Case Reference: 3296116

Appeal Decision
Inquiry held on 20 to 23 September 2022
Site visit made on 22 September 2022
by O S Woodwards BA(Hons.) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 11 November 2022
Appeal Ref: APP/V1505/W/22/3296116
Land at Maitland Lodge, Southend Road, Billericay CM11 2PT
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for planning permission.
• The appeal is made by [APPELLANT] against Basildon Borough Council.
• The application Ref 21/01687/FULL, is dated 17 November 2021.
• The development proposed is the demolition of Maitland Lodge and the construction of
47 new homes (Class C3) with vehicular access onto Southend Road, together with
associated infrastructure and landscaping works.
Decision
1. The appeal is allowed, and planning permission is granted for the demolition of
Maitland Lodge and the construction of 47 new homes (Class C3) with vehicular
access onto Southend Road, together with associated infrastructure and
landscaping works, in accordance with the terms of the application
Ref 21/01687/FULL, dated 17 November 2021, subject to the conditions at
Annex C of this Decision.
Preliminary Matters
Planning policy
2. The Development Plan for the area includes the Basildon District Local Plan
Saved Policies September 2007 (the LP). The emerging Basildon Borough Local
Plan 2014-2034 was withdrawn in March 2022. Its policies, therefore, have no
weight, although the plan and its evidence base remain material considerations
in the determination of the appeal.
Documents and evidence
3. A number of submissions were received during the inquiry, as set out in Annex
B. I am satisfied that in all cases the material was directly relevant to, and
necessary for, my Decision. All parties were given opportunities to comment as
required and there would be no prejudice to any party from my consideration
of these documents. The appeal is therefore determined on the basis of the
revised and additional documents and drawings.
Putative Reasons for Refusal
4. The proposal was taken to planning committee in June 2022, where the Council
agreed two putative reasons for refusal. The first reason is that the proposal
represents inappropriate development in the Green Belt (GB) and that ‘very
special circumstances’ do not exist. It states that the proposal would cause
substantial harm to openness and that its poor design would exacerbate this
harm and would fail to provide a high quality beautiful place.
5. The second reason is in relation to securing adequate provision for on and off-
site infrastructure, effects on the Essex Coast Recreational Disturbance
Avoidance and Mitigation Strategy (Essex Coast RAMS), and the provision of
affordable housing. Subsequent to the planning committee, a s106 planning
obligation, dated 7 October 2022, has been submitted. It secures:
• a healthcare contribution to expand South Green Surgery;
• an employment and skills contribution to broker job opportunities;
• an open space, culture, play and sports provision contribution;
• a contribution in respect of the Essex Coast RAMS;
• a County Council monitoring fee and a Council monitoring fee;
• a primary education contribution towards primary education facilities within
three miles of the development and/or within Basildon Primary Group 1
(Billericay);
• a secondary education contribution towards secondary education facilities
within three miles of the development and/or within Basildon Secondary
Group 2 (Billericay);
• 16 of the proposed dwellings to be affordable housing, of which 15 would be
affordable rented units at least 20% below local open market rent, and one
would be shared ownership where the purchaser would have an initial equity
share of not less than 25% and not more than 75%;
• an Affordable Housing Scheme, requiring details of the location of the
proposed affordable housing, and a Shared Ownership Marketing Strategy;
• a further five of the dwellings to be First Homes, allocated to first time
buyers at a discount to the market rate of 30%;
• an Employment and Skills Plan;
• a management company to carry out the long term management and
maintenance of the on-site Open Space; and,
• an Open Space Specification and the Management Plan regarding the open
space.
6. The Council and Essex County Council’s joint CIL Compliance Statement sets
out the detailed background and justification for each of the obligations. I am
satisfied that the provisions of the submitted agreement would meet the tests
set out in Regulation 122 of the CIL Regulations 2010 (the CIL Regulations)
and the tests at paragraph 57 of the National Planning Policy Framework (the
Framework), and I have taken them into account. The s106 therefore responds
to these concerns and this putative reason for refusal is not a main issue for
the appeal. I return to matters of weight and detail of the s106 throughout my
Decision as appropriate.
Main Issues
7. The main issues are:
• whether or not the proposal would be inappropriate development in the GB,
including assessment of the effect of the proposal on the openness of the
GB; and,
• the effect of the proposal on the character and appearance of the area, in
particular on landscape character.
Reasons
Green Belt
Inappropriate development
8. The majority of the appeal site lies in the GB. The area of the site outside the
GB is Maitland Lodge and its garden and a thin sliver of land to the north east
corner running along the back of the properties to the west of Southend Road.
It is proposed to construct a number of new buildings within the GB land.
9. The GB land provides equestrian facilities, other buildings or built form and
paddocks directly linked to the equestrian facilities and forming part of the
curtilage of the equestrian buildings. The Framework states that the curtilage
of developed land can be considered as, but is not necessarily, previously
developed land (PDL). In this instance, the functional relationship of the
paddocks to the developed stables and other buildings on the site is clear. The
paddocks themselves include some built form and are a human intervention on
the site. It is also common ground, and I agree, that none of the appeal site is
in agricultural use. The residential garden areas to Maitland Lodge are within
the part of the appeal site that is within the built-up area of Billericay. These
are not, therefore PDL, as defined by the Framework. However, these areas are
outside of the GB. I therefore agree with the appellant and the Council, who
under cross-examination conceded this position, that all of the GB land within
the appeal site is PDL.
10. It is also common ground, and I agree, that the proposal would include
affordable housing that would meet an identified need within the Borough. This
is expanded upon later in this Decision. Paragraph 149 of the Framework states
that new buildings are inappropriate development in the GB, subject to a
number of exceptions. Part g), second bullet point, relates to the
redevelopment of PDL where the proposal would contribute to meeting an
identified affordable housing need, and is therefore relevant to the appeal
proposal. The bullet point states that, in such circumstances, development
would not be ‘inappropriate’ if it would not cause substantial harm to the
openness of the GB. I therefore assess the effect of the proposal on openness
below.
Openness
11. The GB element of the appeal site is within a wider parcel of land in the GB
called ‘Area 25’ as identified in the Basildon Borough Green Belt Topic Paper,
October 2018 (the Topic Paper 2018). The appeal site is a small area of land
within this wider parcel. There is open countryside to the west and the south,
however there is extensive, mature boundary planting to the west, and lesser,
but still significant, boundary planting to the south. The land to the east and
west of the site is already built-up. The site is therefore highly visually
constrained and makes only a limited contribution to the openness of the GB.
This is a view shared by the Topic Paper 2018.
12. The GB element of the appeal site contains a number of buildings and
structures associated with its equestrian and other uses. These are largely
single storey. The proposal would be for 28 buildings, including a mix of houses
and two blocks of flats, at up to three storeys but mostly either two or two and
a half storeys in height. Overall, the proposal would result in an 80% increase
in footprint and a 124% increase in volume of built-form on the GB element of
the appeal site. The level of the proposed increase in built-form would
therefore be relatively significant.
13. The proposed garages would link several of the buildings. The layout would be
relatively dense, there would be runs of rooflines that would be fairly close
together and prominent, and relatively limited landscaping, save for incidental
street trees and an area of open space to the south west corner. These design
detail considerations influence the harm to openness of the proposal but only to
a limited degree, as was accepted by the Council under cross-examination.
14. In addition, the proposal would spread built form across the whole site, rather
than being concentrated to the eastern edge adjacent to the existing housing.
There would also be a significant increase in activity on the site in comparison
to the existing use for equestrian purposes and the gardens of the proposed
dwellings would likely also be the subject of residential paraphernalia once
occupied, further negatively affecting openness on the site.
15. However, the appeal site is largely visually self-contained by the mature
planting to the west and existing development to the north and east. The
southern boundary also has a relatively mature hedgerow but is more open.
The proposed landscaping scheme, including some trees, would lessen this
openness but the proposal would still be more visible from the south through
this boundary than the existing built form. Importantly, though, as viewed from
the south the proposed development would be seen in the context of the
existing housing of Billericay. The existing housing rises slightly up the hill as
viewed from the south and is clearly visible and fairly prominent.
16. Overall, there is relatively significant existing built form and the GB element of
the appeal site is only a small part of a much wider parcel of GB land. The
proposal would result in an increase in built form on the site both in overall
footprint and volume and spread across the site. However, the appeal site is
largely visually self-contained, with existing housing to Billericay to two sides of
the site and the extensive existing and proposed boundary landscaping to the
other two sides. Where the boundary planting would be more open the
proposal would be seen in the context of the existing housing to Billericay. The
harm to openness on the appeal site itself would therefore have limited effect
on the wider GB. Allowing for the slightly greater harm to openness of the
appeal site itself, the overall harm to the openness of the GB would be
moderate.
17. It is important to note that the threshold for the proposal to be considered as
inappropriate development is substantial harm. This is a high bar and the
proposal clearly falls below it. The proposal is therefore ‘not inappropriate’
development in the GB. I do not, therefore, need to further consider issues in
relation to GB development or make a determination on ‘very special
circumstances’.
Character and appearance
18. The Council’s case with regard to character and appearance relates primarily to
the effect of the proposal on landscape character, which I assess in this
section. The Council also raised matters regarding detailed design that fall
outside the above, which I turn to in the Other Matters section later in my
Decision.
Existing
19. The appeal site includes a detached house along the western side of Southend
Road, with the majority of the site lying behind this house. The area behind
comprises a number of buildings and stables and associated hardstanding,
fences and other ancillary development. There are also two grass paddocks
which take up the western and central part of the site. The existing buildings
have an equestrian use character and are single storey apart from Maitland
Lodge. Some buildings are in poor condition and the site has grown organically
with no discernible pattern to the layout.
20. To the east and north of the rear part of the site lies the existing edge of
Billericay, with a mix of houses lining Mill Road, Homefield Close and Southend
Road. The Maitland Lodge house is one of the properties on Southend Road.
The surrounding properties are of a variety of architectural styles, being either
detached or semi-detached houses or bungalows, and there is little to unify the
architectural character. It is a typical, unremarkable, suburb. To the south and
west are fields with mostly open countryside beyond. The site sits within
Landscape Character Area 121, defined as an area of sloping farmland.
However, it is only a small part of this wider area, which includes the extensive
open farmland surrounding Billericay. The appeal site does not contain most of
the key characteristics of the area, such as large fields.
21. Other than the entrance element where Maitland Lodge sits, the appeal site is
mostly visually self-contained. The dwellings to the north and east only afford
glimpsed views through to the site. There is a very mature hedgerow including
substantial trees to the western boundary and a less mature and lower
hedgerow, but which is still relatively substantial, to the southern boundary.
Even views from neighbouring properties are at least partially screened by
existing vegetation and boundary features. The appeal site is, however, visible
from the south, largely to drivers approaching Billericay along Southend Road,
but there are also some footpaths at mid-distance from the site to the south
and west. However, where the site is visible, it is seen in the context of the
urban edge of Billericay. The existing properties are clearly visible, set on rising
land towards the north.
22. The wider landscape to the south and west is largely open farmland and is of
higher quality. However, whilst pleasant countryside, this is also largely
unremarkable agricultural fields. It is common ground, and I agree, that the
wider landscape is not a ‘valued landscape’ within the meaning of paragraph
174 of the Framework. I assess the wider area to have moderate sensitivity to
change. The appeal site itself, however, is of low sensitivity, through a
combination of the partly-urbanising effect of the existing buildings and
ancillary structures and hard standing, the edge-of-settlement character and
the visual containment.
Proposed
23. It is proposed to demolish all the existing buildings and structures on the site
and comprehensively redevelop to provide 47 dwellings. The proposed layout
includes an access road from Southend Road which turns into a circle within
the main/rear part of the site. A building, containing two houses, is proposed to
the Southend Road frontage, adjacent to the proposed access road. A variety
1 As set out in the Landscape Character and Green Belt Landscape Capacity Study December 2014
of dwellings are proposed within the site, including detached and semi-
detached houses at two or two and a half storeys, and two blocks of flats at
two and three storeys. Many of the proposed houses are also provided with car
ports and there would be additional off and on-street car parking, including on
driveways and in small car parks. An area of communal open space is proposed
to the south west corner, which would also incorporate a balancing pond
drainage feature. Some new planting is proposed, including trees, to the
southern boundary.
Assessment
24. There would be a fair degree of consistency in the proposed architectural style
of the buildings in terms of scale and layout but a certain amount of variety
through different fenestration patterns and materials. The Essex Design Guide
2018 advises to avoid or conceal wide gable ends to roofs. Some relatively
wide gable ends are proposed, but these are largely to side elevations not
viewed directly from the proposed street. These side elevations often also
would have car ports, adding articulation. There would be a variety of roof
forms, silhouettes and detailing which is a positive factor which contributes to
the architectural interest of the proposal. Overall, the architectural approach
achieves a successful balance and would be in-keeping with the varied detailed
design but consistent suburban character and appearance of the wider area.
25. The proposal is relatively dense and the proposed car ports would visually and
physically link many of the buildings. However, these would be set back and
would be lower than the host buildings and would remain subservient to them.
The density would be similar to the surrounding area. The proposed open space
would be relatively limited, but it is in the location of the site that would most
benefit from visual softening, in the south west corner surrounded by open
fields, and as stated in the Basildon Outline Landscape Appraisals of Potential
Strategic Development Sites 2017. Paragraphs 119 and 124 of the Framework
promote the effective and efficient use of land to provide homes. In this
physical and policy context, the proposal would be of an acceptable density.
26. Nevertheless, the proposal would undeniably result in a change in character
and appearance to the appeal site from the current equestrian use and building
styles, and an increase in density and built form across the site, particularly to
the currently open paddocks to the west and centre of the site. However, the
overall density and detailed design of the proposal would be in-keeping with
the character and appearance of the area. The appeal site is also of low
sensitivity, is highly visually self-contained and, where more visible from the
south, would be seen in the context of the existing housing of Billericay to the
north, limiting any effects on the wider area.
27. Consequently, the proposal would not result in material harm to the character
and appearance of the area, with regard to landscape effects. The proposal
would therefore comply with Policy BE12(i) of the LP, which resists residential
development that would harm the character of the surrounding area.
Other Matters
Housing
Market housing
28. A housing land supply range has been agreed between the parties, of between
1.6 and 2.33 years. Anywhere within this range is a very substantial shortfall
against the target to identify a five year supply of housing land as set out in
paragraph 68 of the Framework. In numerical terms, the shortfall equates to
between 3,345 and 4,200 homes. There is also an under-delivery of housing in
the Borough. The Government’s 2021 Housing Delivery Test figures confirm a
delivery rate of 41% against the housing requirement. Footnote 8 of the
Framework states that even a delivery rate of 75% should be considered as
substantially below the requirement. 41% is therefore a very substantial
under-delivery. The delivery is also on a downward trend, with the most recent
results being 45% in 2020, 44% in 2019 and 75% in 2018.
29. Under cross-examination, the Council accepted that housing delivery has been
persistently poor over several years. This is also stated at paragraph 2.4 of the
Council’s Draft Housing Delivery Test Action Plan July 2021 (the Action Plan
2021). It would be difficult to come to any other conclusion on the basis of the
above evidence. The shortfalls in housing land supply and housing delivery are
stark. There is also no evidence before me that there is likely to be a marked
improvement in the delivery of housing in the short to medium term. The
Council’s Action Plan 2021 states that the level of supply is not expected to
significantly improve until a new Local Plan is adopted. In this regard, the
Council’s emerging Local Plan was recently withdrawn and its tentative
timetable for the production of a new Local Plan would result in adoption, at
best, in 2027.
30. It is important to remember that there are real world implications from the
under-delivery of homes, including increased house prices, decreased
affordability and an increasing number of individuals and families being forced
to remain in unsuitable accommodation for their current needs. I therefore
place very substantial positive weight on the proposed 26 open market homes.
Affordable housing
31. The Council’s affordable housing need is agreed between the main parties to be
860 dwellings per annum (dpa), based on removing the backlog in addition to
ongoing requirements. The current overall shortfall is 2,494 homes. Over the
past seven years, the net delivery of affordable housing, ie after accounting for
Right to Buy sales, is just 5 dpa. Affordable housing delivery is abysmal. The
shortfall is acute and persistent. As with market housing, there is no evidence
before me that there is likely to be a marked improvement in the delivery of
affordable housing in the short to medium term.
32. The length of the waiting list on the housing register is up by 44% in the past
year. The multiple of the income of people on lower quartile incomes necessary
to buy a home in the Borough is 32% higher than seven years ago. These
statistics sit in the middle of a much wider socio-economic and political
conversation, not all which, I accept, will have been driven by the lack of
affordable housing delivery. However, the persistent extremely low affordable
housing delivery in the past years has contributed towards this real-world
harm. Each of the 2,494 affordable homes that should have been built, but
have not, represent a missed opportunity to help alleviate the housing
concerns of individuals and families. The situation represents a significant
conflict with the economic and social overarching objectives set out in
paragraph 8 of the Framework.
33. Policy BAS S5 of the LP sets a requirement for affordable housing of between
15 to 30% of the total number of units on a development site. The ‘split’ of the
affordable housing between different affordable tenure types is not prescribed
in policy and all tenures of affordable housing contribute to the affordable
housing supply for the Borough. The proposed provision of 45% of total units,
at 21 homes, is in excess of the policy requirements. However, given the
critical situation regarding affordable housing delivery in the Borough, I place
very substantial positive weight on all of the proposed affordable homes, not
just those over and above policy requirements.
Appeal site location and nature
Previously Developed Land (PDL)
34. As established above, the element of the appeal site in the GB is PDL. Most of
the remainder of the appeal site is also PDL, as it is land with existing built
form and associated hard standing. However, there are two small residential
garden areas associated with Maitland Lodge that lie outside of the GB, both of
which do not constitute PDL, as defined by the Framework. Nevertheless, a
significant majority of the site is PDL. Despite this, the site is not particularly
intensively used, with large relatively open spaces for the paddocks. The
proposed development to provide 47 houses would therefore represent an
efficient use of land for homes, on a mostly brownfield site, partly within and
partly directly adjacent to an existing settlement.
35. In light of the above, and as directed by paragraph 120(c) of the Framework, I
place substantial positive weight on the proposed dwellings on the part of the
appeal site within Billericay. I also place significant positive weight on the
remainder of the development in this regard, which accords with the promotion
of the effective use of land to provide homes at paragraph 119 of the
Framework.
Sequential preference
36. The Council’s Development Plan is out-of-date. The Local Plan was adopted in
1998, based on the period 1991-2001, with a housing requirement based on a
previous Structure Plan adopted in 1982. The GB boundaries are therefore
based on very old housing requirements and a completely different planning
policy and political backdrop. Most of the Borough outside the three main towns
is GB. It is common ground, and I agree, that due to the significantly higher
housing requirements that the Council now faces, and that it cannot
demonstrate a five year supply of housing land, significant GB release is
inevitable.
37. It would be preferable if the GB release could be managed through the
emerging Local Plan process, as set out at paragraphs 15 and 140 of the
Framework. However, as set out above, a new Local Plan is at least five, and
potentially many more, years from being adopted. It is therefore necessary to
consider proposals that come forward in the GB ahead of adoption of the new
Local Plan.
38. In this regard, the now withdrawn Local Plan and its evidence base is still a
material consideration. The evidence base allocated the site for development2
and the withdrawn Plan carried this through to a site allocation (Site H21b),
albeit for around 20 self-build homes rather than the 47 dwellings proposed as
part of the appeal proposal3. However, the important consideration is that the
site was found to be suitable for development and to be removed from the GB.
In addition, this inquiry has established that the GB element of the appeal site
is all PDL.
39. Therefore, the appeal site in general is sequentially preferable to non-PDL sites
in the GB, which make up the majority of GB land in the Borough. In any
event, as established above, the specific appeal proposal is ‘not inappropriate’
development in the GB. I therefore find no harm from the location of the
proposal in the GB in addition to its sequential preference over non-PDL GB
sites. This is a significant positive benefit of the proposal in the context of a
Borough where GB release is accepted as being inevitable to meet its housing
needs.
Accessibility
40. The appeal site is directly adjacent to Billericay and accessible to its large
range of services and facilities, and also easily accessible to a range of bus
routes and also Billericay train station. It is common ground, and I agree, that
the appeal site is in a highly accessible location. I place significant positive
weight on this factor.
Economic
41. The proposal would create short term employment during construction and
would result in long term economic benefits from expenditure from the future
occupants on goods and services in the area. Some of the future occupants
would potentially have only moved a short distance and already be in the local
area, but many are likely to be from further afield. As required by
paragraph 81 of the Framework, I place significant positive weight on the
economic benefits.
Biodiversity
42. A package of mitigation measures, such as tree protection fencing or sensitive
site clearance, is set out in the Ecological Impact Assessment May 2022 and
could also be secured by condition. Compensation is also proposed, for
example through the contribution towards the Essex Coast RAMS. It is
therefore proposed to follow the hierarchy set out at paragraph 180 of the
Framework by first mitigating ecological effects and only then compensating for
them. In addition, a biodiversity net gain of 10% is proposed and could be
secured by condition. The Framework only requires ‘a’ net gain, rather than a
gain of 10%. The proposal therefore goes beyond policy requirements in this
regard. I place significant positive weight on this benefit.
2 Housing and Economic Land Availability Assessment (HELAA) Review 2018, September 2018 (Site SS0189)
3 Basildon Borough Revised Publication Local Plan 2014 – 2034, October 2018 (Site H21b) and Housing Options
Topic Paper November 2018 (New Site 3)
Detailed design
43. The proposed layout with a circular road leading to a single access point
logically responds to the square shape of the rear part of the site and the
narrow access area to Southend Road. The proposed building along Southend
Road retains a building fronting onto the road, in-keeping with the established
character of the road. Nevertheless, there would be limited harm to the
character and appearance of this frontage through the proposed relatively wide
access road.
44. The proposed three storey block of flats would be slightly taller and more bulky
than the proposed and existing semi-detached properties in the area. However,
it would be relatively small, towards the centre of the site and not readily
visible from public or private views. The proposed public open space would be
relatively small but is proposed in the south west corner of the site which is the
most appropriate location for open space as it is furthest away from Billericay
and one of the most visible parts of the appeal site. The open space would also
incorporate a drainage feature but the detail of this could be controlled by
condition to be attractive and there would be sufficient remaining space for
recreational use by the future residents. The proposed shared surface approach
to the internal road would work well in the context of the relatively small scale
of the proposal. The Highways Authority raises no objection to this approach in
terms of highway safety.
45. Matters of detailed design of the proposed buildings and the proposed hard and
soft landscaping could be controlled by condition(s). Overall, the detailed
design of the proposal would be in-keeping with the character and appearance
of the area and would be acceptable. This weighs neutrally in the planning
balance.
Appropriate Assessment
46. The appeal site falls within the Zone of Influence (ZoI) for the Blackwater
Estuary Special Protection Area and Ramsar (the SPA). The proposal is for
residential development and the future occupants are likely to travel to the SPA
for recreation purposes, due to the proximity and as established by the appeal
site falling within the ZoI. Regulation 63(1) of the Conservation of Habitats and
Species Regulations 2017 indicates the requirement for an Appropriate
Assessment (AA) in such circumstances. As the Competent Authority, I have
therefore undertaken an AA.
47. The conservation objectives for the SPA include maintaining or restoring the
habitats for a number of breeding and non-breeding birds. The specific
qualifying features likely to be affected by the potential increase in recreational
pressure include the mudflat habitat that supports internationally and
nationally important numbers of overwintering waterfowl, and semi-improved
grassland that includes nationally scarce plants and rare invertebrates. The
proposal would therefore likely result in adverse effects on the SPA, by itself
and in combination with other development projects.
48. Consequently, I am satisfied that a mitigation payment is required to avoid an
adverse effect on the integrity of the SPA. In this regard, the s106 secures a
financial contribution, proportionate to the number of dwellings proposed,
towards mitigating the effects of the likely increased recreational pressure. The
payment has been calculated in accordance with the Essex Coast RAMS, which
applies to a number of protected areas include the SPA relevant to this appeal.
The RAMS is a detailed strategy which has carefully considered the mitigation
measures necessary to protect the designated sites. Natural England has
confirmed that the contribution is appropriate and proportionate, and that,
subject to the contribution, the proposal would not have an adverse effect on
the integrity of the site. I am therefore satisfied that the mitigation would be
effective. I am also satisfied that the planning obligation meets the tests set
out in Regulation 122(2) of the CIL Regulations and paragraph 56 of the
Framework.
49. Consequently, I consider that, subject to the s106, there would be no adverse
effect on the integrity of the protected site, both on its own and in combination
with other developments.
Interested parties
50. Several objections have been submitted, including from the Billericay District
Residents Association, Great Burstead and South Green Village Council and the
Campaign to Protect Rural England. The objections have commented on the
issues covered above and also on drainage, flooding, highway safety, free-flow
of traffic, harm to living conditions of neighbouring occupiers through lack of
light and noise and outlook, contamination of groundwater, impact on local
infrastructure eg schools and doctors, disruption during construction, and
deterioration in air quality. Some neutral comments were also submitted
requesting a horticultural scheme.
51. I have taken all of these factors into consideration. Most are not in dispute
between the main parties. The Council concluded that there would be no
material harm in these regards and I also note that both the Local Lead Flood
Authority and Highways Authority have no objection to the proposal. No
substantiated evidence has been submitted that leads me to any different view.
Other concerns are addressed in my reasoning above, can be addressed by
conditions or are dealt with by the planning obligations secured.
Conditions
52. A schedule of conditions was agreed between the parties ahead of the inquiry.
This was discussed through a round-table session at the inquiry. I have
considered the conditions against the tests in the Framework and the advice in
the Planning Practice Guidance. I have made such amendments as necessary to
comply with those documents and in the interests of clarity, precision, and
simplicity. The appellant has confirmed acceptance of the pre-commencement
conditions. I set out below specific reasons for each condition:
• In addition to the standard time limit condition, a condition specifying the
relevant drawings provides certainty;
• Construction Management Plan (CMP) and Site Waste Management Plan
(SWMP) and Construction Environmental Management Plan (CEMP)
conditions are necessary to protect the living conditions of neighbours,
biodiversity, highway safety and the free-flow of traffic during construction;
• The Biodiversity Survey and Biodiversity Enhancement Strategy, Landscape
and Ecological Management Plan (LEMP), lighting design, Arboricultural
Impact Assessment, and Ecological Impact Assessment conditions are
necessary to protect existing biodiversity, to secure the proposed 10%
biodiversity net gain, and to ensure maintenance of the relevant measures;
• Land contamination and remediation, archaeology, Secured by Design and
waste and recycling conditions are necessary to ensure the proposal would
have acceptable effects with regard to these technical considerations;
• Tree protection, hard landscaping, soft landscaping, waste and recycling
conditions, and Arboricultural Impact Assessment conditions are necessary
to ensure a satisfactory standard of development protect and to protect and
enhance biodiversity;
• The materials and finished floor levels conditions are necessary to ensure a
satisfactory standard of development;
• The surface water drainage systems, maintenance of surface water drainage
systems and finished floor levels conditions are necessary to ensure that
suitable mitigation is provided regarding surface water drainage and
flooding;
• An Energy and Sustainability Strategy condition is necessary to ensure that
the proposal reduces carbon dioxide emissions and therefore to mitigate
climate change and assist in moving to a low carbon economy as set out in
paragraph 8 of the Framework;
• The visibility splays, access junction details and internal road and footway
layout condition is necessary to protect highway safety and the free-flow of
traffic;
• The cycle parking and Residential Travel Information Pack conditions are
necessary to encourage the use of a range of modes of transport other than
the car; and,
• The condition requiring details of upgrade works to nearby bus stops and
pedestrian crossings is necessary to encourage the use of a range of modes
of transport other than the car and to partially mitigate the increased
pressure on public transport from the future occupiers of the development.
It is necessarily worded as a Grampian type condition, since it relates to
land outwith the control of the appellant.
53. A condition requiring electric vehicle charging points for all the proposed car
parking spaces was requested by the Council but it is unnecessary because this
provision is already set out in Requirement S1 of The Building Regulations
2010, Approved Document S 2021 Edition.
54. The CMP/SWMP, CEMP, Biodiversity Survey, land contamination and
remediation, archaeology, tree protection, and hard and soft landscaping
conditions are necessarily worded as pre-commencement conditions, as a later
trigger for their submission and/or implementation would limit their
effectiveness or the scope of measure which could be used.
Planning Balance
55. The proposal would not conflict with any Development Plan policies, including
the four identified as most relevant to the appeal in the Statement of Common
Ground, namely Policy BAS GB1 which sets the GB boundaries but has no
specific control over GB development, Policy BAS S5 which sets affordable
housing thresholds which the proposal exceeds, Policy BAS BE12 which
requires proposals to conserve the character of the area, and Policy BAS BE24
which is in relation to crime prevention which could be adequately controlled by
condition.
56. The proposal would not harm the character and appearance of the area, either
with regard to landscape or detailed design. It would be ‘not inappropriate’
development in the Green Belt. The s106 secures appropriate mitigation
against any harms from the proposal on the SPA. These factors all weigh
neutrally in the planning balance.
57. The proposed open market housing and affordable housing would be very
substantial benefits of the proposal. The part of the proposal outside of the GB
to be developed for housing would be a substantial benefit due to the use of
suitable brownfield land within settlements for homes.
58. The remainder of the appeal site represents the effective use of land to provide
homes. The appeal site is sequentially preferable to non-PDL sites in the GB in
a Borough where GB release is inevitable to meet its housing needs. The
appeal site is easily accessible to public transport, services and facilities, a
biodiversity net gain over and above minimum policy requirements is proposed,
and there would be both short term and long term economic benefits. These
are all significant benefits.
Conclusion
59. The Council cannot demonstrate a five year supply of housing land and there is
no clear reason for refusing the proposal related to areas or assets of particular
importance. Having regard to paragraph 11d of the Framework, I have found
no conflict with the Development Plan and a number of weighty benefits.
Therefore, for the reasons above, the appeal is allowed.
O S Woodwards
INSPECTOR
ANNEX A: APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Giles Atkinson, of Counsel. He called:
Emily Beavan ARB Principal Urban Design Officer, Basildon Borough
Council (BBC)
Louise Cook MRTPI Principal Planning Officer, BBC
Christine Lyons MRTPI Head of Planning, BBC
Adeola Pilgrim MRTPI Principal Planner, BBC
Lisa Richardson Principal Planner, BBC
Charlotte McKay cFILEX Principal Lawyer, BBC
Anne Cook Principal Infrastructure Planning Officer, Essex
County Council
FOR THE APPELLANT:
Zack Simons, of Counsel. He called:
Colin Pullan Head of Urban Design and Masterplanning,
Lambert Smith Hampton
Charles Crawford CMLI Director, LDA Design
Hywel James MRTPI Associate, Nexus Planning
Oliver Bell MRTPI Director, Nexus Planning
James Stacey MRTPI Senior Director, Tetlow King Planning Ltd
Ben Standing Partner, Browne Jackson
Dominick Veasey MRTPI Director, Nexus Planning
Hywel James MRTPI Associate, Nexus Planning
ANNEX B: DOCUMENTS SUBMITTED DURING THE INQUIRY
1 Addendum to Statement of Common Ground – Housing Issues,
dated 20 September 2022
2 Affordable Housing Proof of Evidence Addendum and Errata Note
of James Stacey BA (Hons) Dip TP MRTPI
3 Herbert Hiley and The Secretary of State for Levelling Up, Housing
and Communities vs East Lindsey District Council [2022] EWHC
1289 (Admin)
4 Appellant’s Opening and List of Appearances
5 Opening Statement on behalf of the LPA
6 Site Visit Routes, dated September 2022
7 Email regarding conditions 27 and 28 from Hywel James, dated
23 September 2022
8 Open Space Plan/Management Plan Ref 1760/L/02
9 Closing submissions on behalf of the LPA, by Giles Atkinson, dated
23 September 2022
10 Appellant’s Closing Submissions, by Zack Simons and Isabella
Buono, dated 23 September 2022
ANNEX C: CONDITIONS SCHEDULE
1) The development hereby permitted shall begin not later than three years
from the date of this decision.
2) The development hereby permitted shall be carried out in accordance
with the following approved plans: Refs 16007/400; 1760/P/01 Rev B;
16007-10, 11 Rev B, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,
25, 26, 27, 28, 29, 30, 31, 32, 33, 34 Rev A, 35, 36, 37, 38, 39, 100,
101.
Pre-commencement
3) No development shall commence, including any works of demolition, until
a Construction Environmental Management Plan (CEMP) and Site Waste
Management Plan (SWMP) for the proposed development has been
submitted to and approved in writing by the Local Planning Authority.
The Plans shall incorporate details of:
a) the parking of vehicles of site operatives and visitors (construction
traffic management);
b) loading and unloading and the storage of plant and materials used in
constructing the development;
c) the erection and maintenance of security hoardings including
decorative displays and facilities for public viewing, where
appropriate;
d) wheel and underbody washing facilities;
e) measures to control the emission of noise, dust and dirt during
construction;
f) a scheme for recycling/disposing of waste resulting from demolition
and construction works; and,
g) details of a nominated developer/resident liaison representative with
an address and contact telephone number to be circulated to those
residents consulted on the application by the developer’s
representatives. This person will act as first point of contact for
residents who have any problems or questions related to the ongoing
development.
The approved CEMP and SWMP shall be implemented for the entire period
of the construction works.
No materials produced as a result of the site development or clearance
shall be burned on site.
4) Prior to the commencement of development, a construction
environmental management plan (CEMP: Biodiversity) shall be submitted
to and approved in writing by the Local Planning Authority following the
recommendations made within the Ecological Impact Assessment ref.
INL20854_EcIA dated 17.05.2022. The CEMP: Biodiversity shall include
the following:
a) Risk assessment of potentially damaging construction activities;
b) Identification of “biodiversity protection zones”;
c) Practical measures (both physical measures and sensitive working
practices) to avoid or reduce impacts during construction (may be
provided as a set of method statements);
d) The location and timing of sensitive works to avoid harm to
biodiversity features;
e) The times during construction when specialist ecologists need to be
present on site to oversee works;
f) Responsible persons and lines of communication;
g) The role and responsibilities on site of an ecological clerk of works
(ECoW) or similarly competent person; and,
h) Use of protective fences, exclusion barriers and warning signs.
The approved CEMP: Biodiversity shall be adhered to and implemented
throughout the construction period strictly in accordance with the
approved details.
5) A. No above ground new development, including demolition, shall
commence until an updated Biodiversity Survey has been submitted to
and approved in writing by the Local Planning Authority.
B. A Biodiversity Enhancement Strategy for any identified protected and
priority species in accordance with the Biodiversity Survey approved at
A., shall be submitted to and approved in writing by the Local Planning
Authority, prior to the commencement of the relevant part of the
development. The content of the Strategy shall include the following:
a) measures equivalent to a 10% net gain in biodiversity;
b) purpose and conservation objectives for the proposed enhancement
measures;
c) detailed designs to achieve stated objectives;
d) timetable for implementation demonstrating that works are aligned
with the proposed phasing of development;
e) locations of proposed enhancement measures by appropriate maps
and plans;
f) persons responsible for implementing the enhancement measures;
and,
g) details of initial aftercare and long-term maintenance (where
relevant).
C. The Strategy shall be implemented in accordance with the approved
details and timetable and, where appropriate, shall be retained in that
manner thereafter.
6) No development shall commence, including any works of demolition, until
an updated desk-top study has been submitted to and approved in
writing by the Local Planning Authority, to identify and evaluate all
potential sources of contamination and the impacts on land and/or
controlled waters, relevant to the proposed development.
7) If identified as being required following the completion of the desk-top
study required pursuant to condition 6, a site investigation shall be
carried out prior to commencement of development and effectively
characterise the nature and extent of any land contamination and/or
pollution of controlled waters. It shall specifically include a risk
assessment that adopts the Source-Pathway-Receptor principle, in order
that any potential risks are adequately assessed, taking into account the
sites existing status and proposed new use. The site investigation and
findings shall be submitted to and approved in writing by the Local
Planning Authority within three months of their completion.
8) If identified as being required following the completion of the site
investigation pursuant to condition 7, a written method statement
detailing the remediation requirements for land contamination and/or
pollution of controlled waters affecting the site, shall be submitted to and
approved in writing by the Local Planning Authority prior to
commencement of development. Development shall be carried out in
accordance with the written method statement. If, during redevelopment,
contamination not previously considered is identified, then the Local
Planning Authority shall be notified immediately, and no further work
shall be carried out until a method statement detailing a scheme for
dealing with the suspected contamination has been submitted to and
approved in writing by the Local Planning Authority and all requirements
shall be implemented and completed in accordance with the approved
method statement.
9) Following completion of measures identified in the remediation scheme
pursuant to condition 8, a full closure report shall be submitted to and
approved in writing by the Local Planning Authority. The report shall
provide verification that the required works regarding contamination have
been carried out in accordance with the approved method statement(s).
10) A. No development shall commence until:
i. A programme of archaeological investigation has been secured
in accordance with a Written Scheme of Investigation (WSI)
which has been submitted to and approved in writing by the
Local Planning Authority; and,
ii. Any fieldwork required in accordance with the submitted WSI
has been completed.
B. A Final Archaeological Report shall be submitted to and approved in
writing by the Local Planning Authority, prior to occupation of the
development.
C. The deposition of a digital archive with the Archaeological Data Service
must be submitted within six months of the completion of any fieldwork
required.
11) No development shall commence, including any works of demolition, until
all trees to be retained have been protected by secure, stout exclusion
fencing erected at a minimum distance equivalent to the branch spread of
the trees and in accordance with BS5837:2012 Trees in relation to
design, demolition and construction – Recommendations. The protective
fencing shall be retained for the duration of the construction process.
12) The hard landscaping scheme set out in drawing Ref INL20854-12-Sheets
1, 2 and 3 and drawing Ref INL20854_10 shall be updated to accord with
the additional landscaping features shown on drawing Ref 1760/P/01
Rev B. The updated hard landscaping scheme shall be submitted to and
approved in writing by the Local Planning Authority prior to the
commencement of development. The approved hard landscaping scheme
shall be implemented prior to occupation of the development in
accordance with the approved details.
13) The soft landscaping scheme set out in drawing Ref INL20854-11-Sheets
1, 2 and 3 and drawing Ref INL20854_10 shall be updated to accord with
the additional landscaping features shown on drawing Ref 1760/P/01
Rev B. The revised soft landscaping scheme shall be submitted to and
approved in writing by the Local Planning Authority prior to the
commencement of development. The approved landscaping scheme shall
be carried out in the first planting and seeding seasons following the
occupation or completion of the development, whichever is the sooner.
Any trees or plants which within a period of five years from the
completion of the development die, are removed or become seriously
damaged or diseased, shall be replaced in the next planting season with
others of similar size and species.
Specific triggers
14) Prior to installation of external façade surfaces, full details, including
samples, specifications, annotated plans and fire safety ratings, of all
materials to be used in the construction of the external surfaces shall be
submitted to and approved in writing by the Local Planning Authority. The
external façade surfaces shall only be implemented in accordance with
the approved details and shall be retained at all times thereafter.
15) No above ground new development shall commence, until an updated
and detailed surface water drainage scheme for the proposed
development, based on sustainable drainage principles and an
assessment of the hydrological and hydro geological context of the
development, has been submitted to and approved in writing by the Local
Planning Authority. The scheme shall include the following:
a) Demonstrate that all storage features can half empty within 24 hours
for the 1 in 30 plus 40% climate change critical storm event;
b) Final modelling and calculations for all areas of the drainage systems
for all storm events up to and including the 1 in 100 year rate plus
40% allowance for climate change; and,
c) A final drainage plan which details exceedance and conveyance
routes, FFL and ground levels, and location and sizing of any drainage
features.
The approved scheme shall be implemented prior to occupation of the
development.
16) No above ground new development shall commence until an Energy and
Sustainability Strategy has been submitted to and approved in writing by
the Local Planning Authority. The approved details shall be implemented
prior to occupation of the development and shall be maintained at all
times thereafter.
17) No above ground new development shall take place until details of the
existing and finished site levels and the finished floor and ridge levels of
the proposed development have been submitted to and approved in
writing by the Local Planning Authority. The development shall be carried
out in accordance with the approved details.
Pre-occupation
18) Prior to occupation of the development, a Landscape and Ecological
Management Plan (LEMP) shall be submitted to and approved in writing
by the Local Planning Authority. This must include details of management
of trees on site. The content of the LEMP shall include the following:
a) Description and evaluation of landscape and ecology to be managed to
include all woodland;
b) Ecological trends and constraints on site that might influence
management;
c) Aims and objectives of management (The southern and western
boundary hedgerows will be protected from the development with
garden fences, to prevent inappropriate management by the
residents. The hedgerows will be appropriately managed long term by
a management company);
d) Appropriate management options for achieving aims and objectives;
e) Prescriptions for management actions;
f) Preparation of a work schedule (including an annual work plan capable
of being rolled forward over a five-year period);
g) Details of the body or organisation responsible for implementation of
the plan; and,
h) Ongoing monitoring and remedial measures.
The plan shall also set out (where the results from monitoring show that
conservation aims and objectives of the LEMP are not being met) how
contingencies and/or remedial action will be identified, agreed and
implemented so that the development still delivers the fully functioning
biodiversity objectives of the originally approved scheme.
The approved LEMP shall be implemented in accordance with the
approved details.
19) A. Prior to occupation of the development, the access at its centre line
shall be provided with a visibility splay with dimensions of 2.4 metres by
63 metres to the north and 2.4 metres by 64 metres to the south, as
measured from and along the nearside edge of the carriageway to a 1
metre offset, as shown in principle on planning application drawing Ref
151883/PD02 rev A prepared by Vectos. Such vehicular visibility splays
shall be retained free of any obstruction at all times.
B. The width of the access at its junction with the highway shall not be
less than 6 metres and shall be provided with two appropriate kerbed
radii as shown in principle on planning application drawing Ref 1760/P/01
rev B prepared by Archtech.
C. Prior to occupation of the development, footways a minimum of two
metres wide shall be provided on both sides of the vehicular access. The
footways shall extend from the site around the bellmouth junction,
include a dropped kerb pedestrian crossing point and tie in with the
existing footways on Southend Road.
D. Prior to occupation of the development the internal estate road and
footways shall be constructed as shown in principle on planning
application drawing Ref 1760/P/01 rev B prepared by Archtech.
E. Prior to occupation of the development, vehicular turning facilities, as
shown on planning application drawing Ref 1760/P/01 rev B prepared by
Archtech shall be constructed, surfaced and maintained free from
obstruction within the site at all times for that sole purpose.
20) Prior to first occupation of the flats, details of the proposed secure and
covered cycle parking for future occupiers of these units shall be
submitted to and approved in writing by the Local Planning Authority. The
cycle parking shall be made available prior to first occupation of the flats
in accordance with the approved details and thereafter permanently
retained.
21) No dwelling shall be occupied unless and until the existing bus stops
known as Factory Site located on Southend Road adjacent to the site
have been upgraded to provide raised Kassel kerbs, associated footway
reprofiling, installation of bus stop clearway markings for both
northbound and southbound stops, and a dropped kerb pedestrian
crossing point provided on both sides of Southend Road in the vicinity of
the northbound and southbound bus stops, in accordance with details
that shall have previously been submitted to and approved in writing by
the Local Planning Authority.
22) Prior to the first occupation of the relevant dwelling, a Residential Travel
Information Pack (RTIP) for sustainable transport shall be submitted to
and approved in writing by the Local Planning Authority. The RTIP shall
subsequently be provided to the first occupant(s) of the relevant dwelling
prior to first occupation of that dwelling. The RTIP shall include six one
day travel vouchers for use with the relevant local public transport
operator.
23) Prior to the first occupation of the proposed development, a lighting
design scheme for biodiversity shall be submitted to and approved in
writing by the Local Planning Authority. The scheme shall identify those
features on site that are particularly sensitive for bats and that are likely
to cause disturbance along important routes used for foraging; and show
how and where external lighting will be installed (through the provision of
appropriate technical specification) so that it can be clearly demonstrated
that areas to be lit will not disturb or prevent bats using their territory.
No external lighting shall be installed other than in accordance with the
specifications and locations set out in the approved scheme and
maintained thereafter in accordance with the scheme.
24) Prior to occupation of the development, a Maintenance Plan detailing the
maintenance arrangements, including who is responsible for different
elements of the surface water drainage system, and the maintenance
activities / frequencies, shall be submitted to and approved writing by the
Local Planning Authority. Should any part be maintainable by a
maintenance company, details of long-term funding arrangements should
also be provided. Drainage maintenance shall be carried out thereafter in
accordance with the approved details. The applicant(s) or any
successor(s) in title must maintain yearly Drainage Logs of maintenance
which should be carried out in accordance with any approved
Maintenance Plan. These must be available for inspection upon a request
by the Local Planning Authority.
25) Prior to occupation a detailed residential refuse and recycling strategy for
the development, including the design and location of the refuse and
recycling stores, shall be submitted to and approved in writing by the
Local Planning Authority. The approved refuse and recycling stores shall
be provided before the occupation of the development and thereafter
permanently retained.
Pre-completion
26) A. The development hereby permitted shall use reasonable endeavours to
achieve a Gold award of the Secured by Design for Homes (2019 Guide)
or any equivalent document superseding this Guide.
B. A certificated Post Construction Review, or other verification process
agreed with the Local Planning Authority, shall be provided upon
completion of the development confirming that the agreed standards at
A. have been met.
C. In the event that the agreed standards at A. are not achievable then
prior to completion of the development the applicant shall submit to the
Local Planning Authority for approval in writing justification for this and
details of the highest award of the Secured by Design for Homes (2019
Guide) or any equivalent document superseding this Guide which is
achievable for the development.
D. A certificated Post Construction Review, or other verification process
agreed with the Local Planning Authority, shall be provided upon
completion of the relevant Phase of the development, confirming that the
agreed standards at C., as relevant, have been met.
For observation
27) All works shall take place in accordance with the recommendations set
out in the approved Arboricultural Impact Assessment and Method
Statement Ref INL20854aia-amsA Rev A dated 10/02/2022 and the
associated Tree Protection Plan Ref INL-20854-03 Rev B. Any works
connected with the approved scheme within the branch spread of the
trees shall be by hand only. No materials, supplies, plant or machinery
shall be stored, parked or allowed access beneath the branch spread or
within the exclusion fencing. Any trees that are damaged or felled during
construction work must be replaced with semi-mature trees of the same
or similar species in the next planting season, if not sooner.
28) All mitigation and enhancement measures and/or works shall be carried
out in accordance with the details contained in the updated Ecological
Impact Assessment (May 2022).
============END OF SCHEDULE============