Case Reference: 3279154

Appeal Decision
Inquiry opened on 8 November 2021
Site visit made on 23 November 2021
by David M H Rose BA(Hons) MRTPI
an Inspector appointed by the Secretary of State
Decision date: 17th December 2021
Appeal Ref: APP/V1505/W/21/3279154
Land at Market Square, Basildon, SS14 1DU
• 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 planning permission.
• The appeal is made by [APPELLANT] against Basildon Borough Council.
• The application Reference 20/00955/FULL, is dated 30 July 2020.
• The development proposed is: Demolition and Redevelopment of the Existing Building
and Erection of a Mixed Use Scheme Comprising of Flexible Commercial Floorspace (Use
Class A1- A5, B1, D1 and/or D2) on the Ground-First Floors and 492 No. One and Two
Bedroom Residential Apartments (Use Class C3) in 3 Blocks of up to 17 Storeys, with
Associated Parking, Servicing and Communal Amenity Areas.
Decision
1. The appeal is allowed and planning permission is granted for: Demolition and
Redevelopment of the Existing Building and Erection of a Mixed Use Scheme
Comprising of Flexible Commercial Floorspace (Use Class A1- A5, B1, D1
and/or D2) on the Ground-First Floors and 492 No. One and Two Bedroom
Residential Apartments (Use Class C3) in 3 Blocks of up to 17 Storeys, with
Associated Parking, Servicing and Communal Amenity Areas at Land at
Market Square, Basildon, SS14 1DU in accordance with the terms of the
application, Reference 20/00955/FULL, dated 30 July 2020, subject to the
Schedule of Conditions (nos. 1 - 49) appended at Annex A to this decision.
Preliminary matters
(i) The Inquiry and Site Visits
2. The Inquiry opened on Tuesday 8 November 2021 and was held in a ‘virtual’
format. I heard evidence over a period of 7 days1. Oral Closing Submissions
were presented on 3 December 2021.
3. As well as the main parties, the Inquiry was attended by 2 Rule 6(6) Parties
each with an interest in its own development proposals in Basildon Town
Centre. These were Basildon Estates Limited2; and Infrared UK Lion Nominee
1 Limited (in administration) and InfraRed UK Lion Nominee 2 Limited (in
administration)3.
4. I undertook a preliminary unaccompanied site visit in and around the town
centre, following an agreed itinerary, on 27 October 2021. I also carried out
an accompanied site visit on 23 November 2021.
1 On 8 – 11 and 16 – 18 November 2021
2 Hereafter Basildon Estates
3 Hereafter Infrared
(ii) Putative Reasons for Refusal
5. The Council’s putative reasons for refusal are:
1) Good design encompasses not only external quality but also the quality of
internal environments. The application is not considered to have robustly
justified the approach to townscape and architectural language and the resulting
harm, in respect of matters including height, scale, massing and general design,
the proposed internal arrangement which comprises unwelcoming long corridors,
inequal access to private amenity space which is of even greater importance post
the pandemic, and a residential entrance which lacks presence and legibility.
Therefore, it is not considered that the application adequately demonstrates that
it complies with the amended social objective to secure ‘well designed, beautiful
and safe places’.
2) The proposed development would, by reason of its height, overshadowing, scale,
massing and general design, including the internal environment and lack of
direct access to private amenity space, result in an intrusive addition, harmful to
the townscape, including landmark Brooke House, character and appearance of
the area and fails to create a high quality, well designed development, contrary
to the requirements of the NPPF (July 2021), Policy BE12 of the Basildon District
Local Plan Saved Policies (2007) and Policies H25, DES1 and DES4 of the
Basildon Borough Revised Publication Local Plan 2014 - 2034 (October 2018).
6. At the Inquiry, the Council confirmed that it did not oppose the principle of a
residential led mixed-use development of the appeal site. It supported
appropriate regeneration in Basildon Town Centre and welcomed the range
of benefits that suitable regeneration could be expected to deliver. In
addition, the authority recognised that housing supply and delivery in the
Borough is constrained (by Green Belt) and the contribution to housing
supply was a significant consideration in favour of the proposal. Finally, the
Council acknowledged that it could not demonstrate a 5-year supply of
deliverable sites for housing and, accordingly, any adverse effects of allowing
the appeal must be shown to significantly and demonstrably outweigh the
scheme benefits.
(iii) Site and Surroundings
7. The defining elements of Basildon Town Centre are grounded in its New
Town planned form and the influence of Modern Movement architecture. The
essence of the place was an encircling road embracing town centre
commercial uses and extensive car parking. The central core was laid out in
low rise, flat-roofed, blocks, often with ground floor canopies of varying
styles, along pedestrian precincts, notably East Walk, and generous squares
including East Square, Town Square, St Martin’s Square and Market Square.
Brooke House, an imposing 14 storey building above a 3 storey pilotis, was a
later adjustment to add scale and residential use to the centre. It is listed
Grade II.
8. The appeal site is one of the original, predominantly 3 storey and part 4
storey, blocks towards the western edge of the centre. Ground floor retail
and commercial units, many now vacant, line Town Square as it merges into
St Martin’s Square to the north, Market Pavement to the east, Market Square
to the south and Fodderwick to the west.
9. The block has widespread use of concrete framing, a range of infill panels,
limited use of brickwork and extensive glazing. Seen as a whole, it is
strongly horizontal in form, albeit most of its northern and western façades
have exposed vertical framing at upper floor levels which wrap around onto
the Market Square and Market Pavement elevations before giving way to
wider vertical brickwork panels. Similar characteristics prevail elsewhere
within the centre, with some elevations squat and unashamedly horizontal in
form, and others with pronounced erect framing as evidenced by the
northern façade of the adjacent block on the corner of Market Pavement and
Town Square.
10. The northern side of Town Square, in the vicinity of the appeal site, is
flanked with ground floor commercial uses. Former upper floor offices,
Northgate House, converted to residential use, are now clad in an eye-
catching manner with vertical ‘punched hole’ fenestration. The square
contains 2 free-standing retail pavilions before taking on a narrower form
leading into St Martin’s Square.
11. St Martin’s Square, with recent public realm enhancement, contains the
striking New Town Church of St Martin utilising dark brickwork, pronounced
glazing to its western elevation and conspicuous vertical framing. It is
complemented by a free-standing, slender, steel framed and glass
Millennium Bell Tower. Modern civic buildings, including the Towngate
Theatre, constructed in buff brick with darker banding, mark the irregular
western sides of the square. The eastern side of the square is formed by the
austere blank brick and concrete panel wall of the former M&S store. The
final side of the square, again in stepped form, includes the large store
format Westgate Shopping Park building, comprising buff brick and stone
facing, and the north-western corner of the appeal site.
12. Market Square has seen the recent introduction of the South Essex College
building and associated enhancement to the public realm. The contemporary
3 storey building, with an angled footprint, has pronounced horizonal
massing broken above the ground floor by light-grey vertical ribbed cladding
and vertically proportioned strip windows.
13. Since its conception, Basildon Town Centre as a whole, including sites
outside the ring road, has seen the introduction of a scatter of tall buildings
(often originating as offices and remodelled to residential) including: Great
Oaks House (11 storeys), a short distance to the north of Brooke House and,
in turn, Acorn House (7 storeys); Kelting House (9 storeys) abutting the
inner cordon of the ring road; The Icon (10 storeys) and Trafford House (8
storeys with approval to add a further 3 floors) to the south of the ring road.
Approval also exists for the redevelopment of the Great Oaks GS8 ‘island’
site (8 – 11 storeys), within the arterial road but physically detached from
the main town centre.
14. Basildon railway station is located immediately to the south of the ring road,
between the continuation of Fodderwick and Market Pavement, and the bus
station is to be found a few paces to the east of the southern end of Market
Pavement. Beyond St Martin’s Square and the northern part of the ring road
lies Gloucester Park, an extensive area of attractive recreational space, laid
out with water, woodland, pathways and play facilities.
15. In general terms, the physical fabric of parts of the early town centre appear
outworn and on a well-advanced downward spiral of decline, evidenced by
vacancy and buildings which will not be re-used in their current form. There
is consensus that these areas are in need of regeneration and that benefits
would accrue from an appropriate mixed-use scheme.
(iv) The appeal proposal
16. The primary massing of the scheme takes the form of 3 north-south
orientated blocks (‘fingers’) connected by 2 storey pavilions and single-
storey arcades along the north and south elevations. The western finger
contains 3 interlocking blocks stepping down from 17 storeys facing St
Martin’s Square to 13 storeys fronting Market Square. The central finger
reduces in the same way from 13 storeys to 9 storeys. The eastern finger
has its tallest element of 15 storeys on the corner of Market Place and
Market Pavement stepping down to 10 storeys fronting Town Square.
17. Ground floor uses include a perimeter of flexible commercial/retail units
inclusive of a potential healthcare/community facility; an ‘incubator’ space
for small businesses; and the designated double height residential entrance.
All servicing and parking would be accommodated internally within the
scheme. External communal amenity space would take the form of podium
and rooftop gardens. A proportion of the apartments, limited to the inner,
podium facing, elevations would have projecting balconies and the remainder
would have Juliette balconies. Internal communal amenity space, with a
combined circulation function, would be provided mainly at reception level
and on the first floor of the central finger. Access to apartments in the
eastern and western fingers would be gained through these spaces and
thereafter across one of the podium gardens.
18. The scheme is promoted on a Build to Rent basis designed specifically for
renting and typically owned by institutional investors and managed by
specialist operators. The National Planning Policy Framework4 Glossary
defines Build to Rent as: ‘Purpose built housing that is typically 100% rented out.
It can form part of a wider multi-tenure development comprising either flats or
houses, but should be on the same site and/or contiguous with the main
development. Schemes will usually offer longer tenancy agreements of three years
or more, and will typically be professionally managed stock in single ownership and
management control’.
(v) Statement of Common Ground and Housing Land Supply
19. An extensive Statement of Common Ground, between the Appellant and the
Council, was submitted before the opening of the Inquiry. The issues in
dispute generally reflected those set out in the putative reasons for refusal.
No point was pursued on alleged overshadowing.
20. As to housing land supply, the Council’s latest calculation of 3.5 years5,
uplifted from an earlier ‘acknowledged’ position of 2.4 years, was not
accepted. It was said that the Council’s Position Statement6 did not provide
sufficient evidence of a realistic prospect of deliverability within a period of
5 years.
4 Hereafter the Framework
5 CD B14 Basildon Borough Council Five Year Land Supply Report (2021-2026) – published 23 September 2021
6 CD E1 dated 29 October 2021
21. However, it was agreed, irrespective of the figure, that the material shortfall,
in combination with the Housing Delivery Test score (45%), engaged the
tilted balance in paragraph 11 d) of the Framework. Accordingly, the policies
which are most important for determining the application were to be treated
as out-of-date and permission should be granted unless any adverse impacts
of doing so would significantly and demonstrably outweigh the benefits,
when assessed against the policies in the Framework taken as a whole.
22. Basildon Estates, in its opening submissions, confirmed that it did not seek
to occupy a material amount of Inquiry time on the matter as it was
accepted that, whilst the scale of any deficit was important, a range would
suffice. However, it invited clarification on the town centre regeneration
schemes which formed part of the anticipated supply.
23. Infrared alleged that the Council’s reliance on sites identified in the Housing
and Economic Land Availability Assessment7 fell well short of clear evidence
of deliverability. This was supplemented by a Position Statement8 that
discounted the HELAA sites equating to a supply of 1.7 years.
24. In turn, the Council submitted a more detailed Position Statement9 setting
out further information. This prompted requests from the Appellant and the
Rule 6(6) Parties to respond. These responses, and that of the Council
limited to clarification, were invited as written statements for my
consideration.
25. I return to the matter later in my decision.
Main Issues
26. The main issues are:
1) Having particular regard to the government’s objective of ‘achieving
well-designed places’:-
(i) the effect of the proposal on the character and appearance of
the area; and
(ii) whether the proposed development would provide acceptable
living conditions for future occupants.
2) In the absence of a 5-year supply of housing land, would any resultant
harm significantly and demonstrably outweigh the benefits of the
scheme.
Reasons
(i) Planning Policy: The Local Plan
27. The Statement of Common Ground identifies Policy BAS BE 12 of the
Basildon District Local Plan Saved Policies and draft Policies H25, DES1 and
DES4 in the Basildon Council Revised Publication Local Plan, which is
awaiting examination, as the most relevant to the consideration of the main
issues.
7 Hereafter HELAA
8 ID11
9 ID19 (15 November 2021) and ID23 (Supplementary Note)
28. Saved Policy BAS BE 12 indicates that permission for new residential
development will be refused if it causes material harm in any of 5 ways,
including harm to the character of the surrounding area.
29. Policy H25 relates to the size and type of homes and expects, amongst other
things, the provision of high-quality homes with sufficient private amenity
space to meet the needs of residents. Policy DES1 is aimed at achieving
good design with reference to the delivery of regeneration and public realm
improvements in town centres and a checklist setting out 10 components of
good design. Finally, Policy DES4 requires buildings to be designed to a high
standard, responding appropriately to their location and reflecting their
function and role in relation to the public realm10.
30. The Local Plan policies attract limited weight, consistent with their draft
status, although it is to be noted that their underlying aims are consistent
with national guidance11 and its drive to secure good design in its widest
sense.
(ii) Planning and related Guidance
31. The Essex Design Guide (2018 Edition) was endorsed by Basildon Council, in
2018, as a material consideration that may be taken into account when
determining planning applications in the Borough12. I have had regard to it
accordingly.
32. The Basildon Town Centre Masterplan (2012) is an Interim Supplementary
Planning Document that was intended to be part of the new Local Plan. It
was also required to be reviewed after 7 years13.
33. The Masterplan established a vision to 2030 and beyond and identified areas
for redevelopment including the western side of the appeal site. It
acknowledged that some taller buildings would benefit the legibility of the
town centre if placed strategically at key arrival points and on route to the
town centre.
34. The Illustrative Storey Heights Plan indicated low redevelopment (2 - 4
storeys) fronting Fodderwick and a low to medium building (3 – 7 storeys)
where the College now sits. Some high development (8 – 12+ storeys) was
anticipated in peripheral locations. The document was intended to be
replaced by the Basildon Town Centre Masterplan 2020 following research
and study undertaken by ‘We Made That’ in its Urban Appraisal14. It provides
context and general principles but its relevance in guiding development on
the appeal site has waned.
35. The up-dated Masterplan, in turn, became the Basildon Town Centre
Regeneration Strategy (2020) as it was not possible to formalise the
Masterplan as either a Supplementary Planning Document or a Development
Plan Document prior to the adoption of the emerging Local Plan. The appeal
site forms part of the Station Environs sub-area which was identified as
having an illustrative potential capacity for 840 residential units. Various
visual impressions of the town centre indicate tall buildings on the appeal
site and elsewhere.
10 The policies are described in short by way of context – I have had regard to the policies as a whole
11 Including: the Framework; Planning Practice Guidance; National Design Guide; and Historic England Tall
Buildings Advice Note No 4 (2015) and March 2020 Consultation Draft
12 ID24
13 CD E2
14 CD B7
36. Although the Regeneration Strategy was relevant to the processing of the
planning application, the Council is working towards a replacement Strategy
based on a further urban capacity study15. Accordingly, the Regeneration
Strategy has no formal policy status or weight in my consideration of the
appeal.
The first main issue
(i) The effect of the proposal on the character and appearance of the area
The townscape role of Brooke House
37. It can be said, without controversy, that Brooke House provides a landmark
function in the town centre arising from its height, bulk and architectural
design and detailing. Whether or not it was intended, some 60 years ago, to
be the only tall building is academic as other buildings around the town
centre form part of its current wider surroundings.
38. Nonetheless, Brooke House remains pre-eminent because of its distinctive
form and the contrast provided by much lower buildings along the main
pedestrianised spine. This is most notable around East Square, East Walk
and Town Square with the existing buildings on the appeal site forming part
of that continuum and accentuating the presence of Brooke House.
39. The appeal proposal would introduce new built form, significantly taller and
bulkier than that which exists. The highest part of the development, at its
north-western corner, would be some 6 metres higher than Brooke House.
The nub of the Council’s concern, in terms of the relationship, is from
viewpoints in and around the town centre.
40. Starting from the vicinity of the railway station16, Brooke House and the
proposed development would be seen as separate and dissimilar elements
within the town centre. The 2 would be perceived as standing well apart and
they would be clearly distinguishable from each other in terms of location,
composition and material palette. It would also be difficult to determine their
comparative heights given their separation and relative distances from the
viewer. Although the proposal would remove the singularity of Brooke House
in this view, the latter would nonetheless retain its strong landmark function
within the eastern part of the retail spine.
41. From Broadmayne17, separation and the distracting presence of intervening
foreground buildings and roof top clutter are relevant factors. The nearer
presence of the proposal would give it dominance, but Brooke House would
still read as a more distant landmark building.
42. Moving along to the vicinity of the fire station18, Brooke House (save for the
slender fire station tower) stands foremost with Great Oaks House and Acorn
House completing a subordinate composition. The proposed new cluster of
buildings would form a subservient backdrop well beyond both Brooke House
and Great Oaks House. In my opinion, the status and standing of Brooke
House would remain clearly legible.
15 CD E2 and CD E3
16 Including Viewpoint 18
17 Viewpoint 12
18 Viewpoint 13
43. In terms of East Walk19, facing westwards, the looming and dominance of
Brooke House would remain foremost. In this regard, the proposed
development would form a secondary and subsidiary marker at the opposite
end of the ‘precinct’, with its height significantly diminished by distance.
Progressing along East Walk into East Square and Town Square, the relative
stature of Brooke House would increase, given its dramatic and arresting
construction, before the attention of the viewer progresses towards the
proposed new townscape element. However, in my view, the symbolism of
Brooke House would not be eroded.
44. Finally, from the opposite direction, the western end of Town Square is,
comparatively, constrained in width, with the primacy of Brooke House
coming gradually into the frame as the precinct widens into the main square.
The proposed block on the north-eastern corner of the appeal site would
form the main comparator. Restricted to 10 storeys in height, and on the
opposing side of the retail spine, I consider, notwithstanding the removal of
the current low-rise buildings, that Brooke House would remain as the
principal focal point.
45. Whilst these are only representative static viewpoints, my overall findings
are reinforced by my visits in and around the town centre. In my opinion,
although the singular landmark quality of Brooke House would be eroded,
the proposed development would not have a material adverse impact on the
primacy and captivating townscape function of Brooke House as the centre
piece of the New Town.
Urban design
46. There has been long-standing recognition that the legibility of the town
centre could be improved by introducing some increased height at key
arrival points and on routes into the centre. This remains a relevant design
aspiration and it is evident, to meet future housing needs and to diversify
and enliven the town centre, that there is an increased pressure and
architectural justification for, in principle, some additional built definition.
47. The starting point is that it was established, in cross-examination, that such
an objective did not demand a response in the form of a building of
substantial scale and of 17 storeys in height. That is true in so far as it goes.
However, the point at issue is, as advocated by the Appellant, whether the
site is worthy of the gesture20.
48. Fodderwick and Market Pavement are principal pedestrian routes from the
railway station and the bus station into the town centre. The former also
links directly into the civic focus of the town in St Martin’s Square and
thereafter towards the residential enclave bordering the recreational facilities
in Gloucester Park. The appeal site forms the backdrop to Market Square and
the new College building. The plot also defines the southern side of Town
Square as it leads from the western extent of the main shopping area into St
Martin’s Square. In my opinion, these characteristics combine to form
impeccable credentials for a townscape driven form of development which
would provide improved waymarking and definition.
19 Viewpoint 15 (where more of Brooke House is now obscured by the new cinema)
20 CD E6 Appeal Decision APP/A5270/W/21/3268157 paragraph 19
49. Turning to this in more detail, it is necessary to assess the impacts on
surrounding spaces, starting with St Martin’s Square. The vision for St
Martin’s Square in the 2012 Masterplan was essentially cosmetic without
reference to new building form. Any suggestion of indicative building heights
for Fodderwick, and perhaps elsewhere, needs to be reassessed in the
context of current drivers for change.
50. The square itself has a somewhat disparate character consisting of the
Council Offices and Towngate Theatre; the Church and associated bell tower;
the drab and uninviting side wall of the former M&S store; the Westgate
shopping park; and the north-western corner of the appeal site. The square
is generous in proportion and the bell tower, as assessed by ‘We Made That’,
provides a very distinctive landmark and asset to the space. It is, generally,
only locally prominent in the townscape21.
51. The most critical relationship would be approaching, and on entering, the
square from the north where the proposed development would form a partial
backdrop to the bell tower. Despite the significantly greater height and bulk
of the appeal scheme, the individual identity of the structures could not be
more striking and, to my mind, the distinctive and delightful eye-catching
qualities of the bell tower would prevail.
52. In more general terms, the 17 storey element would occupy a corner recess
of the space, and the development as a whole would be perceived as being
located outwith and beyond the square itself. In my opinion, despite
occupying the re-entrant inset of the existing block, the influence on the
pedestrian square would be quite modest with reference to the height of the
building and its relationship with the scale and dynamism of the public
realm. In addition, I believe that the development would bring purposeful
waymarking and contrast to the space, rather than any strong sense of
enclosure.
53. Moving on to Town Square, having assessed the project from East Walk
relative to Brooke House, Northgate House introduces an increased building
height on the northern side of the square, opposite the north-eastern corner
of the appeal site. Whilst the proposal would be yet taller, with preceding
towers stepping down, it would herald a clear marker to Market Pavement
and provide added definition to Town Square as it narrows in width and
terminates immediately beyond the appeal site.
54. From the south, in the vicinity of the railway station, the relationship of the
proposal with Brooke House is discussed above. In that view, little or nothing
is evident of the townscape characteristics of the inner core. Elsewhere along
Roundacre, in those locations where Brooke House does not feature22, the
proposal would provide a cluster of tall buildings above and beyond the
foreground of the modern retail park.
55. Entering Fodderwick, the appeal site is framed by the eastern side of the
Westgate shopping park and the recent insertion of the College. In this
location I see nothing fundamentally wrong with the proposal’s scale and
bulk as a function of delineating the edge of the main retail core and
waymarking along Fodderwick. The Council’s concern about the loss of
townscape character is something that I consider below.
21 There is, for example, a longer view of its ‘spire’ from Gloucester Park (Viewpoint 11)
22 For example Viewpoint 19
56. Finally, from the general locality of the southern end of Market Pavement23,
the low-rise characteristics of the appeal site are now influenced by the
foreground of the College and the notably taller, uncharacteristic, backdrop
of Northgate House. Again, I see the opportunity for change and
waymarking, subject to the wider design considerations which I turn to now.
Evolution of the scheme and the proposed design
57. The Inquiry was not afforded the benefit of hearing from the project
architect and, despite the overall competency of the Design and Access
Statement, the evolution of the scheme is chronicled only in summary form.
There is no record of the brief and whether or not the design team was
charged with maximising or optimising development on this brownfield site.
There was, however, during pre-application engagement with Council
Officers, endorsement of the concept of a proposal rising to 17 storeys in
height24.
58. Similarly, the Essex Quality Review Panel25, supported in principle matters of
scale and density as presented in the Masterplan noting that ‘A further review
of appropriate building heights and placement within the town centre is now
required to ensure that both existing key views are not harmfully affected, whilst
creating opportunities for new vistas. The Panel recognised that the use of the Grade
II listed Brooke House as the focal building for development within the masterplan.
Not enough of the proposed visuals or views have addressed how this structure will
be used; it was noted that it currently looks like potential vistas would be obstructed
by new development’.
59. Whilst the genesis of the scheme is vague, a matter to which the Council
submit ‘is a matter of some importance’26, the task now is to critically evaluate
the proposal and to establish whether it is well-founded by reference to the
principles set out in the National Design Guide27, and whether it results in a
well-designed place.
60. The Design and Access Statement28 records that the ‘proposals have been
developed in close conjunction with the ambitions and principles set out within the
…… Draft Basildon Town Centre Masterplan’ followed by an illustration of
indicative areas for buildings taller than 8 storeys. The crux of the Council’s
case is that the Appellant, in following this route, has neither understood the
local context nor, in consequence, integrated the proposed development into
its surroundings.
61. For my part, there is clear evidence that the Appellant was mindful of the
origins of Basildon, its architecture, heritage and urban form. It remains to
be seen whether that appreciation is expressed in the scheme before me.
I have already dealt broadly with the relationship with Brooke House, and
I am satisfied that the proposal would not undermine the landmark quality of
the original focal building and it would not obstruct vistas or views of that
building in its context. Similarly, I have found that the proposal has clear
rationale in terms of urban design.
23 Viewpoint 21
24 CD C3 Paragraph 4 ‘……a development ranging between some 9-17 storeys …..’
25 The Review Panel was appointed to undertake a collective review of proposals for the Eastgate Quarter, Market
Square (the appeal proposal), and Town Square north which sought to meet the expectations of the emerging
2020 Town Centre Masterplan
26 ID33 paragraph 24
27 CD A9
28 CD C11 section 2.13
62. Moving on to the detail, the design appears to have evolved with an early
focus on East Walk, in particular, which exhibits a range of design elements
including zig-zag form above ground level, shaped canopies, 2 storey framed
pavilions and the interrelationship of horizontal form with Brooke House and
its own horizontality. West of Brooke House, towards the appeal site, the
buildings tend to have a much simpler rectilinear form and, where they exist,
simple flat roofed canopies or colonnaded projection.
63. The National Design Guide points out that ‘well-designed places do not need to
copy their surroundings in every way …… it is important to explain how the design of
a development relates to context and local character’29. In this regard, I
recognise that there are key elements which the Appellant has sought to
include based on its interpretation of context.
64. Starting at street level, the proposed towers, pavilions and podiums each
has an identifiable base. In the case of the former, brickwork pillars provide
robust vertical framing, with 2 storey proportions. The pavilions are similarly
2 storeys in form, with single storey podiums in deep recess, incorporating
generous glazing sub-divided by clearly articulated vertical metal framing.
Horizontal subdivision at first floor level, employing dark metal spandrels,
shows restraint and does not compromise overall verticality.
65. In terms of seeking to reflect the horizontal banding of Brooke House, the
upper floors of the towers are delineated by a string course of brickwork,
comprising 2 stretcher courses between single soldier courses. The banding
would project some 25mm from the face of the building to provide subtle
definition. The robust bulk of the towers is emphasised by deep set
fenestration, comprising a combination of glazing and dark aluminium panels
for unity in appearance. In my view, although the towers would lack the
overt horizontal expression of Brooke House, and that of other ‘lesser’
buildings, it is evident that the devices employed are based on an
understanding of context and its interpretation in a contemporary form.
66. Further, I note that the Council is critical of window openings being of a
similar size, with 3 types of fenestration within them, and that all brick piers
and spandrels are identical, with all elevations sharing the same treatment.
However, to my mind this results in an understated elegance founded on
simplicity and unity. Indeed, repetition and consistency are key attributes of
Brooke House. The complaint about the proposed building being monotonous
and over-bearing lacks foundation.
67. The overall configuration, with tall finger blocks and low pavilions and
podiums along the southern and northern elevations would clearly differ
from the current composition of town centre street blocks. However, the
pavilions would serve to delineate the towers, add human scale to the street
and pay homage to the setting of the College. Articulation of the frontages,
although ‘new’ to the centre, serves a justifiable design purpose in
emphasising the constituent elements of the proposal and creating visual
interest to engage the eye. Nonetheless, with repetition and common
elements, the scheme would have a singular identity.
29 CD A9 paragraphs 44 and 45
68. The primary facing material for the proposed development would be
brickwork which the Council say ‘has no reliable or positive precedent in the
Town Centre’s original design’30 and ‘…… is characteristic of the arguably less
successful late 20th century development on the west side of the town centre’31.
69. However, brickwork is common throughout the centre albeit often secondary
and in combination with other materials. Brooke House, above its pilotis,
employs brick, as do parts of the appeal site block and it is characteristic of
St Martin’s Square. In terms of the mesh metal cladding for the pavilions,
the claim that it would be ‘alien’ lacks appreciation of its rationale in that its
sculptural qualities are founded in a ‘lost’ piece of public sculpture crafted in
Corten steel32. It would sit comfortably within its context and bring
enrichment to its surroundings. The Council’s misgivings are also blind to the
materials employed on the College and of course Northgate House.
70. I recognise the Review Panel’s concern, whilst welcoming brick as an
alternative palette, about the loss of local character and what could be seen
as more of a London identity. Nonetheless, given the immediate
characteristics and surroundings of the site, and the interposing materials of
the proposed pavilions and podiums, I consider that the proposed palette
would reinforce the design concept of the scheme and contribute towards
local distinctiveness.
71. It is true that the scheme lacks street canopies, other than on the north-
western corner as microclimate mitigation, which are a modernist feature of
the town centre. However, they are by no means universal or continuous
across the centre. Omission here does not render the scheme unattractive or
so incongruous that it could be claimed to be poor design which would be out
of place in its surroundings.
72. Similarly, narrower glazed street level frontages would not, to my mind,
diminish the language or invitation of the ground floor uses. Nor would they
have a material impact on the character of the centre as active frontages are
less evident along the western side of Fodderwick and into St Martin’s
Square.
73. I have already referred to the articulation of the scheme and its stepped
massing. The resultant niches could, as the Council points out, offer hiding
places and impact on the perception of safety. However, active frontages, a
resident population and generously proportioned public realm should lessen
the opportunity for, and a fear of, anti-social behaviour and crime.
74. In conclusion on this part of the first main issue, I acknowledge that the
proposal would result in considerable change which requires special
consideration. In this regard, I have found that the proposal would not have
a material adverse effect on the townscape function of Brooke House. In
addition, the scheme would have a clear role in urban design by providing
new landmarks related to patterns of movement and emphasising the
importance of the western edge of the town centre. Finally, the design is
founded in an understanding of the place which has been incorporated, by
interpretation and innovation, into a proposal which would relate well to its
context. Overall, I find the criticism levelled at the scheme as ‘any place
design’ to be unfounded.
30 ID33 paragraph 22
31 Lowndes Proof paragraph 5.31
32 The Pineapple by William Mitchell 1977
(ii) Whether the proposed development would provide acceptable living conditions for
future occupants
Accessibility and internal circulation
75. Starting with the main and only residential entrance to the proposed
development, this would be well placed for residents going to and from
public transport facilities. In that regard, it has clear logic but those wishing
to avail themselves of amenities within the town centre, or to take exercise
in Gloucester Park, would have to negotiate part of the perimeter of the
building.
76. Whilst multiple entrances would resolve this, by providing choice, it would be
counter-intuitive to the ethos of Build to Rent and its objective of fostering
community. It would also serve to dilute the legibility of an intended focal
entrance and interrupt street facing active mixed-use frontages. I also
accept that such an arrangement would have drawbacks in terms of security
and management.
77. Endorsing the principle of a dramatic single dedicated entrance, with
concierge and space for sitting33, residents would ascend to the first-floor
communal internal amenity area either by a flight of stairs or a lift. It would
only be at that point where residents would disperse, with those living in
either the eastern or western blocks walking across a communal courtyard,
under a covered canopy, before entering their respective residential fingers.
78. Internally, the journey would often be in two parts, utilising a corridor at
podium level and another on the apartment floor. Alternatively, for example
in the case of a resident either in the north-east corner or the south-west
corner of the development, who chose to take the nearest lift, the final leg of
the journey would be a longer angulated route along the home corridor. The
corridors would lack natural light and natural ventilation.
79. Such an arrangement, in the absence of cores to ground level, is necessarily
somewhat contrived, and the lack of natural light and ventilation is contrary
to best practice34. The journey from entering the building to home is also,
potentially, a long one along corridors with possible blind spots. The Build to
Rent Practice Guide does however acknowledge that ‘the actual fit of these
shared corridors and common areas will have a strong influence on their character
……’.
80. To counterbalance the identified disadvantages, the journey home would
offer the potential for meeting others, for nurturing a sense of belonging,
and an opportunity for using the communal amenities, and appreciating the
outdoor landscaped gardens. To my mind, given the concept of Build to Rent
housing, notably ‘……enabling customers to feel that the entire building is their
home, and not just their own unit ……’35, the Council’s claim that the scheme
would be ‘harmful to the health and well-being of the resident ……’36 is a
misplaced overstatement. In my opinion, the ‘well-being’ advantages firmly
outweigh such misgivings and lead to a conclusion that the scheme is well-
designed.
33 CD C11 page 142 Based on an Artist’s impression of the entrance lobby
34 ID21 page 80 paragraph 4.6.2
35 ID21 page 33 ‘Section 2.3 ‘Sense of Community’
36 Deeley proof paragraph 8.8
81. As to additional items raised by the Council, including the claimed drawbacks
of residents using a shared service corridor for waste disposal or recycling,
the corridors would have generous width and normal management
responsibilities and security arrangements, finalised by planning condition,
should minimise issues arising from shared use.
Access to amenity space
82. The Essex Design Guide makes plain that ‘every home should have the benefit
of individual private or communal private amenity space …… the guidance applies to
homes of all tenures’37. It adopts a tiered approach indicating that ‘development
on sites larger than 0.1 hectares should provide at least 25 sq m of private space for
each home ……’38. Where this is not possible, the provision of balconies will be
expected.
83. It is common ground that the appeal scheme would provide in the order of
5.4 sq m of communal open space for each residential unit; and external
balconies would be limited to 24% of the apartments, some of which would
serve one-bedroom accommodation39. The Build to Rent Good Practice Guide
notes that ‘good practice would be to provide between 6-10m2 per dwelling of
shared external amenity spaces ……’40.
84. The Essex Design Guide and the Build to Rent Guide are not embodied within
policy. It can also be seen that the former does not explicitly provide
guidance on high density schemes of the order proposed. Irrespective,
accepting the proposition that balconies should be provided, and that Juliette
balconies cannot provide privacy or separation for living areas, it is notable
that the inclusion of balconies was never intended, and they were added
during consideration of the application.
85. There is no doubt that balconies often present a design challenge and that
retrofitting to an advanced scheme makes the task more difficult. Although
I agree that the addition of projecting balconies on the proposed street
facing elevations would be inappropriate in townscape terms, that is not the
point. Neither is it of any relevance that an operator might not want
balconies, nor that schemes without balconies score highly on surveys of
residential satisfaction. The matter at issue is whether the totality of the
outdoor space would provide sufficient opportunities for the needs of the
residents.
86. The scheme as presented has the advantage of 2 distinct podium gardens.
Both, with southerly aspect, would have the potential to receive direct
sunlight for a good proportion of the day; enjoy screening from the street;
and present opportunities for a variety of outdoor enjoyment. Three smaller
rooftop terraces, at floors 11, 12 and 15, would add further choice. Although
individual apartments would have unequal access to the facilities, depending
on their location by floor level and relative proximity to a lift, any difference
would be largely immaterial. The balconies that would be provided would be
either east or west facing and would benefit from good levels of sunlight.
The appeal site also has close access to Gloucester Park.
37 CD B11 paragraph 3.139
38 CD B11 paragraph 3.150
39 ID22
40 ID21 page 75
87. In my opinion, the deficiency in the quantum of outdoor amenity space, or
access to it, would be outweighed by the range of spaces offered, their
overall utility, the general principles embodied in their design, and the
reservation of details by condition.
88. Moreover, the proposed development would also offer a modest amount of
internal communal amenity space, principally at podium level. Whilst its form
and related functions would be dependent on the operator’s business model,
utilisation of the space in one way or another, as part of the ‘unique offer’ of
the development, would be likely to result in some further contribution to
residents’ overall amenity.
(iii) Conclusion on the first main issue
89. There is a single development plan policy relevant to the main issue, namely
Saved Policy BAS BE 12. Draft Policies H25 (1), DES1 and DES4 also merit
weight given their consistency with national guidance. In turn, the
Framework confirms that ‘the creation of high quality, beautiful and sustainable
buildings and places is fundamental to what the planning and development process
should achieve’41. Paragraph 130 identifies 6 overarching criteria to guide
decision makers.
90. In my opinion, the proposal would not have a harmful impact on the
character and appearance of the area, and it would offer good quality living
conditions for future occupants. There would be no conflict with local policies
or national guidance.
The second main issue
In the absence of a 5-year supply of housing land, would any resultant harm significantly
and demonstrably outweigh the benefits of the scheme
(i) Housing Land Supply
91. Basildon is required to deliver a minimum of 6,048 homes over the 5-year
period 2021- 2026. This has been calculated using the standard method and
includes a 20% buffer as the Council has only been able to meet 45% of its
housing requirement over the last 3 years. The Five Year Housing Land
Supply Report42 identifies a total supply of 4,234 dwellings (3.5 years)
consisting of sites with planning permission (1,779 dwellings); HELAA sites
(980 dwellings); and Town Centre Regeneration sites in Basildon and
Wickford (1,475 dwellings).
92. The Council’s Five Year Housing Land Supply Position Statement43 made
some minor adjustments, including an uplift to the sites with planning
permission and a downward revision to yields from Basildon Town Centre.
In a further statement44, responding to the submissions of the Appellant
and the Rule 6 Parties, the Council’s confirmed position was a supply of
3.3 years. However, it is important that the annual housing land supply
calculation should not be distorted by ad hoc additions or deductions
throughout the monitoring year. Therefore, those dwellings arising from
planning permissions, resolutions, or applications post-dating the annual
report should be discounted.
41 CD A2 paragraph 126
42 CD B14
43 ID19
44 ID30
93. In terms of the remainder of the disputed sites, the principal issue is
whether the Council’s assessment of deliverability is justified. The Glossary
to the Framework defines ‘Deliverable’ as:
‘To be considered deliverable, sites for housing should be available now, offer a
suitable location for development now, and be achievable with a realistic prospect
that housing will be delivered on the site within five years. In particular:
a) ……
b) where a site has outline planning permission for major development, has been
allocated in a development plan, has a grant of permission in principle, or is
identified on a brownfield register, it should only be considered deliverable
where there is clear evidence that housing completions will begin on site within
five years’.
94. In turn, Planning Practice Guidance: Housing supply and delivery explains
that ‘in order to demonstrate 5 years’ worth of deliverable housing sites, robust, up
to date evidence needs to be available ……’. It goes on to outline 4 potential
sources of evidence which may demonstrate deliverability including, but not
limited to: the current status of the site; firm progress towards the
submission of an application; firm progress with site assessment work; or
clear relevant information about site viability, ownership constraints or
infrastructure provision and any successful bids for related funding.
95. Looking first at the sites deriving from the Brownfield Register, none have
planning permission and anticipation of development does not amount to
clear evidence. Indeed, for example, Car Park 14 and adjacent land, which is
identified as delivering over 200 dwellings, was the subject of an application
which was withdrawn at the end of September 2021. Despite a reported
intention to submit a revised application, and the agreement with Homes
England, the prospect of deliverability is, nonetheless, vague.
96. Turning to ‘Other Basildon Town Centre Sites’, the development of Car Park
2 and Car Park 12 relies on the refurbishment of Great Oaks multi-storey car
park. This is due to take place in 2022 with an expectation that the surplus
car parks will be the subject of planning applications in the same year. There
is no demonstrable evidence to support housing completions within the
relevant period.
97. In terms of ‘Basildon Council Sites’, many of which form part of the Council’s
housebuilding programme for the next 5 years, most are identified as ‘Future
Building Programme’ and have not progressed to application stage. Whilst it
is understandable that full details are not yet in the public domain, and it is
acknowledged that the Council has been pro-active in building houses, there
is no firm evidence to support the prospect of delivery. The small site owned
by Essex County Council is similarly unsupported.
98. Overall, a substantial part of the Council’s projected supply does not attain
the threshold of deliverability as defined by the Framework and the Planning
Practice Guidance. Accordingly, this would diminish a robust assessment of
supply to around 1.7 years, a figure promoted by Basildon Estates and
Infrared by slightly different means. It would also support the Appellant’s
reluctance to accept the Council’s proffered housing land supply.
99. The calculation of housing land supply is by no means an exact computation,
and some sites may yet come forward through the Council’s endeavours and
land ownership. Indeed, material weight is to be given to the Council’s
Housing Delivery Action Plan 2021 in response to the acknowledged housing
land supply shortfall, and that many of the identified sites are in its control.
Small sites are also likely to be easier to deliver.
100. Looking at the exercise as a whole, it is reasonable to assume, on the
balance of probability, that some of the sites discounted by the Rule 6
Parties are likely to generate new housing within the relevant period. As a
matter of judgement, I find the critique undertaken by Basildon Estates and
Infrared to be unduly pessimistic. On the other hand, it is inevitable that
some of the sites relied on by the Council will not materialise and a claim of
3.3 years supply cannot be supported.
101. Whilst it has been verified that it is not always necessary to establish the
precise level of the shortfall, the difference here is sizeable. As a matter of
judgement, from the evidence before me and without undertaking a
comprehensive site by site assessment, I consider that the available supply
is likely to be, at the very best, no more than the mid-point of the conflicting
figures. The shortfall is clearly significant.
102. This leads me to conclude that the housing land availability, and the
performance against the Housing Delivery Test, falls well below the
expectations of national policy. On this basis, the delivery of additional
housing arising from the proposal should be given great weight in the
planning balance.
(ii) Heritage assets
103. The Statement of Common Ground confirms that the Council does not
advance any heritage objections. In addition, Historic England did not
oppose the project. Essex County Council’s Places Services identified that
Brooke House, a prominent and landmark building of the New Town
development, would experience a change to its setting resulting in less than
substantial harm at the lower end of the scale.
104. For my part, it is evident that Brooke House, a robust building with
distinctive architectural language, was designed to be the tallest building in
the New Town. It remains as a landmark feature and a symbol of the New
Town Movement. The proposed development would bring about change
within the setting of Brooke House as a result of the introduction of a cluster
of tall buildings. In my opinion, in local views, these would appear distinct in
form and character set well apart from Brooke House. More widely, the
development would appear as an additional element on the skyline,
lessening the focus of Brooke House. Overall, this would amount to less than
substantial harm to the significance of the designated heritage asset.
105. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act
1990 requires that special regard be given to the desirability of preserving
the setting of a Listed Building. Considerable importance and weight are to
be given to the harm identified. Taking account of the totality of the public
benefits arising from the proposed development, with particular reference to
the provision of a significant number of homes, in a highly sustainable
location, and the catalyst to the much-needed regeneration of the town
centre, this would outweigh the heritage harm that I have identified.
106. The Council also considered the proposal in the context of non-designated
heritage assets, including the Fire Station and the Geoffrey Clarke patterned
untitled mosaic on the northern elevation of the existing buildings. I agree
that there would be no adverse impact on the setting of the former, and
provision to relocate the mosaic would be an adequate safeguard.
(iii) Local Representations at application and appeal stage
107. A key local concern is the scale, height and density of the proposed
development and its impact on the town centre both visually and socially.
I have considered the visual implications earlier in my decision. In my
opinion, with active ground floor uses, around the clock concierge service,
measures incorporated to design out crime, and the comings and goings of
residents, this part of the town centre would become more welcoming
108. In terms of car parking, I am satisfied that provision within the building is at
an appropriate level having regard to the location of the site, its proximity to
public transport, and the aim to encourage sustainable modes of travel.
Conditions to secure a delivery and servicing plan and measures to inform
residents of local parking restrictions are added considerations.
109. Fire safety is a dual responsibility with Building Regulations. However, a
planning condition could be imposed requiring the submission and approval
of a comprehensive independent Fire Statement. It is also to be noted that
the scheme was amended, whilst under consideration, to make provision for
a secondary stair to the most upper levels of the fingers as a mitigation
against possible future change to the regulations.
110. As to potential impacts on local services, the scheme includes space for a
healthcare facility or, as an alternative, a financial contribution to
supplement provision elsewhere. Financial contributions to complement
existing infrastructure and facilities, appropriate to the impacts arising from
the proposal, would also be secured by planning obligation.
111. A further repeated concern is that of precedent in relation to the acceptance
of other tall buildings. However, my decision is site and project specific and
other schemes, as they come forward, would be considered on individual
merit.
112. Having considered the other points of objection, including concerns about
living at height, the size of the apartments, the Build to Rent model and the
lack of affordable housing, I am satisfied from my analysis of the main
issues that none of these provide reasons to dismiss the appeal.
113. The proposal also received some expressions of support related to the
benefits of the project which I assess below.
(iv) The benefits of the proposal
114. The Appellant identifies a comprehensive list of scheme benefits45. These are
not challenged by the Council other than in the terms that many would be
realised by an alternative form of development designed to overcome the
harm raised by the authority. Whilst it is true that some of the benefits
would be generic, the weight to be attached is scheme specific and, in the
case before me, there is no other for comparative assessment.
45 CD C10 (pages 22-25)
115. In short, the project would generate additional spend locally during the
construction period; and, on completion, expenditure from residents and
those employed within the development. Improved employment
opportunities would arise and, more generally, redevelopment would
revitalise this part of the town centre with mixed-uses, resulting in greater
investor confidence. I attach significant weight to these benefits, many of
which would be long-term. The provision of a substantial amount of new
housing in a highly sustainable location, providing choice and diversity in the
local housing market, is a factor of very significant weight.
116. Other claimed benefits, including wider infrastructure improvements, are
generally in the nature of mitigation related to increased demands arising
from the development. Similarly, good design, sustainability measures and
public realm enhancements are a fundamental expectation of local and
national policies. None of these add weight in the final planning balance.
(v) The planning balance
117. In conclusion, the proposal would deliver 492 dwellings as part of a mixed-
use development in a highly sustainable location. The scheme would not
have a harmful effect on the character and appearance of the area, and it
would provide good living conditions for future residents. Harm to the
setting, to the limited extent identified, and thus the significance of Brooke
House, would be outweighed by the benefits of the scheme. There are no
other matters which count against the proposal.
118. The Statement of Common Ground46 identifies a spectrum of policies with
which no discord is alleged. In terms of those most relevant to the appeal,
I have found no material conflict. I therefore conclude that the proposal
would be in accordance with the development plan when read as a whole. It
would also correspond with the Framework when approached in the same
manner.
119. The Council acknowledges that it cannot demonstrate a 5-year supply of
deliverable housing sites and that the ‘tilted’ balance in paragraph 11 d) of
the Framework requires planning permission to be granted unless ‘any
adverse impacts of doing so would significantly and demonstrably outweigh the
benefits, when assessed against the policies in this Framework taken as a whole’.
120. From my consideration of the main issues, other material considerations and
all matters raised, and for the reasons set out above, I conclude that
planning permission should be granted.
Planning Conditions
121. The draft planning conditions include a number of pre-commencement
conditions (Conditions 3 -12). These are acknowledged, in the Statement of
Common Ground, to be agreed for the purposes of section 100ZA and
regulation 2 of the Town and Country Planning (Pre-commencement
Conditions) Regulations 2018.
122. Conditions are necessary to identify the period within which the development
is to commence and to specify the approved plans (Conditions 1 and 2).
46 CD E4
123. As the site is previously developed land, measures will need to be taken to
identify any sources of contamination and to ensure appropriate working
methods and remediation (Conditions 3 – 6). Given the constrained location
of the development site, protocols are needed for working methods, noise
control and logistics (Conditions 7 – 9).
124. A record of buildings on the site is required for archive purposes; important
trees, in the public realm adjacent to the site, need to be safeguarded for
amenity reasons; and measures for the relocation of the existing mosaic and
additional public art are required for heritage protection and civic pride
(Conditions 10 - 12).
125. Important components of the scheme need to be agreed and implemented,
to ensure appropriate external materials of construction; site levels relative
to adjacent buildings and public realm surfaces; surface water drainage to
ensure no off-site flooding; details of fire safety measures; and biodiversity
enhancement (Conditions 13 – 17).
126. Given the form and mass of the buildings, wind mitigation measures are to
be agreed to ensure safe and comfortable pedestrian movement. Noise
mitigation for the apartments will also be required to provide suitable living
conditions. The use of glazing, to an agreed standard, at ground floor level is
justified on public safety grounds (Conditions 18 – 20).
127. A number of details need to be agreed before the development is occupied.
These include the management and maintenance of the surface water
drainage system, in the interests of flood prevention; hard and soft
landscaping for the amenity of residents, including defensible space for
podium level residents facing the outdoor amenity areas; a lighting scheme
to avoid light pollution; and a refuse strategy for visual and health well-being
(Conditions 21 – 25). The operation of the commercial units should be
controlled, to protect living conditions, through noise mitigation and odour
control (Conditions 26 - 27).
128. Additionally, car parking facilities, including blue badge parking, electric
vehicle charging points, car park management and cycle storage are
essential for highway safety and to promote sustainable travel (Conditions
28 - 30). Energy and sustainability measures are justified by the reality of
climate change; bird and bat nesting boxes have well founded ecological
justification; and communal television and satellite systems would safeguard
the buildings from a plethora of unsightly attachments (Conditions 31 – 33).
129. Further, a delivery and servicing plan is intended to minimise impacts on the
local highway network; the provision of green roofs would have amenity and
ecological benefits; a residential welcome pack, aimed at promoting
sustainable transport and well-being are laudable aims; and a strategy for
‘meanwhile’ uses would enliven vacant units pending full scheme occupation
(Conditions 34 – 37). An additional prior to occupation condition is designed
to inform prospective residents of local parking restrictions in the interests of
highway safety (Condition 49).
130. Compliance conditions are imposed to ensure that all ecological mitigation
and enhancement measures are fulfilled; and flexibility is provided between
uses to reflect the changes made to the Town and Country Planning (Use
Classes) Order 1987 (as amended) which post-dated the making of the
application (Conditions 38 – 39).
131. In addition, the hours during which the commercial units are open to
customers is to be restricted, and noise from operational plant is to be
controlled to safeguard living conditions; a record of drainage maintenance is
to be kept related to conditions 15 and 21; superfast broadband is essential
for modern living; a proportion of the apartments are to be accessible and
adaptable for inclusivity; water efficiency measures are to be implemented
to save natural resources; and Secured by Design measures are to provide
safety and security (Conditions 40 – 46).
132. Finally, there are 2 conditions related to site assembly to enable the
freeholder interest the ability to sign the associated section 106 legal
agreement necessary to enable the development (Conditions 47 – 48).
133. I am satisfied that the conditions meet the relevant legal and policy tests.
The draft informatives have no formal status and do not need to be included.
134. I have also had regard to the Council’s concerns about the unknown nature
of the internal amenity provision within the scheme and whether details
should be required by condition. However, it is clear from the submitted
Management Strategy47 that the amenity space is intended to be adaptable
and flexible following resident engagement. In my view, a condition would
undermine these objectives and it is therefore unreasonable.
Planning Obligation
135. A completed Deed of Planning Obligation, made between the Council, the
Appellant and a Mortgagee, pursuant to section 106 of the Town and Country
Planning Act 1990, was submitted during the Inquiry. This was accompanied
by an agreed Compliance Statement in accordance with Regulation 122(2) of
the Community Infrastructure Regulations 2010.
136. The obligations, in summary, include financial contributions in respect of:
support for an Employment and Skills Plan (£150,000); childcare and
primary education places (£369,144); healthcare infrastructure in the event
that NHS England does not accept to operate the healthcare facility within
the development (£186,070); open space, culture and sports provision
(£570,936.48); high quality highway improvements and pedestrian access in
the town centre (£676,091.64); sustainable transport, including local
walking and cycling, (£492,092.62); Travel Plan Monitoring (£17,500);
measures to monitor, with a view to improving, the performance of existing
on street parking controls in the vicinity of the site (£10,000); and an overall
combined monitoring fee (£42,200). Related requirements would secure the
provision of car club spaces, electric vehicle charging points, car club
membership and repairs to the public realm and public roads arising from
any damage as a consequence of the demolition and construction phases.
137. There is also a contribution (£62,631.60) towards the Essex Coast
Recreation Disturbance Avoidance Strategy (RAMS). This follows on from an
Appropriate Assessment (Stage 2), to assess any necessary recreational
disturbance mitigation related to the proposed development. Natural England
has confirmed that the mitigation described accords with its strategic-level
advice and that it should rule out any ‘adverse effect on the integrity’ of
relevant European designated sites within the RAMS.
47 CD C26
138. Other obligations include a Build to Rent provision that would secure a
marketing strategy and a residential management plan; a review of child
yield in the event of occupancy or management changes; an Employment
and Skills Plan; the provision of a healthcare facility to a defined standard;
and historic building recording.
139. Finally, there is a two-stage viability review mechanism which could secure
an uplift in the education contributions (maximum £1,597,021.56). Any
further surplus would provide a commuted sum to deliver affordable
housing.
140. The Compliance Statement carefully sets out justification related to the
underpinning tests set out in Regulation 122(2). There is clear validation
through extant or emerging Development Plan policies and the use of
transparent formulae.
141. On my analysis, the Obligations are necessary to make the development
acceptable in planning terms, are directly related to the development, and
are fairly and reasonably related in scale and kind to the development. As
such, they all meet the requirements of paragraph 57 of the Framework, and
Regulation 122(2).
Conclusion
142. For the reasons given above I conclude that the appeal should be allowed
subject to the schedule of conditions at Annex A.
David MH Rose
Inspector
ANNEX A: SCHEDULE OF CONDITIONS (1 – 49)
1. Time Limit
The development hereby permitted shall be begun before the expiration of three
years from the date of this permission.
2. Plan Numbers
The development hereby permitted shall be carried out in accordance with the
following approved plans:
Plans dated 11th November 2020:
Ground Floor Masterplan 19065-SWAP-XX-00-DR-A-MA-1100
First Floor Masterplan 19065-SWAP-XX-01-DR-A-MA-1101
Second Floor Masterplan 19065-SWAP-XX-02-DR-A-MA-1102
Third Floor Masterplan 19065-SWAP-XX-03-DR-A-MA-1103
Fourth Floor Masterplan 19065-SWAP-XX-04-DR-A-MA-1104
Fifth Floor Masterplan 19065-SWAP-XX-05-DR-A-MA-1105
Sixth Floor Masterplan 19065-SWAP-XX-06-DR-A-MA-1106
Seventh Floor Masterplan 19065-SWAP-XX-07-DR-A-MA-1107
Eighth Floor Masterplan 19065-SWAP-XX-08-DR-A-MA-1108
Ninth Floor Masterplan 19065-SWAP-XX-09-DR-A-MA-1109
Tenth Floor Masterplan 19065-SWAP-XX-10-DR-A-MA-1110
Eleventh Floor Masterplan 19065-SWAP-XX-11-DR-A-MA-1111
Twelfth Floor Masterplan 19065-SWAP-XX-12-DR-A-MA-1112
Thirteenth Floor Masterplan 19065-SWAP-XX-13-DR-A-MA-1113
Fourteenth Floor Masterplan 19065-SWAP-XX-14-DR-A-MA-1114
Fifteenth Floor Masterplan 19065-SWAP-XX-15-DR-A-MA-1115
Sixteenth Floor Masterplan 19065-SWAP-XX-16-DR-A-MA-1116
Roof Level Masterplan 19065-SWAP-XX-RF-DR-A-MA-1120
Ground Floor General Arrangement 19065-SWAP-XX-00-DR-A-GA-1200
First Floor General Arrangement 19065-SWAP-XX-01-DR-A-GA-1201
Second Floor General Arrangement 19065-SWAP-XX-02-DR-A-GA-1202
Third Floor General Arrangement 19065-SWAP-XX-03-DR-A-GA-1203
Fourth Floor General Arrangement 19065-SWAP-XX-04-DR-A-GA-1204
Fifth Floor General Arrangement 19065-SWAP-XX-05-DR-A-GA-1205
Sixth Floor General Arrangement 19065-SWAP-XX-06-DR-A-GA-1206
Seventh Floor General Arrangement 19065-SWAP-XX-07-DR-A-GA-1207
Eighth Floor General Arrangement 19065-SWAP-XX-08-DR-A-GA-1208
Ninth Floor General Arrangement 19065-SWAP-XX-09-DR-A-GA-1209
Tenth Floor General Arrangement 19065-SWAP-XX-10-DR-A-GA-1210
Eleventh Floor General Arrangement 19065-SWAP-XX-11-DR-A-GA-1211
Twelfth Floor General Arrangement 19065-SWAP-XX-12-DR-A-GA-1212
Thirteenth Floor General Arrangement 19065-SWAP-XX-13-DR-A-GA-1213
Fourteenth Floor General Arrangement 19065-SWAP-XX-14-DR-A-GA-1214
Fifteenth Floor General Arrangement 19065-SWAP-XX-15-DR-A-GA-1215
Sixteenth Floor General Arrangement 19065-SWAP-XX-16-DR-A-GA-1216
Roof Level General Arrangement 19065-SWAP-XX-RF-DR-A-GA-1220
General Arrangement Building Section A 19065-SWAP-XX-XX-DR-A-GA-1411
General Arrangement Proposed Long Section B 19065-SWAP-XX-BB-DR-A-GA-1412
General Arrangement Proposed Short Section C 19065-SWAP-XX-CC-DR-A-GA-
1413
General Arrangement Proposed Short Section D 19065-SWAP-XX-DD-DR-A-GA-
1414
East Elevation 19065-SWAP-XX-01-DR-A-GA-1311
North Elevation 19065-SWAP-XX-02-DR-A-GA-1312
South Elevation 19065-SWAP-XX-03-DR-A-GA-1313
West Elevation 19065-SWAP-XX-04-DR-A-GA-1314
West Courtyard Elevation 19065-SWAP-XX-05-DR-A-GA-1315
East Courtyard Elevation 19065-SWAP-XX-06-DR-A-GA-1316
Plans dated 24th June 2020:
Landscaping Plan - 4126_BBLA-XX-01-L-101-B
Landscaping Plan - 4126_BBLA-XX-XX-L-102-B
Plans dated 25th June 2020:
Location Plan 19065-SWAP-XX-XX-DR-A-CP-1000 Revision R5
Red Line Plan 19065-SWAP-XX-XX-DR-A-CP-1001 Revision R12
Demolition Plan 19065-SWAP- XX-00-DR-A-MA-1011 Revision R3
Plans dated 3rd July 2020:
Landscaping Plan - 4126_BBLA-XX-00-L-100-P1
Plans dated 31st July 2020:
Podium Sections 19065-SWAP- XX-XX-DR-A-GA-1601 Revision PA
Pavilion Detail Sections 19065-SWAP- XX-XX-DR-A-GA-1700 Revision PA
Podium Detail Sections 19065-SWAP- XX-XX-DR-A-GA-1701 Revision PA
Finger A Detail Sections 19065-SWAP- XX-XX-DR-A-GA-1702 Revision PA
Finger A Detail Sections with Canopy 19065-SWAP- XX-XX-DR-A-GA-1703 Revision
PA
Lateral Unit Type 1WCA -19065-SWAP- 1W-XX-DR-A-GA-1502 Revision PA
Lateral Unit Type 2A - 19065-SWAP- 2A-XX-DR-A-GA-1506 Revision PA
Lateral Unit Type 2B -19065-SWAP- 2B-XX-DR-A-GA-1507 Revision PA
Lateral Unit Type 2WCA - 19065-SWAP- 2W-XX-DR-A-GA-1509 Revision PA.
PRE-COMMENCEMENT CONDITIONS
3. Land Contamination (Site Characterisation)
No development shall commence, including any works of demolition, until a desk-
top study has been carried out to identify and evaluate all potential sources of
contamination and the impacts on land and/or controlled waters, relevant to the
site. The desk-top study shall establish a ‘conceptual site model’ and identify all
plausible pollutant linkages. Furthermore, the assessment shall set objectives for
intrusive site investigation works/Quantitative Risk Assessment (or state if none
required). The desk-top study and a non-technical summary shall be submitted to
and approved in writing by the Local Planning Authority without delay upon
completion.
4. Land Contamination (Site Investigation)
If identified as being required following the completion of the desk-top study, a site
investigation shall be carried out prior to commencement of development to fully
and effectively characterise the nature and extent of any land contamination
and/or pollution of controlled waters. It shall specifically include a risk assessment
that adopts the Source-Pathway-Receptor principle, in order that any potential
risks are adequately assessed, taking into account the site’s existing status and
proposed new use. The site investigation and findings shall be submitted to and
approved in writing by the Local Planning Authority without delay upon completion.
5. Land Contamination (Submission of Remediation Scheme)
A written method statement detailing the remediation requirements for land
contamination and/or pollution of controlled waters affecting the site, shall be
submitted to and approved in writing by the Local Planning Authority prior to
commencement of development and all requirements shall be implemented and
completed in accordance with the approved method statement. No deviation shall
be made from this scheme without the express written agreement of the Local
Planning Authority. If during redevelopment contamination not previously
considered is identified, then the Local Planning Authority shall be notified
immediately and no further work shall be carried out until a method statement
detailing a scheme for dealing with the suspected contamination has been
submitted to and approved in writing by the Local Planning Authority.
6. Land Contamination (Implementation of Approved Remediation
Scheme)
Following completion of measures identified in the remediation scheme, a full
closure report shall be submitted to and approved in writing by the Local Planning
Authority. The report shall provide verification that the required works regarding
contamination have been carried out in accordance with the approved Method
Statement(s). Post remediation sampling and monitoring results shall be included
in the closure report to demonstrate that the required remediation has been fully
met. The closure report shall include a completed certificate, signed by the
developer, confirming that the required works regarding contamination have been
carried out in accordance with the approved written method statement. A sample
of the certificate to be completed is available in Appendix 2 of Land Affected by
Contamination: Technical Guidance for Applicants and Developers.
7. Construction Environmental Management Plan (CEMP) and Site Waste
Management Plan (SWMP)
No development shall commence, including any works of demolition, until a
Construction Environmental Management Plan (CEMP) and Site Waste Management
Plan (SWMP) have been submitted to and approved in writing by the Local Planning
Authority. The approved Plans shall be adhered to throughout the construction
period. The Plans shall provide for:
i. construction traffic management;
ii. the parking of vehicles of site operatives and visitors;
iii. details of access to the site;
iv. loading and unloading and the storage of plant and materials used in
constructing the development;
v. the erection and maintenance of security hoardings including decorative displays
and facilities for public viewing, where appropriate;
vi. wheel washing facilities;
vii. measures to control the emission of noise, dust and dirt during construction;
viii. a scheme for recycling/disposing of waste resulting from demolition and
construction works; and
ix. details of a nominated developer/resident liaison representative with an address
and contact telephone number to be circulated to those residents consulted on the
application by the developer’s representatives. This person will act as first point of
contact for residents who have any problems or questions related to the ongoing
development.
Dust suppression methods shall be employed during demolition and construction so
as to minimise the likelihood of nuisance being caused to neighbouring properties.
No materials produced as a result of the site development or clearance shall be
burned on site.
8. Construction Noise
No development shall commence, including any works of demolition, until a
scheme specifying the provisions to be made to control noise emanating from the
site during construction works has been submitted to and approved in writing by
the Local Planning Authority. This scheme should include details of the construction
methods to be employed and the equipment to be used. The works are to be
carried out in accordance with the recommendations contained within British
Standard 5228:2009 ‘Code of practice for noise and vibration control on
construction and open sites’ (Parts 1 and 2).
9. Construction Logistics Plan
A. No development shall commence, including any works of demolition, until a
Construction Logistics Plan has been submitted to and approved in writing by the
Local Planning Authority. The Plan shall be designed to minimise deliveries of
materials and export of any waste materials within the times of peak traffic
congestion on the local road network.
B. The approved Plan shall be adhered to throughout the construction period.
10. Historic Building Recording
A. No development shall commence, including any works of demolition, until a
programme of historic building recording has been secured in accordance with a
Written Scheme of Investigation which has been submitted to and approved in
writing by the Local Planning Authority.
B. No development shall commence, including any works of demolition, until the
satisfactory completion of fieldwork in accordance with the submitted Written
Scheme of Investigation approved at A.
C. The developer shall submit a Historic Buildings Report to the Local Planning
Authority for approval in writing and deposition of a digital archive with the
Archaeological Data Service (ADS), within 6 months of the completion of the
fieldwork.
11. Tree Protection
No development shall commence, including any works of demolition, until:
A. The three large mature London Plane trees at the south-west and south-east
corners of the site boundary (within the public realm), have been protected by
secure, stout exclusion fencing erected at a minimum distance equivalent to the
branch spread of the trees and in accordance with BS5837:2012 Trees in
relation to design, demolition and construction recommendations; and
B. any works connected with the approved scheme within the branch spread of the
trees shall be by hand only. No materials, supplies, plant or machinery shall be
stored, parked or allowed access beneath the branch spread or within the
exclusion fencing. Any trees that are damaged or felled during construction work
must be replaced with semi-mature trees of the same or similar species.
12. Public Art
A. No development shall commence, including any works of demolition, until a
Public Art Strategy for the development, including all reasonable endeavours and
best practices to preserve the existing mosaic (The Vortex) within a publicly
accessible location, has been submitted to and approved in writing by the Local
Planning Authority.
B. The Public Art Strategy shall be implemented in accordance with the approved
details and the approved artwork(s) shall be installed prior to occupation of the
development and retained thereafter.
NO ABOVE GROUND NEW DEVELOPMENT
13. External Materials
A. No development comprising external elevational treatments shall take place until
full details, including samples, specifications, annotated plans and fire safety
ratings, of all materials to be used in the construction of the external surfaces of
the development have been submitted to and approved in writing by the Local
Planning Authority.
B. The development shall only be implemented in accordance with the approved
details.
14. Site Levels
A.) No above ground new development shall commence, until details of existing
and finished site levels, finished floor and ridge levels of the buildings to be
erected, and finished external surface levels have been submitted to and
approved in writing by the Local Planning Authority.
B. The development shall be carried out in accordance with the approved details.
15. Surface Water Drainage Scheme
A. No above ground new development shall commence, until a detailed surface
water drainage scheme for the site, based on sustainable drainage principles and
an assessment of the hydrological and hydro geological context of the
development, has been submitted to and approved in writing by the Local
Planning Authority. The scheme should include but not be limited to:
• Limiting discharge rates to 7.3l/s for all storm events up to and including the 1
in 100 year rate plus 40% allowance for climate change. All relevant permissions
to discharge from the site into any outfall should be demonstrated.
• Provide sufficient storage to ensure no off-site flooding as a result of the
development during all storm events up to and including the 1 in 100 year plus
40% climate change event.
• Demonstrate that all storage features can half empty within 24 hours for the 1 in
30 plus 40% climate change critical storm event.
• Final modelling and calculations for all areas of the drainage system.
• The appropriate level of treatment for all run-off leaving the site, in line with the
Simple Index Approach in chapter 26 of the CIRIA SuDS Manual C753.
• Detailed engineering drawings of each component of the drainage scheme.
• A final drainage plan which details exceedance and conveyance routes, FFL and
ground levels, and location and sizing of any drainage features.
• A written report summarising the final strategy and highlighting any minor
changes to the approved strategy.
B. The development shall be carried out in accordance with the approved details.
16. Fire Statement
A. No above ground new development shall commence until a Fire Statement has
been submitted to and approved in writing by the Local Planning Authority. The
Fire Statement shall be produced by an independent third party suitably qualified
assessor which shall detail the building’s construction, methods, products and
materials used; the means of escape for all building users including those who
are disabled or require level access together with the associated management
plan; access for fire service personnel and equipment; ongoing maintenance and
monitoring and how provision will be made within the site to enable fire
appliances to gain access to the building.
B. The development shall be carried out in accordance with the approved details.
17. Biodiversity Enhancement Strategy
A. No above ground new development shall commence until a Biodiversity
Enhancement Strategy for protected and priority species has been submitted to
and approved in writing by the Local Planning Authority. The content of the
Biodiversity Enhancement Strategy shall include the following:
a) purpose and conservation objectives for the proposed enhancement
measures;
b) detailed designs to achieve stated objectives;
c) locations of proposed enhancement measures by appropriate maps and plans;
d) timetable for implementation demonstrating that works are aligned with the
proposed phasing of development;
e) persons responsible for implementing the enhancement measures;
f) details of initial aftercare and long-term maintenance (where relevant).
B. The works shall be implemented in accordance with the approved details and
shall be retained in that manner thereafter.
18. Wind Mitigation Measures
A. No above ground new development shall commence until a detailed scheme of
wind mitigation measures, accompanied by wind testing, has been submitted to
and approved in writing by the Local Planning Authority.
B. The approved details shall be implemented prior to occupation of the
development and shall be maintained at all times thereafter.
19. Noise Protection Scheme (Residential Units)
A. No above ground new development shall commence until a scheme of noise
insulation for the residential units has been submitted to and approved in writing
by the Local Planning Authority. The insulation provided shall ensure that the
noise levels within the residential units (with windows partially open) does not
exceed:
35-40 dB LAeq for living rooms (07.00 hours - 23.00 hours);
30-35 dB LAeq for bedrooms (23.00 hours – 07.00 hours);
45 dB LAmax for individual noise events in bedrooms (23.00 hours – 07.00
hours);
50-55 dB LAeq for outdoor living area (07.00 hours – 23.00 hours).
B. The approved scheme shall be fully implemented before the first occupation of
the residential unit to which it relates and shall be maintained at all times
thereafter.
C. Should predicted noise levels (with partially open windows) exceed the criteria
identified above then details of an alternative method of ventilation should be
submitted to and approved in writing by the Local Planning Authority and fully
implemented prior to the first occupation of the residential unit to which is
relates and shall be maintained at all times thereafter.
20. Ground floor frontage glazing
A. No development comprising external elevational treatments shall take place until
details of the standard of glazing proposed to the ground floor frontages have
been submitted to and approved in writing by the Local Planning Authority.
B. The development shall only be implemented in accordance with the approved
details.
PRIOR TO OCCUPATION CONDITIONS
21. Drainage Maintenance
A. Prior to occupation of the development a Maintenance Plan detailing the
maintenance arrangements, including who is responsible for different elements
of the surface water drainage system, and the maintenance activities /
frequencies, shall be submitted to and approved writing by the Local Planning
Authority. Should any part be maintainable by a maintenance company, details
of long-term funding arrangements should also be provided.
B. Drainage maintenance shall be carried out thereafter in accordance with the
approved details.
22. Hard Landscaping
A. Prior to occupation of the development full details of the hard landscaping shall
be submitted to and approved in writing by the Local Planning Authority. The
hard landscaping scheme shall include, but not be limited to, details of the
following:
a) surface materials;
b) communal amenity spaces and play spaces and any related play equipment;
c) boundary treatment, including to the roof terraces; and
d) management and maintenance.
B. The hard landscaping scheme shall be implemented prior to occupation of the
development in accordance with the approved details and thereafter
permanently maintained.
23. Soft Landscaping
A. Prior to occupation of the development a detailed scheme of soft landscaping
shall be submitted to and approved in writing by the Local Planning Authority.
The landscaping scheme, which shall incorporate local sourced and drought
tolerant plants, shall be designed with the aim of improving and increasing
biodiversity and demonstrating a net gain for pollinators in line with the
Council's Pollinator Action Plan.
B. The approved landscaping scheme shall be carried out in the first planting and
seeding seasons following the occupation or completion of the development,
whichever is the sooner. Any trees or plants which within a period of 5 years
from the completion of the development die, are removed or become seriously
damaged or diseased, shall be replaced in the next planting season with others
of similar size and species unless the Local Planning Authority gives written
consent to any variation.
24. Lighting Scheme
A. Prior to occupation of the development a Lighting Scheme shall be submitted to
and approved in writing by the Local Planning Authority.
B. The development shall be carried out in accordance with the approved Lighting
Scheme prior to occupation of the development and the Lighting Scheme shall
thereafter be retained in operation as approved.
25. Refuse Strategy
A. Prior to occupation of the development a detailed residential and commercial
refuse and recycling strategy, including the design and location of the refuse and
recycling stores, shall be submitted to and approved in writing by the Local
Planning Authority but otherwise in accordance with the Design & Access
Statement.
B. The approved refuse and recycling stores shall be provided before the
occupation of the development and thereafter permanently retained unless
otherwise agreed in writing with the Local Planning Authority.
C. The development shall also make provision for any future connection to a
centralised waste scheme in accordance with details to be submitted to and
approved in writing by the Local Planning Authority prior to occupation of the
development.
26. Noise Impact Assessment
A. Prior to occupation of the commercial units hereby permitted an additional
detailed Noise Impact Assessment, detailing expected amplified noise levels and
any mitigation measures to be introduced to overcome any such issues, shall be
submitted to and approved in writing by the Local Planning Authority.
B. The use of the relevant commercial units shall only commence once any
mitigation measures set out in the Noise Impact Assessment have been carried
out in accordance with the approved details and any mitigation measures shall
thereafter be retained in operation / complied with as approved.
C. The building structure (residential units directly above commercial units) shall
incorporate insulation measures as necessary to meet the standard of Part E of
the Building Regulations Approved Document for Impact Sound.
27. Details of Any Commercial Kitchen Extract Ventilation System and
Carbon Filtration
A. Prior to occupation of any commercial unit hereby permitted with a commercial
kitchen, details of any ventilation system for the removal and treatment of
cooking odours, which include the location and appearance of external ducting
and measures to mitigate system noise, shall be submitted to and approved in
writing by the Local Planning Authority. The details shall have regard to guidance
and recommendations in DEFRA publication 'Guidance on the Control of Odour
and Noise from Commercial Kitchen Exhaust Systems'.
B. The approved details shall be fully implemented prior to the commencement of
the relevant commercial use and shall be maintained at all times thereafter. The
external ducting shall be removed when the authorised use of the premises for
the sale of hot food ceases.
C. Where a commercial kitchen is installed in a commercial unit a high efficiency
activated carbon filtration unit shall be installed for that premises which shall
ensure a maximum capture of odour producing chemicals and incorporate 100kg
of carbon granules per 1,000 cubic feet per minute air flow. The extract system
shall be isolated from the building structure with suitable mountings and shall
terminate at a point at least 1 metre above the eaves. If this cannot be
complied with for planning reasons, then a higher level of odour control will be
required in line with EMAQ Guidance – Control of Odour and Noise from
Commercial Kitchen Exhaust Systems.
28. Car Parking, Blue Badge Car Parking and Electric Vehicle Charging
Points
Prior to occupation of the development:
A. the car parking areas indicated on Drawing No. 19065-SWAP-XX-00-DR-A-GA-
1200 shall be constructed and marked out, and thereafter retained permanently
for the accommodation of vehicles of occupiers and visitors to the premises and
not used for any other purpose; and
B. 20 active and 20 passive electric vehicle charging points shall be provided within
the car parking spaces. These shall be constructed and marked out and the
charging points installed, and thereafter retained permanently for the
accommodation of vehicles of occupiers and visitors to the premises and not
used for any other purpose; and
C. the Blue Badge (WCA) car parking bays indicated on Drawing No. 19065-SWAP-
XX-00-DR-A-GA-1200 shall be clearly marked with a British Standard disabled
symbol and permanently retained for the use of disabled persons and their
vehicles.
29. Car Park Management
A. Prior to occupation of the development a Car Parking Management Plan shall be
submitted to and approved in writing by the Local Planning Authority.
B. The scheme shall be implemented in accordance with the approved details prior
to occupation of the development and thereafter permanently retained.
30. Cycle Parking
A. Prior to occupation of the development details of the cycle parking facilities, as
shown on Drawing Nos. 19065-SWAP-XX-00-DR-A-GA-1200 shall be submitted
to and approved in writing by the Local Planning Authority. The submission
should include details of the security, monitoring and access arrangements for
the cycle parking facilities.
B. The development shall not be occupied until the approved details have been
implemented. Thereafter, the cycle parking facilities shall be permanently
retained.
31. Energy and Sustainability
A. Prior to occupation of the development details of the location and quantum of
any photovoltaic panels and Air Source Heat Pumps shall be submitted to and
approved in writing by the Local Planning Authority.
B. The development shall not be occupied until the approved details have been
implemented.
C. The development hereby permitted shall be carried out in accordance with the
submitted Energy and Sustainability Strategy dated 10th July 2020 prepared by
MTT Ltd.
D. The development shall be future proofed for connection to a district energy
centre in accordance with details to be submitted to and approved in writing by
the Local Planning Authority prior to occupation of the development.
E. The commercial units shall achieve a Building Research Establishment
Environmental Assessment Method (BREEAM) rating of ‘Good’.
32. Bird / Bat Boxes
A. Prior to occupation of the development details of bird and bat nesting boxes
shall be submitted to and approved in writing by the Local Planning Authority.
The details shall accord with the advice set out in "Biodiversity for Low and Zero
Carbon Buildings: A Technical Guide for New Build" (Published by RIBA, March
2010) or similar advice from the RSPB and the Bat Conservation Trust.
B. The bird and bat nesting boxes shall be installed on the building or in any trees
on the site prior to occupation of the development in accordance with the
approved details and shall be permanently retained thereafter.
33. Communal Television and Satellite System
A. Prior to occupation of the development details of any communal television
and/or satellite system shall be submitted to and approved in writing by the
Local Planning Authority.
B. The approved system shall be provided prior to occupation of the residential
units and be made available to each residential unit.
C. No antennae or satellite dishes may be installed on the exterior of the building,
with the exception of a single antennae or satellite dish per block to support the
communal television and satellite system. The proposed antennae or satellite
dishes shall be designed to minimise their visual impact and shall not be
mounted on any publicly visible façade.
34. Delivery and Servicing Plan
A. Prior to occupation of the development a Delivery and Servicing Plan shall be
submitted to and approved in writing by the Local Planning Authority but
otherwise in accordance with the Design and Access Statement. The Plan shall
identify efficiencies and sustainability measures to be undertaken once the
development is operational and should incorporate details of deliveries to the
site and servicing arrangements, including the size of vehicles, routing and
tracking of vehicles and times of deliveries and servicing.
B. The approved Plan shall be implemented and adhered to thereafter.
35. Green Roofs
A. Prior to occupation of the development a detailed scheme for the green roofs,
including maintenance and management arrangements, shall be submitted to
and approved in writing by the Local Planning Authority.
B. The approved scheme shall be implemented in accordance with the approved
scheme prior to occupation of the development.
36. Residential Welcome Pack
A. Prior to occupation of the development the developer shall submit to the Local
Planning Authority for approval in writing a Residential Welcome Pack which
includes details relating to the non-availability of on-street parking permits,
details of travel plan measures to encourage the use of sustainable modes of
transport, the availability of the car club scheme and health, wellbeing (including
the promotion of local areas of natural green space) and community support
information.
B. The Residential Welcome Pack as approved shall be provided to all new
residents of the development on occupation.
37. Meanwhile Uses
A. Prior to occupation of the development a strategy for providing meanwhile uses
for the new commercial units upon their completion as part of a wider phasing
programme, shall be submitted to and approved in writing by the Local Planning
Authority.
B. For a period of 3 years post-completion meanwhile uses shall be secured and
implemented for any vacant commercial units in accordance with the approved
strategy at no cost to the developer.
COMPLIANCE CONDITIONS
38. In Accordance with Ecological Appraisal Recommendations
All mitigation and enhancement measures and/or works shall be carried out in
accordance with the details contained in the submitted Ecological Assessment
(Ecology Solutions, July 2020).
39. Flexible Uses
Following the first occupation of the flexible use commercial units hereby
permitted, any subsequent change of use of a commercial unit to another use
within Class A1, A2, A3, B1, D1 and D2 is permitted with the exception of Classes
A4 or A5.
40. Restriction on Operating Hours of Commercial Uses
The commercial uses hereby permitted are permitted to open to customers
between the hours of 07:00 and 23:00 on any day and at no other time.
41. Drainage Logs
The applicant or any successor in title must maintain yearly logs of maintenance
which should be carried out in accordance with any approved Maintenance Plan.
These must be available for inspection upon a request by the Local Planning
Authority.
42. Noise from Plant (BS4142:2014)
The combined rating level of the noise from any plant installed pursuant to this
permission (other than plant which is only to be operated in emergency
circumstances) shall not exceed the existing background sound level any time at
the outside of noise-sensitive buildings. Any assessment of compliance with this
condition shall be made according to the methodology and procedures presented in
BS4142:2014.
43. Superfast Broadband
Prior to occupation of the development all of the residential units hereby approved
shall be fitted with superfast broadband capability.
44. Accessibility and Adaptability
A minimum of 10% of the residential units shall comply with Building Regulations
Optional Requirement Approved Document M4(2) Category 2: Accessible and
adaptable dwellings (2015 edition). Evidence of compliance shall be notified to the
building control body appointed for the development in the appropriate Full Plans
Application, or Building Notice, or Initial Notice to enable the building control body
to check compliance.
45. Water Efficiency
The development hereby permitted shall comply with the water efficiency optional
requirement in paragraphs 2.8 to 2.12 of the Building Regulations Approved
Document G. Evidence of compliance shall be notified to the building control body
appointed for the development in the appropriate Full Plans Application, or Building
Notice, or Initial Notice to enable the building control body to check compliance.
46. Secured By Design
A. The development hereby permitted shall use reasonable endeavours to achieve
a Gold award of the Secured by Design for Homes (2019 Guide) and Commercial
(2015 Guide) or any equivalent document superseding these Guides.
B. A certificated Post Construction Review, or other verification process agreed with
the Local Planning Authority, shall be provided upon completion of the
development, confirming that the agreed standards at A. have been met.
C. In the event that the agreed standards at A. are not achievable then prior to
completion of the development the applicant shall submit to the Local Planning
Authority for approval in writing justification for this and details of the highest
award of the Secured by Design for Homes (2019 Guide) and Commercial (2015
Guide) or any equivalent document superseding these Guides which is
achievable for the development.
D. A certificated Post Construction Review, or other verification process agreed
with the Local Planning Authority, shall be provided upon completion of the
development, confirming that the agreed standards at C., as relevant, have been
met.
SITE ASSEMBLY CONDITIONS
47. Site Assembly 1
None of the following shall take place unless a registered conveyancer's certificate
has been submitted of the same date as the relevant operations or occupation (as
applicable) confirming whether the leasehold interest bound by the Section 106
Agreement continues to subsist over the whole of the Land:
a) commencement of development
b) Substantial Implementation
c) Practical Completion
d) first marketing of the dwellings hereby approved
e) 12 months following Practical Completion
f) first occupation (other than fitting out, marketing, security and management-
set up) of more than
(i) 123 of the dwellings hereby approved
(ii) 246 of the dwellings hereby approved
(iii) 394 of the dwellings hereby approved
48. Site Assembly 2
None of the following shall take place unless on the date of as the relevant
operations or occupation (as applicable) either: (1) the leasehold interest bound by
the Section 106 Agreement continues to subsist over the whole of the Land; or (2)
the local planning authority has confirmed in writing that the freehold and any new
long leasehold interest then subsisting in the Site have been bound by the
obligations in Section 106 Agreement to the local planning authority's written
satisfaction:
a) commencement of development
b) Substantial Implementation
c) Practical Completion
d) first marketing of the dwellings hereby approved
e) 12 months following Practical Completion
f) first occupation (other than fitting out, marketing, security and management-
set up) of more than
(i) 123 of the dwellings hereby approved
(ii) 246 of the dwellings hereby approved
(iii) 394 of the dwellings hereby approved
ADDITIONAL PRIOR TO OCCUPATION CONDITION
49. CPZ Restrictions
A. The residential element of the development shall not be occupied until a
marketing scheme is submitted to and approved in writing by the Local Planning
Authority containing measures for notifying prospective owners or occupiers of
the permitted residential units from time to time of:
(a) existing on-street parking restrictions and penalties for breach of these
restrictions; and
(b) the effect of The Essex County Council (Basildon Borough) (Prohibition of
Waiting, Loading and Stopping) and (On-Street Parking Places) (Civil
Enforcement Area) Consolidation Order 2019 (as amended) and how
Schedule 5 to the Order restricts eligibility for parking permits for properties
built after 1 November 2019.
B. Notification of prospective owners or occupiers of the permitted residential units
shall be carried out in accordance with the approved scheme.
End of Conditions Schedule
ANNEX B: APPEARANCES
FOR BASILDON BOROUGH COUNCIL
Douglas Edwards QC I n s tructed by Charlotte McKay
Locum Senior Planning Lawyer
Basildon Borough Council
He called
Neil Deely Founding Partner
BA (Hons) Dip.Arch RIBA ARB FRSA Metropolitan Workshop LLP
Michael Lowndes Senior Consultant
BA (Hons) Dip TP MSc Dip Cons(AA) MRTPI Lichfields
Mrs Adele Lawrence* Principal Planner
BA MPlanPrac MRTPI Basildon Borough Council
Mrs Charlotte McKay* Locum Senior Planning Lawyer
FCILEx LLB Basildon Borough Council
FOR [APPELLANT] - APPELLANT
Scott Lyness QC Instructed by
Assisted by Ben Fulbrook of Counsel D e n t o n s
He called
David Cafferty Director
BSc(Hons) BArch RIBA HLM Architects
Timothy Jackson Director
BA(Hons) Dip LA CMLI FPCR Environment and Design Limited
Ms Lesley Roberts Partner/Executive Director
BSc MIPRM MARLA NAEA Allsop LLP
Mark Harris Partner
BA(Hons) Dip TP MRTPI Freeths LLP
Roy Pinnock* Instructing Solicitor
Dentons
* Participation in Section 106 and conditions round table discussion
FOR BASILDON ESTATES LIMITED – RULE 6
Thomas Hill QC Instructed by
Asserson LLP
He called
Ms Lucy Markham Partner
IHBC MRTPI Montagu Evans
Ms Karen Jones* Senior Director
BA(Hons) MSc MRTPI RPS Group Limited
FOR INFRARED UK LION NOMINEE 1 LIMITED (IN ADMINISTRATION) &
INFRARED UK LION NOMINEE 2 LIMITED (IN ADMINISTRATION) - RULE 6
Miss Stephanie Hall of Counsel Instructed by
Rebecca Roffe
Partner CMS
She called
John Mumby Director of Planning
BA (Hons) MRTPI Iceni Projects Limited
INTERESTED PERSONS
Councillor Davida Ademuyiwa St Martin’s Ward
Basildon
Angela O’Donoghue CBE Principal and Chief Executive
South Essex College
* Ms Jones was not called - her Proof of Evidence remained before the Inquiry
ANNEX C: LIST OF DOCUMENTS
Core documents list (provided by Dentons)
A Government policy and guidance
1. NPPF (February 2019)
2. NPPF (July 2021)
3. NPPG (various extracts)
4. Building Research Establishment (BRE) Guidelines: Site Layout Planning for
Daylight and Sunlight 2011, A Guide to Good Practice, Second Edition (2011)
5. Historic England Advice Note 3 – The Setting of Heritage Assets (December
2017)
6. Historic England Advice Note 4 – Tall Buildings (December 2015 and March
2020 Consultation Draft)
7. Historic England Conservation Principles, Policies and Guidance (2008)
8. Historic Environment Good Practice Advice in Planning: Note 12: Statements of
Heritage Significance (October 2019)
9. National Design Guide (October 2019)
10. Nationally Described Space Standards (March 2015)
B
Development Plan documents, LPA guidance, and other LPA
documents
1. Basildon District Local Plan Saved Policies (2007)
2. Basildon Borough Revised Publication Local Plan (2018)
3. Basildon Planning Obligations Strategy SPD (2015)
4. Basildon Town Centre Masterplan (2012)
5. Basildon Town Centre draft Masterplan / Regeneration Strategy (2020)
6. Basildon Urban Characterisation and Design Review (2015)
7. Basildon Town Centre Masterplan – We Made That - Urban Appraisal
(revision A) (15-04-2020)
8. Essex County Council Parking Standards (2009)
9. Essex County Council Developer’s Guide to Infrastructure Contributions
(Revised 2020)
B
Development Plan documents, LPA guidance, and other LPA
documents
10. Basildon Council Development Control Guidelines (1997)
11. Essex Design Guide (2018)
12. BBC Response to the Local Plan Inspector’s Initial Questions (29 January 2021)
13. Inspector’s Response to Council’s Response to Initial Questions (23 March
2021)
14. Basildon Borough Council – Five Year Land Supply Report (2021-2026)
15. Basildon Note on the Standard Methodology Figure for Housing Need in
Basildon Borough (July 2021)
16. Basildon Council - Housing Delivery Test Action Plan (May 2020)
17. Basildon Council – Town Centre Masterplan Residential Audit (August 2018)
18. Basildon Council – Housing and Economic Land Availability Assessment (HELAA)
Review 2020 - Vol 1: main report, Appendices A-G (October 2021)
19. Basildon Council – DRAFT Housing Delivery Test Action Plan (July 2021)
C Market Square Basildon planning application documents (ref:
20/00955/FULL)
1. Planning Performance Agreement dated 27 April 2020
2. Design Review Panel Report dated 20 May 2020
3. BBC pre-application response dated 13 July 2020
4. Covering Letter - 30 July 2020
5. Application Form - 30 July 2020
6. Location Plan 19065-SWAP- XX-XX-DR-A-CP-1000
7. Red Line Plan 19065-SWAP-XX-XX-DR-A-CP-1001
8. Original application plans
9. Landscaping Plans (4126_BBLA-XX-XX-L-102-B; 4126_BBLA-XX-01-L-101-B;
4126_BBLA-XX-00-L-100-P1)
10. Planning Statement - July 2020
11. Design and Access Statement - July 2020
12. Environmental Statement - Non-Technical Summary - July 2020
C Market Square Basildon planning application documents (ref:
20/00955/FULL)
13. Environmental Statement Vol 1 - July 2020
14. Environmental Statement Vol 2 - July 2020
15. Transport Statement - July 2020
16. Travel Plan - July 2020
17. Ecological Assessment - July 2020
18. Financial Viability Assessment - July 2020
19. External Daylight Sunlight Report - July 2020
20. Internal Daylight Sunlight Report - July 2020
21. Statement of Community Involvement - July 2020
22. Flood Risk Assessment - June 2020
23. Drainage Strategy - June 2020
24. Sustainability and Energy Statement - July 2020
25. Ground Investigation and Contamination - June 2020
26. Mainstay Management Strategy - July 2020
27. Section 106 Heads of Terms - July 2020
28. Essex County Council SUDS Planning Advice sent to Officers - August 2020
29. Financial Viability Assessment Post Submission Review Response - September
2020
30. Air Quality Technical Note - September 2020
31. Appropriate Assessment Report - September 2020
32. External Daylight Sunlight Report Addendum - October 2020
33. Internal Daylight Sunlight Overshadowing Report Addendum - October 2020
34. Design and Access Statement Addendum - October 2020
35. Addendum Covering Letter - 16 November 2020
36. November 2020 amended application plans
37. Planning Statement Addendum - November 2020
38. Concept Fire Strategy Report - November 2020
C Market Square Basildon planning application documents (ref:
20/00955/FULL)
39. Environmental Statement Further Information Report - November 2020
40. Pub and Nightclub Noise Impact Technical Memorandum - November 2020
41. Draft conditions with Freeths comments - December 2020
42. Statutory Consultee Responses
43. Third Party Objection Responses
44. Third Party Support Responses
45. Committee Report - 24 February 2021 with update sheet and minutes
46. DCMS Listing decision dated 22 March 2021 and accompanying Historic England
Report dated 10 February 2021
47. Essex County Council letter to BBC dated 29 April 2021 confirming no objection
to application
48. Committee Report - 29 April 2021 with minutes
49. Mosaic Retention Options Report - February 2021
50. Mosaic Listing Representation - February 2021
51. Mosaic Listing Response to HE - February 2021
D Market Square Basildon appeal documents
1. Appeal form (16 July 2021)
2. Appellant Statement of Case (16 July 2021)
3. Basildon Council Appeal Questionnaire
4. Basildon Council Planning Committee Report with enclosures (18 August 2021)
5. Basildon Council Planning Committee Report update sheet (18 August 2021)
6. Basildon Council Planning Committee Minutes (18 August 2021)
7. LPA Statement of Case (13 September 2021)
8. Basildon Estates Statement of Case (17 September 2021)
9. Infrared Capital Partners Statement of Case (24 September 2021)
10. PINs Case Management Conference notes (20 September 2021)
11. Description of Development (4 October 2021)
D Market Square Basildon appeal documents
12. Environmental Statement – Statement of Competency (4 October 2021)
13. Environmental Statement – References & Sources list (4 October 2021)
14. Appeal representations
E Inquiry documents
1. Basildon Borough Council - Five Year Housing Land Supply Position Statement
(29 October 2021)
2. Basildon Borough Council - Basildon Town Centre Regeneration Strategy Note
for the Inquiry (29 October 2021)
3. Basildon Borough Council - Position Statement - The Emerging Local Plan (29
October 2021)
4. Statement of Common Ground agreed between BBC and Appellant (November
2021)
5. Basildon Borough Council – CIL Compliance Statement (2 November 2021)
6. Appeal decision ref: APP/A5270/W/21/3268157 - 51-56 Manor Road and 53-55
Drayton Green Road, West Ealing, London W13 0LJ (29 October 2021)
BBC evidence submitted
Michael Lowndes – Planning – summary proof of evidence
Michael Lowndes – Planning – proof of evidence
Michael Lowndes – Planning – appendix to proof of evidence
Michael Lowndes – Planning – rebuttal statement
Michael Lowndes – Planning - Addendum
Neil Deely – Design – summary proof of evidence
Neil Deely – Design – proof of evidence
Neil Deely – Design – rebuttal statement
Appellant evidence submitted
Mark Harris – Planning – summary proof of evidence
Mark Harris – Planning – proof of evidence
Appellant evidence submitted
Mark Harris – Planning – appendix to proof of evidence
David Cafferty – Design – proof of evidence with appendix
David Cafferty – Design – rebuttal statement
David Cafferty – Design – architect's presentation
Tim Jackson – Townscape – proof of evidence with appendices
Lesley Roberts – Planning – summary proof of evidence
Lesley Roberts – BTR – proof of evidence
Lesley Roberts – BTR – appendices proof of evidence
Basildon Estates evidence submitted
Karen Jones – Planning – proof of evidence
Lucky Markham – Townscape – summary proof of evidence
Lucky Markham – Townscape – proof of evidence
Lucky Markham – Townscape – appendices to proof of evidence
Lucky Markham – Townscape – rebuttal statement
InfraRed evidence submitted
John Mumby – Planning – proof of evidence with appendix
Documents submitted at Inquiry
ID1 GS8 Committee Report and DAS (submitted by Appellant, 9 November 2021)
ID2 Trafford House Committee Report and DAS (submitted by Appellant, 9
November 2021)
ID3 Basildon Town Centre Regeneration – in answer to questions about building
height (submitted by Appellant, 9 November 2021)
ID4 London Housing Design Guide, pages 35 & 36 (submitted by Council, 9
November 2021)
ID5 Appellant opening submissions (submitted by Appellant, 9 November 2021)
Documents submitted at Inquiry
ID6 Basildon Borough Council opening submissions (submitted by BBC, 9 November
2021)
ID7 Basildon Estates (R6) opening submissions (submitted by Basildon Estates, 9
November 2021)
ID8 Infrared (R6) opening submissions (submitted by Infrared, 9 November 2021)
ID9 Local resident 1 representation (submitted 9 November 2021)
ID10 Local resident 2 representation (submitted 9 November 2021)
ID11 Position statement from InfraRed on the topic of five year housing land supply
and PPG extracts (submitted by Infrared, 10 November 2021)
ID12 Updated draft conditions (submitted by Appellant, 10 November 2021)
ID13 East Square committee report (refs: 18/00275/FULL & 18/00941/LBBAS)
(submitted by Basildon Estates, 11 November 2021)
ID14 Statement from the Leader of the Council (submitted by Council, 11 November
2021)
ID15 Final CIL Compliance Statement (submitted by Appellant, 11 November 2021)
ID16 Section 106 Agreement with Plans (submitted by Appellant, 11 November
2021)
ID17 Section 106 Agreement comparison changed pages (submitted by Appellant,
11 November 2021)
ID18 Agreed conditions (submitted by Appellant, 11 November 2021)
ID19 Five Year Housing Land Supply Position Statement – 15 November 2021
(submitted by Council, 16 November 2021)
ID20 Urban Capacity and Local Plan Update Note (submitted by Council, 16
November 2021)
ID21 UK ULI Residential Council – Build to Rent – A Best Practice Guide (March
2016) (requested to be submitted by Council, 17 November 2021)
ID22 Note on balconies and amenity space (submitted by Appellant, 17 November
2021)
ID23 Supplementary Note in respect of Core Document B14 - Five Year Housing
Land Supply (submitted by Council, 17 November 2021)
ID24 Transcript of the minutes of Basildon Borough Council’s Strategic Planning and
Infrastructure Committee of 28 June 2018 (submitted by Council, 18 November
2021)
ID25 Local Plan Proposals Map 1998 Town Centre Inset map (submitted by Basildon
Estates, 18 November 2021)
Documents submitted at Inquiry
ID26 Agreed note on Environment Act and Biodiversity Net Gain (submitted by
Appellant, 23 November 2021)
ID27 Appellant 5YHLS Observations (submitted 24 November 2021)
ID28 Basildon Estates Limited 5YHLS Note (submitted 24 November 2021)
ID29 Infrared 5YHLS Note with Appendices A1-A4 (submitted 24 November 2021)
ID30 Response of Basildon Borough Council to Appellant and Rule 6 Parties
Submissions on Five Year Housing Land Supply (submitted 1 December 2021)
ID31 Infrared Closing Submissions
ID32 Basildon Estates Closing Submissions
ID33 Basildon Borough Council Closing Submissions
ID34 Appellant’s Closing Submissions