Case Reference: 3281232

Appeal Decision
Inquiry held on 14-17 December 2021
Site visit made on 19 December 2021
by Siobhan Watson BA (Hons) MCD MRTPI
an Inspector appointed by the Secretary of State
Decision date: 20 January 2022
Appeal Ref: APP/Z1510/W/21/3281232
Land off Brain Valley Avenue, Black Notley. Grid reference 576927,
220616.
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for outline planning permission
• The appeal is made by [APPELLANT] against Braintree District
Council.
• The application Ref 20/02127/OUT, is dated 10 December 2020.
• The development proposed is for outline planning application for the demolition of
existing farm outbuildings and the erection of up to 90 dwellings (including 40%
affordable housing) with community park and public open space, landscaping and
sustainable drainage system (SuDS) and a vehicular access point from Brain Valley
Avenue. All matters are reserved except for means of access.
Decision
1. The appeal is dismissed and outline planning permission is refused for the
demolition of existing farm outbuildings and the erection of up to 90 dwellings
(including 40% affordable housing) with community park and public open
space, landscaping and sustainable drainage system (SuDS) and a vehicular
access point from Brain Valley Avenue.
Preliminary Matters
2. The application was made in outline with the means of access applied for. All
other matters are reserved for subsequent approval. During the course of the
appeal, the appellant submitted an illustrative layout and offered to accept a
condition limiting the number of dwellings to 80.
3. The Council has referred to Policies of the emerging Braintree District Draft
Section 2 Local Plan which, at the time of the Inquiry, was currently
undergoing modifications in advance of a re-consultation. I have had regard to
these emerging policies but give them limited weight.
Main Issues
4. The main issues are (i) the effect of the proposed development on the
character and appearance of the countryside; (ii) whether the future occupiers
of the proposed dwellings would have adequate access to open space and
private amenity space; (iii) whether the development would be in a suitable
location in respect of access to day-to-day services by sustainable travel modes
and (iv) whether the Council can demonstrate a five-year housing land supply.
Reasons
Character and Appearance
5. The appeal site is adjacent to but outside of the settlement of Black Notley and
comprises paddocks with some equestrian related development including
concrete hardstanding, stables, dilapidated barn structures, fencing and a
manege, although most of the site is free from development. It lies on the side
of a shallow valley and runs alongside an area of suburban housing.
6. Several landscape character assessments cover the site. Firstly, the site lies
within Natural England’s National Character Area 86 “South Suffolk and North
Essex Clayland” which is a very extensive area but, amongst other
characteristics, it identifies intimate small scale river valley floodplains and a
pastoral landscape which is broadly representative of the appeal site and its
surroundings, albeit that the site is in equestrian use.
7. Secondly, the site is covered by the Essex Landscape Character Assessment
2003, falling within the Blackwater and Brain Valley River Valley Landscape.
The developed area would be less than 5 hectares so according to this
assessment, it would be classed as a small urban extension for which the
landscape sensitivity level is low. The key landscape sensitivity in this area is
the integrity of the valley floor and exposed valley sides.
8. Thirdly, there is the Braintree, Brentwood, Chelmsford, Maldon and Uttlesford
Landscape Character Assessment 2006 where the Brain River Valley is
identified as Landscape A10. Its key characteristics are a shallow valley with
undulating valley sides; settlements on the sides near the highest points
making them very visible; and pastoral irregular shaped fields sloping down the
valley sides to the river. It identifies the area as having a moderate to high
sensitivity to change. It indicates that the skyline of the valley slopes, in
particular the edges of Black Notley, are visually sensitive to potential new
development.
9. Fourthly, the site falls within Area B7 of the Braintree District Settlement Fringe
Landscape Capacity Analysis 2007. This identifies the character area as having
a medium to high landscape character sensitivity and value with a medium
visual sensitivity on account of the enclosure provided by hedgerows and
associated trees.
10. Fifthly, the Braintree District Settlement Fringes Evaluation of Landscape
Analysis Study of Braintree and Environs 2015 says that the site has a medium
capacity for development. It also says that the parcel is closely associated with
the residential properties within Black Notley that abut the western boundary.
In wider views of Black Notley the River corridor forms the perceived edge to
the settlement and the parcel is contained within this. It indicates that the
parcel is within the top 25% of sites in the Black Notley area for development.
11. The site is on the lower slopes of the valley and it has a fair landscape
condition. The proposal does not include developing the valley floor, it would
however, be on a valley side, lower down the slope than development within
the existing settlement pattern. The housing would be partly screened from
some views by hedgerows and trees along the River Brain. However, the
development would be obvious from PROW 74_31 which affords views of the
lower valley slopes of the appeal site. Although the development would be seen
against a backdrop of existing housing, the proposed housing would be an
uncharacteristic incursion onto the valley slope.
12. The landscape character of this part of the slope would be dramatically
changed to that of suburban development eroding the countryside and
enclosing the valley floor. Whilst this enclosure would not lead to a loss of
openness of the river valley itself, it would lead to a loss of the open character
of the river valley as it would feel more enclosed due to the presence of
development adjacent to it. I consider the impact on the view from PROW
73_31 to be significant.
13. The view of the appeal site from along PROW 74_21 would be partially
screened by existing trees and hedgerow. Mitigation could be fairly successful
here as the views would be at a closer range and from a lower level. The
impact on the view from this PROW would be slight.
14. The housing would also adjoin Cokers Peace, a lottery funded community space
that is owned by the Parish Council and maintained by local volunteers to
provide peaceful pleasure for the community. There is a hedge separating this
piece of land and the appeal site but there are currently some gaps within it.
Nevertheless, it would provide a moderate level of screening between the two
areas and screening could be improved. As Cokers Peace is already abutted by
housing, I do not consider that the additional housing proposed would have any
significant effect upon the peaceful enjoyment of the community space or its
visual amenity.
15. The site is highly visible from Brain Valley Avenue which is the built edge to the
settlement. It is not just private views that would be affected because much of
the land is open to public view, being alongside the public highway. There are
very attractive long-range views of the rolling countryside across the valley
from Brain Valley Avenue. The proposed housing would block these views and
have a clear impact on the skyline which, at the moment, is very much a
wooded skyline. It would not be possible to mitigate the impact on these views
because housing would physically block them and no amount of landscaping
could change that. I note the appellant’s comments about the detracting
influence of existing pylons but these are only a small incursion into the
landscape and are seen in the far distance.
16. Whether or not the landscape is considered to be “valued”, in the terms of the
Framework, the appeal site is part of the open countryside. Paragraph 174 of
the Framework indicates that planning decisions should recognise the intrinsic
character and beauty of the countryside.
17. The community park proposed would provide a new edge to the settlement
which might be somewhat softer than the existing edge of Brain Valley Avenue
due to the landscaping adjacent to the river. However, this would not
compensate for the physical loss of countryside. The new views provided from
the river by the formation of the community park would be reduced in length
from the current available views from Brain Valley Avenue.
18. There was some dispute over the definition of “pastoral” at the inquiry. I
appreciate that the site is used for the keeping of horses, rather than grazing
sheep. It also contains more built development and paraphernalia than you
would expect for sheep. Nevertheless, these are only a very small distraction
from the general pastoral character of the valley as a whole and of the green
rural character of the site itself. However the word “pastoral” might be defined,
a housing estate would be far less “pastoral” than the keeping of horses.
Housing would not be in keeping with the landscape character of the area.
19. The proposed density of the development would be just under 40 dwellings per
hectare which would be slightly more dense than the development on Mary
Ruck Way which is some distance from the appeal site but within Black Notley.
I visited Mary Ruck Way and whilst it is not unattractive, it has a much more
urban appearance than Brain Valley Avenue with buildings being close together
and frontages near the back of the pavement. The houses on Brain Valley
Avenue are less dense, with generous front gardens. A development of a
similar grain to that of Mary Ruck Way would be quite a contrast to the
adjoining housing and whilst I recognise the Framework’s advice to optimise
the use of land, the appearance of a more urban style of development
adjoining the countryside at the edge of the settlement would be incongruous
with its surroundings.
20. I appreciate that layout is a reserved matter and that density can vary
depending on the type of dwelling built. I have, however, taken into account
the indicative plan provided by the appellant which aims to demonstrate the
site’s capacity for up to 80 dwellings. This indicative plan does not demonstrate
that up to 80 dwellings can be successfully accommodated on the site without
harm to the landscape character of the area or that the development could
conform to Policy RLP 90 of the Braintree District Local Plan Review 2005
(BDLPR) which seeks to ensure that the density of buildings should reflect or
enhance local distinctiveness. Whilst 80 dwellings would be a maximum rather
than a minimum, I have no alternative scenario to show how a reduced number
of dwellings might work. In any event, the development of the site for housing,
even of a lower density, would be a significant and irreversible change to the
landscape from a largely undeveloped rural edge to a suburban built
development.
21. Whilst not all views would be significantly affected, some would. I therefore
conclude that the proposal would significantly harm the character and
appearance of the countryside and the setting of the settlement. It would
conflict with Policies CS 5 and CS 8 of the Braintree Core Strategy (CS) and
BDLPR RLP 2. I deal with the question of conflict with these policies, and the
weight attached, in the final planning balance. It would also conflict with BDLPR
RLP 80 which seeks to prevent development that would not successfully
integrate into the local landscape; and BDLPR RLP 86 which seeks to protect
the open character of the floodplains of the Brain River. Furthermore it would
conflict with Policy SP 3 of the North Essex Authorities’ Shared Strategic
Section 1 Plan which seeks to conserve the setting of existing settlements.
Open space/private amenity space
22. Much of the community park public open space would be within Flood Zone 3A.
This element of open space would also be in a relatively remote part of the site
with limited public surveillance. Aerial photographs from neighbours show the
area as flooded at times and the submitted flood risk assessment and outline
surface water drainage strategy confirm that the area to be used as open space
is at risk of fluvial flooding. Much of it is also at high risk for surface water
flooding.
23. The land has been assessed as having a 1 in 100 or greater annual probability
of river flooding. However, this does not mean that the area is guaranteed to
flood every year and flooding is a temporary state. The District has other
nature reserves and public open spaces that are subject to flooding, including
the main area of Bocking Blackwater in Braintree. Most of the time the
community park would be useable. Surface water drainage would be a matter
to be agreed as a planning condition and it is likely that the surface water
flooding could be mitigated.
24. The community park would also lack natural surveillance due to the trees and
hedging that would separate it from the development. Nevertheless, this is
common with more natural open space that is often found alongside river
corridors.
25. In addition to the community park, there is other communal open space
indicated on the illustrative plan, next to the access to the proposed
development. This shows that it would be possible to incorporate communal
open space subject to natural surveillance from houses overlooking it.
Furthermore, residents would have access to Cokers Peace which is overlooked
by houses. Therefore, I consider that residents would have adequate access to
open space.
26. The community park would be available to the public and not just the residents
of the development. There is currently no access to the River Brain from Black
Notley and the park would be accessible through the new development.
Overall, whilst there are some drawbacks to the proposed community park, it
would have some value to the general public and I give it moderate weight in
favour of the proposal.
27. In terms of private amenity space, the indicative layout indicates that not all
gardens would provide the 100 square metres of space advocated by the Essex
Design Guide. Nevertheless, the Guide says that there are circumstances under
which the insistence on a minimum of 100 square metres is not appropriate.
These are listed as being: in houses with one or two bedrooms; in higher
density situations where walled patios or courtyards are more appropriate;
where houses back onto a substantial area of well landscaped and properly
maintained communal open space; in houses performing a particular role in the
layout; and flats. Therefore, it is not necessary to provide 100 square metres in
every case and such matters would be considered as part of the reserved
matters details.
28. I therefore conclude that the proposal could provide an adequate amount of
open space and private amenity space. In this respect, I find no conflict with
BDLPR Policies RLP 90 and RLP 138 which, in combination seek to ensure that
open and landscape areas shall be of a high standard of design, that designs
and layouts promote a safe and secure environment, crime reduction and
prevention and encourage the related objective of enhancing personal safety,
with the maximum amount of natural surveillance of open spaces, and that
open space should be adequate in terms of size and location.
Sustainable Travel
29. Black Notley is classed as an “Other Village” in the Core Strategy which is the
lowest of the 3 tiers within the settlement hierarchy. The draft Section 2 Local
Plan proposes 4 tiers and it is in the lowest tier in the draft plan too.
30. There are a few services in Black Notley itself and they include a small
convenience store containing a post office, a salon, village hall, café, pub, place
of worship, a nursery, play areas and a sports field. It would be necessary to
travel to Braintree or other higher order settlements for other services.
31. The nearest doctor’s surgery with capacity to take new patients is Blyth’s
Meadow in Braintree some 3.6km away. The nearest superstore is around
3.2km away in Braintree and the nearest dentist is about 3.1km away. The
nearest primary school is John Ray in Braintree approximately 2km from the
site.
32. There are trains to Witham and Braintree from Cressing Station although the
walk from the site is via a winding, narrow road lacking in footpaths and street-
lighting. Evidence from interested parties also shows that it sometimes floods
and I noted a pole in the road to measure the depth of water. Therefore, I
consider it would be highly unattractive to walk or cycle to the station,
especially in the dark. Nevertheless, the accessibility of the site does not solely
depend upon the route to Cressing Station.
33. The Council accepted at the Inquiry that there is an adequate bus service into
Braintree, which is the largest settlement in the district and at the top of the
settlement hierarchy. It also accepts that bus stops are within a reasonable
walking distance of the site. Braintree is also within easy cycling distance of
Black Notley and whilst there are no cycle lanes en-route, this factor would not
put all cyclists off given the relatively short distance.
34. The justifying text to CS Policy CS7 indicates that accessible locations will be
defined as within 30 minutes walking or cycling distance of a retail centre,
primary school, secondary school and GP surgery. Given the distances between
the site and the services in Braintree, I consider that facilities would be within a
30-minute walk or cycle. Therefore, there would be a choice of modes of travel
to other services and employment opportunities, especially as there are some
industrial parks and a railway station in Braintree.
35. I appreciate that some 75% of people in Black Notley travel to work by car
which is around 10% higher than in Braintree as a whole. However, this factor
does not make services any less accessible and car ownership and use is
influenced by other factors aside from an availability of a choice of transport.
36. The primary school is some 2km from the site and therefore within the 2-mile
(under 8 years of age) and 3-mile (8-16 years of age) distances for walking to
school as set by the Education Act 1996. Distances greater than these qualify
the pupil for help with transport. There is a footway between the site and the
school, and the appellant has offered a package of improvements to it in
certain places, including widening parts of the pavement and adding street
lighting. However, the pavement is very narrow along a significant distance and
the highway is a main road subject to a 40 mile per hour speed limit and this
part of the route cannot be widened.
37. Despite the Education Act not providing for assistance with travel for journeys
to school of 2km, I consider that the route is unattractive. The distance itself
would be somewhat off putting with young children, especially in inclement
weather and the carers of such children are likely to have to walk back home
again. Furthermore, the busy road and the narrowness of the footway would
make for a stressful walk for those carers who may have to manage the
behaviour of more than one young child.
38. Although a bus trip to school is possible, the bus would arrive a bit too early for
the start of the school day and too late for home time to be a particularly
convenient option. As there are is no cycle lane and it is a busy road, it would
be unrealistic to expect primary children to cycle to school.
39. Given these factors, I consider it would be more convenient and likely that
primary aged children would be driven to school, nevertheless, it is possible to
get to and from school without using a car.
40. There is also a secondary school in Braintree but older children are more likely
to walk and could do so without an adult accompanying them. The Council did
not dispute that walking is a realistic mode of travel for secondary school
pupils.
41. Whilst I accept that it would be most attractive to drive primary aged children
to school, walking is not impossible and would be an option. Furthermore,
there is an adequate choice of modes of transport to other services and to
employment. Walking is reasonable for secondary school children.
42. Overall, I conclude that the development would be in a suitable location in
respect of access to day-to-day services by sustainable travel modes. In this
respect, I find no conflict with CS Policy CS 7 or Policy SP 3 of the North Essex
Authorities Shared Strategic Section 1 Plan which seek to ensure that
development is provided in accessible locations. Neither do I find conflict with
Section 9 of the Framework which indicates that the planning system should
actively manage patterns of growth in order to promote sustainable transport.
43. In respect of accessibility, I do not find direct conflict with CS Policy CS5 or
BDLPR Policy RLP 2 as they seek to protect the countryside and I have dealt
with this matter earlier in the decision.
Housing Land Supply
44. The parties agreed in the Statement of Common Ground that the Council had
an up-to-date housing land supply (HLS). However, since then an appeal
decision has been issued for land north of Station Road, Earls Colne.1 As a
consequence, the appellant has challenged the deliverability of two sites in
Braintree which are (i) land east of Broad Road and (ii) Towerlands Park. The
Council claims a supply of 5.27 years.
45. The Glossary to the Framework states that 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. 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. I also note the advice within
the Planning Practice Guidance (PPG) on what may be considered ‘clear
evidence’. The requirement to demonstrate a “realistic prospect” is not to be
equated with the requirement to demonstrate “certainty”, or even a
1 APP/Z1510/W/21/3267825
“probability”, that the site will be delivered within the supply period2. There
simply needs to be a prospect of delivery within that period, and that prospect
must be realistic.
Land East of Broad Road
46. Outline planning permission has been granted for around 1000 dwellings. The
Council claim 270 dwellings in the 5-year supply. This is the figure shown on an
updated housing questionnaire trajectory pro-forma obtained by the Council
from the master developer which indicates that 270 units will be completed in
the supply period starting in 2023/24.
47. I heard that the Council claimed a supply from this site of 320 dwellings in the
Earls Colne case. The Council says that the Inspector in that case discounted
160 dwellings from the 320 to leave 160 in the supply. However, I have
nothing before me to confirm that the Council were claiming 320 dwellings
previously and the previous appeal decision does not specifically say that the
site could provide 160 dwellings. I have considered the claimed 270 dwellings
based on the information before me.
48. The Council said that it is anticipating a reserved matters application to be
submitted early in 2022 following an ongoing extensive pre-application process.
It also says that the reserved matters application will be determined under a
planning performance agreement. Nevertheless, no reserved matters
application had been submitted by the time of this Inquiry. I note that there is
a Design Code which provides guidance about the reserved matters but this is
a condition of the outline planning permission rather than evidence of progress
with a reserved matters application. A discharge of condition application has
been submitted in respect of phasing but the condition had not yet been
discharged by the time of this Inquiry.
49. The Council also said that the site’s ownership has changed to a “master
developer” from a land agent. I heard during the roundtable discussion that the
master developer’s business model is to put in the infrastructure required for
the housing and then it would be sold to a national housebuilder. I heard that
discussions have been undertaken with the local authority in respect of the
provision of infrastructure but I have no firm indication of when the
infrastructure would be available. Furthermore, although I understand that
negotiations are in progress, no house builder has purchased the site.
50. There is insufficient clear evidence that there is a realistic probability that
housing completions will begin on site within five years and therefore I discount
270 dwellings from the supply.
Towerlands Park
51. The Council has indicated that this site can provide 155 dwellings in the supply.
A reserved matters application has been submitted for 167 dwellings on this
site since the Earls Colne decision and a planning performance agreement is in
place for it to reach a January 2022 planning committee. The site is already
owned by a developer.
52. However, the developer’s pro forma notes a planning obligation limiting
occupations to 50 dwellings until a link road is put in place on an adjacent
2 St Modwen v. Secretary of State for Communities and Local Government [2017] EWCA Civ 1643
development site. It also notes that if the link road is not put in place, it would
be necessary to seek a variation to the obligation to ensure continued delivery
of the site. The link road is not within the control of the developer of the
Towerlands Park site. There is no indication that a variation of the deed would
be agreed by the Council. The link road has not been put in place and I do not
have any firm evidence about when it will be.
53. Whilst it cannot be absolutely certain that the link road will materialise, the site
is owned by a developer, has outline planning permission and reserved matters
have been submitted which are highly likely to be considered imminently at
planning committee. Furthermore, even without the link road, 50 dwellings can
be occupied before it is in place and construction can progress on the
remainder. Taking into account these probabilities, on balance, I consider that
there is clear evidence that the site is deliverable and therefore I include 155-
167 dwellings in the supply.
Conclusion on HLS
54. The Council claims 5,688 units against a target of 5,352 resulting in the
claimed supply being 5.27 years. Although I have discounted 270 of the
claimed supply, there would still be in excess of the 5,352 requirement.
Therefore, the Council can demonstrate an up-to-date housing land supply. In
assessing this matter, I have based my conclusions upon the balance of the
evidence put to me in reference to the above sites.
Other Matters
55. The appellant has submitted a unilateral undertaking which makes several
provisions. Some are to make the development acceptable and others can be
considered benefits of the scheme. I consider the benefits of the scheme would
be the provision of 40% affordable housing and a community park. The
Council’s affordable housing trajectory is tight and so I give the provision of
affordable housing significant weight. I have already given the provision of the
community park moderate weight. The remainder of the provisions in the
S.106 agreements pertain to make the development acceptable. However, it is
not necessary for me to look at them in detail, given that I have found the
proposal is unacceptable for other reasons.
56. There would also be other benefits to the scheme. There would be economic
benefits arising from the construction of the development and from the people
using the local services in Black Notley. I give the economic benefits moderate
weight.
57. I give the provision of the market housing significant weight but I give very
limited weight to the offer accepting a condition which would impose a shorter
reserved matters and implementation condition as there is no possibility to
extend compliance with such conditions3 I have no evidence from any future
developer that it would be happy with such a condition and if the permission
lapsed, it would end up taking even longer to get the development
commenced.
58. Paragraph 174(d) NPPF requires that development delivers net gains in
biodiversity. The Environment Act 2021 will require that 10% be delivered
3 s.73(5) Town and Country Planning Act 1990
when it comes into force. I attach limited weight to a projected 10% net gain
especially as the full details would be subject to further approval.
59. I give minimal weight to landscaping and design as I have found an overall
harm to the character and appearance of the area and good design and
landscaping is an expectation of the planning system.
60. The improvements to the footway between Braintree and Black Notley would
not significantly change the desirability of the route, as the main detractors are
the narrow width of pavements alongside the main road traffic. Nevertheless,
there would be some improvement to limited parts of the route. I therefore
give the improvements moderate weight.
Planning Balance and Conclusion
61. I have found no harm in respect of accessibility and open space. However, I
have found harm to the character and appearance of the countryside. In this
respect I have found conflict with several development plan policies.
62. I have found that the Council can demonstrate a five-year HLS and thus
footnote 8 of the Framework is not engaged. However, whilst the appellant
accepts that there is conflict with Policies BDLPR RLP 2 and CS Policy CS 5,
which is reliant on RLP 2, it was argued that these are out of date because the
town and village boundaries drawn up in relation to CS 5 and RLP 2 were
predicated upon much earlier levels of housing need, dating back to the 2001
Essex and Southend-on-Sea Replacement Structure Plan and conceived many
years prior to the publication of the original 2012 Framework. The settlement
boundary established through RLP 2 was based upon a housing requirement of
10,300 over 15 years or 687 dwellings per annum (dpa). The current adopted
housing requirement is now 5,352 over 5 years, or 1070 dpa which is a
considerably higher requirement. The Council did not dispute that, in
appropriate circumstances, it grants consents outside of settlement boundaries
in order to maintain supply4. Therefore, I consider that the development
boundaries and RLP 2 and CS 5 are out of date as they have been overtaken by
the specific event of the increase in the District’s housing requirement.
Consequently, these policies are out of date.
63. The appellant argued that CS Policy CS 5 has a further reason for being out of
date. This policy indicates that outside town development boundaries and
village envelopes, development will be strictly controlled to uses appropriate to
the countryside in order to protect and enhance the landscape character and
amenity of the countryside. The Framework does not give blanket protection to
the countryside and the appellant relied on the Telford and Wrekin case5 and a
previous appeal decision at Steeple Bumpstead6 in this respect. I agree that the
framework does not give blanket protection to the countryside and this
provides an additional reason for Policy CS 5 to be out of date.
64. The appellant argued that Policy CS 8 of the Core Strategy should also be
considered out of date because of a requirement to enhance the landscape
character. It indicates, amongst other matters, that development proposals
should ensure the protection and enhancement of the natural environment. It
also indicates that development must have regard to the character of the
4 For example, LPA Ref 20/01264/OUT
5 Telford and Wrekin v SSCLG and Gladman Developments Ltd [2016] EWHC 3073 (Admin)
6 APP/Z1510/W/20/3255805
landscape and its sensitivity to change and where development is permitted, it
will need to enhance the locally distinctive character of the landscape in
accordance with the landscape Character Assessment. It says that Landscape
Character Areas (LCAs) will be defined in the Site Allocations Development Plan
Document (DPD) and further guidance will be set out in a supplementary
planning document (SPD). There is no adopted site allocation DPD or SPD and
the LCAs have not been adopted as policy. Nevertheless, the LCAs are a
material consideration before me.
65. Paragraph 8c of the Framework confirms that achieving sustainable
development includes the environmental objective to protect and enhance our
natural environment. Paragraph 20d) also refers to the conservation and
enhancement of the natural environment. Paragraph 174 also says that
“…decisions should contribute to and enhance the natural and local
environment by … (b) recognising the intrinsic character and beauty of the
countryside…”. Whilst I acknowledge the finding of the Inspector in the Rayne
Road appeal,7 I find no conflict with the Framework in this respect. In any
event, the Council’s objection is focussed on whether the landscape would be
protected rather than enhanced.
66. I find BDLPR Policy RLP 2 and CS Policy CS 5 to be out of date but they pertain
to protect the countryside/landscape character and this is not irrelevant.
Nevertheless, they still chime with the environmental objective in the
Framework at paragraph 8c) and with the need set out at paragraph 170b) to
recognise the intrinsic character and beauty of the countryside. To that extent,
I afford any conflict with those policies some, albeit limited weight. I have also
found conflict with BDLPR RLP 80 and 86, CS Policy CS 8 and Policy SP3 of the
North Essex Authorities’ Shared Strategic Section 1 Plan. Taken together,
including the out-of-date policies, these policies are the basket of most
important policies for determining the appeal. The two that are out of date do
not make the basket as a whole out of date. Therefore paragraph 11(d) of the
Framework does not apply and the so-called tilted balance is not engaged.
67. Whilst there are some benefits to the scheme, including the substantial benefits
of providing market housing and affordable housing, these do not outweigh the
very significant harm to the character and appearance of the countryside and
the setting of the settlement, especially when I have found that the Council can
demonstrate an up-to-date housing land supply. The proposal therefore
conflicts with the development plan as a whole and does not represent
sustainable development, binging it into conflict with Policy SP1 of the North
Essex Authorities Shared Strategic Section 1 Plan and the Framework.
68. Even if I had agreed with the appellant that there was a 4.96 year HLS and
paragraph 11(d) of the Framework were engaged, the degree of shortfall would
be minimal and the adverse impacts of granting planning permission would
significantly and demonstrably outweigh the benefits, when assessed against
the policies in the Framework taken as a whole.
7 APP/Z1510/W/20/3265895
69. I therefore conclude that the appeal should be dismissed.
Siobhan Watson
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
Phillip Robson of Counsel, Kings Chambers
Called:
Stuart Carvel MTCP(Hons) MRTPI
Gary Holliday BA(Hons) MPhil, CMLI of FPCR
FOR THE LOCAL PLANNING AUTHORITY:
Dr Ashley Bowes QC, Cornerstone Barristers
Called:
Bobby Browne BSc(Hons), CMLI
Chris Tivey BSc(Hons), BPI, MRTPI
Transport Roundtable
For the Council:
Chris Tivey BSc(Hons), BPI, MRTPI
Neil Jones, Principal Planning Officer
For the appellant:
Stuart Carvell MTCP(Hons) MRTPI
Ian Cronshaw, Ashley Helm.
Housing Land Supply Roundtable
For the Council:
Kathryn Carpenter BA (Hons) Dip EP
Neil Jones, Principal Planning Officer
For the appellant:
Stuart Carvell MTCP(Hons) MRTPI
DOCUMENTS SUBMITTED AT THE INQUIRY
ID 1 – Appellant’s opening statement
ID 2 – Council’s opening statement
ID 3 – APP/E2001/W/18/3207411
ID 4 – APP/K1935/W/20/3255692
ID 5 – APP/Q3115/W/21/3272377
ID 6 – L & Q Estates Document
ID7 – Start to Finish Second Edition, Lichfields
ID8 – HDT Results
ID9 – Council’s closing statement
ID10 – Appellant’s closing statement