Case Reference: 3345435

Appeal Decision
Inquiry held between 5 February 2025 and 6 March 2025
Site visits made on 5 and 7 March 2025
by C Dillon BA (Hons) MRTPI
an Inspector appointed by the Secretary of State
Decision date: 5th August 2025
Appeal Ref: APP/A1910/W/24/3345435
Land west of Leighton Buzzard Road, Hemel Hempstead HP1 3LP
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as amended)
against a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Dacorum Borough
Council.
• The application Ref is 21/04508/MOA.
• The development proposed is the erection of up to 390 dwellings (C3 Use), including up to 50%
affordable housing and 5% self-build, a residential care home for up to 70-beds (C2 use), along with
associated landscaping and open space with access from Leighton Buzzard Road.
Decision
1. The appeal is allowed, and outline planning permission is granted for the erection
of up to 390 dwellings (Use Class C3), including up to 50% affordable housing and
5% self-build, a residential care home for up to 70-beds (Use Class C2), along with
associated landscaping and open space with access from Leighton Buzzard Road
at land west of Leighton Buzzard Road, Hemel Hempstead HP1 3LP in accordance
with the terms of the application, Ref 21/04508/MOA, subject to the conditions in
the attached schedule.
Applications for costs
2. The appellant has sought a partial award of costs against Dacorum Borough
Council (the Borough Council) and Hertfordshire County Council on separate
matters. Furthermore, the County Council has sought a partial award of costs
against the appellant. These are the subject of separate decisions.
Preliminary Matters
3. The Gade Valley Communities Coalition, a combined objectors group (the Group)
was granted Rule 6 status under the Inquiry Procedure Rules and participated in
the Inquiry.
4. The planning application to which this appeal relates was made in outline, with all
matters, except for access, reserved for future consideration. The submitted Master
Plan is illustrative, whereas the Parameters Plan (Ref: 2037/PL03M) and highways
plans (Refs: SK21611-04 Rev A and SK21611-05 Rev B) form part of the submitted
details to be determined through this appeal.
5. An amendment to the description of the proposed development has been agreed
between the Borough Council and appellant to reflect an uplift in the affordable
housing provision from 40% to 50%. As interested parties have had an opportunity
to respond to that change in advance of the Inquiry sessions, I am satisfied that no
prejudice would be caused by my acceptance of the revised description as the
basis on which to determine this appeal.
6. An executed bilateral planning agreement and unilateral undertaking containing
planning obligations relating to borough and county matters have been provided.
7. All documents submitted during the course of the Inquiry are listed in the attached
Inquiry Document Schedule. I am satisfied that no one has been prejudiced by their
acceptance as they are directly relevant and necessary for my Decision and the
main parties have been given the opportunity to comment upon them.
8. The Borough Council has submitted a new Local Plan for examination since the
Inquiry sessions concluded. The appeal site does not feature within that Plan.
However, the new Plan has not yet reached a stage which can be afforded
anything more than limited weight.
9. Since the appeal was lodged there have been revisions to the Framework and the
PPG. The main parties have had opportunity to review and revise their evidence in
response to this, including in respect to Green Belt matters, and the appeal is
determined against that current national policy context.
10. It is common ground that the current housing land supply position stood at a
maximum supply of 1.03 years at the base date of 1 April 2024 (Ref: CD4.11). This
equates to a shortfall of 6,457 dwellings and is agreed by the main parties as
representing a ‘chronic undersupply of both market and affordable housing’. As
such, the Borough Council is not able currently to demonstrate a five year supply of
deliverable housing land for the period 1st April 2024 to 31st March 2029.
Main Issues
11. The Borough Council’s decision notice cites 9 reasons for refusal. However the
areas of dispute between the main parties were not static and were supplemented
by a further reason for refusal relating to landscape. Therefore, the main issues for
this appeal are:
• the effect on landscape character and appearance, including the natural
beauty, wildlife and cultural heritage of the Chilterns National Landscape;
• the effect on the ecological interests within the appeal site, neighbouring land
and the Chilterns Beechwoods Special Area of Conservation;
• whether the appeal site is a justified and suitable location for residential
development, having regard to flood risk, the sequential test and mitigation;
• whether the appeal proposal would secure accessibility by a choice of
sustainable modes and highway safety;
• whether or not adequate provision of community infrastructure would be
secured to meet the requirements of the future residents of the appeal
proposal;
• the effect of the proposed development on the significance of Gadebridge
Roman Villa Scheduled Monument (List Entry No 1015577); nearby Listed
Buildings1; and the Piccotts End Conservation Area, with particular regard
to their respective settings; and
• whether the appeal proposal is inappropriate development in the Green Belt,
with particular regard to whether it meets both the definition of ‘Grey Belt’ land
and the ‘Golden Rules’ set out in national policy, so as not to require very
special circumstances to be demonstrated.
Reasons
Landscape Character and Appearance
12. The appeal site is mainly a collection of undeveloped grassed fields and woodland
blocks which sits on one side of the Gade Valley, just beyond the built form of
Hemel Hempstead New Town and the historic rural village of Piccotts End. It
extends from the valley floor up one of its sides. In terms of its landscape character
and appearance, the appeal site presents as countryside.
13. The appeal site sits within the periphery of the much wider Gade Valley Landscape
Character Area (the LCA) and falls within the setting of the Chilterns National
Landscape. It is not subject to any national or local landscape designations. The
concept of a green ‘wedge’, ‘corridor’, ‘buffer’ or ‘entrance’ referred to during the
Inquiry was demonstrated as having no policy status. Furthermore, I concur with
the common ground reached that the appeal site does not comprise a valued
landscape for the purposes of interpreting paragraph 187(a) of the Framework.
14. The existing character of the appeal site is very much influenced by surrounding
built form of both the neighbouring town and village, the Leighton Buzzard Road
and the more sporadic development further up the valley which straddles that route.
The sensitivity of this landscape decreases as one moves down the valley towards
Hemel Hempstead and past the site. As such, the appeal site is very much a
transitioning area.
15. In terms of impact, the appeal scheme would introduce housing components and
associated infrastructure where none currently exists. As with the development of
any previously undeveloped site, there would be a considerable change to
character and appearance at a site level.
16. The appeal proposal would be visible from the valley bottom on approach out of
and towards Hemel Hempstead along Leighton Buzzard Road. Close up views of
parts of the proposed development would also be captured from along a stretch of
public footpath running through the north of the appeal site between Halsey Field
and Leighton Buzzard Road, including at and around agreed viewpoints 07 and 08.
The proposal would also be visible from medium to long range views from both
Piccotts End and the valley’s opposing slopes which are traversed by a network of
Public Rights of Way.
1 Listed Buildings: ‘Piccott’s End Mill House’ (List Entry Number: 1251041); ‘138 Piccott’s End’ (List Entry Number: 1078040);
‘140 Piccott’s End’ (List Entry Number: 1051084); ‘142-148 Piccott’s End’ (List Entry Number: 1078041); ‘150 Piccott’s End’ (List
Entry Number: 1051085); ‘130-136 Piccott’s End’ (List Entry Number: 1342208); ‘Piccott’s End Farmhouse’ (List Entry Number:
1251040); ‘Piccott’s End House’ (List Entry Number: 1078039); ‘Gade Spring, Piccott’s End’ (List Entry Number: 1262990); ‘92
Piccott’s End’ (List Entry Number: 1342207); ‘94, 96 and 104 Piccott’s End’ (List Entry Number: 1049075); ‘95 and 97 Piccott’s End’
(List Entry Number: 1262989); ‘99 Piccott’s End’ (List Entry Number: 1251025); ‘101-105 Piccott’s End’ (List Entry Number:
1251026); ‘Little Marchmont Marchmont House’ (List Entry Number: 1078042); ‘Outbuilding (former stables) to the north east of
Little Marchmont’ (List Entry Number: 1078043); ‘Gate piers at Marchmont House’ (List Entry Number: 1051053); ‘Gaddesden
Place’ (List Entry Number: 1101253); ‘Gaddesdon Hall (List Entry Number: 1101228); and ‘Grist House Farm complex’ (List Entry
Number: 1101227).
17. However, the submitted plans demonstrate that the appeal site could be developed
in a manner that would give over half of it to green infrastructure provision. This
would be a significant level that is in excess of the policy requirement and would
incorporate planting and other landscaping measures as mitigation.
18. In terms of the extent of harm, the relationship of the parts of the appeal site to be
developed relative to the topography and tree cover to be retained mean that
similar to Hemel Hempstead, the developed components of the appeal proposal
would not be visible as a whole, rather there would be glimpses and partial views of
it.
19. The assessment of this appeal in landscape terms is in no way a beauty contest
with the other development sites that have been drawn to my attention, including
those referred to as ‘North Hemel’, ‘Polehanger Lane’, ‘West Hemel’ and
‘Marchmont Farm’. However, it was demonstrated through cross-examination that
the landscape objections had not been adequately contextualised in terms of how
the landscape is likely to be in the future, as required by GLVIA (Ref CD 6.1).
20. Overall, the longer term effects of the glimpsed and partial landscape changes
proposed would be successfully absorbed into the landscape. This is because the
sensitivity of the landscape decreases as the Gade Valley approaches the appeal
site and Hemel Hempstead beyond and becomes more enclosed. The juxtaposition
between the appeal site and the neighbouring settlements is such that it would read
as an extension to the Gadebridge part of Hemel Hempstead.
21. Furthermore, from my site observations, I do not concur with the Council’s
assessment of landscape harm post mitigation stage at Year 15. I observed that
the effect on landscape character would initially be moderate adverse, lessening as
landscaping matures to minor adverse by Year 15. There would be landscape
benefits and enhancements from the reinforcement of existing boundaries through
planting along the public footpaths that cross the site. Overall, the adverse effects
would be both limited and localised in their degree and extent, principally along
those public footpaths.
22. The appeal proposal would be located within a swathe of countryside which leads
to and from Hemel Hempstead. However, a swathe, albeit narrower would be
retained along the valley bottom in the form of a substantial green buffer. This
approach mirrors the vision of Sir Geoffrey Jellicoe to the New Town development
which sought to ensure that this Valley and the River Gade act as connecting
features in terms of settlement morphology and support his ‘city in a park’ concept.
The appeal proposal would reflect the character and appearance of the much wider
mixed landscape context. They would provide some support to the qualities of the
LCA and the setting of the National Landscape. I am satisfied that an appropriate
balance has been struck in terms of landscape effects, such that an awareness of
the wider landscape character and appearance would remain.
23. In terms of exercising my duty to seek to further the statutory purpose of conserving
and enhancing the natural beauty, wildlife and cultural heritage of the Chilterns
National Landscape, I am satisfied that the development of this part of its setting in
the manner proposed would leave those specified characteristics of that National
Landscape unharmed and would provide some support to its qualities.
24. In conclusion to this main issue, the appeal proposal would cause minor adverse
harm to the landscape character and appearance of the area. However, this would
not transpose as harm to the natural beauty, wildlife and cultural heritage of the
Chilterns National Landscape.
25. Policy CS25 of the Dacorum Core Strategy (2013) seeks to conserve and improve
landscape quality, character and condition. In view of my findings, the appeal
proposal conflicts with that policy. However, given my findings in respect to the
National Landscape there is no conflict with saved Policy 97 of the Dacorum Local
Plan (2004) or Policy CS24 of the Core Strategy.
Ecological Interests
• Habitats and species
26. The appeal site includes fields of pasture, woodland parcels and scrub habitat
comprising neutral and modified grasslands; semi natural mixed and broadleaved
woodlands; buildings, dense and continuous scrub, scattered trees and hedgerows.
It falls within the geographic scope of habitats serving protected and unprotected
species found both within and close to the appeal site2.
27. Known protected species associated with land within and next to the appeal site
have been identified through the Preliminary Ecological Appraisal and Phase 2
surveys as extending to a variety of foraging and roosting Bats, Badgers, Roman
Snails and a small number of breeding bird species.
28. Whilst ecologically based concerns were raised by the Group, it was demonstrated
through the round table discussion that the current features and value of the area
have been adequately assessed and understood. The Presence/Likely Absence
Surveys for reptiles and dormice Muscardinus Avellanarius do not identify any
evidence that those species are found in this locality.
29. The submitted Habitat Creation and Management Plan provides specific details on
the protection of retained habitats, as well as habitat and protected species
enhancement measures. The potential for harm to the future water quality of the
River Gade chalk stream from the site’s outfall was also clarified. Should the
proposed development be found to be acceptable overall, compliance with
Condition No 14 would satisfactorily address that concern.
30. From what I have read and heard during the Inquiry, I am satisfied that the
landscaping proposals for the final scheme would be appropriate and capable of
including new or bolstered habitats within the appeal site through the likes of
planted buffer zones, wildflower areas, waterbody, tree and hedgerow planting and
the retention and enhancement of the chalk grassland in the north of the site.
31. The Group’s concerns about the level of biodiversity net-gain were explored during
the Inquiry. The planning application to which this appeal relates was submitted in
advance of the mandatory biodiversity net-gain requirement coming into force.
Nonetheless, a significant gain in natural habitat, including through new hedgerows
would be secured. In qualitative terms the value of these new hedgerows would
increase as they become established and there are measures proposed to ensure
that this would be maintained in perpetuity. Based on the evidence presented, I find
that the hedgerow trading rules have been met.
2 Chilterns Beechwoods Special Area of Conservation (Ashridge Commons and Woods Site Of Special Scientific Interest and Tring
Woodlands Site of Special Scientific Interest); Halsey Field Local Wildlife Site; Warner’s End Wood Local Wildlife Site; and
Meadow by the River Gade Local Wildlife Site.
32. Furthermore, there are no grounds to reduce the estimated biodiversity net-gain on
the basis of the attenuation basins. The modified grassland and swales have the
same core values, and both habitats are possible given the management of these
within the attenuation basins would be the same as the surrounding grassland,
such that they are interchangeable. The proposed biodiversity net-gain and its
monitoring would be secured through the submitted legal agreement.
33. Whilst some disturbance to ecological interests of the appeal site and its
surroundings could arise from the proposed changes in the short term, these would
be localised. The appellant and Borough Council now agree that these can be
mitigated to an extent that would be acceptable, subject to proposed planning
obligations and conditions. The statutory consultees have not provided a counter
view to this stance. The necessary ecological mitigation measures to address the
potential for unacceptable negative ecological impacts can be front-loaded as part
of the required phasing plan for the proposed development.
34. Should the appeal proposal be found to be acceptable overall, I am content that
Condition Nos 7 and 8 would secure the implementation of an agreed site-wide
Landscape and Ecological Management Plan. This would ensure that ecology and
biodiversity needs are appropriately incorporated as part of the development and
managed appropriately thereafter.
35. Condition No 15 would also ensure that the design of the proposed scheme does
not include the root protection areas of trees T138 and T139. Furthermore, the
proposed 20 metre buffer to be afforded to the ancient woodland that borders the
site exceeds the requirements set out in the PPG. The details required by condition
No 20 and 23 would control lighting treatment within the site and along the
improved footpaths. Furthermore, buffers around sensitive parts of the site can be
secured through condition. This would all avoid conflicts with wildlife.
36. The current challenges relating to the irresponsible use of neighbouring Halsey
Fields Local Wildlife Site (LWS) by some of the existing community are understood.
However, the direct effects of any further recreational pressure on that and the
other nearby LWSs arising from the appeal proposal itself could be avoided through
the provision of attractive accessible greenspace within the appeal site itself, as
well as local signage, fencing, footpath improvement and maintenance. These
mitigation measures could be secured as part of the implementation of the required
Local Wildlife Site Improvement Plan, pursuant to condition No 20.
37. No compelling reasons were put before me to justify a departure from the
conclusions of either the technical expertise of the Council or statutory consultees.
Moreover, the appellant’s ecological witness satisfactorily addressed the Group’s
concerns about fauna and flora through the written evidence, extensive round table
discussion and subsequent technical notes (Refs: ID15 and ID26).
38. The evidence before this Inquiry demonstrates that overall the appeal proposal
would provide net-gains for local biodiversity, including protected species, and
establish coherent ecological networks which would be resilient to current and
future pressures.
39. As the competent authority, having first applied the mitigation hierarchy, I am
satisfied that the appeal scheme would not conflict with the provisions of the
Wildlife and Countryside Act (1981).
• Chilterns Beechwoods SAC
40. The appeal site is located approximately 3.8km south-east of the Chilterns
Beechwoods SAC at its closest point. The qualifying features for this SAC comprise
Asperulo-Fagetum beech forests, including the rare coralroot Cardamine Bulbifera;
semi-natural dry grasslands and scrubland facies on calcareous substrates; and
the Lucanus Cervus stag beetle.
41. The Conservation Objectives for this SAC are to ensure that the integrity of the site
is maintained or restored as appropriate. They also seek to ensure that the site
contributes to achieving the Favourable Conservation Status of its Qualifying
Features by maintaining or restoring the extent and distribution of qualifying natural
habitats and habitats of qualifying species; the structure and function (including
typical species) of qualifying natural habitats and species; the supporting processes
on which qualifying natural habitats, and the habitats of qualifying species rely; the
populations of qualifying species; and the distribution of qualifying species within
the site.
42. The development proposals are not directly connected to, or necessary for the
management of this European designated site. A number of the key threats and
pressures listed within Natural England’s Site Improvement Plan relate to site
management issues. These are not related to potential impact pathways from the
proposed development. Furthermore, the appeal site falls beyond the zone of
influence relating to the impact of dust emissions, water pollution, lighting, vibration
and site personnel/residents and habitat loss. There is an absence of recorded
threat to the designated site from wastewater and an absence of connectivity to the
designated site in terms of surface water/drainage and habitat loss.
43. However, the submitted evidence confirms that the appeal proposal would generate
increased air pollution through atmospheric nitrogen deposition at the operational
phase of the proposed development. Nonetheless, the nearby B440, a transport
route that a proportion of residents are likely to take on a regular basis, is
approximately 780 metres at its nearest point from Ashridge Commons and Woods
SSSI component of the SAC. Therefore, air pollution in relation to the proposed
development is considered unlikely to be significant either alone or in combination
in relation to this route. This road is therefore scoped out from my assessment.
44. With regard to the A41, in view of the size of the area of the SAC within 200 metres
of the road relative to the total area, and in view of the conclusions of other HRA
assessments for neighbouring Local Plans, no likely significant effects are
anticipated in relation to the Trings Woodlands SSSI component of the SAC, either
alone or in combination.
45. The B4506 transport route also runs within close proximity to the Ashridge
Commons and Woods SSSI. Current baseline data for air pollution in relation to the
Borough Council’s emerging local plan states that the area of the SAC that lies
within 200 metres of the B4506 measures approximately 14.1% of the SSSI area
and approximately 6.9% of the total SAC area. The submitted evidence
demonstrates that the habitat within 200 metres of that route comprises lowland
broadleaved, mixed and yew woodland. The available evidence also confirms that
background pollution levels currently exceed the critical load. Any further reduction
in air quality may therefore limit the ability of the SAC to maintain or restore its
integrity, as set out in its Conservation Objectives.
46. However, apart from one unit of the SSSI, the remaining units falling within 200
metres of the B4506 are stated as being in favourable condition. One unit adjacent
to the road, Tom’s Hill, is categorised as unfavourable, recovering. The available
evidence indicates that the nitrogen deposition trends relevant to this SAC are
decreasing. Furthermore, the habitat falling within 200 metres of the B4506 is
minimal in terms of overall habitat area.
47. For all of these reasons, I conclude that there would be no likely significant effects
alone or in combination from any increase in air pollution arising from the appeal
proposal.
48. In terms of the potential for recreational pressures, there is no basis to dispute the
buffer of 7.5 kilometres as an appropriate zone of influence when considering the
potential for significant effects to be caused by visitors to the SAC. This means
around a half of the Ashridge Commons and Woods SSSI component of the
Chiltern Beechwoods SAC lies within this zone of influence.
49. Nonetheless, around 40% of the appeal site area, equating to approximately 12
hectares, would be left as accessible green space that can be used by residents for
recreational purposes. There are also a number of other sites3 within close
proximity that could be used as alternative green space by future residents. I
concur with the appellant’s assessment of the likely impact on these. The 70 units
within the care home are unlikely to create a significant increased footfall in the
SAC given the age and reduced mobility of the residents. Moreover, from the
evidence before me, the appeal proposal would contribute to an increase in visitors
of less than 1%. The appellant’s HRA evidence is consistent with the findings of the
Borough Council’s Topic paper supporting the emerging new local plan, which in
turn is supported by Natural England.
50. However, without further mitigation there is still likely to be some recreational
pressure from residents of the appeal proposal by virtue of the proximity of the
appeal site to the SAC. In particular, increased public access poses a threat of
disturbance to the dead wood associated with the Stag Beetle; and visitor
trampling, disturbance and soil compaction that can directly harm the qualifying
habitats. Other adverse impacts may arise from damage caused by visitor parking,
dog fouling and nutrient enrichment, mountain biking, removal and disturbance of
deadwood habitats, footpath widening by people, horses and bikes and associated
loss of marginal/ride vegetation.
51. As the appeal proposal is not a proposed residential allocation within the Local
Plan, it has not been accounted for as part of any HRA that supports that plan. The
application of the policies in the development plan may contribute to limiting
recreational pressure associated with new development. However, as the SAC is
sensitive to recreational pressures this could increase as a consequence of the
appeal proposal in combination with other plans and projects. Therefore, when
assessed in combination with other plans and projects, without mitigation I cannot
rule out likely significant effects of the appeal proposal on the Conservation
Objectives, integrity and the favourable conservation status of the qualifying
features of the Chilterns Beechwoods SAC at the Ashridge Commons and Woods
3 Shrubhill Common Local Nature Reserve; The Meadow by the Gade; Halsey Playing Field East; Water End Moor; Water End
Meadows (Great Gaddesden); Heizdins Wood; disused railway line- Hemel Hempstead; Highpark Wood; and Brown’s Spring and
Hollybush Wood.
SSSI. Effective mitigation would therefore be required to avoid these harms and to
ensure biosecurity.
52. The appellant and Borough Council agree that following the implementation of
mitigation in the form of a suitable alternative open greenspace (SANG)
contribution, there would be no significant residual effects on the integrity of the
SAC; its conservation objectives; and the favourable conservation status of its
qualifying features.
53. The size of the SANG has been calculated and agreed. The precise location of the
SANG is yet to be secured. However, the options that are open to the appellant are
contained in the submitted bilateral agreement with the Borough Council. That
agreement also proposes a financial contribution towards Strategic Access
Management and Monitoring (SAMM) measures. I am satisfied with the
effectiveness of these mitigation proposals overall, and that the legal agreement as
drafted would be effective in securing them.
54. In conclusion to my Appropriate Assessment, the likely significant effects on the
Chilterns Beechwoods SAC can be effectively mitigated in a timely manner through
the provision of the specific mitigation and monitoring proposals contained in the
submitted legal agreement. Overall, there would be no residual harmful effects on
the integrity of the designated SAC; its Conservation Objectives; and the favourable
conservation status of its qualifying features in combination with effects associated
with other plans and projects.
55. I am therefore satisfied that appropriate mitigation would be secured which would
eliminate all reasonable scientific doubt that the appeal proposal would likely have
significant effects which would adversely affect the integrity of this SAC during the
construction or occupation phases. Therefore, the requirements of the Habitat
Regulations (2017) are met.
• Summary of ecological findings
56. In overall conclusion to this main issue, the appeal proposal would not harm the
ecological interests within the appeal site, neighbouring land and the Chilterns
Beechwoods SAC. Furthermore, the requirements of the Wildlife and Countryside
Act (1981) and the Habitats Regulations 2017 are met.
57. Policy CS26 of the Core Strategy requires that development and management
action would contribute towards the conservation and restoration of habitats and
species; the strengthening of biodiversity corridors; the creation of better public
access and links through green space; and a greater range of uses in urban green
spaces. Saved Policy NP1 and Policies CS10 and CS29 of the Core Strategy seek
to ensure that development proposals improve the environment, have regard
environmental assets, preserve and enhance green gateways and wildlife corridors
and minimise impacts on biodiversity whilst incorporating positive measures to
support wildlife. Saved Policy 99 seeks to preserve trees, hedgerows and
woodlands. Saved Policy 103 sets out the approach to sites of importance to nature
and saved Policy 102 seeks to manage sites of nature conservation.
58. In view of my findings, given the proposed mitigation the appeal proposal does not
conflict with any of those policies.
Flood Risk
59. In line with the Framework, the proposed development must be safe throughout its
lifetime and not lead to increased flood risk elsewhere.
60. Subsequent to the appeal being lodged, common ground was reached in respect to
flood risk and drainage matters (Ref: CD 4.7).
61. It has been evidenced that a very small part of the appeal site is at risk of flooding.
Furthermore, my attention was drawn to the potential for flows to adversely impact
on the integrity of the River Gade.
62. In terms of satisfying the sequential test in line with the Framework and PPG, the
remaining dispute between the Borough Council and appellant essentially rests on
the performance of 3 other sites in terms of whether they are ‘reasonably available’.
63. My attention has been drawn to the Mead Realisations decision4. That decision
makes it clear that there is a need for realism and flexibility on all sides when
applying the sequential test. Furthermore, it confirms that the weight to be given to
any failure to satisfy the sequential test can, and, in circumstances like those before
me, should be reduced if the extent of the Borough Council’s unmet housing needs
means that land which is less sequentially preferable than the appeal site would
inevitably be required (Ref: CD7.25).
64. The agreed capacity of the 3 remaining sites amounts to 32 dwellings against a
shortfall in the area over the next 5 years of 6,547 dwellings per annum. So, even if
I were to accept the Borough Council’s interpretation and approach, many more
lower ranking sites, akin to the appeal site would be required to meet future
housing needs in the Borough. In any event, the evidence provided to this Inquiry
confirms that there are no sequentially preferable drier sites free from surface water
on this occasion.
65. Following the round table discussion, which included advice from a representative
of the Lead Local Flood Authority, I am satisfied that the flood risk associated with
the appeal site could be reduced through mitigation to a tolerable level and
managed effectively through compliance with the conditions, suggested by the
relevant parties. These would secure appropriate arrangements for flood storage, a
drainage network and existing flow paths; and their management during the
construction and occupation phases of the proposed development.
66. I am also satisfied that the integrity of the River Gade could be protected through
the implementation of a suitable Construction Phase Surface Water Management
Plan for the appeal site.
67. Therefore, the outcome of this sequential test is not a determinative exercise
leading to a strong reason for refusal; rather, any risk of harm in the particular
circumstances is a matter for the planning balance.
68. In conclusion to this main issue, having regard to the Framework, the appeal site is
a justified, suitable location for the proposed development, on the basis that the
proposed mitigation measures would be secured. There is no conflict with Policy
124 of the Local Plan, which predates the current national approach to flood risk.
4 R (Mead Realisations Ltd. & Redrow Homes Ltd.) v. Secretary of State for Levelling Up, Housing and Communities [2024] EWHC
279 (Admin).
Accessibility and Highway Safety
69. The appellant has provided appropriate technical highway assessments and
evidence which supports the appeal proposal in highway and accessibility terms.
Consequently, the Local Highway Authority and Borough Council agree that the raft
of traffic, transport and accessibility matters along with the methodology and
outputs contained in the submitted Transport Assessment are acceptable.
70. Whilst the Group has concerns about the potential for increased congestion in and
around Piccotts End, the Borough Council has not cited a highway capacity or
safety reason for refusal.
71. Evidence of existing parking and traffic congestion including delays along Leighton
Buzzard Road was provided by the Group. The Group did not call a highways
expert or take the opportunity to cross-examine the appellant’s highway witness. By
the close of the Inquiry they had accepted that this matter does not amount to a
free-standing reason for refusal.
72. The proposed access arrangements have been deemed safe by the Local Highway
Authority and the submitted evidence does not demonstrate that the appeal
scheme would exacerbate the existing situation to a level that would be
unacceptable in terms of highway safety or the functioning of the local highway
network.
73. The appeal proposal would address some of the existing concerns identified with
the existing road network, particularly in terms of vulnerable users, which would
also benefit existing residents in the area. Benefits include extensive pedestrian
and cycle enhancements from the appeal site back into Hemel Hempstead; travel
planning measures for occupants of the appeal proposal; agreed and costed bus
service enhancements; and a new crossing point on Leighton Buzzard Road.
These would be of benefit to both occupants of the appeal proposal and existing
local residents.
74. Should the proposed development be found to be acceptable overall, these
measures would be secured by a combination of planning obligations and
conditions and would adequately mitigate the potential for the existing problems
facing residents to be exacerbated by the appeal proposal.
75. The appeal proposal would secure adequate provision for alternative non-car
methods through conditions and planning obligations. Coupled with its relationship
with Hemel Hempstead, the appeal proposal would provide a genuine choice of
transport modes and a well-connected and accessible transport system.
Furthermore, safe and suitable access to the appeal site could be achieved for all
users. It has not been demonstrated that there would be an unacceptable impact
on highway safety, or that the residual cumulative impacts on the road network,
following mitigation, would be severe, taking into account all reasonable future
scenarios. The appeal proposal is therefore consistent with the Framework in
highway and accessibility terms.
76. In conclusion, the appeal proposal would secure an appropriate level of accessibility
by a choice of sustainable modes and would not pose a risk to highway safety. As
such, it does not conflict with Policies 51, 54 and CS8 of the development plan in these
regards.
Community Infrastructure
77. Collectively, the submitted bilateral agreement and unilateral undertaking contain
planning obligations to provide open space and play areas; off-site sports facilities;
NHS healthcare; primary school and special educational needs and disabilities
provision; and the monitoring of all of these obligations.
78. Concerns have been strongly expressed by the Group and other interested parties
in respect to the potential for further pressures to be placed on local healthcare and
educational provision. In particular, parties shared their knowledge and experiences
to date on what was portrayed to me as very stretched local health service
provision.
79. Those experiences involve real people and are highly regrettable. However, they
have occurred within an existing complex healthcare funding and provision context
which the appeal scheme cannot reasonably be expected to solve or be penalised
for. The current baseline position of local healthcare provision is a strategic matter
to be grappled with, where necessary, outside of this appeal.
80. The financial sums that have been identified to support local healthcare and
educational provision have been appraised and agreed by the Borough Council
and County Council as being commensurate to the additional demand that can
reasonably be expected to be generated from the future occupants of the appeal
proposal. I have also borne in mind scheme viability and delivery along with the
relevant authorities’ responsibility and decision taking governing the future delivery
of provision in the area.
81. Overall, the level of contributions for each of these health and educational related
obligations is not disputed by the Borough Council or County Council. From the
evidence before me, I have no cause to dispute the levels and sums for these
obligations as calculated.
82. The obligations relating to educational and healthcare provision are of a level that
seeks to support any net increase in demand arising from the appeal proposal. I
address their conformity with the prescribed tests for planning obligations later.
83. However, in terms of weighting, as the proposed contributions to educational and
health provision have been calculated to support demand from the appeal proposal,
they are of neutral consequence to my assessment.
84. The proposed sport, recreation and play facilities could serve both the new
residents and existing community. Therefore those obligations would be of wider
public benefit and, as such, carry moderate favourable weight in my assessment.
85. In conclusion to this main issue, subject to the proposed planning obligations
meeting the prescribed tests, adequate provision of community infrastructure would
be secured to support the future residents of the appeal proposal.
86. In view of my findings the appeal proposal does not conflict with Policies 12, 13, 76,
CS23 and CS35 of the development plan.
Heritage Assets
87. The appeal site immediately bounds the Gadebridge Roman Villa Scheduled
Monument. It also falls just beyond part of the edge of Piccotts End Conservation
Area, whose focus is the village located on the other side of the Gade Valley to the
appeal site. The appeal proposal also falls within the setting of a high concentration
of listed buildings located within that Conservation Area.
88. Although the appeal scheme would not fall within the scheduled area, the submitted
evidence indicates that there is potential for associated below ground
archaeological deposits and features to exist within the appeal site. Otherwise, I am
satisfied that the heritage effects of the appeal proposal are limited to the
respective settings of these designated heritage assets.
89. There is much commonality in the setting of these designated heritage assets. This
setting has undergone significant change over time as its surroundings have
evolved, particularly in respect to the construction and continued development of
Hemel Hempstead, the laying of the neighbouring link road and the evolutionary
changes to historic field patterns. Consequently, the wider landscape setting of
these assets is a mix of countryside and urban features, the prevalence of which
varies according to the vantage point taken.
90. The significance of a heritage asset is derived from the value of that asset to
existing and future generations because of its heritage interest. The glossary of the
Framework states that interest may be archaeological, architectural, artistic and/ or
historic. Significance derives not only from a heritage asset’s physical presence,
but also from its setting. Elements of a setting may make a positive or negative
contribution to the significance of an asset; may affect the ability to appreciate that
significance; or may be of neutral effect.
• Setting of Scheduled Monument
91. The Scheduled Area contains the remains of a Roman Villa and associated
structures, including a Roman bath second in size to that located in the city of Bath.
The Area extends into the adjacent Leighton Buzzard Road. All that remains of this
heritage asset of the utmost national importance is buried below ground. In the
absence of any interpretation facilities, its subterranean nature means it is hidden
from view. As such, the Monument now presents as a grassed field situated
between the contemporary built up edge of Hemel Hempstead and the historic
village of Piccotts End. The submitted evidence confirms that the construction of
the Leighton Buzzard Road provided opportunity to both understand and disturb
this asset.
92. The common boundary between the Scheduled Monument and the appeal site is
delineated by mature trees and hedgerow. Consistent with my site observations,
the appeal scheme clearly falls within the immediate setting of this Monument by
virtue of their immediate proximity to one another.
93. The two sites enjoy a common wider setting given their mutual intervisibility from
medium and longer distance vantage points, particularly along Leighton Buzzard
Road, Piccotts End and the network of public rights of way on higher ground along
the other side of the Gade Valley. Moreover, the evidence before me confirms that
the appeal site and other surrounding land within which the Monument is
experienced would have played a role in accommodating the agricultural activities
that supported this important heritage asset, including its likely former use as a
Roman spa resort. Despite the evolutionary changes within its setting, the
Monument’s connection to the River Gade, other known local Roman sites and the
surrounding countryside still endure. These features continue to make a positive
contribution to understanding, appreciating and experiencing the historic interest of
this important designated heritage asset, including the rationale for its location.
94. The historic archaeological significance of this Monument is mainly derived from its
evidential and cultural interest. As it has not been fully excavated, it has potential to
provide new information about the history and construction of the site and the
people who used it. The Scheduled Monument is a heritage designation of the
highest national importance.
95. Parts of the appeal site are elevated well above the Scheduled Monument. In terms
of outward views up the Gade Valley, the undeveloped component of its setting
would be reduced. Looking down and across the Gade Valley, views towards the
Monument would continue to be experienced within a mixed urban and rural
context. At no point would the entire proposed development be visible in view of the
sloping topography and wooded blocks in and around the appeal site.
96. The submitted Parameter Plan and illustrative Master Plan demonstrate that a
reasonable stand-off distance between the proposed built form and the scheduled
area would be secured. Intervening vegetation could be bolstered through a
carefully considered landscape scheme, the details of which would fall within the
Borough Council’s control. The ability to retain an undeveloped foreground along
the valley bottom, albeit narrower than that which currently exists, has been
demonstrated. Should this appeal be allowed, the reserved matters stage would
manage the careful placement of the built form, public open space and sustainable
urban drainage features.
97. The appeal scheme would not diminish the historic connection of the Scheduled
Monument with the River Gade. Nonetheless, the extent to which this asset can be
experienced, understood and appreciated within its remaining undeveloped
countryside setting, which forms part of the rationale for its location, would be
reduced. This further erosion of the Monument’s remaining countryside context
would not preserve its setting.
98. Such change would cause harm to the significance of the Scheduled Monument.
However, crucially the existing setting is heavily influenced by urbanising
development associated with the growth of Hemel Hempstead and the construction
of Leighton Buzzard Road, as well as the loss of historic field patterns dating back
to the occupation of the Villa. Although this Scheduled Monument is no longer
legible above ground level, the ability to experience, appreciate and understand its
significance through its setting would be reduced, although such harm would be of
a very low level.
99. It has been demonstrated that appropriate mitigation can be secured through a
suitably worded condition to adequately combat harm to the underground
archaeological potential within the appeal site, including any relating to this
Scheduled Roman Villa.
100. Nonetheless, in Framework terms, noting that such heritage assets are regarded
as being of the highest significance, the appeal proposal would cause a very low
level of less than substantial harm to significance.
• Setting of listed buildings
101. The Planning (Listed Buildings and Conservation Areas) Act (1990) (the Act)
imposes a duty on me as the decision maker to give considerable importance and
weight to the statutory duty to have special regard to the desirability of preserving a
listed building or its setting; or any features of special architectural or historic
interest which it possesses, when considering whether to grant planning permission
for development which affects a listed building or its setting.
102. The significance of Grade II listed ‘138 Piccott’s End’; ‘140 Piccott’s End’;
‘142-148 Piccott’s End’; and ‘150 Piccott’s End’ includes their historic and
architectural interests as 18th to mid-19th century buildings which contribute to the
understanding and appreciation of the historical development of the village. Each of
these heritage assets is linked historically and visually to the wider rural agricultural
landscape setting of which the appeal site forms part. The open and green
character of the appeal site contributes to the significance of these listed buildings
and grouping as a legible part of the historically dominant rural, agricultural
economy and society for this area.
103. However, the level of that contribution is limited by the screening effects of the
mature planting and intervening field boundaries, and also the later village
expansion with the now relative visual prominence of the modern properties along
the riverbank. I return to the impact of the appeal proposal on the significance of
these designated heritage assets later.
104. The significance of Grade I listed ‘130-136 Piccott’s End’ includes its architectural
and historic interest as a good and largely intact example of a vernacular range of
timber framed cottages. Further historic interest of these buildings is derived from
the interior wall paintings which demonstrate the political and religious motives of
16th century England. They also has an historical association with royal surgeon Sir
Astley Paston Cooper. The immediate setting of these listed buildings is now
closely confined to their domestic curtilage, however, in the past there would have
been stronger functional and ownership links between the cottage and the wider
working agricultural landscape, within which the appeal site sits. Their significance
is now best appreciated from within its curtilage and its street frontage from Piccotts
End Road.
105. Again, the open and green character of the appeal site contributes to the
significance of these listed buildings as a legible part of the historically dominant
rural, agricultural economy and society for this area. Nonetheless, the level of
contribution that the appeal site makes to the significance of their setting is
moderated by the sequential screening and filtering effects of intervening mature
vegetation according to the seasons, and also the later expansion of the village
with more modern housing nearby. I return to the impact of the appeal proposal on
the significance of these designated heritage assets later.
106. Despite its subsequent alteration, the significance of Grade II listed ‘Piccott’s End
Farmhouse’ includes its historic and architectural interest as a timber framed
farmhouse dating back to the 17th century. Its original function as a farmhouse and
role as the principal domestic building of a modest holding reflect the predominantly
agricultural economy and society of this area. Its setting has been altered by the
erosion of ownership links with the wider working agricultural landscape of fields,
the construction of Leighton Buzzard Road, and also the more modern domestic
buildings opposite. This heritage asset is best appreciated from Piccotts End Road
and within its immediate curtilage.
107. The open green character of the wider countryside, including the appeal site,
makes a positive contribution to the understanding and appreciation of the
significance of the former farm complex given its former use and greater isolation
has ceased. However, the extent of this contribution is limited by the changes in the
use of this farmhouse and nearby later built development. Furthermore, the well-
established field boundaries and tree groups also have a sequential screening
effect that reduces the extent and number of public views between the farmhouse
and the appeal proposal. I return to the impact of the appeal proposal on the
significance of this designated heritage asset later.
108. The significance of Grade II listed ‘Piccott’s End House’ includes its architectural
interest as a late Georgian/ early Victorian villa which, despite its more suburban
character, illustrates the relative wealth and importance of its owners. Despite its
tall garden wall, the more extensively open and green landscape to both the west
and east of the village contributes positively to the significance of this property. This
heritage asset is linked historically and visually to the wider rural agricultural
landscape setting of which the appeal site forms part.
109. However, it is the open green character of the remaining garden area as opposed
to the wider countryside which is the key element of the setting of this heritage
asset. I return to the impact of the appeal proposal on the significance of this
designated heritage asset later.
110. The significance of Grade II listed ‘Gade Spring, Piccott’s End’ includes its
architectural interest as a good and largely intact example of a late Georgian / early
Victorian ‘polite’ villa set within a countryside location. The Classical style of the
house, and use of materials and detailing, is characteristic of the fashions of this
period and also the type and status of this building. Historically, its presence and
architectural confidence also illustrates the relative wealth, importance and taste of
its owners. The private gardens and closer views from this area and the principal
frontage along Piccotts End Road are key elements of its setting in heritage terms.
The open and green character of the appeal site contributes to the significance of
this listed building as a legible part of the historically dominant rural, agricultural
economy and society context. This is reinforced by intervisibility enabled by the
existing topography and particular orientation of the house relative to the appeal
site.
111. However, the well-established intervening field boundaries and tree groups have a
sequential screening or filtering effect on this intervisibility. I return to the impact of
the appeal proposal on the significance of this designated heritage asset later.
112. The significance of Grade II listed ‘92 Piccott’s End’; ‘94, 96 and 104 Piccott’s
End’; ‘95 and 97 Piccott’s End’; ‘99 Piccott’s End’; and ‘101-105 Piccott’s End’
includes their historic and architectural interest as houses dating from the 17th to
mid-19th century which illustrate the growth of the southern part of the village. The
houses are orientated to Piccotts End Road with their primary street frontages seen
on the approach to and from the village core. This is the key aspect of their
immediate settings that contributes to their significance. Their secondary rear
elevations overlook former gardens and towards a well treed boundary. Their
existing wider green landscape context remains largely open and allows for views
from the rear. There is a narrower approach along Piccotts End Road to appreciate
their architecture. Those rural views contribute to the appreciation of their
significance historically and aesthetically.
113. However, the main tree belt along the nearby common which records the historic
west boundary of these properties, and the village also provides a relatively high
degree of screening to views to and from these houses and the wider countryside
to the west. Furthermore, the landscape to their west is compromised historically
due to the modern period construction of the busy thoroughfare of Leighton
Buzzard Road. I return to the impact of the appeal proposal on the significance of
these designated heritage assets later.
114. ‘Little Marchmont Marchmont House’ enjoys Grade II* status, whereas the former
stables and gate piers are Grade II listed. The significance of this closely
associated grouping around the principal gentry house includes the architectural
interests of the house itself, being a very high quality and largely intact example of
a late 18th century small Neo-Classical traditional English country house, with some
original interiors.
115. Their historic interest includes the direct association as the home of the 3rd Earl of
Marchmont, and they illustrate the wealth, status and taste of the first owner and
commissioner. The primary significance of the listed outbuilding and gate piers is
derived from their association with the impressive Marchmont House with which
they share group value. Due to its grand role, Marchmont House may have
controlled a larger estate or extensive grounds. However, the close garden setting
and views within contributes most strongly and positively to the appreciation of the
significance of these assets. Beyond the historic boundaries of the grounds of the
main house, which is now relatively well screened by established planting, the
wider setting is largely characterised by an open and green rural landscape. This
extended landscape, including the appeal site, contributes to the significance of
these listed buildings as part of the largely rural countryside context that still
remains from the time of its construction. This is appreciated in some reciprocal
views between house and landscape.
116. The appeal site therefore contributes to the significance of these designated
heritage assets as a modest remnant part of their wider open green landscape
setting with links to the history and aesthetic appreciation of Marchmont House.
This is reinforced by the degree of intervisibility. However, the contribution made by
the appeal site to this particular setting is limited by the layered effect of a series of
planted field boundaries which reduces the extent and number of views between
main house and wider countryside; the particular orientation of the listed building
grouping relative to the appeal site; and also the intervention of Leighton Buzzard
Road and modern residential development of nearby Hemel Hempstead. I address
the impact of the appeal proposal on the significance of these designated heritage
assets below.
117. In terms of the heritage impact of the appeal proposal on of each of these
designated historic assets, I find that the existing undeveloped green countryside
character and appearance of the appeal site contributes to their respective
significance as it is a legible part of the historically once dominant rural, agricultural
economy and society for this area. As the appeal proposal would erode the
countryside context of each of these designated assets, it would not preserve their
respective settings. Nonetheless, the circumstances of each as set out earlier
mean that the proposed alteration to their wider setting would result in a very low
level of harm to the contribution the agrarian landscape makes to their respective
significance. In each instance, that harm would constitute a very low level of less
than substantial harm.
118. Consequently, the appeal proposal would not preserving the setting of these
particular buildings in line with the Act.
119. From my site observations and in line with the assessment of the Borough Council
and appellant, I am satisfied that in line with the Act the appeal proposal would
however preserve the setting of Grade II* Gaddesden Hall, Grade II* Gaddesden
Place and Grade II Grist House Farm complex by virtue of the separation
distances, topography and existing tree cover which would endure. As such, there
would be no effect on their respective significance.
120. Finally, the significance of Grade II listed ‘Piccott’s End Mill House’ includes its
architectural interest as a polite example of the late 18th century architectural style.
This building also has historical interest being the core of the once active Mill site
and by virtue of its historic use, having strong connections with the River Gade. It
also contributes to understanding the character of the village which is influenced by
its historic role within a working agricultural landscape. This heritage asset is linked
historically and visually to the wider rural agricultural landscape setting of which the
appeal site forms part. However, the immediate setting of the Mill House has been
significantly altered by development that has subsequently occurred immediately to
the west and east which has further contributed to its sense of visual enclosure.
Hence, the contribution of the appeal site to setting is presently limited and in line
with the Act would not be harmed by the appeal proposal.
• Setting of Conservation Area
121. Key characteristics of the Piccotts End Conservation Area which contribute to its
significance include the high concentration and interrelationship of buildings of
historic and architectural interest; the linear settlement form which has grown
organically along the River Gade Valley bottom; and its historic association with this
river.
122. These features make a valuable positive contribution to its historic and
architectural interests which define its character, appearance and the
understanding and appreciation of the significance of the Conservation Area as a
historic rural village.
123. As the appeal site forms a verdant undeveloped part of the wider mixed rural and
urban setting of the Conservation Area, it contributes to the significance of that
heritage asset as an element of its wider countryside setting. However, the extent
to which it does so is limited given the size of the appeal site relative to the wider
setting, distance from Piccotts End and the intervening topography, including the
screening and filtering effects from established woodland and tree belts.
124. There are strong concerns that the proposal would have an urbanising effect on
the rural character of this historic village and impact on the agricultural landscape
and understanding of the local heritage assets. Indeed, the appeal proposal would
result in the loss of part of that countryside component of the setting of this
designated heritage asset. With the exception of where existing tree cover and
undulating topography prohibit, views of the Conservation Area can be captured
from within the appeal site. Views from within the Conservation Area towards the
appeal site are evident between buildings and from facing elevations and garden
areas of properties. Views encompassing both the appeal site and Conservation
Area are evident from within the valley bottom, including on approach along
Leighton Buzzard Road and also from higher up the valley slopes.
125. However, from my site observations, the submitted Parameter Plan, illustrative
Master Plan and landscape visualisations, the appellant has clearly demonstrated
that the built components of the proposal would not be visible in their totality.
Furthermore, an awareness of the development from within the Conservation Area,
or against the backdrop of that asset would be of a similar vein to that of the
sporadic pattern of buildings and tree cover that is characteristic of neighbouring
Hemel Hempstead. Therefore any harm would be moderated by the nature of the
proposals.
126. Despite changes in levels across the site, the design, appearance and materials of
those parts of the development which would be on more exposed parts of the
appeal site relative to the Conservation Area could be managed to assist with their
sensitive assimilation at the reserved matters stage. Landscaping details and the
treatment of the undeveloped areas could also be managed through the imposition
of conditions and through the reserved matters applications to ensure that a sense
of separation is maintained, and so that these areas do not have an overly
manicured character and appearance.
127. I have found that the appeal scheme is a modest part of the rural setting of the
Conservation Area. Overall, the rurality and agricultural connection of the Piccotts
End Conservation Area with this wider setting would continue to support an
appreciation of its significance as an historic settlement. Nonetheless, there would
be some modest and low level erosion of its agrarian qualities although these
would continue to be experienced, appreciated and understood.
128. Therefore, I find that the proposed reduction in the countryside setting would result
in a very low level of harm to the experience, appreciation and understanding of the
significance of the Conservation Area. Consequently, the appeal proposal would
not preserve the setting of the Conservation Area. This change would cause a very
low level of less than substantial harm to its significance.
• Heritage conclusions and balance
129. In overall summary, the appeal proposal would cause a very low level of less than
substantial harm to the significance of Gadebridge Roman Villa Scheduled
Monument; neighbouring Listed Buildings cited in footnote 1 of this decision
(excluding Gaddesden Hall, Gaddesden Place and Grist House Farm complex);
and the Piccotts End Conservation Area. The Borough Council has asserted that
the concentration of all of these heritage assets elevates the weight that should be
afforded to the identified less than substantial harm which they agree would arise.
However, the Local Plan nor the Framework prescribe that I should do so.
130. Saved Policy 118 of the Local Plan deals with important archaeological remains.
Saved Policy 119 seeks to manage development affecting Listed Buildings. Saved
Policy 120 of that Plan addresses development in Conservation Areas. Policy CS27
of the Core Strategy seeks to protect, conserve and, where appropriate enhance
setting of heritage assets. In view of my findings on this main issue, the appeal
scheme conflicts with each of these policies.
131. Paragraph 212 of the Framework states when considering the impact of a
proposed development on the significance of a designated heritage asset, great
weight should be given to the asset’s conservation, and the more important the
asset, the greater the weight should be. This is irrespective of whether any potential
harm amounts to substantial harm, total loss or less than substantial harm to its
significance. Any harm to, or loss of, significance of a designated heritage asset
should require clear and convincing justification. As such, paragraph 215 of the
Framework directs that 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 including, where
appropriate, securing its optimum viable use.
132. As I have found less than substantial harm to the settings of various listed
buildings and the Conservation Area, it is appropriate that I also assess the public
benefits that would result from the proposed development.
133. By the close of the Inquiry there was common ground between the main parties
that the contributions that the appeal proposal would make to the supply of market
and affordable housing each carry very substantial weight, noting the evidenced
historic chronic undersupply which exists. It is also common ground that the
provision of care home accommodation is a benefit that carries substantial weight.
It would meet the growing quantitative and qualitative needs of the ageing
population and free up existing stock which could be suitable for families. I am
satisfied that the submitted planning obligations would secure these benefits, and
they carry significant favourable weight accordingly.
134. It is common ground that the economic benefits including job creation and local
expenditure also carry significant weight. Furthermore, it is agreed that the public
open space, play and sports provision and enhanced connectivity through footpath
and crossing point improvements, cycle links and bus service enhancements are
public benefits that each weigh moderately in favour of the appeal scheme. There
is also a consensus that the implementation of the proposed Heritage Outreach
Strategy is a public benefit of moderate weight that would enhance the community’s
understanding of the Scheduled Monument. Indeed, the Framework states that
proposals that better reveal the significance of a heritage asset should be treated
favourably.
135. The written and oral evidence that has been presented to me on those beneficial
matters is compelling, and so there is no basis to disagree with any of those
planning judgements reached.
136. The level of weight that should be attributed to the benefit of providing serviced
self-build and custom build plots is disputed and rests between substantial and
significant. There are no adopted policies to secure such provision.
137. The appellant has clearly demonstrated that the demand calculated by the
Borough Council significantly under-represents true demand for this housing
product. On the supply side, I concur that Community Infrastructure Levy (CIL) self-
build exemption applications are not a reliable proxy for the actual level of the
supply of this housing product. This is because the Borough Council’s duty applies
to the grant of development permission and the CIL Regulations provide a different
definition of this housing product for their own distinct purpose.
138. The Borough Council has not clearly demonstrated that it had interrogated each
permission against the definition in the Self-build and Custom Housebuilding Act
(2015)5, whereas the appellant has. Furthermore, there is evidence of double
counting across the base periods. Consequently, there is a substantial shortfall in
supply the order of 156 units for the relevant accounting periods.
139. Overall, I am satisfied that the submitted planning obligation would secure this
housing component of the appeal proposal which is a public benefit carrying
substantial favourable weight here.
140. The planning application was submitted before the mandatory biodiversity net-gain
requirement came into force. In view of my earlier findings the proposed level has
been robustly calculated and exceeds that requirement. It is therefore a public
benefit which weighs significantly in favour of the appeal proposal.
141. Consistent with paragraph 212 of the Framework I attach great weight to the
conservation of the Gadebridge Roman Villa site commensurate to its primary
status as a Scheduled Monument. However, the very low level of less than
substantial harm to the significance of this important heritage asset is outweighed
by the identified public benefits.
142. In line with the Act, I attribute considerable importance and weight to the
preservation of each of the listed buildings assessed earlier. In line with paragraph
212 of the Framework, I attach great weight to the conservation of each of the
assets, commensurate to the respective level of importance reflected in their listing
status. However, the nature and level of all of the identified public benefits are of
such that the very low level of less than substantial heritage harm to each asset is
outweighed.
143. Furthermore, the very low level of less than substantial harm to the significance of
Piccotts End Conservation Area is outweighed by the weight that I have attributed
to the identified public benefits.
144. Overall, I find that all of those heritage harms are justified in line with the national
policy approach to heritage. Consequently, there are no heritage matters which
provide a strong reason for refusing the development proposed for the purposes of
interpreting paragraph 11(d) i) of the Framework.
Green Belt
145. The appeal site falls wholly within the designated Metropolitan Green Belt around
London. That general Green Belt washing over land in Dacorum is a small part of
the Green Belt designation as a whole, and the appeal site constitutes a very small
part of that located within the Borough. Furthermore, it does not have the effect of
allocating or designating particular areas for particular spatial purposes. It has been
demonstrated that despite falling within the Green Belt, the concept of a green
‘wedge’, ‘corridor’, ‘buffer’ or ‘entrance’ relied upon by the opposing parties has no
bearing on the interpretation of current national Green Belt policy.
146. The Borough Council’s Green Belt evidence base does not reflect current national
policy and the PPG on Green Belt. Furthermore, it has been demonstrated that the
findings of the Stage 2 Assessment (CD5.29) cannot be transposed across the
5 Definition inserted by section 10 of the Housing and Planning Act (2016) and amended by the Levelling-up and Regeneration Act
(2023).
appeal site. This is because there would be no impact on the quality of the
Chilterns National Landscape, either directly or in terms of its setting. In addition,
the matters relied upon by the Borough Council in the Site Assessment Study
(CD5.33) for discounting the appeal site have been demonstrated to be either
incorrect or, with the exception of heritage and landscape matters, are common
ground. Therefore, I give very limited weight to the Borough Council’s reliance on
the appeal site not featuring in the preferred sites allocations being advanced
through the plan making process.
• Performance against purposes of Green Belt
147. Paragraph 143 of the Framework confirms that purpose (a) of Green Belt seeks to
check the unrestricted sprawl of large built up areas. The appeal site is well-defined
and well-contained by the Scheduled Monument, Leighton Buzzard Road, the
existing built form of Gadebridge and a range of planted and topographical
features. The submitted plans demonstrate that the site can be developed in a
manner that would be consistent with the prevailing settlement pattern of the area
which comprises pockets of development along the valley. Furthermore, the appeal
site does not contribute towards constraining the unrestricted sprawl of Hemel
Hempstead and would not cause Piccotts End to be submerged by urban sprawl.
148. Contrary to the Group’s stance, this particular purpose does not extend to the
matter of coalescence, which is dealt with by purpose (b). In any event, common
ground has been reached that the appeal proposal would not conflict with Purpose
(b) of Green Belt which seeks to prevent neighbouring ‘towns’ from merging into
one another. As this would clearly not be the case here, I concur with that common
stance.
149. I agree with the main parties that purpose (c) of Green Belt, which seeks to assist
in safeguarding the countryside from encroachment is engaged here, as the appeal
site is undeveloped countryside beyond any defined settlement boundaries. The
changes within the site would have an influence on a relatively small area of
countryside which from my site observations constitutes moderate harm in terms of
its nature and extent.
150. The Group has maintained that purpose (d) is engaged to preserve the setting and
special character of historic towns. However, whilst Hemel Hempstead is a town
with a conservation area, it has developed as a New Town and the appeal site
does not fall within the setting of that heritage asset. Moreover, Piccotts End is a
historic village, not a town or part of one. As such, purpose (d) is not relevant to my
determination. As the appeal site is not previously developed or other urban land,
neither is purpose (e) of relevance.
151. Consequently, the appeal site is located in the Green Belt but comprises land that
does not strongly contribute to relevant purposes (a), (b) or (d).
• Whether inappropriate development
152. For the purposes of plan-making and decision-making, the Framework defines
‘Grey Belt’ as land in the Green Belt comprising previously developed land and/or
any other land that, in either case, does not strongly contribute to any of purposes
(a), (b), or (d) of paragraph 143. Grey Belt excludes land where the application of
the policies relating to the areas or assets in footnote 7 of the Framework (other
than Green Belt) would provide a strong reason for refusing or restricting
development.
153. I have found that the appeal site comprises other land that does not strongly
contribute to purposes (a), (b), or (d). Even though there is moderate harm to
purpose (c), the evidence before this Inquiry does not indicate that the appeal site
has a wider strategic role in the functioning of the Borough’s Green Belt as a whole.
Therefore, in utilising ‘Grey Belt’ land, the appeal proposal would not fundamentally
undermine the purposes (taken together) of the remaining Green Belt across the
area of the Borough’s development plan. This is in line with paragraph 155 (a) of
the Framework.
154. Consistent with paragraph 155 (b) of the Framework, the undisputed housing land
supply position and the mismatch in supply and demand for market homes, care
homes, self-build and custom-build plots and affordable housing provision clearly
evidence that there is a demonstrable unmet need for the type of development
proposed.
155. In line with paragraph 155 (c) of the Framework, the appeal scheme would enjoy a
sustainable location; whose accessibility credentials would be further improved
through the proposed public transport, pedestrian and cycle enhancements which
would be secured through planning conditions and planning obligations.
156. In terms of the performance of the appeal proposal against the ‘Golden Rules’
required by paragraph 155 (d) and defined in paragraphs 156 and 157 of the
Framework, the appeal proposal would provide 50% affordable housing which
would be secured through a planning obligation. The appeal scheme would deliver
necessary improvements to local infrastructure through planning obligations.
Furthermore, there would be new green spaces that would be accessible to the
public, and new residents would be able to access good quality green spaces
within a short walk of their home through on site provision and access to offsite
spaces.
157. Consequently, in view of these findings the appeal proposal is a Grey Belt site
which would meet the Framework’s ‘Golden Rules’. As such, it is not inappropriate
development in Green Belt terms. Therefore, its location in the Green Belt does not
provide a strong reason for refusing the development proposed for the purposes of
interpreting paragraph 11 (d) (i) of the Framework.
158. In overall conclusion to this main issue, the appeal proposal is not inappropriate
development. The very special circumstances required to justify Green Belt harm
do not, therefore need to be demonstrated.
159. Policy CS5 of the Core Strategy sets out the types of development that would be
permitted in line with previous versions of the Framework. As the appeal proposal
falls beyond the scope of these, there is conflict with this policy.
Planning Obligations
160. The appellant has proposed a suite of planning obligations which the Borough
Council is in agreement with. In addition to education and health provision, these
cover the provision and management of open spaces, landscaping, play areas; a
sustainable transport hub; and the monitoring of all of obligations proposed. The
submitted bilateral legal agreement and unilateral undertaking are the legal means
to secure the proposed planning obligations.
161. However, the County Council raised concerns about the approach taken by the
appellant in respect to liability in the drafting of the initially proposed trilateral legal
agreement with the Borough Council and the appellant. As the County Council
declined to enter into that original agreement, the appellant converted the content
into a bilateral agreement with the Borough Council and a unilateral undertaking for
obligations relating to the County Council’s functions. A consensus between the
appellant and the County Council on this matter could not be secured in the lead up
to the Inquiry sessions.
162. The unilateral undertaking includes ‘Option A’ at Clause 6.2, which is the
appellant’s preference and is consistent with the approach taken by the Borough
Council in respect to the bilateral agreement; and ‘Option B’ at Clause 6.3, which is
that preferred by the County Council. A ‘blue pencil’ clause has been inserted at
Clause 3.1.3 of the undertaking to enable me to adjudicate on this matter. This
disputed matter was a source of discussion at the round table discussion on
planning obligations. It remained unresolved by the close of the Inquiry and has
generated applications for costs from both the appellant and the County Council
against one another.
163. Regardless of my adjudication on this particular disputed matter, the appellant’s
actions are a reasonable means to ensure that they have been able to provide legal
documents capable of securing the necessary planning obligations to support their
proposals and so address the Borough Council’s earlier reasons for refusal
associated with them.
164. The County Council’s approach has the effect of placing liability on individual
property owners of the appeal scheme should the developer fail to comply with any
of the obligations contained within the unilateral undertaking. The County Council
have advised that this is to ensure that the public purse is not burdened by any
non-compliance. This could amount to a considerable sum for those occupants,
depending on the extent of any non-compliance. However, during the round table
discussion the County Council stated that it would be highly unlikely that they would
ever initiate that clause against property owners. Whereas the appellant stood very
firm that there are other remedial courses of action open to the County Council
should that scenario ever arise. They believe that the County Council’s approach
could have far reaching consequences on delivery from the outset in terms of
securing grant funding opportunities to assist in the delivery of affordable housing
and also the ability of prospective purchasers to secure mortgages.
165. Both the appellant and the Borough Council do not follow the approach of the
County Council in respect to liability for the planning obligations contained within
the bilateral agreement. I find that the County Council’s preferred wording is not
appropriate here because the references to limiting and restricting occupation of
dwellings against individuals means that the County Council could in theory enforce
against individuals.
166. Significantly, during the Inquiry my attention was drawn to the Chiswell Green
Decision6 involving the County Council where their approach was clearly rejected
by both the Inspector and the Secretary of State. In that case the County Council’s
6 Document Ref: CD 8.28.
approach was found to be disproportionate, unreasonable and unrealistic. Crucially,
the evidence before me, including costs submissions made by the County Council
after the close of the Inquiry, does not lead me to justify an alternative stance to the
Chiswell Green Decision.
167. Therefore, Clause 6.2.1 of the submitted unilateral undertaking, which does not
place liability on the individual property owners, is that which shall take force for the
purposes of implementing the submitted unilateral undertaking and ensuring future
compliance with it.
168. The scope, nature and level of each planning obligation to be secured through the
submitted legal agreements do not conflict with the local and national planning
policy frameworks. I am satisfied that the Borough Council’s submitted Compliance
Statement demonstrates that each planning obligation is necessary to make the
development acceptable in planning terms; is directly related to the development
and; is fairly related in scale and kind to the development.
169. As such, each proposed planning obligation accords with the provisions of
Regulation 122(2) of the Community Infrastructure Levy Regulations (2010) and the
tests for planning obligations set out in the Framework and Planning Practice
Guidance (PPG). Therefore, I have taken them into account in my assessment.
Conditions
170. A schedule of planning conditions was agreed between the main parties during
the Inquiry. I agree that following some extensive redrafting by the parties these
now meet the prescribed tests set out in the Framework and PPG. These include
several pre-commencement conditions which are unavoidable in view of the
matters in question and the outline nature of the scheme and its individual
components. The appellant has confirmed their acceptance of all of these
conditions.
171. Condition Nos 1, 2 and 3 are necessary to define the scope of the planning
permission and timescales which would assist in accelerating its delivery. Condition
Nos 4, 5 and 6 are necessary in order to secure the agreement and implementation
thereafter of an Archaeological Written Scheme of Investigation; the associated site
investigation and post investigation assessments; and mitigation. Condition Nos 7
and 8 are necessary to ensure that a coordinated approach to the various
interdependencies between the different components of the approved scheme is
secured at the reserved matters stage. Condition Nos 9, 10, 11, 12 and 13 are
necessary to ensure that site specific design, landscaping, layout and appearance
matters are addressed as part of the reserved matters applications.
172. Condition No 10 is also necessary to ensure that an appropriate waste and
construction management plan is implemented throughout the course of the
development phase to safeguard the interests of local residents and environmental
assets. Condition Nos 14, 15, 16, 18, 27, 28, 31 and 32 set out technical drainage
requirements, management arrangements, mitigation and verification for each
phase of development and are necessary in the interests of avoiding flood risk
within the site and off site, including on the public highway.
173. Condition No 17 necessarily seeks to secure improvements to the local public
rights of way network to encourage active travel and mitigate against the potential
effects of increased footfall.
174. Condition No 20 necessarily seeks to secure mitigation measures in respect to any
increased usage of neighbouring Halsey Field Local Wildlife Site, in line with the
approved phasing plan timescales and as part of the implementation of the required
Local Wildlife Site Improvement Plan. It is both necessary and reasonable that this
Plan is approved by the Borough Council before the proposed development can
commence. Furthermore, it is necessary and reasonable for this condition to
acknowledge the importance of community engagement in devising this mitigation,
including with the Friends of Halsey Field, as custodians of these important
habitats.
175. Condition Nos 19, 21, 22 and 31 are necessary to ensure that the potential for
contamination, including in respect to ground water and waterbodies, is avoided.
These conditions adequately addresses concerns from interested parties about the
future quality of their private water supply. Condition No 23 necessarily requires the
implementation and retention thereafter of an agreed lighting strategy in the
interests of safeguarding the habitat of local biodiversity interests and landscape
character.
176. Condition No 24 requires the implementation of an agreed Construction Traffic
Management Plan throughout the construction phase. This is necessary in the
interest of highway safety and the living conditions of local residents. Condition Nos
25, 26 and 29 necessarily secure the implementation of an agreed detailed scheme
for offsite highway improvement works and site accesses in accordance with the
approved phasing plan in the interests of highway safety. Condition No 30
necessarily secures an appropriate visibility splay in the interest of highway safety,
paying regard to the continued integrity of Tree ref: T139.
177. Condition No 33 is necessary to ensure that agreed tree protection measures are
implemented during the development phases. Condition No 34 necessarily seeks to
ensure that the approved landscaping scheme is managed until it is satisfactorily
established, in the interests of local biodiversity and the character and appearance
of the area.
Presumption in favour of sustainable development
178. The development plan policies which are most important for determining this
appeal are listed in the Planning Statement of Common Ground (Ref: CD4.1). The
Borough Council has accepted that of these most important policies, Policies 118,
119, 120 and CS27 should be deemed to be out of date as they do not reflect the
current national heritage policy approach set out in the Framework and PPG. In
addition, Policies CS25 and CS5 of the Core Strategy are not fully consistent with
the approach of the Framework to landscape and Green Belt matters.
179. As such, I give limited unfavourable weight to the conflict with Policies CS25,
CS27, 118, 119 and 120 of the development plan in terms of landscape and
heritage matters. The conflict with the local Green Belt policy CS5 carries no weight
as the appeal proposal has been found to be ‘appropriate development’ and so is
justified in more recent Framework terms.
180. Moreover, those policies which manage the location of new housing should be
deemed out of date by virtue of the current chronic shortfall in the housing land
supply for the Borough. This means that ‘the presumption in favour of sustainable
development’ set out in paragraph 11(d) of the Framework is engaged.
181. From my earlier findings on the relevant matters to this appeal listed in footnote 7
of the Framework, I am satisfied that the application of its policies that protect areas
or assets of particular importance do not provide a strong reason for refusing this
appeal proposal.
182. In terms of the adverse impacts of the appeal proposal, I have found a very low
level of harm to the significance of the Scheduled Monument, the significance of
some nearby listed buildings and the setting of the Piccotts End Conservation Area.
I attribute a low level of weight to each of those harms.
183. Given the level of flood risk post mitigation and the inability of the Borough Council
to demonstrate that it can meet the future housing needs of the area on
sequentially preferable sites, this matter amounts to a very low level of harm to
which I attribute a low level of unfavourable weight.
184. I have also found that landscape harm would be minor in its level and extent. That
harm carries a very low level of unfavourable weight.
185. I also attribute very low unfavourable weight to the Borough Council’s reliance on
the appeal site not featuring in the preferred sites allocations being advanced
through the new plan making process.
186. Furthermore, there is common ground between the main parties that the appeal
proposal would cause limited harm from the loss of Best and Most Versatile Land.
In view of the degree of loss set against the Framework’s approach to this matter,
there is no basis to disagree with that assessment. I attach a low level of weight to
that harm.
187. In terms of benefits, I have found that the appeal proposal would make a very
substantial contribution to the future supply of market and affordable housing in an
area with a chronic and ongoing shortfall, the continued duration for which is
unclear. These benefits each carry substantial weight in favour of the appeal
proposal.
188. There would be substantial qualitative and quantitative beneficial contributions to
the supply of care home accommodation and to the provision of serviced self-build
and custom-build plots in a context of an ongoing undersupply which I attribute
substantial weight to in favour of the appeal proposal.
189. Furthermore, significant economic benefits would arise during and post
construction phases. There would also be significant benefit arising from the
proposed biodiversity net-gain. These each carry significant favourable weight.
190. There would be a moderate wider public benefit from the outcome of the proposed
Heritage Outreach Strategy; the measures which would encourage sustainable
modes of transport; and also from the proposed provision of public open space,
play and sports provision. I attribute moderate favourable weight to each of these
benefits.
191. I now turn to the performance of the appeal proposal against the relevant key
policies in the Framework in line with footnote 9 of that national policy. The appeal
scheme accords with paragraph 66 which states that where major development
involving the provision of housing is proposed, decisions should expect that the mix
of affordable housing required meets identified local needs, across Social Rent,
other affordable housing for rent and affordable home ownership tenures. The
counter stance advanced about the affordability of units is not a matter pursued by
the Borough Council and a deviation from their position has not been substantiated.
192. In addition, as the appeal site is not isolated, it is consistent with paragraph 84 of
the Framework in locational terms. The site’s good accessibility credentials and the
nature of the transport related components of the appeal scheme could facilitate
journeys by alternative means to the motor car. As such, the appeal proposal is
consistent with paragraphs 110 and 115 of the Framework which seek to actively
manage patterns of growth to promote sustainable transport; limit the need to
travel; offer a genuine choice of transport modes; provide safe and suitable access
for all; and mitigate any significant impacts on the transport network.
193. Paragraph 91 of the Framework is not relevant to this appeal. However, the appeal
proposal is also consistent with paragraph 129 of the Framework in making efficient
use of land by taking account of the identified need for different types of housing
and other forms of development; the availability of land to accommodate it; the
availability and capacity of infrastructure and services; limiting future car use and
securing well-designed, attractive healthy places.
194. Furthermore, the Parameters Plan, highways plans and illustrative Master Plan
demonstrate that the appeal proposal would function well through its lifetime.
Through the reserved matters stage the Borough Council has scope to ensure that
it adds to the quality of the area; is visually attractive in terms of architecture, layout
and landscaping; is sympathetic to local character; establishes a strong sense of
place; and accommodates and sustains an appropriate amount and mix of
development and supports local facilities and transport networks. It also provides
scope through the reserved matters to secure the creation of a safe place which is
inclusive and accessible; promotes health and well-being and a high standard of
amenity; and where the quality of life, community cohesion and resilience are not
undermined by crime and disorder. Consequently, the appeal proposal is consistent
with paragraphs 135 and 139 of the Framework.
195. Overall, I find that the adverse impacts of allowing this appeal would not
significantly and demonstrably outweigh the benefits, when assessed against the
policies in the Framework taken as a whole, having particular regard to key policies
for directing development to sustainable locations, making effective use of land,
securing well-designed places and providing affordable homes, individually or in
combination.
196. As such, the appeal proposal meets the ‘presumption in favour of sustainable
development’ as set out in paragraph 11(d) of the Framework, to which I attach
substantial favourable weight.
Planning Balance
197. As the starting point for my determination, section 38(6) of the Planning and
Compulsory Purchase Act (2004) requires that my decision must be made in
accordance with the development plan unless material considerations indicate
otherwise.
198. However, the weight which I attribute to the identified conflicts with the relevant
development plan policies is reduced to the extent that they are consistent with the
Framework. I have found that notwithstanding the conflict with the development
plan provisions, the presumption in favour of sustainable development set out in
paragraph 11(d) of the Framework is met. Furthermore, paragraph 158 of the
Framework states that development which complies with the Golden Rules, as is
the case here, should be given significant weight in favour of the grant of
permission.
199. These findings outweigh the conflict with the development plan in this particular
instance. Consequently, I conclude that a decision taken contrary to the
development plan for the Borough is clearly justified.
Conclusion
200. For the reasons given above, the appeal should be allowed.
C Dillon
INSPECTOR
SCHEDULE OF CONDITIONS
1. Details of the appearance, landscaping, layout, and scale, (hereinafter referred
to as ‘the reserved matters’) shall be submitted to and be approved in writing by
the Local Planning Authority before any development takes place and the
development shall be carried out as approved.
2. Application for approval of the reserved matters shall be made to the Local
Planning Authority not later than eighteen months from the date of this
permission. The development hereby permitted shall commence not later than
the expiration of two years from the date of this permission, or two years from
the date of approval of the last of the reserved matters, whichever is later.
3. The development hereby permitted shall be carried out in accordance with the
following approved plans:
• Site Location Plan No. 2037/PL.01/C
• Proposed Site Access Leighton Buzzard Road Forward Visibility Requirements
Plan No. SK21611-04 Rev A
• Proposed Site Access Leighton Buzzard Road Revised Roundabout Location
Plan No. SK21611-05 Rev B
• Parameters Plan No. 2037/PL03M
4. Prior to the submission of any reserved matters applications, an Archaeological
Scheme of Investigation (WSI) shall be submitted to and approved in writing by
the Local Planning Authority. The scheme shall include:
• an assessment of archaeological significance;
• a programme and methodology of site investigation and recording as
suggested by the archaeological evaluation;
• a programme for post investigation assessment;
• provision for the analysis of the site investigation and recording;
• provision for the publication and dissemination of the analysis and records of the
site investigation;
• provision for the archive deposition of the analysis and records of the site
investigation;
• nomination of a competent person or persons/organisation to undertake the
works set out within the Archaeological Written Scheme of Investigation.
5. No part of the development hereby approved shall commence until the site
investigation and post investigation assessment have been completed in
accordance with the programme and timescales set out in the approved WSI
and the provision or analysis, publication and dissemination of results and
archive deposition has been secured in accordance with it.
6. Prior to the submission of any of the reserved matters applications, a scheme for
a Heritage Outreach Strategy (‘HOS’) shall be submitted to and approved in
writing by the Local Planning Authority. The HOS shall detail the appropriate
promotion of the heritage assets on and in the vicinity of the development hereby
approved, including but not limited to:
• details of the proposed interpretation strategy of the scheduled Gadebridge Villa
and its associated landscape, and including details of maintenance, the number,
appearance, location and content of interpretation boards;
• details of outreach activities to promote the results of archaeological excavation
the site, both to the local historic groups and the local schools, the list of whom is
to be specified in the HOS;
• the identification of opportunities within the proposed landscaping areas to
illustrate or incorporate historic environments features identified by the
archaeological fieldwork; and
• the timescales for fully implementing all of those measures.
The development shall be carried out in accordance with the approved details.
7. Prior to the submission of any reserved matters applications, a Master Plan and
associated Site Phasing Plan shall be submitted to and approved in writing by
the Local Planning Authority. Those Plans shall be consistent with the Illustrative
Master Plan submitted at the outline stage (Ref: 2037/PL04AA) and in
accordance with the approved Parameters Plan Ref: 2037/PL03M, and shall
address, but are not limited to, the following matters:
• the sequencing of the individual development component phases relating to the
provision of the proposed public open spaces; ecological mitigation, heritage
investigation works and mitigation; SuDS provision; approved site accesses and
associated off site highway works; and the delivery of market and affordable
dwellings, serviced custom build and self-build plots, sustainable transport hub
and the residential care home hereby approved;
• the timing of the approved tree protection measures;
• a 3m clear buffer of either side of any watercourse, the agreed details of which
shall be implemented and retained in perpetuity;
• a statement to demonstrate how account has been taken of the Design and
Access Statement for the outline application hereby approved;
• a design code to secure the parameters for the external design and appearance
of self-build and custom build plots and the qualitative aspects of the proposed
residential care home accommodation;
• a detailed Site SuDS Phasing Plan which aligns with the approved phasing of
the development. This shall ensure that each development phase does not
exceed the prior agreed discharge rates for that particular phase; that source
control measures are installed within each phase to adequately address the
phases own surface water runoff; and that each SuDS component is adequately
protected throughout the development of the scheme. This Plan shall also show
all exceedance routes throughout the site clearance and construction of the
scheme;
• demonstrate that flood risk is not increased elsewhere or to the site itself; and
• demonstrate that the site will remain safe for all exceedance event flow routes
for the lifetime of the development during rainfall which can cater for greater than
design events or during any blockage. The Plan shall also demonstrate how
properties within and off-site will be protected;
The subsequent reserved matters applications shall be consistent with all of the
approved details.
8. Prior to the submission of any reserved matters applications, a site-wide
Landscape and Ecological Management Plan (‘LEMP’) shall be submitted to and
approved in writing by the Local Planning Authority. The LEMP shall describe
how ecology and biodiversity will be incorporated as part of the development and
managed thereafter. The LEMP shall refer to the recommendations set out in the
Habitat Creation and Management Plan (‘HCMP’) (Revision 4) by the Ecology
Co-op, including, but not limited to:
• outlining measures for traffic calming around the central woodland within the site
to reduce the risk of collisions with badgers (section 3.1.1);
• the provision of new nesting bird opportunities comprising 35 swift nest boxes,
35 house martin nests and 35 house sparrow terrace boxes (section 3.4);
• clarifying the management of cut hay and the removal of cuttings as haylage
(section 4.1); and
• confirming proposed woodland enhancement measures (section 4.2).
The LEMP shall also provide:
• a detailed timetable and programme of works;
• maintenance regimes, referring, but not limited to the recommendations set out
in the HCMP.
• details of new habitat to be created on-site;
• details of the design, numbers and locations of bird boxes and integrated bat
cavity boxes;
• treatment of site boundaries and/or buffers around water bodies;
• details of a locally specific biodiversity information pack (identifying, explaining
and raising awareness of the sensitivities of, the central woodland, adjacent local
wildlife sites and habitats and species of ecological importance) to be provided
to residents of the scheme upon first occupation; and
• management arrangements, responsibilities and funding sources to be in place
in perpetuity.
The development shall be carried out and maintained thereafter in accordance
with the approved LEMP.
9. The following details shall be submitted for the written approval of the Local
Planning Authority as part of the submission of the first reserved matter
application for each approved phase of development:
• a Sustainability and Energy Compliance Statement which provides details on
energy demand and supply, carbon emissions, waste and materials, water
supply and demand and climate resilience. This Statement shall also provide
details of measures to demonstrate and achieve a minimum on-site cumulative
carbon emission reduction of 59.6% as per the Energy and Sustainability
Statement by Love Design Studio (2021);
• a Secure by Design Statement;
• a Building for a Healthy Life Assessment; and
• an Active Design Assessment.
All of the reserved matters proposals for each phase of the development
shall comply fully with these approved details. The development shall be
carried out in accordance with the approved details.
10. Prior to the commencement of each Phase of development, a Site Waste
Management Plan (‘SWMP’) and a Construction Environmental
Management Plan (‘CEMP’) for that Phase shall be submitted to and
approved in writing by the local planning authority.
The SWMP shall, as a minimum, describe how materials will be managed
efficiently and disposed of during the construction of the works, explaining
how the re-use and recycling of materials will be maximised.
The CEMP shall set out, as a minimum, the proposed demolition,
earthworks and construction methodology. The CEMP shall outline site
specific measures to control and monitor impact arising in relation to
construction traffic, noise and vibration, dust and air pollutants, land
contamination, ecology and ground water. It shall also set out
arrangements by which the developer shall maintain communication with
residents and businesses in the vicinity of the site, and by which the
developer shall monitor and document compliance with the measures set
out in the CEMP. In addition to those commitments outlined within the
CEMP shall include a commitment to require non-road mobile machinery
that reasonably minimises air pollution emissions.
The development shall be undertaken in accordance with the approved
details.
11. The landscaping reserved matters application for each phase of development
shall include but not be limited to the following details:
• a Soil Resource Management Plan confirming the different soil types and the
most appropriate re-use and methods for handling, storing, replacing and
re-using displaced soil resources;
• an Arboricultural Survey and Impact Assessment in accordance with BS5837:
2012 which includes details of the measures to protect trees to be retained on
and adjacent to the application site, details of the management arrangements
and a program of continued tree maintenance and inspection for the lifetime of
the development;
• plans to confirm how the provision of at least one tree per dwelling is to be
provided, noting proposed ground levels, species and tree sizes;
• the existing and proposed finished site levels and external surface levels;
• hard surfacing materials;
• means of enclosure, including any retaining structures;
• soft landscape works which shall include planting plans; written specifications
(including cultivation and other operations associated with plant and grass
establishment);
• schedules of plants, noting ground levels, species, plant sizes and proposed
numbers and densities;
• biodiversity enhancement measures with reference to an agreed Biodiversity Net
Gain Management Plan;
• minor artefacts and structures including street furniture, bins, storage units,
signs;
• proposed and existing functional services above and below ground, including
drainage, power, communications cables, pipelines etc., indicating lines,
manholes, supports;
• details of play equipment to be included in the Local Areas of Play (‘LAP’) and
Enhanced Local Equipped Areas of Play (‘LEAP’); and
• details and proposed management of retained historic landscape features.
12. The layout reserved matters application for each phase of development shall
include but not be limited to the following details:
• full design of estate roads and cycle and pedestrian routes;
• a detailed scheme for the provision of car parking, powered two-wheeler parking,
Blue Badge parking, active and passive electric vehicle charging points and
cycle parking which accords with Dacorum Borough Council’s Parking Standards
Supplementary Planning Document (November 2020)
• the location of the refuse and recycling stores;
• the location of the private amenity, communal amenity and open spaces, street
furniture, benches and public bins within the site; and
• a Flood Emergency Plan which demonstrates the availability of safe access and
egress of all site users and residents up to the 1 in 100 (1%) plus climate change
extent.
13. The appearance reserved matters application for each phase of development
shall include but not be limited to the following details:
• the design and materials of covered and secure cycle parking for each dwelling
and the care home;
• the design of the refuse and recycling stores;
• the proposed finished ridge and floor levels, noting that the finished ground floor
levels of properties must be a minimum of 300mm above expected flood levels
of all sources of flooding, including the ordinary watercourses, SuDS features
and within any proposed drainage scheme, or 300mm above surrounding
ground level, whichever is the more precautionary;
• details of the care home specification in accordance with Hertfordshire County
Council’s Service Provision and Place-Making Guide (Feb 2024); and
• 3D Massing and visuals including street scenes which include an assessment of
landscape and visual impacts, comprising photographic montages and key views
which have been previously agreed with the Local Planning Authority.
14. The development hereby approved shall be carried out in complete accordance
with the approved ‘Flood Risk Assessment, Surface Water and Foul Drainage
Strategy’ prepared by Hilson Moran (Document Ref. 21648-RP-IE-004, Final,
Version 03, dated 08/11/21) and subsequent Technical Notes (TN), comprising:
‘Additional Information to Address Herts CC Letter, dated 23 August 2024’,
04/09/24; and ‘Qbar Calculations’, 10/09/24.
15. No development shall commence until the final design of the drainage scheme
has been submitted to and approved in writing by the Local Planning Authority.
The drainage scheme shall include a surface water drainage system for each
approved phase of development which shall include the following details:
• measures to limit the surface water run-off generated by the 1 in 100 year + 40%
climate change event so that it will not exceed the run-off from the undeveloped
site and not increase the risk of flooding off-site;
• the provision of soakage test results and test locations in accordance with BRE
digest 365. All shared soakaways/infiltration/attenuation features must be
located within public open space;
• if infiltration is proven to be unfavourable, then discharge should be into the
River Gade at the Greenfield QBAR runoff rate for the site of 2.1 l/s/ha. Where
an outfall discharge control device is to be used such as a hydro brake or twin
orifice, this shall be shown on the plan with the rate of discharge stated;
• the provision of storage to ensure that there will be no increase in surface water
runoff volumes for all rainfall events up to and including the 1 in 100 year + 40%
climate change event and details as to how this is to be achieved;
• details to demonstrate an appropriate SuDS management and treatment train
and inclusion of above ground features to reduce the requirement for any
underground storage. All surface water management features shall be designed
in accordance with The SuDS Manual (CIRIA C753, 2015), including appropriate
treatment stages for water quality prior to discharge;
• detailed designs, modelling calculations and plans of the drainage conveyance
network to demonstrate how the system will operate during a 1 in 100 year +
40% climate change event. This shall include drain down times for all storage
features and confirmation that no runoff during any such event would leave the
application site uncontrolled for both free flowing and surcharged outfall or that it
would interact with the existing overland surface water flow path;
• full detailed engineering drawings which include cross and long sections,
location, size, volume, depth and any inlet and outlet features. These drawings
shall be supported by a clearly labelled drainage layout plan showing pipe
networks. The plan shall show any pipe 'node numbers' that have been referred
to in network calculations and it shall also show invert and cover levels of
manholes;
• a detailed design to intercept and dispose surface water separately so that it
does not discharge from or onto the highway carriageway;
• details regarding any areas of informal flooding (those events exceeding 1 in 30
year rainfall event), shall be shown on a plan with estimated extents and depths
demonstrating that these will remain safe for all users;
• details to demonstrate that all SuDS features are located outside of the existing
northern surface water flood flow route, and the proposed diverted southern
surface water flood flow route which impact the application site. These details
shall include the proposed diversion of the southern surface water flow route and
associated earthworks, culverts and outlet. They shall also include proposed
ground levels, which will ensure that the site remains safe up to and including
the design event of 1 in 100 (1%) AEP plus climate change event; that the flow
path up to and including the design remains within the designed channels; and
that flood risk is not increased to the application site or surrounding area;
• details of final exceedance routes, including those for an event which exceeds a
1 in 100 year + 40% climate change event. These shall include surface water
exceedance which may enter the site from elsewhere in excess of the 1 in 100
(1% AEP) rainfall event + 40% climate change event; and
• a design which demonstrates that trees Ref: T138 and T139 (as shown in the
Arboricultural and Planning Integration Report (20 August 2021)) and their
associated root protection areas do not fall within the boundaries of the
proposed SuDS basin.
The approved drainage details relating to each phase shall be fully implemented
in accordance with the approved Site Phasing Plan.
16. The development hereby approved shall be carried out in accordance with the
submitted Flood Risk Assessment dated 8 November 2021 (ref: 21648-RP-IE-
004), and Appendix B (Annotated Scale Plan Showing Exact Distance of
Roundabout from Top of Riverbank) from ‘Response to Environment Agency
Letter of 24 October 2023, Ref: NE/2021/133984/04 Concerning Riparian Issues’
prepared by Hilson Moran, dated 2 November 2023 (ref: 231102 21648 EA
Response v02). The proposed roundabout shall be located outside of an 8 metre
buffer zone from the top of the bank of the River Gade to the nearest edge of the
proposed roundabout structure.
The approved mitigation measures shall be implemented in full accordance with
the approved Site Phasing Plan and be retained and maintained thereafter
throughout the lifetime of the development in accordance with those details.
17. Notwithstanding the details indicated on the submitted drawing Ref: SK21611-
100/D, no works shall commence on any part of the application site until a Rights
of Way Improvement Plan for the off-site and on-site Rights of Way improvement
works has been submitted to and approved in writing by the Local Planning
Authority. This Plan shall include information relating to the proposed footpath
width along the course to be improved and the location, numbers and design of
lighting, litter bins, dog bins, signage, fencing and gates.
The off-site rights of way improvement works shall be completed in accordance
with the approved Rights of Way Plan and Site Phasing Plan.
18. Prior to the commencement of development details of the proposed off-site
highway works to demonstrate that no ground level lowering shall occur within
areas impacted by flooding shall be submitted to and approved in writing by the
Local Planning Authority.
19. No development phase shall commence until full details and a Method
Statement for interim and temporary drainage measures during the demolition
and construction phases have been submitted to and approved in writing by the
Local Planning Authority. This shall include a detailed Construction Phase
Surface Water Management Plan for the application site. This information shall
provide full details of who will be responsible for maintaining such temporary
systems and demonstrate how the site will be drained to ensure there is no
increase in the off-site flows, nor any pollution, debris and sediment to any
receiving watercourse or sewer system. The site works and construction phase
shall thereafter be carried out in accordance with approved Method Statement.
20. No development shall commence until a Local Wildlife Site Improvement Plan for
off-site improvement works has been submitted to and approved in writing by the
Local Planning Authority. This plan shall include information relating to
community engagement (including but not limited to the Friends of Halsey Field
in respect of Halsey Field LWS). The plan shall include information relating to
the location, numbers and design of lighting, litter bins, dog bins, signage,
fencing, gates and all such other improvements.
The off-site Local Wildlife Site improvements shall be completed in accordance
with the details and timetable for those works contained within the approved
Local Wildlife Site Improvement Plan and the Site Phasing Plan.
21. The development hereby approved shall not commence until a monitoring,
maintenance and management plan in respect of contamination, has been
submitted to, and agreed in writing by the Local Planning Authority. Such
contamination shall include groundwater, soil and water body contamination.
The plan shall also address the timetable of monitoring and submission of
reports to the Borough Council. The development shall be carried out in
accordance with those approved details.
22. No works involving excavations for the development shall be carried until a
Foundations Works Risk Assessment detailing the foundation type and depths
has been submitted to and approved by the Local Planning Authority. Where
piling is to be used, these details shall include mitigation and or monitoring
arrangements and a procedure to notify Affinity Water at least 15 days before
commencement. The development shall thereafter be carried out in accordance
with all of these approved details.
23. A development phase shall not commence until a Lighting Design Strategy
(‘LDS’) has been submitted to and approved in writing by the Local Planning
Authority. The LDS shall take account of Guidance Note 08/23: Bats and
Artificial Lighting at Night (by the Institute of Lighting Professionals) and any
necessary lighting requirements to secure road adoption or highway safety. The
strategy shall:
• identify those areas and features on site that are particularly sensitive for bats
and that could cause disturbance in or around their breeding sites and resting
places or along important routes used to access key areas of their territory;
• show how and where external lighting will be installed, including street lighting
and floodlighting through the provision of appropriate lighting contour plans and
technical specifications, so that it can be clearly demonstrated that areas to be lit
will not disturb or prevent the above species using their territory or having
access to their breeding sites and resting places; and
• demonstrate how the proposed design, luminance and location of the proposed
external lighting will minimise impacts on the landscape character of the area.
All external lighting shall be installed in accordance with the specifications and
locations set out in the LDS, and these shall be maintained thereafter in
accordance with it.
24. A development phase shall not commence until a Construction Traffic
Management Plan (‘CTMP’) for it and in accordance with the Construction
Logistics and Community Safety (‘CLOCS’) Standard has been submitted to and
approved in writing by the Local Planning Authority. That Plan shall address the
demolition, earthworks and construction stages for the relevant phase.
Thereafter the development shall only be carried out in accordance with the
approved details. The Plan shall include the following:
• the construction programme;
• a clear access strategy, including construction vehicle numbers, type and
routing;
• routes and wayfinding measures to ensure the effective management of
construction vehicles that avoidance of conflicts with pedestrians, cyclists, public
transport and existing and future residents;
• hours of operation;
• traffic management requirements;
• measures to control of dust and dirt on the public highway, including details of
wheel washing facilities and cleaning of site entrance adjacent to the public
highway;
• details of any works to or affecting Public Rights of Way within and in the vicinity
of the application site. These shall demonstrate how safe and unobstructed
access will be maintained at all times or be temporarily closed or extinguished.
• details of servicing and delivery, including details of site access, compound,
welfare facilities, hoarding, construction related parking, loading, unloading,
turning areas and materials storage areas;
• a plan showing the extent of hoardings, pedestrian routes and remaining road
width for vehicle movements and proposed traffic management;
• details of public contact arrangements and complaint management;
• mitigation and monitoring arrangements in respect to potential environmental
impacts including noise and vibration, air quality, dust, light and odour; and
• details of post construction restoration and reinstatement of the working areas.
25. Notwithstanding the details indicated on the submitted drawings, no on-site
works above slab level shall commence on each development phase until a
detailed scheme for the offsite highway improvement works as indicated on
drawings set out below, and including the proposed width of the footpaths along
their course to be improved have been submitted to and approved in writing by
the Local Planning Authority:
• SK121611-04/A: Proposed Site Access Leighton Buzzard Road Forward
Visibility Requirements;
• SK121611-05/B: Proposed Site Access Leighton Buzzard Road Revised
Roundabout Location;
• SK21611-10/A: Off-site 3m Wide Pedestrian/Cycle Corridor Enhancements
(Draft);
• SK21611-11/B: Off-site 3m Wide Pedestrian/Cycle Corridor Enhancements
(Draft);
• SK21611-12/B: Off-site 3m Wide Pedestrian/Cycle Corridor Enhancements
(Draft);
• SK21611-13/B: Off-site 3m Wide Pedestrian/Cycle Corridor Enhancements
(Draft); and
• SK21611-14: Off-site 3m Wide Pedestrian/Cycle Corridor Enhancements (Draft).
The off-site highway improvement works shall be completed in accordance with
the approved highway details and Site Phasing Plan.
26. Vehicular access to and egress from the adjoining highway shall be limited to the
accesses shown on drawing Ref: SK21611-05/B only. Any other vehicular
access or egress shall be permanently closed, and the footway and highway
verge reinstated concurrently with bringing into use the new access in
accordance with a detailed scheme to be submitted to and approved in writing
by the Local Planning Authority.
27. Prior to first occupation of each approved development phase, a detailed
Verification Report, appended with substantiating evidence demonstrating the
approved construction details and specifications have been implemented in
accordance with the approved surface water drainage scheme, shall have been
submitted to and approved in writing by the Local Planning Authority. The Report
shall include a full set of ‘as built’ drawings and photographs of excavations
including soil profiles/horizons, any installation of any surface water drainage
structures and control mechanisms.
28. Prior to the first occupation of each development phase, the proposed drainage
works, and a Management and Maintenance Scheme for the SuDS features, and
drainage network shall be submitted to and approved in writing by the Local
Planning Authority and fully implemented. The submitted details shall include:
• provision of complete set of as built drawings for site drainage;
• maintenance and operational activities; and
• arrangements for adoption or management by another body and any
other measures to secure the operation of the scheme throughout the
lifetime of the development.
29. Prior to the first occupation of any approved development phase, the proposed
vehicular and emergency accesses shall be provided and thereafter retained at
the position shown on the approved plan drawing Ref: SK21611-05/B (Proposed
Site Access Leighton Buzzard Road Revised Roundabout Location).
30. Prior to the use of the access hereby approved, a visibility splay shall be
provided in full accordance with the details indicated in pink cross hatching on
the approved plan Ref: SK21611-04/A. That splay shall be maintained thereafter
at all times free from any obstruction between 600mm and 2m above the level of
the adjacent highway carriageway and in line with the approved tree inspection
and maintenance arrangements, with particular reference to tree ref: T139.
31. If, during any phase of the development, contamination not previously identified
is found to be present on any part of the application site, no further development
shall be carried out until a Remediation Strategy Report has been submitted to
and approved in writing by the Local Planning Authority. The Strategy Report
shall detail how the identified contamination will be addressed and include
details of a robust pre and post monitoring plan to determine its effectiveness.
The approved Strategy Report shall be fully implemented in line with the
measures and timescales set out within it.
32. Where any ground level raising is proposed within the application site, details of
suitable flood storage mitigation shall have first been submitted to and approved
in writing by the Local Planning Authority. These details shall demonstrate that
there is no loss in flood plain storage or impact on the flow paths. The approved
measures shall then be implemented in accordance with the approved phasing
plan and retained and maintained thereafter in perpetuity.
No development, land raising, or obstruction shall occur within the area shown to
be impacted by surface water flooding from the northern flow path up to and
including the 1 in 100 (1%) AEP plus climate change critical storm as per the
modelling carried out and contained within Appendix E of the Hilson Moran
Technical Note dated 4 September 2024.
33. The approved tree protection measures shall be implemented in accordance
with the approved Site Phasing Plan and thereafter retained until completion of
the relevant phase of development. No vehicles, plant, materials or soils shall be
driven or placed within any root protection areas.
34. Any tree or shrub which forms part of the approved landscaping scheme which
within a period of five years from planting fails to become established, becomes
seriously damaged or diseased, dies or for any reason is removed shall be
replaced in the next planting season by a tree or shrub of a species, size and
maturity to be approved by the Local Planning Authority and maintained until
satisfactorily established for the following five years.
(End of Schedule)
APPEARANCES
FOR THE APPELLANT:
Mr Simons and Ms Sage, they called:
Mrs Brockhurst
Mrs Ventham
Mr Stacey
Mr Moger
Mrs Venables
Mr Brown
Also participating through written evidence, the round table discussions and/ or site
visit:
Mr Brookes
Mr Whitby
Ms Hargreaves
Mr Kitching
FOR THE LOCAL PLANNING AUTHORITY:
Mr Giles Atkinson, he called:
Mrs Kirk
Mr Stickley
Also participating in the round table discussions and / or site visit:
Mr Havis
Ms Kitts
Ms Payne
FOR THE RULE 6 PARTY:
Mr Kolzelko, he called:
Cllr Mitchell
Mr Berry
Mrs Ramsden
Also participating in the round table discussions and/ or site visit:
Ms Hamilton
Mr Ridley
Mrs Ridley
HERTFORDSHIRE COUNTY COUNCIL
Participating in the round table discussions:
Mr King
Ms Nunn
LEAD LOCAL FLOOD AUTHORITY
Participating in the round table discussions:
Ms Waters
OTHER INTERESTED PARTIES
Speakers:
Cllr Guest
Cllr Hannell
Ms Brownsell (on behalf of Dacorum Health Action Group)
Ms Millest (on behalf of Piccotts End residents)
Mr Hassan
Mr Furnell
Cllr Bhinder
INQUIRY DOCUMENTS
ID1 Appellant’s list of appearances
ID2 List of interested party speakers
ID3 Site visit pack
ID4 Appellant’s opening statement
ID5 Dacorum Borough Council’s opening statement
ID6 Combined Objectors Group’s opening statement
ID7 Archaeology overlay on Parameters Plan
ID8 Note to Inspector on planning obligation documentation
ID9 Draft bilateral agreement
ID10 Draft unilateral undertaking
ID11 Draft conditions
ID12 Appellant’s costs application against Dacorum Borough Council
ID13 Interested parties’ statements
ID14 Dacorum Borough Council’s costs response
ID15 Biodiversity net gain note
ID16 Weightings table
ID17 S106 summary (Bilateral agreement with Dacorum Borough Council)
ID18 S106 summary (Unilateral undertaking to Hertfordshire County Council)
ID19 Appellant’s costs application against Hertfordshire County Council
ID20 Revised Community Infrastructure levy (CIL) compliance statement
ID21 Note from Hertfordshire County Council on liability
ID22 Note from appellant on liability
ID23 Combined Objectors Group’s closing statement
ID24 Dacorum Borough Council’s closing statement
ID25 Appellant’s closing statement
ID26 Habitat Regulations Assessment Note
ID27a Agreed draft conditions (tracked changes version)
ID27b Agreed draft conditions (clean copy)
ID28 Costs application against appellant by Hertfordshire County Council
ID29 Hertfordshire County Council’s costs application – supporting information (1)
ID30 Hertfordshire County Council’s costs application – supporting information (2)
ID31 Appellant’s response to Hertfordshire County Council’s costs application
ID32 Hertfordshire County Council’s response to appellant’s costs application
END


Costs Decision
Inquiry held between 5 February 2025 and 6 March 2025
Site visit made on 5 and 7 March 2025
by C Dillon BA (Hons) MRTPI
an Inspector appointed by the Secretary of State
Decision date: 5th August 2025
Costs application in relation to Appeal Ref: APP/A1910/W/24/3345435
Land west of Leighton Buzzard Road, Hemel Hempstead HP1 3LP
• 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
Hertfordshire County Council.
• The inquiry was in connection with an appeal against the refusal of planning permission for
development proposed.
Decision
1. The application for an award of costs is allowed in the terms set out below.
The submissions for [APPELLANT]
2. An application for a partial award of costs against Hertfordshire County Council on
procedural and substantive grounds was submitted in writing. The application was
made following the refusal of the County Council to exclude individual liability for all
obligations, and notably the financial obligations entered into in favour of them
under a section 106 legal agreement.
3. The applicant has submitted a detailed account of the interaction between the
parties since July 2024.
4. In summary, the applicant highlights that in general, all parties to an appeal are
expected to behave reasonably to support a timely and efficient process.
Unreasonable behaviour is claimed because firstly, this position was expressly
considered and rejected by the Inspector and the Secretary of State in the recent
Chiswell Green appeal decision1. Secondly, the appellant states that the County
Council refused to agree to a ‘blue pencil’ clause in a substantially agreed section
106 agreement to allow the applicant’s alternative drafting on the exclusion of the
liability to be considered by me, as the appointed Inspector.
5. The partial award sought relates to the costs of amending the initial legal
agreement in order to respond to the County Council’s position; the preparation
thereafter of a unilateral undertaking with a blue pencil clause on liability given that
common ground could not be reached; contacting the County Council in a bid to
resolve the disputed matter; and resources to address the particular matter during
the Inquiry sessions.
1 Document Ref: CD8.28
The response by Hertfordshire County Council
6. The County Council’s response was made in writing. In summary, argue that in
citing examples of unreasonable behaviour from the Planning Practice Guidance
(PPG), the applicant’s costs application incorrectly refers to paragraphs that do not
apply to the County Council. They believe that as no claim has been made under
the correct paragraphs of the Planning Practice Guidance (PPG). Therefore, they
believe that the appellant’s costs should be struck out.
7. The County Council also submits that, as a procedural point, that the applicant has
failed to make out a right to seek costs against the County Council in this matter
where the County Council is not a Rule 6 party, the implication being that the
appointed Inspector has no jurisdiction to award costs against them.
8. Furthermore, the County Council draws attention to the Tring case2 which they
believe supports their position on individual liability. Furthermore, the County
Council argues that it has sought to follow the indication of the Chiswell Green
Inspector and Secretary of State that such matters should not be left for
determination by an Inspector.
9. The County Council states that had the applicant been prepared to negotiate an
agreed form of wording at any point in the proceedings an agreed form of wording
might have been reached. The County Council believes that it has reasonably
sought to reach an agreed form of wording, and it has been the applicant’s position,
that it insists on the form of their preferred wording which is unreasonable.
10. It is submitted that the County Council has not acted unreasonably in seeking to
ensure that the public purse is protected to, at the very least, the same level that it
was protected in the Chiswell Green matter. They consider that there is nothing
unreasonable in their approach and maintain that they have sought to negotiate an
agreed form of wording, however, offers of negotiation have been consistently
turned down by the applicant.
Reasons
11. The County Council is a principal party, being a statutory consultee whose
functions and interests are matters that have been of direct relevance and have
informed some of the planning obligations before this Inquiry. Moreover, the
Inspectors’ power to award of costs derives from section 250(5) of the Local
Government Act (1972). This provides “the Minister causing an inquiry to be held
under this section may make orders as to the costs of the parties at the inquiry and
as to the parties by whom the costs are to be paid and every such order may be
made a rule of the High Court on the application of any party named in the order”. It
follows that the jurisdiction to award costs applies to any party “at an inquiry”. The
fact that the County Council was not a main party to the appeal is irrelevant. They
are a party who participated in the Inquiry, having attended the round table
discussion session.
12. Consequently, the applicant is entitled to have submitted their application for costs
against the County Council. If that were not the case, then the County Council
would have known not to have sought an award of costs on the same basis.
2 Ref: APP/A1910/W/22/3309923
13. Parties in planning appeals normally meet their own expenses. However, the PPG
advises that costs may be awarded against a party who has behaved unreasonably
and thereby caused the party applying for costs to incur unnecessary or wasted
expense in the appeal process. Such 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.
14. In general, all parties to an appeal are expected to behave reasonably to support a
timely and efficient process.
15. The PPG cites examples of unreasonable behaviour which may result in a
procedural and of substantive costs award. Significantly, the examples cited in the
PPG in both respects are non-exhaustive and give a flavour as to the types of
behaviour which are candidates for being found unreasonable. This includes a lack
of co-operation with the other party or parties; acting unreasonably with respect to
the substance of the matter under appeal, including persisting in objections to a
scheme or elements of a scheme which the Secretary of State or and Inspector has
previously indicated to be acceptable or not determining similar cases in a
consistent manner. Such behaviours can frustrate the appeals process and/ or
cause unnecessary and wasted expense to another party regardless of the parties’
status.
16. In this case, the proposed planning obligations themselves are not disputed in
terms of scope and level. Moreover, they have been demonstrated, including
through the use of the County Council’s calculations and input, to be necessary to
make the appeal proposal acceptable.
17. It is reasonable to expect that a principal party, particularly another local planning
authority, will be aware that failure to secure such obligations can be determinative
to a negative outcome at appeal and therefore poses a high risk to the appellant.
18. It is evident that despite being sought by the applicant, the County Council had not
provided any comments on the drafting of the initial legal agreement before the
submission deadline of 1 October 2024 which had been set by the Inspector
appointed by the Secretary of State at that time.
19. It is part of the course with appeals that matters may remain in dispute throughout. I
accept that a party is entitled to maintain a particular stance on the drafting of legal
agreements.
20. Furthermore, the fact that another appellant may have chosen to agree with the
County Council’s approach to liability during another appeal does not necessarily
obligate me to find likewise. In terms of the Tring Decision, the issue of individual
liability was not a matter on which the Inspector or the Secretary of State was
required to make a decision. The basis that appellant was prepared to accept the
wording, or the consequences which flowed from that acceptance is not before me.
The Inspector’s report considers the substance of the various obligations in detail; it
is in that context that he concludes the obligations meet the CIL tests. There is no
indication that his conclusion extended to matters which were not discussed in the
letter. Furthermore, there is no indication that the Secretary of State considered the
planning obligations in that case in a broader sense than his Inspector; and that
appeal was dismissed. In addition, there is no commentary on blue pencil clauses
in that decision and, as set out above, the issue of individual liability was not
considered by the Inspector or the Secretary of State.
21. As such, there is no basis for suggesting that the County Council’s position on the
blue pencil clause in this case is supported by the Tring decision. Whereas, in the
more recent Chiswell Green case, which did include a blue pencil clause, it is clear
that the Inspector’s decision was made in the full knowledge of the County
Council’s position.
22. Consequently, the County Council has not demonstrated that its preferred
approach to liability is reasonable and has been found so by the Secretary of State.
23. Nonetheless, it is not the stance of the County Council on the wording itself which
is concerning here. Rather, it is the manner in which that unfolded and the
consequences of that on the applicant’s purse and Inquiry time that is. It is plainly
unreasonable for a party to refuse to include a blue pencil provision to allow an
Inspector to determine a disputed issue which could be determinative to the
outcome of an appeal.
24. It is clear to me that despite the applicant’s attempts both in the lead up to and
during the Inquiry, the chronology of events before me demonstrates a clear
unwillingness on the County Council’s part to engage constructively with the
applicant to employ a remedy to assist my adjudication, given the disputed matter
ultimately related to the question of whether or not necessary planning obligations
could be secured.
25. It is true that a bilateral legal agreement is not the only mechanism available to an
applicant. However, the alternative unilateral undertaking avenue can potentially be
less favourable to the appellant in terms of securing claw back on unspent sums at
the very least. It was not an avenue that the Borough Council favoured.
26. The failure to provide legally compliant and enforceable planning obligations which
meet the prescribed tests is a ground for dismissal regardless of the merits of an
appeal scheme. Hence, the disputed issue is a matter that falls squarely within my
remit. It was wholly unreasonable for the County Council to have effectively held
the applicant hostage by declining to accept a blue pencil clause simply because it
“is not an approach which the County Council wishes to put to the Inspector’s
discretion”3; and that is the case, whether or not that was the intention.
27. Furthermore, it is equally unreasonable for the County Council to have persistently
insisted upon the drafting in a section 106 agreement in the knowledge that, in the
more recent Chiswell Green Decision, the Inspector and Secretary of State
indicated that the County Council’s approach to liability is unacceptable, particularly
given that legal agreement did include a blue pencil clause which allowed that
adjudication to take place.
28. The County Council has provided no convincing reason for departing from the
Chiswell Green Decision in this case. In that instance the County Council’s
approach was found to be disproportionate, unreasonable and unrealistic. In
determining the appeal which gave rise to this application for costs, I also rejected
the County Council’s approach to liability for necessary planning obligations for the
reasons set out in my Decision.
3 Communication between the County Council and Pinsent Masons on behalf of the applicant dated 21 January 2025.
29. The fact that the County Council indicated during the round table discussion that it
had no intention of enforcing the obligations against individual occupiers only
serves to heighten the level of unreasonableness displayed.
30. This all amounts to unreasonable behaviour on the County Council’s part on both
procedural and substantive grounds. This directly resulted in the need for the
applicant to arrange for a subsequent unilateral undertaking to be drafted along
with additional communication and professional support during the Inquiry itself.
Whereas a more cooperative approach would simply have led to the inclusion of a
blue pencil clause in the initial section 106 agreement and discussion of the
disputed issue at the scheduled round table session.
31. For the reasons given above, unreasonable behaviour resulting in unnecessary and
wasted expense has occurred in respect of the applicant being compelled to
convert the draft section 106 trilateral agreement into a separate unilateral
undertaking and bilateral agreement in order to secure necessary planning
obligations for my consideration. Furthermore, that unnecessary wasted expense
extends to the preparation and response to additional communication with the
County Council and the professional resource in defending the remedial course of
action proposed by the applicant during the Inquiry. There is no doubt that a partial
award of costs is therefore warranted.
Costs Order
32. In exercise of the powers under section 250(5) of the Local Government Act 1972
and Schedule 6 of the Town and Country Planning Act 1990 as amended, and all
other enabling powers in that behalf, IT IS HEREBY ORDERED that Hertfordshire
County Council shall pay to [APPELLANT], the costs of the
appeal proceedings described in the heading of this decision, limited to those costs
incurred in being compelled to convert the drafted section 106 trilateral agreement
into separate unilateral and bilateral agreements in order to secure planning
obligations, including the expense of additional communication with the County
Council and professional resource in defending the remedial course of action
proposed by the applicant during the Inquiry; such costs to be assessed in the
Senior Courts Costs Office if not agreed.
33. The applicant is now invited to submit to Hertfordshire County Council to whom a
copy of this decision has been sent, details of those costs with a view to reaching
agreement as to the amount.
C Dillon
INSPECTOR


Costs Decision
Inquiry held between 5 February 2025 and 6 March 2025
Site visit made on 5 and 7 March 2025
by C Dillon BA (Hons) MRTPI
an Inspector appointed by the Secretary of State
Decision date: 5th August 2025
Costs application in relation to Appeal Ref: APP/A1910/W/24/3345435
Land west of Leighton Buzzard Road, Hemel Hempstead HP1 3LP
• 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
Dacorum Borough Council.
• The inquiry was in connection with an appeal against the refusal of planning permission for
development proposed.
Decision
1. The application for an award of costs is allowed in the terms set out below.
The submissions for [APPELLANT]
2. The application for a partial award of costs on procedural grounds was submitted in
writing. The applicant believes that the Council introduced an unexplained reason
for refusal in relation to landscape character and appearance almost 10 months
after the original decision notice, 1 week before proofs of evidence were due,
despite having confirmed multiple times that there are no unacceptable impacts on
the character and appearance of the landscape and visual environment.
3. The applicant has set down a chronology of the events they believe are relevant to
their claim of unreasonable behaviour on the Council’s part. They highlight that in
adding landscape character and appearance to the list of main issues, the
Inspector appointed at that time had reminded the parties of her power to initiate an
award of costs against the Council.
4. The applicant has pointed out that even after the Council’s landscape witness had
visited the site and provided her report, the Council had remained of the opinion
that it did not wish to raise landscape and visual issues as a reason for refusal.
5. The applicant has highlighted that during cross-examination, the Council’s
witnesses confirmed that there were no relevant ‘on the ground’ or policy changes
to support the Council’s position on landscape and visual matters. The applicant
also draws attention to the fact that the Council’s planning witness agreed that the
Council reversed its position between July and September 2024; has offered no
reason why; and that the consequence has been spending much inquiry time
dealing with it. Moreover, they assert that Council’s planning witness agreed the
circumstance is a ‘textbook’ example of unreasonable behaviour described by the
Planning Practice Guidance (PPG).
The response by Dacorum Borough Council
6. The Council’s rebuttal was made in writing. In it, the Council states that the
landscape issues were raised as a concern from the very outset in the Officer Report
[CD 2.2] which clearly identifies landscape and visual concerns in a number of places
and in terms strong enough to suggest a separate reason for refusal. The Council
points out that these concerns were followed through in the Council’s Statement of
Case [CD3.2] and the harm was afforded substantial negative weight.
7. The Council advises that they do not benefit from in-house landscape expertise and
needed to have the landscape findings set out in the Officer Report reviewed by an
expert. Due to the Council’s concerns, landscape was intended to be the subject of
evidence at the Inquiry with witnesses to be called on both sides.
8. The Council argues that the first Inspector appointed was content for the matter of
landscape character and appearance to be the subject of evidence without a formal
reason for refusal being added. They draw attention to the fact that the note of the first
Case Management Conference held on 2 August 2024 acknowledged that landscape
was possibly going to be a main issue for the Inquiry, subject to ongoing discussions,
despite there being a no dedicated landscape or character and appearance reason for
refusal at that time. The Council maintains that following email exchanges, the position
on 23 August 2024 was that landscape was to be a topic for discussion at the Inquiry
with evidence from both the main parties but without a landscape reason for refusal.
The Council maintains that was not an unreasonable position and, importantly, it
appeared to have been acceptable to that Inspector.
9. The Council points out that the subsequent Inspector appointed required that a
landscape reason for refusal be submitted to the Inquiry in the circumstances. The
Council believes that had they not done so, its concerns about the landscape and
visual impact of the proposals would have gone unaddressed at Inquiry.
10. The Council maintains that their landscape evidence was shared soon after it was
produced and that it built upon the advice note of their landscape witness. The
Council also highlights that the applicant’s landscape witness was instructed to
prepare landscape evidence and appear at the Inquiry as early as Spring 2024. At
that point she had already reviewed the Officer Report and the submitted
Landscape Visual Impact Assessment, having been first approached by the
appellant in January 2024. The Council argues that it is therefore clear that the
applicant was preparing evidence and intended that their landscape witness would
attend the Inquiry long before the supplementary landscape reason for refusal was
issued.
11. Overall, the Council maintains that it is not unreasonable to have introduced a late
supplementary reason for refusal in the circumstances and given what then
preceded, it could not have been a surprise the appellant. Nor does the Council
consider that such an action has resulted in unnecessary or wasted expense.
Reasons
12. Parties in planning appeals normally meet their own expenses. However, the PPG
advises that costs may be awarded against a party who has behaved unreasonably
and thereby caused the party applying for costs to incur unnecessary or wasted
expense in the appeal process.
13. Article 35(b) of the Town and Country Planning (Development Management
Procedure) (England) Order 2015 states that where planning permission is refused,
the notice must state clearly and precisely their full reasons for refusal, specifying
all policies and proposals in the development plan which are relevant to the
decision. This is reiterated by the PPG.
14. The Planning Inspectorate’s Procedural Guide: Planning Appeals – England
requires the submission of a full statement of case containing all the details and
arguments and must set out both the planning and legal arguments which the Local
Planning Authority is putting forward as to why they consider planning permission
should be refused.
15. Furthermore, the PPG cites examples of unreasonable behaviour as including the
introduction of fresh and substantial evidence at a late stage necessitating an
adjournment, or extra expense for preparatory work that would not have arisen; and
prolonging the proceedings by introducing a new reason for refusal.
16. My predecessors clearly responded to the situation concerning landscape
character and appearance matters as it was put to them at the time. Indeed in
recognising the interplay between this supplementary matter and some of the
formal reasons for refusal, clarity was sought on the scope of the Council’s case.
Crucially, in accepting landscape as a main issue in the appeal, my immediate
predecessor did so having warned the Council of the potential for costs being
awarded against them.
17. The Council clearly introduced a supplementary reason for refusal on landscape
character and appearance grounds. They did so in the knowledge that the PPG
requires any decision notice to include a full and precises articulation of its reasons
for refusal and the risk of costs being awarded against them. This action was taken
by the Council despite the Landscape Statement of Common Ground having
initially confirmed that there were no unacceptable impacts on the character and
appearance of the landscape and visual environment.
18. Moreover, the supplementary reason for refusal was introduced at a date
substantially beyond the date the decision notice was published and well within the
period leading up to the previously scheduled inquiry sessions.
19. By the point of my appointment to the Inquiry, landscape and visual considerations
had been accepted by the main parties as a main issue for the appeal; witnesses
corralled; and all evidence prepared on that basis to be presented under cross-
examination.
20. By then, the Council’s revised stance had already caused the applicant’s witness to
upgrade and expand upon what would otherwise have been able to be a much
more narrowly focused written proof evidence in response to matters pertaining to
the setting of heritage assets, the Green Belt and the statutory duty for National
Landscapes.
21. Furthermore, the change in the Council’s position led to 2 full days of evidence
giving and cross-examination and time was expended in preparation for that and
the site visit. After hearing this and conducting my site visit, I concluded that the
appeal proposal would cause limited and localised harm to landscape character
and appearance which will not transpose as harm to the Chilterns National
Landscape. Whilst an unfavourable matter for the planning balance, it is not an
issue which has been determinative to the appeal. In that sense, my findings are
not inconsistent with the Council’s initial assessment outcome which informed the
scope of the original reasons for refusal set out in the decision notice.
22. For all of these reasons, unreasonable behaviour resulting in unnecessary and
wasted expense has occurred in respect of the preparation and giving of evidence
relating to the matters pertaining directly to the supplementary landscape character
and appearance reason for refusal and a partial award of costs is therefore
warranted.
Costs Order
23. In exercise of the powers under section 250(5) of the Local Government Act 1972
and Schedule 6 of the Town and Country Planning Act 1990 as amended, and all
other enabling powers in that behalf, IT IS HEREBY ORDERED that Dacorum
Borough Council shall pay to [APPELLANT], the costs of the
appeal proceedings described in the heading of this decision, limited to those costs
incurred in the appellant responding to the supplementary landscape character and
appearance reason for refusal; such costs to be assessed in the Senior Courts
Costs Office if not agreed.
The applicant is now invited to submit to Dacorum Borough Council, to whom a
copy of this decision has been sent, details of those costs with a view to reaching
agreement as to the amount.
C Dillon
INSPECTOR


Costs Decision
Inquiry held between 5 February 2025 and 6 March 2025
Site visit made on 5 and 7 March 2025
by C Dillon BA (Hons) MRTPI
an Inspector appointed by the Secretary of State
Decision date: 5th August 2025
Costs application in relation to Appeal Ref: APP/A1910/W/24/3345435
Land west of Leighton Buzzard Road, Hemel Hempstead HP1 3LP
• 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 Hertfordshire County Council for a partial award of costs against Fairfax
Strategic Land (Hemel) Ltd.
• The inquiry was in connection with an appeal against the refusal of planning permission for
development proposed.
Decision
1. The application for an award of costs is refused.
The submissions for Hertfordshire County Council
2. The costs application was submitted in writing. The application was made following
the appellant’s refusal to include individual liability for all obligations, and notably
the financial obligations entered into in favour of the County Council under a
section 106 legal agreement.
3. In summary, unreasonable behaviour is claimed because the County Council
considers that there has been a resistance to, or lack of co-operation on the
appellant’s part in providing information, discussing the application or appeal in
relation to the drafting of a section 106 agreement.
4. The County Council believes that the appellant has sought, by maintaining its
position, to place additional unnecessary expenditure on the public purse.
5. They also claim that the appellant has provided information to the appeal about the
disputed liability clause that is manifestly inaccurate or untrue.
6. The partial award sought relates to the costs in the negotiation and preparation of
documents pursuant to section 106 of the Town and Country Planning Act (1990).
This includes the costs of preparing for and attending the round table session.
The response by [APPELLANT]
7. The response was made in writing.
8. In summary, the appellant draws attention to the fact that in general, all parties to
an appeal are expected to behave reasonably to support a timely and efficient
process.
9. The appellant notes that the County Council’s costs application was first advertised
by email on 6 March 2025, the day after the round table at which the planning
obligations were discussed. The prospect of an application was not aired at the
round table session and nor did they inform the appointed Inspector that they were
going to make a costs application before closings were heard, as envisaged by
Planning Practice Guidance (PPG).
10. The appellant asserts that the costs application is simply an attempt to re-air the
points which the County Council made at the round table session and does not
disclose any unreasonable behaviour on the appellant’s part and as such the costs
claim against them should be refused.
11. In particular, the appellant highlights that given the County Council’s claim is based
on a procedural ground and the alleged unreasonable behaviour must relate to
behaviour in relation to completing the appeal process. However, the substance of
the County Council’s claim focusses on substantive matters regarding the merits of
the appellant’s position on the section 106 legal agreement.
12. The Appellant points out that contrary to the County Council’s assertions, that they
have engaged in negotiations on the section 106 agreement since July 2024 and
have submitted drafts of it to the inquiry in accordance with the Inspector’s
timetable, including in circumstances where the County Council had failed to
provide comments in time. The appellant firmly maintains that there has been no
lack of cooperation insofar as negotiations are concerned, nor did they refuse to
negotiate wording on the disputed clause. The applicant considers that this is
amply demonstrated by both parties’ submitted chronology.
13. The appellant firmly maintains that there has been no resistance to, or lack of
cooperation in relation to the disputed point of liability. They draw attention to the
fact that they have explained their position many times; equally, the County Council
maintained its position throughout negotiations. The appellant highlights that the
County Council failed to mention the relevant Chiswell Green Decision1 or to
consider its position in light of that. It is argued that the fact the parties have been
unable to reach agreement on the matter of individual liability does not mean that
the appellant has behaved unreasonably.
14. The appellant argues that in order to make out substantive unreasonableness, by
analogy, the County Council will have to demonstrate that the appellant’s position
in relation to individual liability had no reasonable prospect of succeeding and is
unarguable. They maintain that it is irrelevant that other developers may have
accepted the County Council’s position on other appeals; the question is whether
the appellant’s stance on this appeal was unreasonable. They argue that simply
cannot be the case, in light of the Chiswell Green Decision and the findings of the
Inspector and Secretary of State concerning the County Council’s standard wording
in that case.
15. The appellant reaffirms, as explained at the round table session, that the County
Council’s preferred wording is not appropriate here because references to limiting
and restricting occupation of dwellings against individuals does not make it clear
whether or not the County Council could still enforce against individuals. They point
out that there is no confirmation from mortgage lenders that the market position is
not as the appellant has set it out. They also point out that in any event, now the
1 Ref: CD 8.28
unilateral undertaking contains a blue pencil clause, they are entitled to put forward
its preferred wording.
16. The appellant firmly states that as to the inclusion of a ‘blue pencil’ clause, the
County Council is attempting to elevate a passing observation of the Inspector in
the Chiswell Green appeal into a procedural rule. The appellant highlights that
there is no bar to parties who are unable to agree a particular provision of a section
106 raising the matter before an Inspector at an inquiry regardless of whether that
provision concerns substantive obligations or other provisions.
17. The appellant maintains that the purpose of a round table session is for each party
to present its position, to allow the Inspector to determine the issue, not an attempt
to reach agreement on the wording of the section 106 obligation. The blue pencil
clause is the mechanism by which the Inspector may make that determination.
18. The appellant states that for the purpose of this appeal, it has to be assumed that
the County Council will enforce any planning obligation to which it is party. If the
developer sells dwellings in breach of its obligations, it is for the County Council to
take enforcement action at that stage against the land owner (whether the original
developer or its successor) and thereby protect itself from any risk. However, the
County Council’s indication that it would not, in fact, seek to enforce against
individual occupiers means that their argument about placing additional
unnecessary expenditure on the public purse goes nowhere.
19. The appellant maintains that it accepts that it is liable to pay the County Council’s
reasonably incurred costs and provided an undertaking to that effect, up to the sum
of £12,000, on 21 January 2025. They dispute that they have refused to provide
any increased undertaking since 7 January 2025. They confirm that the County
Council’s request was not accepted for the reasons set out in the note provided to
the Inquiry2 and the County Council has not provided any satisfactory explanation
as to why the extensive increase in costs sought is justified.
20. In terms of the argument that the County Council is entitled to its costs of preparing
for and attending the round table session, the appellant states that the County
Council was not summoned to the inquiry and so section 250(2) Local Government
Act 1972 has no application here. The County Council attended the round table
session to explain its position to the Inspector, which it voluntarily and properly did.
The appellant points out that the first time that wording was discussed was at the
round table session. It is untenable to the appellant to suggest that their behaviour
necessitated the round table session.
21. The appellant points out that there is no rule that a party who attends a round table
session in these circumstances should have its costs met by the appellant at a
planning inquiry, and for good reason: such a rule would prevent the fair negotiation
of planning obligations by incentivising appellants to agree to unsatisfactory
wording to avoid further costs exposure.
22. Finally, the appellant argues that the application made by the County Council
against them is a further example of unreasonable behaviour on the part of the
County Council.
2 Ref: ID8
Reasons
23. In general, all parties to an appeal are expected to behave reasonably to support a
timely and efficient process. They normally meet their own expenses. However, the
PPG advises that costs may be awarded against a party who has behaved
unreasonably and thereby caused the party applying for costs to incur unnecessary
or wasted expense in the appeal process.
24. The Appeals section of the PPG states that 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. It
cites examples of unreasonable behaviour which may result in a procedural costs
award against a local authority. This includes a lack of co-operation with the other
party or parties. The examples cited in the PPG in both respects are
non-exhaustive.
25. In assessing the appellant’s separate costs claim of unreasonable behaviour on the
County Council’s part, I have found that the chronology of events before me
demonstrates a clear unwillingness on the County Council’s part to engage
constructively with the appellant to reach a compromise to assist my adjudication
on the disputed point. In determining the appeal which gave rise to this application
for costs, I rejected the County Council’s approach to liability for necessary
planning obligations for the reasons set out in my Decision. Had the appellant not
been tenacious in its resolve to provide a legal agreement with the particular blue
pencil clause, then appeal would have failed, and delivery of much needed housing
would have been delayed.
26. Given the basis of the County Council’s own application for costs against the
appellant, the alleged unreasonable behaviour must relate to behaviour in
completing the appeal process. However, the substance of the County Council’s
claim focusses on the merits of the appellant’s position.
27. From the chronology put before me it is clear that the appellant has engaged in
negotiations on the legal agreement since July 2024 and has submitted drafts of it
to the Inquiry in accordance with the Inspectors’ timetable; including in
circumstances where the County Council had failed to provide comments in time. In
doing so, there is no evidence of a lack of cooperation on the appellant’s part
insofar as negotiations are concerned, including in relation to the disputed point of
liability.
28. The appellant has explained their position many times; equally, the County Council
maintained its position throughout negotiations. It is part of the course with appeals
that matters may remain in dispute. I accept that a party is entitled to maintain a
particular stance on the drafting of legal agreements.
29. However, the County Council has not demonstrated to me that the appellant’s
position in relation to individual liability had no reasonable prospect of succeeding
and is unarguable. The fact the parties have been unable to reach agreement on
the matter of individual liability does not in itself mean that the appellant has
behaved unreasonably, particularly in light of the findings of the Inspector and
Secretary of State on the Chiswell Green Decision concerning the County Council’s
standard wording.
30. The County Council has attempted to elevate a passing observation of the
Inspector in the Chiswell Green appeal into a procedural rule. However, there is no
bar to parties who are unable to agree a particular provision of a legal agreement
raising the matter before an Inspector at an inquiry, regardless of whether that
provision concerns substantive obligations or other provisions.
31. Furthermore, the County Council has not demonstrated that the fact that other
developers may have accepted their position on other appeals, given the apparent
differences between the Tring3 and Chiswell Green Decisions, is a basis to claim
unreasonable behaviour on the appellant’s part. Other section 106 agreements
may make different provisions regarding individual liability. However, the motivation
of an appellant to agree to the County Council’s wording; what subsequent
‘workarounds’ were required; and the issues that drafting may have caused on
financing of the site or for individual purchasers, have not been disclosed to this
Inquiry.
32. The County Council was not summoned to the Inquiry and so section 250(2) Local
Government Act 1972 has no application here. The County Council attended the
round table session to explain its position to me, which it voluntarily and properly
did. There is no rule that a party who attends a round table session in these
circumstances should have its costs met by the appellant at a planning inquiry, no
doubt for good reason.
33. The purpose of a round table session is for each party to present its position, to
allow the Inspector to determine the issue. Whilst at times concessions will be
made, it is not an efficient use of Inquiry time to rely upon such sessions as the
arena for reaching agreement on a technical matter such as the wording of a legal
agreement. Rather, the blue pencil clause is a pragmatic mechanism by which the
Inspector may make that determination based on the evidence put before them. As
such, the County Council’s attendance was not a result of any unreasonable
behaviour on the appellant’s part.
34. The appellant accepts that they are liable to pay the County Council’s reasonably
incurred costs and provided an undertaking to that effect. It is simply a case that
the County Council has not provided any satisfactory explanation as to why the
extensive increase in cost sought thereafter is justified. That is not an unreasonable
expectation of the appellant.
35. For all of the reasons given above, unreasonable behaviour resulting in
unnecessary or wasted expense for the County Council as applicant has not
occurred and an award of costs is not warranted.
C Dillon
INSPECTOR
3 Ref: APP/A1910/W/22/3309923