Brook Green appeal dismissed!

Appela dismissed

Appeal decision in full

Inspector’s recommendation and summary of the decision

  1. I am directed by the Secretary of State to say that consideration has been given to the
    report of Richard Clegg BA(Hons) DMS MRTPI, who held a public local inquiry on 4, 5,
    7,11-14, 18, 19 & 21 September 2018 into your client’s appeal against the decision of
    Braintree District Council to refuse your client’s application for planning permission for up
    to 1600 residential dwellings, a local centre; a primary school site; employment land;
    public open space; and associated highway works with new accesses via Pods Brook
    Road and Rayne Road and demolition of Nos 27 & 29 Gilda Terrace, Rayne Road in
    accordance with application ref: 15/01538/OUT, dated 18 December 2017
  2. On 21 March 2018, this appeal was recovered for the Secretary of State’s determination,
    in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country
    Planning Act 1990.
    Inspector’s recommendation and summary of the decision
  3. The Inspector recommended that the appeal be dismissed, and planning permission
    refused.
  4. For the reasons given below, the Secretary of State agrees with the Inspector’s
    conclusions, and agrees with his recommendation. He has decided to dismiss the appeal
    and refuse planning permission. A copy of the Inspector’s report (IR) is enclosed. All
    references to paragraph numbers, unless otherwise stated, are to that report.
    2
    Environmental Statement
  5. In reaching this position, the Secretary of State has taken into account the Environmental
    Statement which was submitted under the Town and Country Planning (Environmental
    Impact Assessment) Regulations 2011 and the environmental information submitted
    before the inquiry. Having taken account of the Inspector’s comments at IR6, the
    Secretary of State is satisfied that the Environmental Statement and other additional
    information provided complies with the above Regulations and that sufficient information
    has been provided for him to assess the environmental impact of the proposal.
    Procedural matters
  6. The Secretary of State notes that at the pre-inquiry meeting, the Appellant agreed that
    the site is more clearly referred to as land north and south of Flitch Way, Pods Brook
    Road, Braintree, and the site has been identified accordingly in the appeal details above.
    The Appellant also agreed that the description of development should refer to 1600
    dwellings rather than 1600 residential dwellings. The Secretary of State also notes that
    at inquiry due to the relocation of the school, the Appellant advised that the proposal
    would provide up to 1500 dwellings. The Secretary of State has therefore considered the
    proposal on this basis. However, the Secretary of State does not consider that the issue
    that led to these changes raised any matters that would require him to refer back to the
    parties for further representations prior to reaching his decision on this appeal, and he is
    satisfied that no interests have thereby been prejudiced.
    Matters arising since the close of the inquiry
  7. On 5
    th March the Secretary of State wrote to the main parties to afford them an
    opportunity to comment on the following documents that had been published since the
    Inquiry took place: The Written Ministerial Statement on housing and
    planning, issued on 19 February 2019, the publication, on 19 February 2019, of the 2018
    Housing Delivery Test measurement by the local planning authority and a technical note
    on the process used in its calculation, the Government’s response to the technical
    consultation, the revised National Planning Policy Framework published on 19 February
    2019 and updates to the national planning policy and guidance, also published 19
    February 2019, the updated guidance for councils on how to assess their housing
    needs published on 20 February 2019. On 15th March the Secretary of State also wrote
    to the main parties outlining that the January update figures provided by Braintree
    Council had been replaced with a new set of revised figures as of 5 March. A list of
    representations received in response to these letters is at Annex A. These
    representations were circulated to the main parties on 28 March 2019. Copies of these
    letters may be obtained on written request to the address at the foot of the first page of
    this letter. The Secretary of State has taken the representations into account in
    reaching his decision, and no other new issues were raised in this correspondence to
    warrant further investigation or necessitate additional referrals back to parties
    Policy and statutory considerations
  8. In reaching his decision, the Secretary of State has had regard to section 38(6) of the
    Planning and Compulsory Purchase Act 2004 which requires that proposals be
    determined in accordance with the development plan unless material considerations
    indicate otherwise.
    3
  9. In this case, the adopted development plan for the area comprises the Braintree District
    Council Local Development Framework Core Strategy (CS), the saved policies of the
    Braintree District Review Local Plan, the Essex Minerals Local Plan and the Braintree
    District Council Proposals Map. The Secretary of State considers that the development
    plan policies of most relevance to this case include those set out at IR 24 to IR 31.
    10.Other material considerations which the Secretary of State has taken into account include
    the National Planning Policy Framework (‘the Framework’) and associated planning
    guidance (‘the Guidance’). The revised National Planning Policy Framework was
    published on 24 July 2018 and further revised in February 2019, unless otherwise
    specified, any references to the Framework in this letter are to the 2019 Framework.,
    11.In accordance with section 66(1) of the Planning (Listed Buildings and Conservation
    Areas) Act 1990 (the LBCA Act), the Secretary of State has paid special regard to the
    desirability of preserving those listed buildings potentially affected by the proposals, or
    their settings or any features of special architectural or historic interest which they may
    possess.
    12.In accordance with section 72(1) of the Planning (Listed Buildings and Conservation
    Areas) Act 1990 (the LBCA Act), the Secretary of State has paid special attention to the
    desirability of preserving or enhancing the character or appearance of conservation
    areas.
    Emerging plan
    13.The emerging plan comprises the Braintree Local Plan outlined in the Inspectors Report
    at IR 32 to IR 35. The Secretary of State considers that the emerging policies of most
    relevance to this case include those set out in IR32 to IR35.
    14.Paragraph 48 of the Framework states that decision makers may give weight to relevant
    policies in emerging plans according to: (1) the stage of preparation of the emerging plan;
    (2) the extent to which there are unresolved objections to relevant policies in the
    emerging plan; and (3) the degree of consistency of relevant policies to the policies in the
    Framework. The Secretary of State notes that on 8 June 2018, the Inspector for the
    emerging Local Plan wrote to the three local planning authority areas covered by the Part
    1 Examination, setting out his views as to the further steps he considered necessary in
    order for the Section 1 Plan to be made sound and legally-compliant, and seeking views
    on options to pursue these matters. A joint response from the three authorities dated 19
    October proposed suspending the Examination until February 2019, with a view to sitting
    again in June. In the light of these letters, and for the reasons given in IR32 to IR35 the
    Secretary of State agrees with the Inspector that only limited weight should be given to
    the BNLP.
    Main issues
    Heritage Assets
    15.The Secretary of State notes that the Inspector found that development towards the
    western end of the appeal site would be within the setting of listed buildings and also
    Rayne conservation area. He agrees with the Inspector that the settings of Church of All
    Saints and the conservation area would not be adversely affected (IR 177 to IR 179).
    However, for the reasons given in IR 172 to IR 176 the Secretary of State concludes that
    the setting of the listed building, Naylinghurst, would be moderately adversely affected.
    4
    Having regard to paragraph 196 of the Framework, the Secretary of State agrees with the
    Inspector that this would represent less than substantial harm to its significance. The
    Secretary of State considers that the harm to the significance of Naylinghurst carries
    great weight as the ability to appreciate the listed building in its agricultural context would
    be diminished (IR 174).
    Character, appearance and separation of Braintree and Rayne
    16.For the reasons given in IR 182 to IR 197 the Secretary of State agrees with the
    Inspector that the proposal would cause harm to the character and appearance of the
    area, including a residual effect of major-moderate significance in the wider Landscape
    Character Area A12, and a substantial adverse effect arising from the loss of the appeal
    site itself. The Secretary of State further agrees with the Inspector that the loss of views
    and open outlook from the Flitch Way and the public footpaths crossing parcel B would
    both suffer a major adverse impact. Taken together, these harms attract considerable
    weight.
    17.The Secretary of State notes that the appeal site lie
    5
    conclusions below, the Secretary of State did not consider it necessary to further refer
    back to parties on this issue.
    21.The Secretary of State has reviewed the material published on 11 April and has also
    considered the representations of parties made on this issue in response to his letters of
    5 and 15 March.
    22.Planning Practice Guidance states that in principle an authority will need to be able to
    demonstrate a five years land supply at any point to deal with applications and appeals,
    unless it is choosing to confirm its five years land supply, in which case it need
    demonstrate it only once per year. Paragraph: 038 Reference ID: 3-038-20180913
    23.In this case, the authority has not ‘confirmed’ its five years land supply. Paragraph 74 of
    the National Planning Policy Framework sets out that this can only be carried out through
    a recently adopted plan (defined in footnote 38 of the Framework) or subsequent annual
    position statement. In the circumstances, the Secretary of State has considered the latest
    evidence before him.
    24.Having reviewed the housing trajectory published on 11 April, the Secretary of State
    considers that the evidence provided to support some of the claimed supply in respect of
    sites with outline planning permission of 10 dwellings or more, and sites without planning
    permission do not meet the requirement in the Framework Glossary definition of
    “deliverable” that there be clear evidence that housing completions will begin on site
    within five years. He has therefore removed ten sites from the housing trajectory.
    25.The Secretary of State considers that, bearing this definition in mind, the authority is able
    to demonstrate 4.15 years supply. The Secretary of State considers that the delivery of
    housing and affordable housing on this site to contribute to the five years supply is an
    important contribution to which he attaches significant weight.
    Travellers site
    26.The Secretary of State agrees with the Inspector (IR 208) that the proposal would assist
    in the contribution to meeting the need for Traveller accommodation and would be
    consistent with the local plan policy representing a benefit of the proposal, the Secretary
    of State considers that this merits modest weight.
    Primary school education contribution, open space and sports facilities
    27.For the reasons given in IR 221 the Secretary of State agrees with the Inspector that the
    provision of a primary school within the site would be of limited benefit as the majority of
    the provision would be needed for the proposed development, and only a small number
    of school places would be available for the wider community. Therefore, the Secretary of
    State considers that the provision of a primary school on site attracts limited weight. The
    Secretary of State also notes the Inspectors findings (IR 222) that a minimum of 17.65ha
    of open space would be provided over the site. The Secretary of State considers that the
    open space would no doubt be used by existing residents, but its purpose is essentially to
    ensure a satisfactory standard of development, he therefore only gives this limited
    weight.
    The local centre, employment land and economic considerations
    28.For the reasons given in IR 224 the Secretary of State agrees with the Inspector’s
    findings that the local centre would primarily serve the new residential development he
    6
    therefore considers this carries limited weight in support of the scheme. For the reasons
    given in IR 225 and IR 226 the Secretary of State agrees with the Inspector that the
    economic benefits of the proposal carry moderate weight as the benefits outlined are of a
    generic nature which would apply equally to any large housing scheme.
    Planning conditions
    29.The Secretary of State has given consideration to the Inspector’s analysis at IR 230 to
    IR 232, the recommended conditions set out at the end of the Inspectors Report and the
    reasons for them, and to national policy in paragraph 55 of the Framework and the
    relevant Guidance. He is satisfied that the conditions recommended by the Inspector
    comply with the policy test set out at paragraph 55 of the Framework. However, he does
    not consider that the imposition of these conditions would overcome his reasons for
    dismissing this appeal and refusing planning permission.
    Planning obligations
    30.Having had regard to the Inspector’s analysis at IR228 and IR229, paragraph 56 of the
    Framework, the Guidance and the Community Infrastructure Levy Regulations 2010, as
    amended, the Secretary of State agrees with the Inspector’s conclusion for the reasons
    given in IR 229 that the obligation proposed, but not signed (Core Document 6.9 of the
    Inquiry documents), complies with Regulation 122 of the CIL Regulations and the tests at
    paragraph 56 of the Framework. However, the Secretary of State does not consider that
    the obligation overcomes his reasons for dismissing this appeal and refusing planning
    permission.
    Planning balance and overall conclusion
    31.For the reasons given above, the Secretary of State considers that the appeal scheme is
    not in accordance with CS1, CS4, CS5, CS7, CS8, CS9, RLP 53, RLP 80, RLP 84,
    RLP90, RLP95, RLP 100, RLP 140 and S8 of the development plan, and is not in
    accordance with the development plan overall. He has gone on to consider whether there
    are material considerations which indicate that the proposal should be determined other
    than in accordance with the development plan.
    32.The Secretary of State has concluded that Braintree are not able to demonstrate a five
    year housing land supply. Framework paragraph 11(d) of the Framework indicates that
    in these circumstances planning permission should be granted unless: (i) the application
    of policies in the Framework that protect areas or assets of particular importance
    provides a clear reason for refusing the development proposed; or (ii) any adverse
    impacts of doing so significantly and demonstrably outweigh the benefits, when assessed
    against policies in the Framework taken as a whole.
    33.The Secretary of State has considered whether the identified ‘less than substantial’ harm
    to the significance of Naylinghurst is outweighed by the public benefits of the proposal, as
    required by paragraph 196 of the Framework. He has found that great weight should be
    attributed to this harm. Against this, the benefits of the scheme in the form of housing
    provision and affordable housing carry significant weight, economic benefits carry
    moderate weight and limited weight attaches to benefits in terms of sustainable travel
    measures, surplus school places, open space provision, and the local centre and
    employment land which form part of the scheme. In total and weighed against the harm
    to the significance of Naylinghurst, the Secretary of State finds that the public benefits do
    7
    outweigh the harm to the significance of Naylinghurst, and that the Framework paragraph
    196 test is therefore favourable to the proposal.
    34.Having carried out the balancing exercise in framework paragraph 196, the Secretary of
    State concludes that there are no policies under 11 d) i that provide a clear reason for
    refusing the development. He has gone on to consider whether the adverse impacts of
    granting permission would significantly and demonstrably outweigh the benefits, when
    assessed against policies in the Framework taken as a whole.
    35.In addition to the great weight to be attached to the harm to the significance of
    Naylinghurst, the Secretary of State has found that the effect of major-moderate
    significance in the wider Landscape Character Area A12 carries at least moderate
    weight, and the substantial adverse effect arising from the loss of the appeal site itself,
    carries considerable weight, as does the loss of views and open outlook from the Flitch
    Way and the public footpaths crossing parcel B. Moderate weight is also given to the
    effect the development will have on the separation of Braintree and Rayne, all weighing
    against the proposal.
    36.In favour of the proposal are the benefits as set out in paragraph 33 of this letter.
    37.Overall, the Secretary of State concludes that the adverse impacts of granting permission
    would significantly and demonstrably outweigh the benefits, when assessed against
    policies in the Framework taken as a whole. He therefore concludes that there are no
    material considerations which indicate that the proposal should be determined other than
    in accordance with the development plan.
    Formal decision
    38.Accordingly, for the reasons given above, the Secretary of State agrees with the
    Inspector’s recommendation. He hereby dismisses your client’s appeal and refuses
    planning permission for up to 1500 residential dwellings, a local centre; a primary school
    site; employment land; public open space; and associated highway works with new
    accesses via Pods Brook Road and Rayne Road and demolition of nos 27 & 29 Gilda
    Terrace, Rayne Road.
    Right to challenge the decision
    39.A separate note is attached setting out the circumstances in which the validity of the
    Secretary of State’s decision may be challenged. This must be done by making an
    application to the High Court within 6 weeks from the day after the date of this letter for
    leave to bring a statutory review under section 288 of the Town and Country Planning Act
    1990.
    40.A copy of this letter has been sent to Braintree District Council, and notification has been
    sent to others who asked to be informed of the decision.

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