Case Reference: 3307820

Appeal Decision
Inquiry Held on 12-21 September 2023
Site visit made on 18 September 2023
by H Butcher BSc (Hons) MSc Pg Dip MRTPI
an Inspector appointed by the Secretary of State
Decision date: 12 October 2023
Appeal Ref: APP/C1435/W/22/3307820
Land at Bird in Eye Farm, South of Bird in Eye Hill, Framfield, Uckfield
TN22 5HA
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for outline planning permission.
• The appeal is made by [APPELLANT] against Wealden District Council.
• The application Ref WD/2021/2198/MAO is dated 15 February 2022.
• The development proposed is the erection of up to 290 dwellings, associated
landscaping, informal open space and strategic SANG, with access from the B2102.
Decision
1. The appeal is dismissed.
Applications for Costs
2. An application for costs was made by Wealden District Council against
[APPELLANT]. This application will be the subject of a separate
Decision.
3. An application for costs was also made by [APPELLANT] against
Wealden District Council. Similarly, this application will also be the subject of a
separate Decision.
Preliminary Matters
4. I have removed any words that are not acts of development from the
description of development in the banner heading above.
5. The application is submitted in outline with only access to be determined at this
stage. Included in the evidence are an Illustrative Site Layout and Indicative
Parameter/Land Use Plan. I have considered these plans on their respective
illustrative/indicative bases.
6. During the course of the appeal amended plans were submitted in respect of
the main highway access to the appeal site, the most recent iteration being
Drawing No 5330/021 Rev P. I considered the submissions from the appellant,
the Council, the R6, and interested parties as to whether accepting this revised
plan would deprive those who should have been consulted on the changes the
opportunity of such. However, I concluded in a subsequent ruling that all
persons who should have been consulted on the amended access plan had
been given the opportunity to do so. The appeal has therefore been determined
on the basis of this drawing.
7. The validity of the appeal was raised by the Council in terms of accepting
revised plans without sufficient accompanying evidence to allow them to
consider the proposals adequately. This would not, of itself, invalidate Inquiry
proceedings, and matters of deliverability of the proposals and any assessment
of the impacts of the revised plan were considered in evidence during the
Inquiry.
8. A signed and dated Unilateral Undertaking has been submitted with the appeal
and contains a number of obligations. However, it is not necessary for me to
look at this in detail given I go on to find that the proposal is unacceptable for
other reasons.
9. A revised National Planning Policy Framework (the Framework) was published
by the Government during the course of the appeal. However, the changes do
not relate to the matters under consideration.
Main Issues
10. The Council raised six putative reasons for which planning permission would
have been refused were they in a position to determine the planning
application. They have latterly withdrawn their putative reason for refusal in
respect of drainage following receipt of a ‘no objection’ consultation response
from the Lead Local Flood Authority (LLFA). Notwithstanding this, the R6 party
in this case is advancing objections in respect of drainage and flood risk.
11. A further putative reason for refusal relating to obligations towards local
infrastructure is also no longer being pursued by the Council subject to the
submission of a signed legal agreement which is now before me.
12. Heritage was not an issue between the main parties at the Inquiry. This, in
part, stems from an Inspector’s report and Secretary of State decision on the
appeal site from 2008/09 where it was found that the setting of the Grade II
listed Uckfield oasthouse1, which is located central to the appeal site, albeit not
within the appeal site itself, would not be “materially harmed” by the
proposals. However, matters, such as policy and guidance on setting and
heritage assets have moved on since then. In any event, I have a statutory
duty in considering whether to grant planning permission to have special
regard to the desirability of preserving the setting of this listed building.
13. With this in mind, I consider this matter to be of fundamental importance in the
determining of this appeal. Consequently, in the interests of natural justice, I
raised this matter proactively with the main parties at the Case Management
Conference and during the course of the Inquiry, giving them the opportunity
to comment specifically on the impact of the development on the setting of the
oasthouse at a round table session. No one would therefore be prejudiced by
my consideration of this as a main issue in the determination of the appeal.
14. The main issues are therefore:
• Whether the development would result in the loss or deterioration of ancient
woodland and the effect of the development on protected species;
1 Core Document F.11
• The effect of the development on highway safety;
• The effect of the development on flood risk;
• The effect of the development on drainage;
• Whether the site is a suitable location for housing having regard to
accessibility and local planning policy; and,
• Whether the development would preserve the setting of the Grade II Listed
Uckfield oasthouse.
Reasons
Ancient Woodland
15. The appeal site includes, directly abuts, and cuts through areas of ancient and
semi-natural woodland known as “Bird-in-eye-Shaw” and “Nightingale Wood”.
16. Based on the submitted illustrative and indicative plans the development would
comprise a parcel of land to the north of the appeal site where housing would
be located, and a Strategic Area of Natural Green Space (SANG) to the south
and east of this. The SANG to the south would be separated from the housing
to the north by a long narrow strip of ancient woodland.
17. There is an existing narrow trodden path through this section of ancient
woodland which leads over a small wooden bridge which crosses a stream. At
the time of my site visit it did not look to be a particularly well-trodden path, as
might be indicated by bare earth, and therefore appeared to attract only low
levels of pedestrian traffic currently, indeed, it is located on private land and
used solely for the recreation of the current owner.
18. In order to provide a circular walking route around the SANG for future
occupiers of the development and other visitors generally, as requested by
Natural England (NE), it is proposed to incorporate this existing path through
the ancient woodland into the route and to upgrade it to make it suitable for
the higher numbers of people using it. This would include creating a ‘no dig’
path of permeable bound gravel, held in place by timber edging boards,
secured with short timber stakes. It is also proposed to enclose this path with
chestnut paling fencing to restrict access into the ancient woodland by persons
and/or their dogs2. As discussed at the Inquiry the path would need to be
around 2m wide to allow people to pass comfortably.
19. From what I saw on my site visit existing ground flora/fungi and understorey
(existing vegetation under the trees) would need to be cleared to upgrade the
path. Furthermore, any ground flora/fungi and understorey would, if not
cleared, be suppressed due to the installing of a path on top of it. Part of the
ancient woodland would therefore effectively be lost and unable to regenerate
itself. NE is clear in its standing advice ‘Ancient woodland, ancient trees and
veteran trees: advice for making planning decisions’3 that damaging or
destroying ground flora, fungi or understorey are direct effects which can lead
to the loss or deterioration of ancient woodland. I therefore find some loss of
ancient woodland in this regard.
2 Inquiry Document 11
3 Core Document G.3
20. The Forestry Commission (FC) were similarly concerned about the loss of
ancient woodland in their consultation comments on the application4. The
appellant downplays their comments saying that the FC thought the path might
be “new”, but even if this was the case it does not change my findings above.
That the FC suggested fencing of the path was, to my reading, a suggestion of
mitigation if their advice was overruled, not a concession it would be
“reasonable to reject their concerns”. Any suggestion that the FC might have
changed their mind latterly is merely conjecture on the part of the appellant.
21. Furthermore, the enclosure of this path with fencing would effectively split this
area of ancient woodland in two breaking up the habitat connectivity that
currently exists. This is identified by NE in their standing advice as an indirect
effect which can cause the loss or deterioration of ancient woodlands.
22. Specifically, it is known that there is a protected species present that is active
across the most eastern and western extents of this area of ancient woodland,
as well as in close proximity to the path in question. The fencing of this path
would therefore introduce a permanent barrier into the foraging areas and
routes of this protected species as well as isolate parts of its territory. It would
also result in a loss of vegetation which provides cover for this species and
introduce increased disturbance to this area from people using the path. All of
these effects are discouraged in standing advice from NE regarding this
protected species5.
23. No specific mitigation or compensation measures are proposed in respect of
these identified effects on this protected species other than advising that they
would find alternative routes around the path, either under the bridge with a
ledge created to facilitate this, but which is nevertheless narrow and very close
to where people would be walking, or at either end of the path through the
housing development or SANG. None of these alternative routes would be
suitable in terms of the disturbance this species would experience as a result. I
therefore find deterioration of ancient woodland due to harm to habitat
connectivity, and harm to a protected species.
24. The minimum 15m buffer zone required by NE could be provided between the
area indicated for housing and ancient woodland to the south and west of this
as shown on the Illustrative Site Layout and could be secured by condition.
This buffer could also be exceeded in places but it would be dependent on the
final layout to be determined at reserved matters stage and could be affected
by, for example, the final design of the drainage basin (see Drainage section).
25. Nevertheless, because this area of ancient woodland is of itself narrow with a
high proportion of its boundary adjoining the area indicated for housing (it
borders the whole of the southern boundary of the housing site and around half
of its western side) it is, in my view, more susceptible to increased
opportunities for deleterious impacts from development such as increased noise
and disturbance to wildlife from additional people and traffic, fly-tipping, and
the impacts of domestic pets from predation, even with the introduction of
defensive planting and a post and rail fence. All of these impacts are identified
by NE in their standing advice on Ancient Woodlands as effects of development
which can cause loss or deterioration of ancient woodland.
4 Core Document B.21
5 Inquiry Document 13
26. Taking all of these points together I find that the development would result in
some loss and deterioration of ancient woodland. This is not outweighed by any
facilitation of recreation, health or wellbeing benefits to be gained by opening
up access to the public.
27. I am aware that NE provided advice on the application. It is clear from this that
they were aware of a path through ancient woodland to achieve a suitable
circular walking route around the SANG. They also note that the inclusion of
dog proof fencing, and fencing along the entire SANG border would deter the
public from entering and negatively impacting the ancient woodland. However,
this advice appears to be largely focussed on the creation of the SANG and it is
possible some issues with respect to impacts on the ancient woodland may
have been overlooked. In any event, I am therefore satisfied that my findings
that the proposal would result in some loss and deterioration of ancient
woodland are in line with NE’s standing advice6.
28. Whether paths through ancient woodland have been created elsewhere does
not justify allowing loss or deterioration of ancient woodland in this case which
is considered on its own merits. The same follows for development in close
proximity to ancient woodland. Each must be determined on their own
individual merits.
29. For the reasons given the development would result in the loss and
deterioration of ancient woodland and harm to a protected species. As such it
would conflict with saved Policies EN1, EN12, EN13 and EN15 of the Wealden
Local Plan (1998) (LP) and Policy WCS12 of Wealden District Core Strategy
Local Plan (2013) (CS). These policies seek to protect the natural environment
and habitats, in particular trees and woodland generally, as well as ancient
woodlands.
30. Furthermore, The Framework at paragraph 180c) is clear that development
resulting in the loss or deterioration of irreplaceable habitats such as ancient
woodland should be refused unless there are wholly exceptional reasons and a
suitable compensation strategy exists. No exceptional reasons have been put
forward in this case.
Highway Safety
31. The proposed access would serve not only residents of the development and
visitors to the SANG but also vehicles associated with the existing light
industrial uses at Bird in Eye Farm. The Highway Authority (HA) confirmed at
the Inquiry that the junction shown in Drawing 5330/021 Rev P may be
acceptable subject to demonstration of its safety through swept path drawings
for all vehicles that would be using this access. These were considered in detail
at the Inquiry.
32. Specifically, concerns were raised by the HA in respect of the Swept Path
Analysis of 12m rigid trucks using the new access junction as shown on
drawing no 5330/228 Rev H7. This plan shows the swept path analysis for the
four manoeuvres these vehicles would make using the proposed access
junction. Of these four scenarios, concerns were raised by the HA with respect
to three.
6 Core Document G.3
7 Appendix 20 of Mr Twinberrow’s proof
33. Firstly, 12m rigid trucks turning left into the site could not do so without
straddling both lanes of the new access. This could result in occasions where
either a collision with a vehicle exiting the site may occur or, more likely, the
truck would need to stop on Bird in Eye Hill to wait for the vehicle to exit the
junction first. This would increase the risk of rear-end shunts by drivers not
expecting traffic to be stopping on a road where speeds are relatively high,
especially if traffic were to build up behind the truck waiting to turn.
34. Secondly, 12m rigid trucks turning left out of the site would need to straddle
the right turn lane into the site. This could result in conflict with traffic
anticipating using this lane, and in a worst-case scenario, a head-on collision.
35. Thirdly, 12m rigid trucks turning right into the access would again need to
straddle the two lanes at the access when turning in. This means if a vehicle
was waiting to exit the access they would need to pull out before the truck
turned in. Furthermore, if the exiting vehicle is turning right they would need to
perform two manoeuvres, firstly moving to the centre of the road in front of
the truck, and then pausing to try to see past the truck to complete their turn,
the truck effectively creating a blind spot. This is a dangerous manoeuvre to
make, particularly on a relatively fast road.
36. All of these manoeuvres raise highway safety concerns for even the most
reasonable and cautious drivers and in my view cumulatively constitute an
unacceptable impact on highway safety. Accident data for the existing access is
immaterial as the new access would attract significantly more traffic
movements and therefore greater vehicle conflict than at present. Whilst HGV
movements would not be large compared to overall numbers of vehicles using
the new access, they would be greater than that of simply refuse trucks
accessing the site, and sufficient, therefore, to raise highway safety concerns.
This is particularly so given the light industrial uses at Bird in Eye Farm which
occur in perfectly serviceable facilities and without any known planning
restrictions on vehicle movements.
37. Concern was also raised regarding cyclists using the proposed vehicle access
because specific provision would not be made for them to turn right. In
principle there is no reason why a cyclist could not use the right turn lane to
access the site using appropriate arm signals. However, given my findings in
terms of 12m rigid trucks needing to straddle the right turn lane, this further
adds to my highway safety concerns at this junction.
38. The development would have an impact on both High Street junctions within
Uckfield which would operate with increased congestion and a Degree of
Saturation occurring in excess of 90% as a result. To mitigate it has been
suggested by the HA that the two junctions be linked using a Multiprocessor
Optimised Vehicle Actuation system and a contribution towards this of £100,00.
The Council raise no objection to this. The R6 specifically raise concern over the
costing of the contribution and when these improvements would be delivered.
However, I am satisfied that the breakdown of this costing is sufficiently
detailed and would mitigate this harm over time. I have therefore taken this
into account in my decision. My finding on this matter does not, however,
diminish the harm to highway safety identified in respect of the main vehicular
access.
39. I have found an unacceptable impact on highway safety as a result of the
proposal. For this reason the proposal would conflict with Policies TR3 of the LP
and Spatial Planning Objective SPO12 of the CS which requires new
development to not create unacceptable traffic conditions and to provide a
satisfactory means of access. The Framework is also clear that development
should be refused on highway grounds if there would be an unacceptable
impact on highway safety.
Flood Risk
40. The majority of the appeal site falls within Flood Zone 1 ‘low probability of
flooding’. However, there are parts of the site, closest to watercourses, which
fall within Flood Zones 2 and 3 ‘medium and high probability of flooding’. These
areas are also at risk from pluvial and groundwater flood risk.
41. The Sequential Test should be applied when any part of a site is at risk of
flooding. Flood risk mapping is not an exact science and it may be that the
extent of flood risk is greater than that shown. This is particularly relevant in
this case as the pedestrian/cycle access would be located in close proximity to
areas at medium and high probability of flooding. The Sequential Test should
therefore still be applied on sites such as this one which present a greater risk
than sites which are wholly within areas at little or no risk of flooding.
42. The site might well be able to be laid out with residential development solely
within Flood Zone 1, ignoring the pedestrian/cycle access, but such
considerations would form part of the Exception Test and this can only follow
after the Sequential Test has been complied with. To miss the Sequential Test
would negate the purpose of the Sequential Approach which is specifically
designed to ensure that areas at little or no risk of flooding from any source are
developed in preference to areas at higher risk.
43. In spite of the appellant’s position that a Sequential Test is not required, one
has been done. However, this is limited to a search area 7km from the
Ashdown Forest Special Protection Area (SPA) and Special Conservation Area
(SCA). There is no need for such a limitation given that the development is
primarily for housing. The SANG proposed is principally to provide mitigation
for this housing in terms of the effects of increased recreational disturbance on
the SPA and SCA. Taking into consideration areas not constrained by the SPA
and SAC to accommodate housing of this scale seems eminently sensible to me
in undertaking a Sequential Test as a wider area would significantly broaden
the scope for opportunities to reduce flood risk.
44. In the case of Wathen-Fayed v Secretary of State for Levelling Up, Housing and
Communities the findings here relied on a previous version of the Planning
Practice Guidance (PPG). Matters of planning policy have therefore moved on
since this time and I have taken this into consideration in my decision
accordingly.
45. In light of my findings above I consider that the Sequential Test does not
adequately satisfy the requirements of the Framework and the PPG.
Drainage
46. Whilst there are some areas of surface water or groundwater flood risk the
LLFA consider that as these are small, they would not reduce the ability of the
proposed drainage system to function as intended. The LLFA are satisfied that
the drainage strategy put forward by the appellant is feasible and do not object
to its basis. Site layout and further technical design considerations could be
secured via appropriate conditions.
47. The R6 party raised concerns that the size of the basin required may be larger
than currently designed for once details were finalised and whether this could
be accommodated within the confines of the land/use parameter plan. Even if it
transpired that it was required to be c. 40% larger than shown currently, I am
satisfied there is sufficient space to accommodate this within the confines of
the land use parameter plan.
48. I therefore find no harm in terms of drainage and as such no conflict with
Policies EN1 and CS1 of the LP which seek to protect water quality and to
ensure that the works and services required to support development can be
provided.
Suitable Location – Accessibility
49. The town of Uckfield is located to the west of the appeal site and offers a good
choice of shops, restaurants, a train and bus station and other services. The
distances to key facilities within the town8 at c. 1mile/20mins walk are
‘walkable’ but not within ‘easy’ walking distance, particularly as the site
occupies an elevated position above the town. It follows that Uckfield is also
within cycling distance of the development.
50. The walk/cycle into Uckfield would be improved by the provision of a direct
pedestrian/cycle link from the north-west corner of the site onto Bird in Eye
Hill, which links into Framfield Road and leads to the town centre. However, it
would still not be an easy walk/cycle save for reasonably fit persons, and would
be particularly difficult, for example, for people laden with shopping,
accompanied by children, or with mobility issues.
51. The proposed pedestrian/cycle link, however, would place persons travelling
from the development in close proximity to a bus stop which currently provides
a regular service through the day, and on weekends, to Uckfield and other
nearby centres. This bus stop would, furthermore, be upgraded as part of the
proposal with bus shelters and a real-time passenger information system. In
addition to this funding would be provided to secure the bus service for a
further three years. A Travel Plan could also be secured to promote sustainable
transport modes.
52. Overall, therefore, I consider the development is in a suitable location in terms
of accessibility as it would limit the need to travel and offer a genuine choice of
transport modes in line with the Framework para 105. On this basis I find no
conflict with Policies EN1, EN2, TR3 and TR13 of the LP, and Spatial Planning
Objectives SPO7 and SPO15, and Policy WCS7 of the CS which require
development to be located efficiently in relation to existing development and to
public transport, the provision of safe and convenient pedestrian routes which
link to the existing footpath network, and the provision of suitable public
transport infrastructure.
Suitable Location - Policy
53. Saved policies GD2 and DC17 of the LP seek to restrict development to within
defined development boundaries. The proposed development is outside of
8 Inquiry Document 15
these development boundaries therefore the proposal conflicts with this policy.
However, these boundaries were drawn to accommodate the level of housing
required at the time the LP was adopted, which is far below that which is now
required. If these policies were strictly applied they would prevent the delivery
of much needed housing in a District where there is no 5 year Housing Land
Supply, conflicting with the objectives of the Framework to significantly boost
the supply of housing. For these reasons, for the purposes of this appeal,
Policies GD2 and DC17 of the LP should be regarded as out of date. Any conflict
with them is therefore afforded only limited weight.
Heritage
54. At the centre of the appeal site is a Grade II listed oasthouse. It sits broadly at
the centre of Bird in Eye Farm, which forms its setting, along with the fields
surrounding it which were historically used for a mixture of arable (hop) and
pasture uses in connection with the farm. They remain in use for pasture
today. The heritage witness for the appellant confirmed that the proposed
development would affect the setting of the listed oasthouse. Consequently, as
set out in Section 66(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990 in considering whether to grant planning permission for
development which affects the setting of a listed building I must have special
regard to the desirability of preserving the building’s setting.
55. I am mindful that no material harm to the setting of the oasthouse was
identified in the 2009 Inspector’s report and Secretary of State Decision9.
However, matters have moved on since that time such as guidance from
Historic England: The Setting of Heritage Assets, which was first published in
2015, and is now a material consideration in this appeal. Furthermore, the
Framework is now a material consideration.
56. Whilst much of the significance of the oasthouse may be derived from its
technical rarity as set out in the listing description, this case is concerned with
the importance of the setting of the oasthouse and how this contributes to the
asset’s significance.
57. The setting to the oasthouse contributes to its significance insofar as its historic
use for drying hops and functional relationship with the surrounding fields
which grew the hops can still be appreciated today. These fields remain open,
undeveloped, and in use as pasture. Consequently, they enable the oasthouse
to be appreciated in broadly its historic rural scene. These fields also provide
for a qualitative understanding of the significance of the oasthouse derived
from its setting as they provide a degree of quiet and tranquillity which you
would reasonably associate with such a rural, historic scene. Furthermore, the
lack of development in these fields along with its elevated position above the
town gives it a local landmark quality.
58. The proposed development seeks to site up to 290 houses, access roads, and
an attenuation basin within the setting of the oasthouse. Consequently, any
remaining ability to appreciate the significance of the oasthouse in its historic
rural setting would be largely lost. The level of development proposed would
also visually compete with and distract from its local landmark quality.
Furthermore, the relatively quiet and tranquil character of the setting of the
9 Core Document K.11
oasthouse would be significantly diminished by the large-scale residential
development proposed.
59. The appellant suggests that area(s) of open land could be designed in the final
layout of the development, as shown on the Illustrative Site layout, in order to
provide an element of the rural setting of the oasthouse. However, given the
scale of development proposed any such land would be relatively modest in
size, flanked by development, likely landscaped, and would not provide any
meaningful historic views of the oasthouse that I have been made aware of.
This would therefore reduce the harm I have found to setting by a very
minimal degree as its setting as currently experienced is far wider, more
extensive, and rural in character. An information board could also be provided
as part of the development providing interpretation as to the significance of the
oasthouse in terms of its technical rarity and this would better reveal its
significance. However, it would not minimise the specific harm to its setting
that I have identified.
60. It is my finding, therefore, that the setting of the oasthouse would not be
preserved by the development. It follows therefore that the proposal would
conflict with Spatial Planning Objective SPO2 of the CS which requires
protection of the historic environment. The Framework is also clear that in
determining planning applications account should be taken of the desirability of
sustaining and enhancing the significance of heritage assets.
61. In terms of para 202 of the Framework the harm I have identified to the
setting of the oasthouse would be ‘less than substantial’ given the building and
its significance in terms of its technical rarity would be unharmed by the
development. There is no requirement for me to place the degree of ‘less than
substantial harm’ on a spectrum in order to conclude on heritage matters.
62. As set out in paragraph 202 where a development proposal would lead to ‘less
than substantial harm’ to the significance of a designated heritage asset, this
harm should be weighed against the public benefits of the proposal.
Heritage Balance
63. In this case the public benefits would include economic benefits derived from
the provision of up to 290 homes of which 35% would be affordable housing
and 5% self-build homes, in an area where there is an agreed and long-
standing shortfall of housing land supply, the current figure being 3.92 years.
These homes would drive economic growth in the area through the associated
expenditure and job creation that new housing provides. Appropriate conditions
also mean this development could come forward relatively quickly.
64. The development would provide a SANG primarily to mitigate impacts to the
Ashdown Forest SPA and SAC which would likely occur from increased
recreational disturbance from the proposed housing as set out in Policy WCS12
of the CS. The mitigation the SANG would provide is a neutral factor in the
planning balance. However, provision is also made for other visitors to the
SANG also which is a public benefit.
65. The size of SANG proposed in this appeal is necessary to provide a circular
walking route of c. 2.7km for future occupiers of the development. The
appellant argues that the SANG, due to its resulting overall size could, in
theory, provide mitigation for a significant number of new homes beyond that
proposed in this appeal. However, this argument is largely academic because
there is no way of knowing at this time if the SANG proposed will provide a
benefit in terms of mitigation for any future housing development which may
come forward in the vicinity of the appeal site. It would therefore at best carry
only minimal weight as a benefit.
66. The proposals would secure a biodiversity net gain of c. 40% to be secured by
condition along with new tree planting. Sustainable homes in terms of their
environmental credentials and proximity to local services would be created,
along with recreational space and landscaping. Some minor public benefit
would also be derived from the provision of a heritage information board
regarding the oasthouse.
67. An absence of harm to the amenity of neighbouring occupiers or landscape
harm carries neutral weight. Generally, neutral weight is also afforded to any
contributions through CIL planning obligations to mitigate pressure on local
services, although some wider public benefits may occur as a result. An
absence of harm from loss of Best and Most Versatile agricultural land is also a
neutral factor in the planning balance.
68. Taken together, the scale of development and associated benefits as set out
above carry substantial weight.
69. Para 199 of the Framework advises that great weight should be given to the
conservation of designated heritage assets irrespective of whether any
potential harm amounts to substantial harm, total loss, or less than substantial
harm. Furthermore, any harm must be given considerable importance and
weight. Given that the proposal would result in the loss of such a large area of
the immediate setting of the oasthouse and therefore severely reduce the
contribution this currently makes to the significance of this heritage asset I find
that this harm is not outweighed by the public benefits in this case.
Overall Planning Balance
70. The harms I have identified in respect of ancient woodland, highway safety,
flood risk, and heritage are individually significant and cumulatively carry
substantial weight. There is also very limited harm by way of locational policy
conflict. Whilst I have found no harm in terms of the accessibility of the
development, and no harm in relation to drainage, overall, I find that the
proposal would conflict with the development plan as a whole.
71. Furthermore, the harms identified in respect of ancient woodland, flood risk
and heritage relate to the application of policies in the Framework which
protect areas or assets of particular importance and provide clear reasons for
refusing the development proposed.
72. The matters which weigh in favour of the proposal, whilst substantial, do not
outweigh the totality of the harm that I have found.
73. The appeal is therefore dismissed and planning permission refused.
Hayley Butcher
INSPECTOR
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Victoria Hutton
She called:
Ben Rainbow BSc (Hons) NVQ2
Roger New BSc MSc
Claire Turner BSc (Hons) MSC MRTPI
FOR THE APPELLANT
Andrew Tabachnik KC
He called:
Richard Hyett MSc BSc (Hons) MArborA MICFor (Director, Barton Hyett
Associates)
Mark Rose BSc (Hons) MSc PGDip MCIEEM (Associate Ecologist, CSA
Environmental)
Amy Hensler BSc (Hons) MSc MCIWEM C.WEM CEnv (Director Stantec UK Ltd)
Matthew Twinberrow BEng MCIHT (Associate Director Bellmany Roberts)
Steven Brown BSc (Hons) Dip TP MRTPI (Principal Woolf Bond Planning)
Also appearing for the appellant:
Thomas Copp BA (Hons) MA AssocIHBC (Director RPS Heritage)
FOR THE RULE 6
Mary Cook
She called:
Simon Maiden Brookes BSc (Hons) MSc C Eng C WEM MCIWEM
Richard White BSc (Hons) MSc
INTERESTED PERSONS WHO SPOKE AT THE INQUIRY:
Karen Redwell Uckfield Town Council
Peter Keith Lucas
Cllr Bernadette Reid Wealden District Councillor
Mr and Mrs Chelano
Anne Newton
Alison Strickland
INQUIRY DOCUMENTS
ID1 Appearances for the appellant
ID2 Arboricultural response note to comments on highway access (appellant)
ID3 Arboricultural response note to comments on highway access (Council)
ID4 Rebuttal proof of Evidence of Richard White
ID5 Summary of the consultation exercise undertaken on amendments made to
the appeal scheme access and shown on 5330/021 Rev P
ID6 Appellant’s opening submissions
ID7 Council’s opening submissions
ID8 R6’s Opening submissions
ID9 Uckfield Town Council representations
ID10 Letter and plan sent for consultation on access plan 5330/021 Rev P
ID11 Plan of fencing along and around ancient woodland walking route
ID12 Erratum note – Highways Proof of Evidence on behalf of East Sussex County
Council
ID13 Advice for making planning decisions
ID14 Proposed bus stop improvements and speed limit extension
ID15 Updated table of Walking/cycling distances to key facilities (from centre of
scheme)
ID16 Planning validation guide
ID17 Ped/cycle access to be approved
ID18 Box Van food delivery swept path analysis
ID19 Drawing No: 5330/045 Rev A Location of proposed pedestrian/cycle access
ID20 Numbered Illustrative Site Layout
ID21 Draft Planning Obligation by Unilateral Undertaking
ID22 Draft conditions


Costs Decisions
Inquiry Held on 12-21 September 2023
Site visit made on 18 September 2023
by H Butcher BSc (Hons) MSc PGDip MRTPI
an Inspector appointed by the Secretary of State
Decision date: 18th October 2023
Costs application 1 in relation to Appeal Ref: APP/C1435/W/22/3307820
Land at Bird in Eye Farm, South of Bird in Eye Hill, Framfield, Uckfield
TN22 5HA
• The application is made under the Town and Country Planning Act 1990, sections 78,
320 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Wealdon District Council and East Sussex County Council for
a full award of costs against [APPELLANT].
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for the erection of up to 290 dwellings, associated landscaping, informal
open space and strategic SANG, with access from the B2102.
Costs application 2 in relation to Appeal Ref: APP/C1435/W/22/3307820
Land at Bird in Eye Farm, South of Bird in Eye Hill, Framfield, Uckfield
TN22 5HA
• The application is made under the Town and Country Planning Act 1990, sections 78,
320 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by [APPELLANT] for a partial award of costs against
Wealdon District Council.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for the erection of up to 290 dwellings, associated landscaping, informal
open space and strategic SANG, with access from the B2102.
Decisions
Costs Application 1
1. The application for a full award of costs is refused.
Costs Application 2
2. The application for a partial award of costs is refused.
Procedural Matter
3. The costs applications were made in writing after the closure of the inquiry
following a prescribed timetable.
Costs Application 1
The submissions for Wealden District Council and East Sussex County
Council
Ancient Woodland
4. The appellant’s case that the proposal would not result in the loss or
deterioration of ancient woodland had no reasonable prospect of success. The
appellant’s witnesses in respect of ancient woodland matters were unable to
give basic details as to the nature of the path through ancient woodland. They
also took into account the current condition of the ancient woodland contrary to
Natural England’s (NE) standing advice ‘Ancient woodland, ancient trees and
veteran trees: advice for making planning decisions’1. Furthermore, they relied
on a test which had no basis in any policy or guidance. The appeal would have
failed on this point alone therefore, a full award of costs is sought as the
Council incurred wasted expense defending the appeal in full.
5. The consultation response from NE advised consideration of any impacts on
ancient woodland and ancient and veteran trees in line with paragraph 180 of
the National Planning Policy Framework. In any event, the position of NE in this
appeal does not circumvent the need to comply with national policy.
Highway Safety
6. Similarly, the appellant had no reasonable prospect of succeeding in respect of
highway safety matters. At the time of making an appeal for non-determination
there was an outstanding objection from the Highway Authority (HA). The
appellant latterly submitted multiple amendments to the proposed access to
resolve this. This matter should have been resolved prior to or at application
stage. It was unreasonable of the appellant to use the appeal process to
overcome such a fundamental issue. The Council also raise concerns over the
Road Safety Audit. Ultimately, the access put forward was unsafe, based on
assertion, and incapable of overcoming the objection from the HA.
The response by [APPELLANT]
Ancient Woodland
7. Sufficient detail was provided in respect of the improved path. The appellant’s
approach to the current condition of the existing path was correct. The
witnesses’ evidence was given in good faith and was an entirely reasonable
appraisal of their positions. NE provided bespoke advice on the acceptability of
the scheme with respect to ancient woodland.
Highway Safety
8. The amendments to the access proposals satisfied the Wheatcroft criteria as
determined by the Inspector and saved Inquiry time. The road safety auditor
provided his independent and definitive view over an extended period of time
considering all relevant matters.
1 Core Document G.3
Other Matter
9. The appellant queried whether the County Council are entitled to apply for
costs.
Reasons
10. As set out in Planning Practice Guidance (PPG) costs may be awarded where a
party has behaved unreasonably, and the unreasonable behaviour has directly
caused another party to incur unnecessary or wasted expense in the appeal
process.
Ancient Woodland
11. It will be seen from my decision that I considered sufficient information was
provided to the Inquiry to enable me to understand the nature of the path
upgrades proposed through the area of ancient woodland in order to determine
if any loss or deterioration would occur.
12. It is not unusual or unreasonable for witnesses to have differing views as to the
interpretation of evidence. The appellant’s witnesses explained how they came
to their expert opinions at the Inquiry. The purpose of an Inquiry is to test
evidence. Whether their approach to the evidence was flawed or not I find no
unreasonable behaviour in this case.
13. Whilst there was much weighing against the matter of ancient woodland in this
case, not least NE standing advice and comments from the Forestry
Commission, I, nevertheless have some sympathy with the appellant given the
encouragement they received separately from NE in respect of the creation of a
path through the ancient woodland to serve the Suitable Alternative Natural
Green Space. It is therefore understandable why the appellant advanced their
case as they did and overall does not amount to unreasonable behaviour.
Highway Safety
14. The submission of amendments to the proposed access was not unreasonable
behaviour on the part of the appellant. Although the appeal process should not
be used to evolve a scheme, in my view the changes were not fundamental
and, in any event, as I determined in my Ruling during the Inquiry, all persons
who should have been consulted on the amended access plan were given the
opportunity to do so. Furthermore, the revised plans proved useful in allowing
the points at issue to be narrowed. I therefore find no unreasonable behaviour
in this regard.
Other Matter
15. As set out in the PPG interested parties who have taken part in the appeal
process, including statutory consultees, may apply for costs.
Conclusion
16. I find that unreasonable behaviour on the part of the appellant resulting in
unnecessary or wasted expense to the Council has not been demonstrated. The
Council’s application for a full award of costs is therefore not justified.
Costs Application 2
The submissions for [APPELLANT]
Instruction of Counsel for the Appellant
17. The Council objected to the barrister appointed by the appellant; Mr Boyle KC,
shortly after the Case Management Conference, and wrote directly to Landmark
Chambers on this matter. The appellant did not want the distraction of a
protracted dispute regarding this point and so felt forced to instruct alternative
counsel. This therefore resulted in the duplication of work and additional costs.
18. Although Mr Boyle KC had represented the Council in 2008 it was unreasonable
of the Council to raise a complaint. Mr Boyle KC would not have represented
the Council had he considered a conflict to exist. Given the passage of time, in
particular, no conflict existed.
Locational Sustainability Objection
19. The Council’s pursuit of a locational sustainability objection was unreasonable.
The 2009 Secretary of State decision at the appeal site2 determined that
sustainability was not sufficient a reason to refuse planning permission, and
there is no evidence of any material change of circumstance in the years that
have followed. The appellant was made to incur unnecessary costs preparing
for and arguing these matters at the Inquiry.
Unreasonable Objection to the Admission of Drawing No 5330/021 Rev P
20. It was unreasonable for the Council to object to the submission of this plan at
the start of the Inquiry. Their objection failed to focus on the key issue which
was whether anyone would be prejudiced by its acceptance. They also
unreasonably raised concerns about deliverability and validity of the appeal in
respect of this plan which were not a legitimate basis for opposing its
admission.
Ancient Woodland Objection
21. The Council have never had good reason to disagree with the support given to
the appeal scheme from NE, and who worked collaboratively with the appellant
and were, indeed, the source of the suggested path through ancient woodland.
22. The Council’s case in respect of ancient woodland evolved throughout the
Inquiry. This was unreasonable behaviour. Furthermore, the Council did not
agree a Statement of Common Ground (SOCG) on Ancient Woodland matters
which would have saved Inquiry time as many of the Council’s witness’ points
were the product of misunderstanding or could have been agreed separately
following a short discussion. The topic took up significant preparation and
Inquiry time.
Overall Point
23. If the Council had reasonably scoped its putative reasons for refusal and
thereafter conducted itself reasonably the appeal could have been resolved in a
1-day hearing. A partial award of costs reflecting c. 80% of the appellant’s
costs or an award reflecting these specific matters is therefore requested.
2 Core Document K.11
The response by Wealden District Council
Instruction of Counsel for the Appellant
24. The Council properly raised its concerns with respect to Mr Boyle KC acting as
Counsel for the appellant, with Landmark Chambers, by letter, giving them the
opportunity to comment. It was Mr Boyle KC who decided to return his
instructions. Had the appellant, Landmark Chambers, or Mr Boyle KC disagreed
with the Council’s concerns then they could have continued to act for the
appellant and have the matter determined in a forum outside of the Inquiry.
The Council did not force the appellant’s hand on this point and their concerns
were based upon the proper application of the Bar Handbook.
Locational Sustainability Objection
25. There is no such statement in the 2009 Secretary of State Decision3 that
locational sustainability was not a sufficient reason to refuse planning
permission. Rather sustainability was part of the reason why permission was
refused.
26. The R6 party also called evidence on the locational sustainability of the appeal
site. Therefore, even if the Council had not pursued this putative reason for
refusal the appellant would have had to address the issue in any event.
Unreasonable Objection to the Admission of Drawing No 5330/021 Rev P
27. The Council’s objection to the admission of this plan was based upon the expert
advice of the HA regarding deliverability of the new access. It was perfectly
proper to raise this and the matter went to the issue of prejudice as it
concerned impacts to third party land. Once the Inspector made her Ruling the
Council accepted it and moved on.
28. Even if the Council’s approach was unreasonable, the appellant had fair
warning of the Council’s position and no additional costs would have been
incurred above those reasonably necessary for attendance at the Inquiry.
Ancient Woodland Objection
29. This ground continues to promote the appellant’s misapprehension that NE
gave comprehensive advice on this issue. The Council’s witness on ancient
woodland took account of all available evidence before him when writing his
evidence. The reality is that a consultation response will always be less detailed
than evidence given at an Inquiry. The Council attempted to agree a SOCG
with the appellant, but the appellant latterly decided that the document would
not be useful.
Reasons
30. As set out in the PPG costs may be awarded where a party has behaved
unreasonably, and the unreasonable behaviour has directly caused another
party to incur unnecessary or wasted expense in the appeal process.
Instruction of Counsel for the Appellant
31. The Council were at liberty to raise this issue with the appellant outside of the
Inquiry process and the appellant was similarly at liberty to act accordingly on
3 Core Document K.11
it. It was a matter between the parties concerned and could have been
determined in a forum outside of the Inquiry if so needed. I therefore find no
unreasonable behaviour in this regard.
Locational Sustainability Objection
32. Whilst my decision found in favour of the appellant on this point, as also
demonstrated therein, matters such as planning policy and material
considerations have moved on since the 2009 Secretary of State Decision4. I
therefore find no unreasonable behaviour on the part of the Council in pursuing
this reason for refusal.
Unreasonable Objection to the Admission of Drawing No 5330/021 Rev P
33. The Council were entitled to object to the late submission of Drawing No
5330/021 Rev P. Objecting, would not, of itself, amount to unreasonable
behaviour as they were entitled to give their view. The Council were also
entitled to raise concerns over validity and deliverability, and these were dealt
with accordingly. I therefore find no unreasonable behaviour in this regard.
Ancient Woodland Objection
34. It will be seen from my decision that I find that the Council did have good
reason to not rely entirely on the consultation comments from NE on the
application. The Council’s case may have evolved somewhat during proceedings
but not to an unreasonable level as it was necessary to fully explore all of the
matters at play in the Inquiry.
35. The Council made efforts to discuss a SOCG on Ancient Woodland. In any event
I do not consider that this, of itself, would have materially reduced Inquiry time
given the differences between the main parties on this matter.
Overall Point
36. Other matters were raised by the R6 party, including highway safety, locational
sustainability, drainage and flood risk, and, as the Inspector, I also raised the
matter of heritage. Therefore, it would not have been possible to deal with the
Inquiry as a 1-day hearing even if the Council had withdrawn its ancient
woodland and locational sustainability objections.
Conclusion
37. I find that unreasonable behaviour on the part of the Council resulting in
unnecessary or wasted expense to the appellant has not been demonstrated.
The appellant’s application for a partial award of costs is therefore not justified.
Costs Application 1
38. The application for a full award of costs is refused.
Costs Application 2
39. The application for a partial award of costs is refused.
Hayley Butcher
INSPECTOR
4 Core Document K.11