Case Reference: 3292721

Appeal Decision
Inquiry held on 5 – 8 July 2022
Site visits made on 5, 6 and 7 July 2022
by H Porter BA(Hons) MSc Dip IHBC
an Inspector appointed by the Secretary of State
Decision date: 25th August 2022
Appeal Ref: APP/Y1110/W/22/3292721
Land off Spruce Close, Exeter, EX4 9DR
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT]. against the decision of
Exeter City Council.
• The application Ref 20/0538/OUT, dated 22 May 2020, was refused by notice dated
12 October 2021.
• The development proposed is for up to 93 residential dwellings (approval sought for
details of access only, with scale, layout, appearance and landscaping all reserved for
future consideration).
Decision
1. The appeal is allowed and planning permission is granted for up to 93
residential dwellings (approval sought for details of access only, with scale,
layout, appearance and landscaping all reserved for future consideration) at
Land off Spruce Close, Exeter, EX4 9DR in accordance with the terms of the
application, Ref 20/0538/OUT, dated 22 May 2020, subject to the conditions
set out in the schedule at the end of this decision.
Application for costs
2. An application for costs was made by [APPELLANT]. against
Exeter City Council. This application will be the subject of a separate decision.
Preliminary Matters
3. Exeter Greenspace Group (EGG) sought and was granted Rule 6 status under
the Inquiry Procedure rules. In addition to a general planning Statement of
Common Ground (SoCG), a Transportation and Highway SoCG; Housing Land
Supply SoCG; and Character and Appearance SoCG were agreed by the
Appellant and Council; a further SoCG was agreed between the Appellant and
EGG. The Inquiry sat for four days between 5 and 8 July 2022. I undertook
unaccompanied site visits at the end of the first and second sitting days and an
accompanied site visit before the end of the third. Documents that were
submitted during the Inquiry are listed at Annex 2 (referred to as ID1, ID2
etc).
4. A certified Planning Obligation by Unilateral Undertaking dated 25 July 2022
(UU) and a Planning Obligation by Agreement dated 25 July 2022 (S106
Agreement), made pursuant to S106 of the Town and Country Planning Act
1990 (as amended), were submitted after the Inquiry had closed and in
accordance with agreed timescales. The UU contains various planning
obligations securing provision of affordable housing; the management and
maintenance of the New Valley Park and formal and informal Open Space
including a local area of play (LAP) and local equipped area of play (LEAP);
sustainable urban drainage systems; and a Travel Plan. It also secures financial
contributions for GP surgeries; secondary education provision; implementing
Traffic Regulation Orders (TROs) and a Travel Plan; the Valley Park; E4 Cycle
Route Phase 4; upgrading facilities at local multi-use games areas (MUGAs);
and Royal Devon University Healthcare NHS Foundation Trust (NHS Foundation
Trust) healthcare services. The S106 Agreement secures a financial
contribution for the creation and maintenance of a landscape buffer along the
proposed access route on land owned by the Council.
5. The extent to which the provisions within the UU and S106 Agreement meet
the tests set out in the National Planning Policy Framework (the Framework)
and Regulations 122 of the Community Infrastructure Regulations 2010 (as
amended), and the weight I attach to any necessary provisions they contain,
are dealt with later in this decision.
6. The outline application was submitted with all matters reserved except for
access. Notwithstanding the need for reserved matters approvals, it was
confirmed at the Inquiry that the Land Use Parameter Plan, Density Parameter
Plan, Scale Parameter Plan, Access and Movement Parameter Plan, Open Space
Parameter Plan, and Landscape Strategy Parameter Plan have been submitted
for approval at the outline stage. I have considered the appeal on this basis
and on the basis that up to 93 dwellings could be provided.
Background and Main Issues
7. The development plan comprises saved policies from the Exeter Local Plan First
Review, 2005 (ELP) and the Exeter City Council Core Strategy, 2012 (CS). The
Council’s single reason for refusing to grant outline planning permission cites
conflict with its spatial approach and ELP Policy H1 and CS Policy CP16, through
development on an area identified for protection1. The Appellant and Council
are in agreement that: there would be no actual harm in respect of landscape;
that the site is in a sustainable location; and that the proposals meet the
Council’s policy requirements for the provision of open space2. Nevertheless,
EGG has submitted evidence and maintains harm in respect of these matters.
8. With all this in mind, I consider the Main Issues in this appeal to be:
• Whether the appeal site offers an appropriate location for the proposed
development, having regard to the development plan and whether services
and facilities could be accessed by sustainable modes;
• The effect of the proposed development on the character and local
distinctiveness of the area, including Exeter’s ‘Landscape Setting’; and
• Whether loss of open space would be replaced by equivalent or better
provision.
1 CD-DD8
2 CD-ID4 paras 6.9, 6.16, 6.17
Reasons
9. Comprised of two fields laid to semi-improved grassland, the site has a
developed edge to the west (Celia Crescent) and south (Spruce Close); an area
of open space (Juniper Green) lies just beyond the site’s southern boundary. In
addition to the two fields within the appeal site’s ‘red line’ boundary (Fields 1
and 2), three further sloping fields with mature tree and hedgerow boundaries
(Fields 3, 4 and 5) extend beyond it and are within the ‘blue line’ boundary.
Collectively these fields form part of the rolling open countryside that unfolds at
the northern outskirts of Exeter, within the ‘hills to the north and northwest’
that are designated ‘Landscape Setting’3.
10. The appeal scheme proposes the development of up to 93 residential dwellings
and associated infrastructure, as well as formal and informal open space within
the appeal site. One vehicular access point is proposed from the south, via a
new road through Juniper Green and a realignment to Spruce Close. A second
would be at the site’s western boundary where an extant field entrance opens
on to a short road fronted by garages leading to Celia Crescent. Although part
of the ‘blue line’ boundary area carries Valley Park status, it is not publicly
accessible. The appeal proposal would also involve the designation of Fields 3,
4 and 5 as New Valley Park and allow formal public access to it.
Policy principle of the location
11. The appeal site is undeveloped agricultural land and adjacent to but outside the
20th century residential suburb of Beacon Heath and outside the city’s urban
boundary. It is neither previously developed nor brownfield land and is not
covered by any strategic allocation for housing.
12. Saved Policy LS1 of the ELP concerns development within Exeter’s Landscape
Setting and lists a limited number of development types4. None of these
include housing development on greenfield land that lies within the hills to the
north and northwest. Purely as a matter of straight-forward policy reading,
there is clearly a conflict between the appeal proposal and this aspect of saved
Policy LS1. However, the Council does not rely on saved Policy LS1 within its
reasons for refusal and it is common ground that it is inconsistent with the
Framework and should carry very little weight.
13. Saved Policy H1 of the ELP establishes a search sequence by which the Council
identifies locational priorities, with development on greenfield land through
urban extensions within public transport corridors the last in that sequence5.
The explanatory text makes clear that potential sites have been assessed
against criteria set out in PPG3, which has long-since been superseded.
Criterion (iii) of saved Policy H1 refers to housing development on greenfield
land through ‘sustainable urban extensions within public transport corridors’,
which are not referenced in the Framework.
14. While there is no definition of either within the ELP, and the wording differs
with the Framework, insofar as saved Policy H1 is prioritising development on
previously developed land first and lastly on greenfield land last, but where
reliance on accessibility to jobs and services by means other than by car exists,
it broadly aligns with the Framework. Saved Policy H1 does not require an
3 CD-DP9
4 CD-DP5
5 CD-DP5
applicant undertake a sequential test, nor does it preclude development on
greenfield land per se. Rather, my reading of saved Policy H1 is that housing
development on green fields is least preferable and only acceptable where
extending an existing urban area that is in a sustainable location, through
being well served by public transport.
15. The appeal site is situated a little over 2.5 miles from central Exeter and
immediately adjacent to the existing urban area of Beacon Heath, which is
predominantly residential and where the local topography is steep. The
Appellant’s Design and Access Statement (DAS) indicates there are various
local facilities and services within walking distance of the appeal site6, although
EGG contend that the assessment of the site’s separation and connectivity fails
to reflect the ‘facts on the ground’ accurately.
16. To get a sense of the site’s locational circumstances, I followed two suggested
routes, recording times to reach various services and facilities on the way. One
journey took me from the Celia Crescent site access, past the Spar store on
Beacon Lane, to the entrance of Morrisons supermarket, and back. I also
walked from the Spruce Close/Juniper Green access, crossing Beacon Lane to
walk along Summer Lane as far as the entrance to Exeter Arena, and back.
17. In certain parts, the gradients along the routes from the appeal site are in
excess of the 5% figure recommended in Manual for Streets and the hilly
characteristics of the Beacon Heath surroundings do not fit with guidance for
‘walkable neighbourhoods’. Personally, I found the distances, steepness and
walking environs experience to be manageable, resulting in recorded timings
fairly similar to those put forward by the Appellant. I accept, however, there
are many factors that could influence different timings, impede or disincentivise
‘active travel’, particularly for those less mobile, carrying heavy shopping,
accompanied by very small children, or walking or cycling during inclement
weather.
18. That said, the area is also served by a local bus service (F1), which stops a
short walk from the appeal site’s proposed western access. A little further
downhill along Beacon Lane are additional bus services with sheltered stops,
travelling westwards towards the city centre, and eastwards, to Pinhoe train
station, which has onward connections to Exeter St David’s.
19. It has been put to me that few local residents currently use the bus service. On
the other hand, EGG’s evidence indicates 35% of those surveyed do use the
bus, despite finding it expensive, irregular, and unreliable for onward
connections7. The appeal scheme proposes to loop the F1 service directly
through the site, providing an extension within the existing street network8.
Consequently, not only would the appeal site be close to existing bus stops, but
the public transport route would also run directly through it. There is no reason
to doubt that, as the EGG survey confirms, at least some future residents of
the proposed development would choose to utilise the extended bus service. It
is also evident that the looping of the F1 service through the site would
improve the choice, operating conditions, and availability of sustainable travel
more widely.
6 CD-PA4
7 CD-GB1 para 1.4.3
8 CD-ID3 para 2.2.1
20. I consider that the location of the appeal site affords a genuine choice of
sustainable ways to access services and facilities. Even if such choices might
involve limitations, the proposed development would ensure safe and suitable
access to services and facilities by a range of transport modes. Therefore, the
appeal proposal would be a sustainable urban extension of Beacon Heath in an
area well-served by public transport, thereby offering choice of travel modes
other than just the private car and is therefore in a sustainable location.
Drawing all of this together, I do not find the appeal proposal would conflict
with saved Policy H1 of the ELP.
Landscape setting, character and local distinctiveness
21. Saved Policy LS1 seeks to avoid development that would harm Exeter’s
Landscape Setting, requiring proposals maintain local distinctiveness and
character. The Council’s reason for refusal relies not on saved Policy LS1 but
CS Policy CP16, which likewise seeks, amongst other things, to ensure that the
character and local distinctiveness of the hills to the north and northwest will
be protected. This Policy aligns with the Framework, notably paragraph 174,
which requires decisions contribute to and enhance natural and local
environment by, amongst other things, protecting and enhancing valued
landscapes and recognising the intrinsic character and beauty of the
countryside.
22. For the purposes of the Exeter Fringes Landscape Sensitivity and Capacity
Study, 2007 (LSCS) 9, the appeal site straddles the southern corners of Zones 4
and 6, which cover much larger swathes of land, each assessed as having high
landscape sensitivity. The capacity for housing in Zone 4 is low, indicating it is
unable to accommodate development without significant adverse effects. Zone
6 has a medium-low capacity, with development accommodated only in limited
situations. The LSCS provides a valuable, broad-brush, starting point by which
to judge the sensitivity and capacity of Zones for housing. However, while the
characteristics of the landscape described within the LSCS Zones have not
obviously changed since its writing, it does not preclude development per se,
nor establish degrees of sensitivity or capacity for housing at a site-specific
level.
23. The Appellant’s Landscape and Visual Impact Assessment10 (LVIA) has been
subject to review by the Council’s officers, and subsequently updated and
reviewed by an independent chartered landscape architect11. These
assessments align with my own observations of the appeal site and its context.
Indeed, I saw that the green and undeveloped nature of the appeal site fits in
with the network of undulating fields, interspersed with woodland and mature
vegetation, that characterise the wider rural landscape. Views to the site, and
more apparently Fields 3, 4 and 5, are gained from various vantages, including
country lanes, highways, residential developments, and other areas designated
as Valley Park further afield.
24. Even where the green and undeveloped nature of the appeal site is perceptible
from nearby and longer distances, it is read in the context of the extant urban
fringe and the transition of the settlement edge into the open countryside. The
appeal scheme would occupy the land that slopes alongside the settlement
9 CD-SPD14
10 CD-PA9
11 CD-DD7
edge, where development already exists on two sides of the site, and where
the local topography and mature vegetation offer relative containment. As the
ground level rises beyond the upper part of the appeal site, above the 115m
AOD contour, the change from the urban fringe becomes more evident. In my
judgement, the value and sensitivity of this part of the Landscape Setting
increase as the City’s green landscape backcloth becomes more obvious,
beyond the 115m contour and into Fields 3, 4 and 5.
25. At this stage there are various Parameters Plans for approval, which would
contain the developable area to below the apex of the urban fringe and the
115m AOD contour. Building in the upper portion of that developable area
would be lower density, detached, and not higher than 9.5m. A landscape
‘buffer’ would be retained, and stretches of undeveloped green space, and
existing mature tree and hedgerow planting supplemented. Jointly, the
proposals would concentrate development on parts of the appeal site that are
already influenced by built form and would retain and supplement natural
boundaries and a landscape ‘buffer’.
26. In my judgement, all of this, plus the detail that would come through reserved
matters, would ensure the development would not appear as piecemeal but
relative to the urban fringe, low on the hillside, and well contained and
softened by mature vegetation. Additionally, the sensitive and visually
prominent tracts of open land within Fields 3, 4 and 5 would now be secured as
New Valley Park12 in perpetuity, preventing their future development.
27. And yet, the development of up to 93 dwellings and associated infrastructure
would inescapably cause an urban intrusion onto the appeal site, weakening its
open, verdant and undeveloped character. There are factors that would
mitigate the impact of the development, facilitating a successful assimilation in
views from further afield, and increasingly so over the years. Inevitably,
however, the scheme would push the city’s urban fringe into the open
countryside that is part of Exeter’s Landscape Setting. The urban intrusion onto
the appeal site would be unmistakable from nearby, as for example residential
dwellings, Juniper Green, and Fields 3, 4 and 5.
28. I note the findings of the independent landscape architect in respect of CP16,
and the Council’s endorsement of that assessment. However, even if extremely
localised and affecting a very small proportion of the area identified for
protection, for the forgoing reasons I find some harm to the character and local
distinctiveness of the hills to the north and north west would arise. I judge
there would be conflict with CS Policy CP16 as a consequence. While not relied
on by the Council, conflict with the spatial element of saved Policy LS1 also
arises. Such policy conflicts must be considered against consistency with the
Framework and other material considerations.
Open Space
29. Juniper Green lies immediately to the south of the appeal site and is designated
an Open Space within the ELP Proposals Map. Saved Policy L3 of the ELP only
permits development on open space in certain circumstances, including when
the loss of open space is outweighed by its replacement in the area by open
space of at least equivalent recreational, community, ecological or amenity
value (including, in particular, the provision and enhancement of equipped play
12 CD-PA22, CD-PA23, CD-PA24, CD-PA26
space). Similarly, paragraph 99 of the Framework seeks to ensure the loss [of
existing open space] resulting from the proposed development would be
replaced by equivalent or better provision in terms of quantity and quality in a
suitable location13.
30. The latest design iteration has sought to reduce the impact of the site’s
southern access road on Juniper Green, realigning it further to the north-east
away from the widest portion of the open space. Nevertheless, the road itself
would bisect the currently uninterrupted and undeveloped Juniper Green,
causing a quantitative loss of that open space. Moreover, the introduction of a
vehicular route through the space would change the way it is currently enjoyed
by residents, including necessitating extra vigilance for playing children and
dog walkers, thereby having a qualitative as well as quantitative impact.
However, the proposals would provide informal open spaces within the appeal
site, including at its southern edge immediately adjacent to Juniper Green that
would more than make up for the quantitative loss at Juniper Green due to the
access road.
31. I accept the point that the additional open space within the site would be
bisected by the new road. I also recognise that the proposals would change the
nature of Juniper Green and the way the space is used by some residents. And
it would be reasonable to expect existing users of Juniper Green to take some
time to adapt to the new open space. However, I consider the proposals will
ensure a large area of open space with separation from the road and passing
vehicles and a logical physical linkage between Juniper Green and the
compensatory open space. Furthermore, while landscaping is a reserved
matter, the S106 Agreement would secure additional landscaping along the
proposed new access road that, in my judgement, would reduce its visual
impact and create a natural barrier to influence play and activities away from
it.
32. Saved Policy L3 supports proposals, such as in this appeal scheme, which
would include provision of equipped play space. The proposal would enable
existing residents to access the proposed LAP and LEAP. Although it has been
used by some residents for their recreation and enjoyment, the appeal site is
private land with no formal rights of way across it and is not public open space.
I do not consider that those currently using Juniper Green would be either
unwilling or unable to use the open spaces within the appeal site. Even if they
were, the open space provision at Juniper Green, with the supplementary space
to the south of the appeal site, would be equal in a qualitative, as well as
quantitative, sense to the existing provision. The appeal scheme would also
offer enhanced access to open space provision for residents who live further up
the hill and would enter off Celia Crescent. I therefore see no conflict between
the proposals and saved Policy L3 of the ELP, nor paragraph 99 of the
Framework.
Housing Land Supply (HLS) and The Planning Balance
33. The proposal would not be in accordance with the development plan’s location
aspect of Saved Policy LS1 insofar as it seeks to avoid housing development
within Exeter’s Landscape Setting. However, this policy is not up-to-date and
carries very little weight. Even if the proposed development would not be in
accordance with the development plan, a significant material consideration is
13 Framework para 99 b)
the Framework’s presumption in favour of sustainable development. The
Council is unable to demonstrate a 5-yr supply of housing land. While the
extent of the shortfall does not affect the operation of footnote 814 and the HLS
agreed matters, a sizable gulf exists between the Council and Appellant’s
respective shortfall positions. The Council contends its HLS is 4.69 years, a
shortfall of 213 homes; the Appellant, however, argues HLS is just 3.17
years15.
34. A number of disputed sites were discussed at the Inquiry, including sites with
planning permission, where the onus is on the Appellant to provide clear
evidence that homes will not be delivered within five years (Category A sites),
as well as various sites with outline planning permission, where the onus is on
the Council to provide clear evidence that housing completions will begin on
site within five years (Category B sites). Additionally, two sites for ‘co-living’
units were discussed. I turn to these first.
Co-living sites
35. Ostensibly, co-living is a relatively new development model and a sui-generis
use. Anecdotally, large metropolitan cities such as Manchester and Liverpool
count co-living units on a one-for-one basis. However, there is no apparent
national or local policy guidance, nor obvious local authority consensus on how
co-living units should be counted in HLS figures.
36. The Harlequin Centre and the Ambulance Station are co-living developments in
which co-living studios (271 and 133 respectively) have been counted towards
the Council’s HLS on a one-to-one basis. 107 bed-spaces in cluster flats at the
Harlequin Centre are counted as 59 dwellings. Owing to the short-term nature
of the accommodation they offer, the Appellant contends all dwellings from
these sites should be discounted from the Council’s supply; a reduction of 463.
An alternative position is that a 1.8 ratio be applied to the co-living studios.
37. My impression is that the co-living studios at the Harlequin Centre and
Ambulance Station would comprise small private living spaces with their own
front door, kitchen and bathroom. Taking them to be similar to the co-living
examples provided, the studio units would be supplemented with shared and
fully equipped social and living areas16. It seems to me that the co-living
studios at the Harlequin Centre and the Ambulance Station would provide
smaller individual living quarters and less autonomy than more standard rented
accommodation.
38. To my mind, the co-living offer could attract a range of persons beyond
students, and for tenancy rates longer than three months. I therefore do not
consider they warrant wholesale deduction from HLS figures. Yet, even if future
occupiers were liable to pay Council Tax, the specific nature of the
accommodation type makes co-living studios, unlike standard rented studio
apartments, more akin to other communal living accommodation, such as
provided by a House in Multiple Occupation (HMO). On this basis, it seems
logical and reasonable that a similar ratio be applied. By my calculation, this
equates to a reduction by 120 units at the Harlequin Centre and 59 at the
Ambulance Station.
14 That the policies which are most important for determining the application should be considered as out-of-date
15 CD-R1 p. 7
16 CD-R3 Appendix E pp. 21 - 25
Category B sites
39. The Planning Practice Guidance (PPG) gives examples of what evidence may
demonstrate deliverability. The PPG is also clear that this should be done using
the latest available evidence. The Council’s approach has been to rely on
responses to a standard pro-forma. The exercise may not be intended to obtain
‘cast-iron certainty, but to take a realistic view’17 and I accept the ‘draft’
watermark may be an error. However, more crucially, where pro-formas are
undated, it casts doubt over whether the information is up-to-date. In the
absence of a clear indication of who completed the form or their relationship to
the development, I find the pro-formas deficient as evidence of a written
agreement between Council and site developer confirming delivery intentions
and timescales.
40. Land east of Cumberland Way gained outline consent for 80 dwellings. The site
has been sold to a housing association and the Council has recently received a
reserved matters pre-application and held a meeting. However, the Council had
been assured that a reserved matters application would be submitted in 2022
and, by the time of the Inquiry mid-way through that year, one had not been
submitted. Nor, as far as I understand, have pre-commencement or other
conditions attached to the outline permission been discharged. This site may be
similar to other greenfield developments where housing schemes have been
delivered successfully, but the evidence available to me falls short of the
requisite ‘clear evidence’ established in the PPG. Thus those 80 dwellings
should be removed from the HLS figures.
41. A similar scenario applies at Land at Redhills, where no reserved applications
have been made, no developer identified, and no written agreement exists
between them and the Council. Indeed, the Council was unable to gain any
response to its pro-forma. I do not agree that a Statement of Case for an
appeal satisfies the test of clear evidence. Thus the 62 dwellings counted
towards the Council’s HLS should be deducted.
42. Although a reserved matters application for the site at Aldens Farm West was
submitted in early 2022, there are outstanding objections, including in respect
of flood risk and drainage. The Council suggested amended plans were
expected to resolve these issues, but none were in at the time of the Inquiry
and, once submitted, would be subject to consultation. I understand none of
the pre-commencement or other conditions attached to the outline consent
have been discharged. All of this, plus the absence of a written agreement with
the developer, casts doubt over whether there is a realistic prospect that
housing will be delivered on the site within five years. On this basis, I agree
with the appellant that 96 dwellings be removed from the HLS figures.
43. Phase 2 at the Old Coal Yard site is yet to have reserved matters application
approval, and timescales given by an agent in September 2021 are out of date.
There is no written agreement between the Council and the developer, and
while the site could be developed rapidly if modular homes were to be built, but
I have seen no evidence of this. Phase 3 is subject to a full planning application
for 89 dwellings, to be decided under delegated powers. However, at the time
of the Inquiry, no planning officer report nor completed S106 agreement was
available to support the Council’s indication that there is an officer’s resolution
to grant permission, and the Appellant indicates the proposal is subject to
17 ID18 para 12
objection. I therefore find the Council’s evidence does not reach the high bar of
‘clear evidence’ and so the 62 dwellings for each phase (124 in total) should
not be counted.
44. The tilted balance is already in play, and the land supply circumstances before
me are not comparable to those when the Pennsylvania Road Appeal18 was
decided. I am also not required to pinpoint a precise HLS figure. But, even if I
were to accept the Council’s position in respect of the 57 dwellings at
Bricknell’s Bungalow as well as all 376 Category A dwellings, it pushes the
Appellant’s figure up by some 433 dwellings but the Council’s down by at least
541. Crucially, the above indicates that the shortfall is not as ‘modest’ as
purported by the Council, but materially worse.
Planning balance
45. The Council’s HLS position confirms that relevant policies for determination
should be considered out-of-date in accordance with paragraph 11d) and
footnote 8 of the Framework. I have noted conflict with the spatial element of
saved Policy LS1, and localised harm to character and local distinctiveness
would be contrary to CS Policy CP16. In light of this, I must consider the
weight attributed to these conflicts and against material considerations,
including the presumption in favour of sustainable development in the
Framework.
46. There are key social and economic benefits associated with the provision of up
to 93 dwellings. I attribute significant weight to the delivery of market housing
in the context of a national policy objective to significantly boost the supply of
homes and a less-than-modest HLS shortfall in Exeter, even if it is capable of
being rectified in the short term. The proposal would also provide affordable
dwellings at a full policy-compliant level and with a mix of dwellings that would
contribute to the choice of homes in the City. Given the context of a
demonstrably acute and persistent under-delivery of affordable housing19, the
affordable housing the appeal scheme would realise carries substantial weight
in its favour.
47. The provision of open space within the appeal site would be in mitigation and
necessary to make the proposal acceptable in planning terms. However, the
proposal would also secure Fields 3-5 in their entirety as Valley Park,
formalising public access to them. This is a benefit that carries moderate
weight in the scheme’s favour.
48. In economic terms, jobs and spending would arise during the development’s
construction, and its future residents would contribute to the local economy.
Furthermore, an existing bus service would be extended and enhanced,
offering an improved choice of sustainable modes of travel, not just to future
occupiers of the proposal, but also to existing local residents. This aspect of the
proposal goes above and beyond the provision of opportunities to access a
range of services and facilities by a range of sustainable modes and is a benefit
to which I attribute moderate weight.
49. Highway works would also involve relocating on-street parking from the inside
of a bend. However, as the volume of traffic on the existing road network
would be increased, I attribute very little weight to this specific element of the
18 CD-A14
19 Indicating just 6 affordable homes were provided in Exeter last year
scheme in the balance in its favour. The absence of harm otherwise in respect
of highways or flood risk is a neutral factor that carries no weight either for or
against the proposals. Landscaping, open space provision within the site, and
financial contributions for off-site infrastructure would not carry any weight as
benefits, rather I consider them to be necessary mitigation and neutral in the
overall planning balance.
50. I am acutely aware of the strong opposition to the appeal scheme and have
carefully considered any parallels with the Pennsylvania Road appeal decision20.
However, there are significant differences in terms of my findings on HLS and
the quantum of market and affordable housing being delivered against the
shortfall.
51. I appreciate that the local community and EGG may be dismayed and
frustrated by the outcome of this appeal, especially given their investment of
time and personal effort in presenting evidence to the Inquiry. Ultimately, the
thrust of government policy is to significantly boost the supply of homes and in
this appeal a balance must be struck between the need for housing, the
preservation of undeveloped green fields, the prevailing development plan and
other material considerations. In this light, and notwithstanding development
plan conflict, the adverse impacts of granting planning permission would not be
of such magnitude that they significantly and demonstrably outweigh the
benefits.
UU and S106 Agreement
52.Regulation 122 of the Community Infrastructure Levy (CIL) Regulations 2010
requires that, if planning obligations contained in s106 Agreements and UUs
are to be taken into account in the granting of planning permission, those
obligations must be necessary, directly related, and fairly and reasonably
related in scale and kind to the development in question.
53. The Royal Devon University Healthcare NHS Foundation Trust (NHS Foundation
Trust) has submitted evidence in support of a request for financial contributions
to provide additional healthcare services to meet patient demand in light of
increasingly severe funding and capacity issues. However, the evidence before
me does not indicate the Council agrees in respect of the methodology and
policy support, nor precisely what those contributions will be spent on and how
they will relate to the development specifically, nor that the methodology
avoids the potential lag between consent and occupation. The evidence before
me does not provide sufficient justification that the health care service
contributions meet the Regulation 122 tests. Accordingly, I have afforded no
weight to this element of the UU and take no account of them in the overall
planning balance.
54.Other than in respect of the NHS Foundation Trust contributions, the UU
planning obligations and financial contributions are supported by the CIL
compliance statement21. I am satisfied those obligations would secure 35% of
the proposed dwellings as affordable housing units, 70% of which would be
Social Rented and the remainder Intermediate; provision of open space (LEP
and LEAP) and the Valley Park, their management and maintenance of the
Valley Park; formal and informal Open Space including SUDS; a Travel Plan as
20 CD-A14
21 CD-ID14
necessary to render the proposal acceptable in planning terms. I am also
satisfied that the financial contributions towards youth facilities, GP Surgery,
secondary education, walking and cycling, bus service, travel plan and TRO are
proportional to the scale of the development and justified in terms of mitigating
the potential effects of the development on local services and facilities. I have
taken these into account in reaching my decision.
55. The s106 Agreement would secure £15,000 to enable ECC to create a
‘landscaped buffer’ on land outside that within the appellant’s control along
Juniper Green. I consider such a contribution necessary to ensure suitable
mitigation for loss of open space and creation of a safe and attractive
environment at Juniper Green. The contribution would therefore be
proportionate, directly related, and fairly and reasonably related in scale and
kind to the development in question. I have taken it into account in reaching
my decision.
Other Matters
56. Interested parties have raised concerns relating to additional vehicular
movements, increased pressures on the local road network and parking.
Concerns over the potential impact on living conditions, through loss of privacy
and outlook, have been put to me, as have the potential for a legal covenant to
restrict any development on Juniper Green. Points were also made regarding
wider environmental and biodiversity impacts associated with the provision of
housing on green fields in the context of a global climate crisis.
57. Interested parties have raised additional concerns, including in respect of
highway safety, the practicalities of the new bus route and the impacts on the
highway network and parking; biodiversity and ecological impacts; and harm to
local residents’ living conditions through disturbance and loss of privacy.
However, these matters have been assessed by the Council’s officers, the
Highway Authority, and independent professionals, none of whom have raised
any objection. Consequently, I see no reason to doubt or deviate from their
professional judgement. In the absence of any written evidence, the potential
for a covenant is a matter of conjecture. Even if one did exist, it would be a
legal matter that sits outside of my consideration of the planning merits of the
appeal.
58. Part of the appeal site, notably the vegetation north west of Spruce Close and
to the field to the north west of Celia Crescent, is covered by a local nature
conservation designation, and the latter is also designated as a Valley Park.
The parameters plan shows movement by way of public foot access through
Fields 3, 4 and 5 as part of the New Valley Park. However, it is supposition that
any formal hard-surfaced routes would be created or that they would make any
material harm to Landscape Setting. Rather, the proposals would be
formalising public accessibility to those fields, which I understand has
historically been assumed without express landowner consent.
59. I do not wish to minimize the threat of climate change, including through
unsustainable housing development and the loss of green fields. However, I
have found the appeal site is located where future occupiers would have a
choice of travel by sustainable modes, and there would be improved choice
through the extension of the bus service to existing streets. Additionally, the
detailed energy performance and construction of the proposed dwellings would
be dealt with as part of the reserved matters. Detailed considerations relating
to landscape, layout, scale and appearance will also be considered at the
reserved matters stage. Subject to these, along with the executed legal
agreements and conditions I have imposed, there is no reason to doubt that a
high-quality, safe and sustainable scheme would be delivered. I therefore find
no reason to refuse the development on the basis of these other matters
raised. My decision stems from the planning merits and site-specific
circumstances before me. Allowing this appeal therefore does not offer a
precedent for further housing development at Exeter’s Landscape Setting, nor
would it apply further development pressure on green fields.
Conditions
60. Various suggested conditions were discussed at the Inquiry and subsequently
refined and agreed (with three exceptions) with the Appellant. I have
considered these against the six tests set out in paragraph 55 of the
Framework. In some instances, while I have adopted the suggested conditions,
I have made minor changes to wording to add clarity as appropriate.
61. Conditions setting out the reserved matters details, timescales for their
approval and the commencement of the development, and the list of approved
plans, are all required in the interests of providing planning certainty and
clarity.
62. The appeal site falls within an area identified by Exeter Airport as requiring
assessment of a development proposal to potentially conflict with its
Instrument Flight Procedure (IFP). While the assessment extends beyond just
building heights, matters of landscaping and layout, as well as scale, are part
of the reserved matters. Therefore, the detailed plans that come forward with
the reserved matters will be consulted on, subject to Exeter Airport’s own IFP
as required. I therefore do not find it would be reasonable or necessary to
impose an IFP condition.
63. A condition requiring a written scheme of archaeological investigation is
necessary to identify the site’s archaeological potential and record/publish
results in the interests of the historic environment. Matters of drainage and
contamination are outside the scope of the reserved matters and so conditions
requiring details of surface water drainage and contamination are required in
the interests of managing flood risk and pollution.
64. Conditions requiring a Tree Protection Plan and Arboricultural Method
Statement, as well as details in respect of nesting birds and bat boxes and dark
skies, Ecological Mitigation and Enhancement, as well as a Landscape and
Ecology management Plan are all required in the interests of biodiversity and
ecology. A condition requiring the details of rapid charge electric vehicle
charging points and cycle parking provision, as well as requiring dwellings be
constructed in accordance with Energy Performance Standards, are necessary
in the interests of mitigating climate change and contributing to sustainable
development.
65. The conditions requiring details of a ‘wearing course’, a
vehicle/pedestrian/cycle route, as well as implementation of access
arrangements, link roads and car parking within the site are all required in the
interests of highway safety and the efficient operation of the local highway
network. Safeguarding the living conditions of future residents in respect of air
quality, noise and the disturbance associated with the development, as well as
ensuring waste and pollution arising from the development are appropriately
dealt with justifies the condition for a Construction and Environmental
Management Plan.
Conclusion
66. In view of the absence of a 5-year housing land supply and the engagement of
the ‘tilted balance’, in my judgement, the adverse impacts of granting planning
permission would not significantly and demonstrably outweigh the benefits of
the proposed development.
67. For the reasons given above and having regard to all other matters raised, I
conclude that the appeal should be allowed.
H Porter
INSPECTOR
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY
Ms Kate Olley of Counsel Instructed by Mr Simon Curran LLB
She called:
Mr Simon Curran LLB Service Lead, Legal Services ECC
Ms Katharine Smith Principal Project Manager, Local Plans
Team ECC
Mr Robin Upton MRTPI Director, Tetra Tech Planning
FOR EXETER GREENSPACE GROUP:
Ms Namia Allcock Exeter Greenspace Group
She called:
Reverend Steven Hanna
Dr Gillian Baker
Mr Michael Bennett
FOR THE APPELLANT:
Mr Zack Simons of Counsel Instructed by Dr Thomas Rocke
He called:
Dr Thomas Rocke BA (Hons) PHD BTP Rocke Associates
(DIST) MRTPI
Mr Ben Pycroft BA (Hons) Dip TP MRTPI Emery Planning
Mr James Stacey BA (Hons) Dip TP Tetlow King Planning
MRTPI
Mr Nick Bunn BA (Hons) PG Dip MA CMLI Redbay Design Landscape Consultants
Ms Caroline Waller Clarke Willmott LLP
INTERESTED PARTIES:
Dr Peter Stott, local resident in opposition
Mr Dawkings, local resident in opposition
Annex 1
DOCUMENTS SUBMITTED AT THE INQUIRY
ID1 Appellant Opening Statement
ID2 LPA Opening Statement
ID3 Rule 6 (EGG) Opening Statement
ID4 Mr Dawkins (Interested Party) Summary Statement of Opposition
ID5 Dr Peter Stott (Interested Party) Summary Statement of Opposition
ID6 A3 Hard copies of Appellant Photographic Evidence
ID7 A3 Hard copies of Appendix II Rule 6 Viewpoints Rev A
ID8 Suggested Draft Conditions (Version 1)
ID9 Suggested Draft Conditions (Version 2)
ID10 BSI Biodiversity Code of Practice
ID11 Cover email (Robin Upton) 6.7.22 explaining wording of suggested LEMP
condition 27
ID12 Suggest Draft Conditions (Version 3 – including Rule 6 (EGG) comments)
ID13 Schedule of Drawings for Approval
ID14 Cover email (Tom Rocke) 6.7.22 confirming drawings for which approval is
sought as at suggested condition 3
ID15 Appeal Decision APP/Y1110/W/21/3278148 7 February 2022 (Land at
Redhills, Exwick Lane, Exeter)
ID16 Appellant’s written costs (full) application
ID17 Hard copy Suggested Draft Conditions (Version 3)
ID18 Closing Submissions on Behalf of Exeter City Council
ID19 Council written costs rebuttal
ID20 Rule 6 (EGG) Closing Submissions
ID21 Appellant’s Closing Submissions
Annex 2
SCHEDULE OF CONDITIONS
1) Details of the appearance, landscaping, layout, and scale (hereinafter
called "the reserved matters") shall be submitted to and approved in
writing by the local planning authority before any development takes
place and the development shall be carried out as approved.
2) Application for approval of the reserved matters shall be made to the
local planning authority not later than 3 years from the date of this
permission.
3) The development hereby permitted shall take place not later than 2 years
from the date of approval of the last of the reserved matters to be
approved.
4) The development hereby permitted shall be carried out in accordance
with the following approved plans: Site Location Plan (1000 Rev E);
Parameter Plan Land Use (1150 Rev F); Parameter Plan Density (1151
Rev F); Parameter Plan Scale (1152 Rev F); Parameter Plan Access and
Movement (1153 Rev F); Parameter Plan Open Space Provision (1154
Rev G) Parameter Plan Landscape Strategy (1155 Rev A); Preliminary
Road Design Celia Crescent Access (04268-A-SK110-P4); Spruce Close
Access and Parking (04268- A-SK124-P4 ); Spruce Close Bus Stop
Locations (04268-A-SK125-P4).
5) Concurrent with the submission of the reserved matters, a Lighting
Design Strategy shall have been submitted to and approved in writing by
the Local Planning Authority. The Lighting Design Strategy shall include
the following details:
a) A plan indicting where ‘dark areas’ will be maintained on the
development site;
b) Assessment of light levels arising from the development
(including from building, vehicles, street lighting and any other
external lighting sources)
c) Plans annotated with isolines to show predicted illuminance and
light spill in relation to the ‘dark areas’;
d) Evidence to demonstrate light spillage arising from the
development shall not exceed 0.5lux within ‘dark areas’ and be
maintained in perpetuity.
The development shall be carried out and maintained in accordance with the
Lighting Design Strategy, and thereafter be retained as approved.
6) No demolition/development shall take place within the site until a Written
Scheme of Archaeological Investigation has been submitted to and
approved in writing by the local planning authority. The scheme shall
include an assessment of significance and research questions and:
a) the programme and methodology of site investigation and
recording;
b) the programme for post investigation assessment;
c) the provision to be made for analysis of the site investigation and
recording;
d) the provision to be made for publication and dissemination of the
analysis and records of the site investigation;
e) the provision to be made for archive deposition of the analysis
and records of the site investigation;
f) the nomination of a competent person or persons/organization to
undertake the works set out within the Written Scheme of
Investigation.
7) Concurrent with the submission of the reserved matters, details of
surface water drainage system shall be submitted to and approved in
writing by the local planning authority. The details shall include:
a) a programme of soakaway and groundwater tests that have been
carried out in accordance with BRE 365, and the results
submitted to and approved in writing by the local planning
authority;
b) a detailed drainage design based upon the Flood Risk Assessment
(Land off Spruce Close Exeter 0777 Rev C, 18 June 2021) and
the soakaway and groundwater test submitted in relation to a);
c) a management and maintenance plan for the lifetime of the
development, which shall include the arrangements for adoption
by the relevant public authority or statutory undertaker (South
West Water) and any other arrangements to secure the operation
of the scheme throughout its lifetime;
d) the method employed to delay and control the surface water
discharged from the site and the measures taken to prevent
pollution of the receiving groundwater and/or surface waters;
No dwelling hereby permitted shall be occupied until the works associated
with the surface water drainage system have been implemented in
accordance with the approved details and shall thereafter be managed and
maintained in accordance with those approved details.
8) No development shall take place, including any works of demolition, until
a Construction and Environmental Management Plan (CEMP) has been
submitted to, and approved in writing by the local planning authority. The
CEMP shall provide for:
a) the provision of site accesses haul routes, parking of vehicles for
site operatives and visitors;
b) loading and unloading of plant and materials;
c) storage of plant, materials or other equipment used in
constructing the development;
d) the erection and maintenance of security hoarding;
e) the supply of water for damping down and wheel washing;
f) wheel washing protocols and facilities;
g) a timetable of dust generating activities and details of measures
to control the emission of dust and dirt during construction
(include prohibiting burning of any materials or vegetation on
site);
h) a Waste Audit Statement for recycling/disposing of waste
resulting from demolition and construction works in accordance
with the waste audit template in Devon County Council’s Waste
Management and Infrastructure SPD
i) measures to minimise noise/vibration disturbance to nearby
residents from plant and machinery
j) delivery, site clearance, piling and construction working hours;
k) Detailed proposals for the management of surface water and silt
run-off from the site during construction
l) Air quality monitoring objectives and protocols, including site log
book and procedure by which to notify the Environment and
Safety Services Department of any air quality objectives being
exceeded or other exceptional incidents;
m) the name, role and contact details of the authorised personnel
responsible on site for fulfilling the CEMP including the Air Quality
Monitoring Log Book during the course of construction works
The approved CEMP shall be adhered to throughout the construction period
for the development.
9) No development shall commence until an assessment of the risks posed
by any contamination shall have been submitted to and approved in
writing by the local planning authority. This assessment must be
undertaken by a suitably qualified contaminated land practitioner, in
accordance with British Standard BS 10175: Investigation of potentially
contaminated sites - Code of Practice and the Environment Agency -
Model Procedures for the Management of Land Contamination (CLR 11)
(or equivalent British Standard and Model Procedures if replaced), and
shall assess any contamination on the site, whether or not it originates
on the site.
10) In the event of there being evidence of contamination as the
development proceeds, the development shall cease pending the carrying
out of an investigation of the extent and nature of contamination, the
risks that it poses, together with the preparation of a remediation
strategy, that shall be submitted to and approved in writing by the local
planning authority. The development shall subsequently be carried out in
accordance with the approved details.
11) No site vegetation clearance or works to trees or hedgerows on site shall
take place until a scheme for the protection of trees and hedgerows has
been submitted to an approved in writing by the local planning authority.
The scheme shall include:
a) A Tree Protection Plan showing the position of every tree or
hedgerow on the site and on land adjacent to the site that could
influence or be affected by the development, indicating which
trees are to be removed; any proposed pruning, felling or other
work;
b) An Arboricultural Method Statement in relation to every existing
tree or hedgerow identified to be retained on the plan referred to
in a) above, details of any proposed alterations to existing
ground levels, and of the position of any proposed excavation,
that might affect the root protection area; and, all appropriate
tree or hedgerow protection measures required before and during
the course of development (in accordance with paragraph 5.5
and 6.1 of British Standard BS 5837) (or in an equivalent British
Standard if replaced);
c) A Nesting Bird Method Statement that shall include timetable for
carrying out works to trees outside bird nesting season, protocols
in the event nesting birds are found or suspected during works,
and the name and contact details of a suitably qualified ecologist
overseeing those works.
The vegetation clearance or works to trees or hedgerows shall
subsequently be carried out in accordance with the approved details.
12) The application for approval of landscaping as a reserved matter shall
include the following details:
a) A full specification of all proposed tree and hedgerow planting to
be approved in writing by the local planning authority. The
specification shall include the quantity, size, species, and
positions or density of all trees to be planted, how they will be
planted and protected and the proposed time of planting. The
tree planting shall be carried out in accordance with the approved
specification;
b) Details of soft landscape works shall include planting plans;
written specifications (including cultivation and other operations
associated with plant and grass establishment); schedules of
plants noting species, plant supply sizes and proposed
numbers/densities where appropriate;
c) An Ecological Mitigation and Enhancement Strategy (EMES) for
the operational phase of the development that shall have been
prepared in accordance with BS 42020:2013 (‘Biodiversity –
Code of practice for planning and development’), or any
superseding British Standard, and take into account the
mitigation and enhancement measures in section 5.0 of the
submitted Ecological Impact Assessment.
The EMES and landscaping works shall be implemented as approved.
13) No development shall take place on any phase of the development until a
Landscape and Ecology Implementation and Management Plan (LEMP) for
that phase has been submitted to and approved in writing by the local
planning authority. The LEMP shall include a timetable for implementation
of the landscaping and ecology work and details of the management
regime. The LEMP shall be implemented in accordance with the approved
details.
14) Concurrent with the reserved matters application details of a Standard
Assessment Procedure (SAP) calculation of the dwellings hereby
approved, which demonstrates that a reduction in CO emissions
2
necessary to meet the requirements of Part L of the 2013 or Part L of the
2022 Building Regulations as appropriate. The measures necessary to
achieve the CO emissions saving shall thereafter be implemented on site
2
and within 3 months of completion of any dwelling hereby approved, an
‘as-built’ SAP calculation report from a suitably qualified consultant
submitted to an approved in writing by the local planning authority.
15) Concurrent with the reserved matters application details of provisions for
nesting birds and roosting bats within the development hereby approved
shall be submitted to and approved in writing by the local planning
authority. Those details shall show locations of built-in next/roost sites
across the appeal site and demonstrate a minimum overall average ratio
of 1 built-in next/roost site per dwelling. The provisions for nesting birds
and roosting bats shall be implemented in accordance with the approved
details and maintained thereafter.
The provisions for nesting birds and roosting bats shall subsequently be
carried out in accordance with the approved details and retained
thereafter.
16) Concurrent with the reserved matters application details and specification
of a vehicular/pedestrian/cycle route from Celia Crescent to Spruce
Close/Pinwood Meadow Drive shall have been submitted to and approved
in writing by the local planning authority.
17) Concurrent with the reserved matters application, details, specification
and a timetable for application of the ‘wearing course’ to be applied to
the estate roads and access arrangements as per the Preliminary Road
Design Celia Crescent Access (04268-A-SK110-P4) shall be submitted to
and approved in writing by the local planning authority. The ‘wearing
course’ shall be constructed in accordance with the approved timings and
details and maintained thereafter.
18) Concurrent with the reserved matters application, details of rapid charge
electric vehicle charging points specification within the development
hereby approved shall be submitted to and approved in writing by the
local planning authority. Those details shall show locations of rapid
charge points and demonstrate a provision of 1 per 10 spaces of
unallocated parking and 1 per 10 dwellings with allocated parking
(subject to network capacity). The rapid charge points shall be provided
in accordance with the approved details and maintained (or subsequently
upgraded) thereafter.
19) Concurrent with the reserved matters application, details of cycle parking
provision within the development hereby approved shall be submitted to
and approved in writing by the local planning authority. Those details
shall demonstrate the cycle parking provision satisfies the design and
minimum parking standards guidance set out in the Sustainable
Transport SPD. The cycle parking provision shall be provided in
accordance with the approved details and maintained thereafter.
20) The application for approval of layout as a reserved matter shall include
details of car parking provision within the site. No dwelling hereby
approved shall be occupied until the carparking for the dwelling and
access to it has been provided and made available for use in accordance
with the approved details and maintained thereafter available for the
purpose of carparking.
21) Notwithstanding condition 4, not more than 50 of the dwellings hereby
approved shall be occupied until the access arrangements on Spruce
Close/Pinwood Meadow Drive and link road through Juniper Green open
space as per Spruce Close Access and Parking (04268- A-SK124-P4) shall
have been provided and laid out. The access arrangements and link road
shall be maintained thereafter.
22) Notwithstanding condition 4, not more than 50 of the dwellings hereby
approved shall be occupied until the vehicular/pedestrian/cycle route
from Celia Crescent to Spruce Close/Pinwood Meadow Drive has been
provided and laid out in accordance with the details required by Condition
16 and 17. The vehicular/pedestrian/cycle route shall be maintained
thereafter.


Costs Decision
Inquiry held on 5 – 8 July 2022
Site visits made on 5, 6 and 7 July 2022
by H Porter BA(Hons) MSc Dip IHBC
an Inspector appointed by the Secretary of State
Decision date: 28th September 2022
Appeal Ref: APP/Y1110/W/22/3292721
Land off Spruce Close, Exeter, EX4 9DR
• The application is made under the Town and Country Planning Act 1990, sections
78, 322 and Schedule 6, and the Local Government Act 1972, section 250(5)
• The application is made by [APPELLANT] for a full award of
costs against Exeter City Council
• The Inquiry was in connection with an appeal against the refusal of planning
permission for up to 93 residential dwellings (approval sought for details of
access only, with scale, layout, appearance and landscaping all reserved for
future consideration)
Decision
1. The application for an award of costs is refused.
Preliminary Matter
2. [APPELLANT] (the applicant) made an application for a full
award of costs against Exeter City Council (the Council) in writing before the
Inquiry closed. The Council provided a written rebuttal with its closings, to
which the applicant did not wish to make further representations.
Reasons
3. The Planning Practice Guidance (PPG) advises that costs may be awarded
against a party who has behaved unreasonably and thereby caused the party
applying for costs to incur unnecessary or wasted expense in the appeal
process.
4. The applicant submits that the Council has demonstrated unreasonable
behaviour in substantive terms by pursuing an illogical and inconsistent policy
objection to the proposed development, as well as departing from points of
agreement in a signed Statement of Common Ground (SoCG).
5. The starting point of decision-making is the development plan. It is not
unreasonable for the Council’s Planning Committee to have resolved to
overturn its officer’s recommendation. In so doing, the Council’s decision notice
cites conflict with the development plan’s ‘spatial approach’ and Saved Policy
H11 and Policy CP162, through development on a site that lies in an area
identified for protection.
6. Policy H1 establishes a development hierarchy that puts greenfield land at the
bottom of its search sequence. The policy does not apply a blanket restriction
on development proposals that do not accord with criteria in that sequence.
Nor does it require an applicant undertake a sequential test, as the Council
agreed. Yet, the Council’s decision notice applies Policy H1 in a binary way,
identifying the appeal site’s location as offering an in-principle objection to
development. The case subsequently put by the Council underscored this,
stating that the Planning Committee resolved to go against its officer
recommendation as the site is ‘subject to… policies that protect it from
development’ and that the ‘location of the appeal application does not meet the
Policy H1 sequential approach to development’3.
7. Amongst examples of unreasonable behaviour listed in the PPG is giving vague,
generalised, or inaccurate assertions about a proposal’s impact, which are
unsupported by any objective analysis. As the Inquiry unfolded, I found the
Council’s statements, agreed positions within the SoCGs and subsequent
positions stated under cross-examination, to be somewhat muddled. The
substance of the case it brought to the Inquiry in respect of Policy H1 was
unclear and therefore, in continuing to pursue its objection in respect of Policy
H1 as it did, I find the Council’s behaviour was unreasonable.
8. It will be seen from my appeal decision that I decided to allow the appeal. Even
so, I do not consider the proposal was one that should have clearly been
allowed. Rather, my decision was made after exercising planning judgement
and weighing all matters in the balance. The Exeter Greenspace Group as Rule
6 Party played a significant role in the Inquiry and offered extensive evidence
that dealt with, among other matters, the site’s sustainability (a matter not in
dispute between the Council and the applicant). Having considered the
sustainability of the site and whether it would be well served by public
transport, it will be seen from my appeal decision that I did not find conflict
with Policy H1. Although the costs application is levelled at the Council’s
behaviour, the role of the Rule 6 in the Inquiry means there was a case the
applicant still had to answer.
9. Policy CP16 does not preclude development sites within areas including Exeter’s
‘hills to the north and north west’, wholesale, or as a matter of principle, but
rather it seeks to protect the character and local distinctiveness of those areas.
Notwithstanding that the Council did not bring a case specifically in respect of
landscape harm, it maintained and argued its case on the proposal’s impact on
the site’s character. I agreed that even localised harm would lead to conflict
with Policy CP16. I do not consider the Council’s behaviour was unreasonable in
relation to the substance of its case in respect of CP16. Furthermore, the
Exeter Greenspace Group submitted extensive evidence including in respect of
CP16 and wider landscape harms that the Council was not pursuing.
10. Costs can only be awarded where unreasonable behaviour has caused the
applicant to incur unnecessary or wasted expense in the appeal process. Even
if I were to have concluded that the Council had behaved unreasonably to the
extent claimed by the applicant, the work producing evidence to defend its
case and submitting evidence at the Inquiry was necessary and does not, in my
judgement, represent wasted expense. I therefore find that unreasonable
behaviour resulting in unnecessary or wasted expense, as described in the
Planning Practice Guidance, has not been demonstrated.
H Porter
INSPECTOR