planning Authority. An investigation and
risk assessment should be undertaken in accordance with the
requirements of Step (i) above and where remediation is necessary, a
remediation scheme should be prepared in accordance with the
requirements of Step (ii) and submitted to and approved in writing by the
Local Planning Authority.
10) Prior to commencement of development, including any works of site
clearance and preparation, a Construction Method Statement (CMS) shall
be submitted to and approved in writing by the Local Planning Authority.
Development shall be carried out in accordance with the approved CMS,
which shall include the following:
a) the on-site parking of vehicles of site operatives and visitors;
b) loading and unloading of plant and materials;
c) storage of plant and materials used in constructing the
development;
d) the erection and maintenance of security hoarding including
decorative displays and facilities for public viewing, where
appropriate;
e) wheel washing facilities;
f) measures to control the emission of dust and dirt during
construction and prohibition on burning of materials;
g) a scheme for recycling/disposing of waste resulting from demolition
and construction works;
i) hours of construction to be restricted so that no construction or
demolition work shall take place on Sundays or Public Holidays or
outside the hours of 0800 to 18:00 Monday to Friday and 08:00 to
13:00 on Saturdays;
j) drainage arrangements during the construction works;
k) on-site vehicle routing for construction vehicles including site
access management strategy to manage access during construction
works; and,
l) where piling is required this must be ‘continuous flight auger’ piling
wherever practicable to minimise impacts.
11) Prior to commencement of development, a scheme of Ultra Low Energy
Vehicle infrastructure for the site shall be submitted to and approved in
writing by the Local Planning Authority. All Ultra Low Energy Vehicle
infrastructure must subsequently be implemented prior to the occupation
of the relevant dwelling. The scheme must thereafter be permanently
retained.
12) Prior to commencement of development, a scheme for the discharge of
surface water from the site (including surface water from the
access/driveways), incorporating sustainable drainage measures,
management of overland flow routes and a maintenance schedule for
those drainage systems for the lifetime of the development and
arrangements for the adoption by any public or statutory undertaker and
any other arrangements to secure operation of the scheme throughout its
lifetime, shall be submitted to and approved in writing by the Local
Planning Authority. The approved scheme shall be implemented in
accordance with the approved details prior to the occupation of the first
dwelling on site, and shall be managed in accordance with the approved
details thereafter.
13) Prior to commencement of development, a detailed assessment for the
culverting of existing ordinary watercourses shall be submitted to and
approved in writing by the Local Planning Authority. The assessment
must demonstrate through hydraulic modelling that the culverting will not
increase risk of flooding to the site/adjacent land and upstream
catchments, and that the technical benefits of watercourse culverting
outweigh any potential loss of amenity/biodiversity in the watercourse.
The approved scheme shall be implemented in accordance with the
approved details prior to the occupation of the first dwelling on the site.
The scheme must thereafter be permanently retained.
14) Prior to commencement of development, details of the works for the
disposal of sewage including the point of connection to the existing public
sewer shall be submitted to and approved in writing by the Local Planning
Authority. No dwelling shall be first occupied until the approved sewerage
details in relation to that dwelling have been fully implemented in
accordance with the approved details.
15) The first reserved matters applications to be submitted shall be
accompanied by an Ecological Parameters Plan showing the locations and
specifications of all measures labelled as ecological enhancements in
Section 4.2 of the Ecological Impact Assessment by EAD Ecology Ref
210205_P1088_EcIA_Final02, dated 5 February 2021, and proposals for
on-site replacement hedgerow(s), together with a schedule of works to
ensure the measures are retained and maintained in the approved form.
Development shall not commence, including any works of site clearance
and preparation, until the Plan has been approved in writing by the Local
Planning Authority. All reserved matters applications shall accord with the
approved details and the development shall be undertaken in strict
accordance with those details. The approved measures shall be retained
and maintained in the approved form.
16) The roads, including footpaths and turning spaces approved pursuant to
condition 2, shall be constructed so as to ensure that, before it is
occupied, each dwelling has been provided with a properly consolidated
and surfaced footpath and carriageway to at least base course level
between the dwelling and existing highway.
------------END OF CONDITIONS SCHEDULE------------